The National Cable & Telecommunications Association and its largest member, Comcast, defended the FCC in court Monday, or at least in court filings, intervening in support of the FCC's reform of pole attachment rates.
American Electric Power Service, one of utilities facing reduced payments under the FCC reform, filed suit in the U.S. Court of Appeals for the D.C. Circuit, arguing the FCC had erred in lowering rates utility pole owners can charge for telecom service (as much as $20 per foot per year) to about the same as the cable/information services rate of about $7 per foot per year. The FCC also voted to boost wireless access to poles and to set a deadline for utility companies to allow attachments (CTIA: The Wireless Association joined NCTA in the brief supporting the FCC.
NCTA et al argue that the FCC was within its authority to lower the telecom rate, which at closer to the cable rate still compensates utility companies, they said, particularly on top of one-time payments pole users must also make to connect to the poles. They also pointed out that basing payments on service classifications is potentially dicey since "the formal classification of many services in the Internet age can be unpredictable, fiercely contested, and disconnected from the commercial realities of today's marketplace." The higher cable rate has also been a perverse incentive for cable operators not top offer the services that could trigger it if they are classified as telecom, they point out.
The FCC's reforms benefit cable, but the commission's goal was to speed broadband deployment, which is also a goal of the Administration and Congress. "The FCC may pursue congressional policy directives-such as promoting broadband deployment-where, as here, Congress specified no cost methodology, the Commission's rates are more than compensatory, and they fall well "within a zone of reasonableness," they told the court.
American Power still has a chance to reply, after which oral argument will likely be scheduled for sometime before the beginning of May, according to one communications attorney following the case.
