Smaller and midsized cable/broadband operators have asked the FCC to reject an effort by electric utilities to limit refunds to operators in pole attachment complaint proceedings, saying the FCC has clearly established that state rules about breach of contract claims applied in pole attachment complaint proceedings.
The Edison Electric Institute (EEI) petitioned the FCC for a declaratory ruling that the Communications Act trumps state statutes of limitations on such complaints--which involve the rates, terms and conditions of such attachments--and that refunds in those complaints should only apply from a period following good faith notice of a dispute.
But ACA Connects, which represents those small and midsized operators, begs to differ, it told the FCC this week. "Commission precedent and its rules further provide that a complainant in a pole attachment complaint proceeding may seek and receive relief, if warranted, going back for the entire statute of limitations period prior to the date of the complaint—not merely for a prospective period that commences with 'good faith notice' of a dispute," it said in its official opposition to the EEI petition, adding: "Because EEI's petition for declaratory relief is unfounded and procedurally flawed, the Commission should dismiss it without further consideration."
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ACAC says the FCC has made clear that pole attachment complaints are similar to breach of contract actions, which means state statutes should apply in the states where the poles are placed.
EEI counters that pole attachment rate complaints are attempts to seek relief "outside the terms of their contracts," and that applying different state statutes would be "discriminatory, [and] lead to highly variable results, and regulatory uncertainty."
ACAC says that argument does not hold water.
