Stop making broadband builders bankroll someone else’s problem
by Bartlett Cleland · The Washington TimesOPINION:
Here is a principle so basic, so universal that it just might be bipartisan: You shouldn’t have to pay to fix someone else’s mess.
That commonsense idea sits at the heart of a recent Federal Communications Commission ruling that every policymaker, utility executive and broadband advocate in America should read carefully.
In Comcast v. Appalachian Power Co., the FCC unanimously found that Appalachian Power, a subsidiary of American Electric Power, was requiring broadband providers to pay for preexisting safety violations on utility poles unrelated to the new attacher.
This wasn’t a close call. The commission held that American Electric Power’s policy violated more than two decades of settled law, FCC rules and basic cost-causation principles. It was right.
When Comcast sought access to poles in Virginia — many of which were part of its Broadband Equity, Access, and Deployment program-funded build-out to connect unserved rural communities — American Electric Power required payment of 100% of the pole replacement cost upfront.
Yet the poles were already out of compliance because of violations caused by other preexisting attachers or simple aging. The harm to the poles was not Comcast’s fault.
American Electric Power’s only concession? A potential 50% refund — if and when the party that caused the violation decided to make things right.
That is not reasonable cost sharing. That is demanding that someone else fix your infrastructure problem on their dime. It’s a requirement that someone else build their business so they can sell it right back to you.
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The FCC saw through it. The commission reaffirmed what it has held consistently since 1999: New attachers are responsible for the incremental costs of accommodating their own equipment, and nothing more. They cannot be charged to fix violations they did not cause.
The 2018 rulemaking that codified this principle was not ambiguous. A utility “may not charge a new attacher to bring poles into compliance” when those poles were already out of compliance because of another party’s actions. Simple.
What makes this ruling particularly significant is what it says about accountability at scale. American Electric Power is not a small operation trying to navigate complex federal rules on a limited budget. It is a sophisticated, large-scale enterprise with significant market power.
When a company of that size constructs a policy that systematically shifts compliance costs onto broadband builders, regulators are right to take notice — and to act.
The choice to construct such a barrier has consequences. Comcast’s deployment efforts in Virginia include federally subsidized builds specifically aimed at closing the digital divide in rural and underserved communities. Pole access disputes such as this one are not administrative nuisances; they are material barriers to deployment.
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Every month lost to a cost fight over who pays for someone else’s safety violation is a month that families and businesses in rural Virginia go without broadband.
Free market advocates should not make a knee-jerk judgment here. The pole attachment regime exists precisely because utilities hold a natural monopoly over infrastructure that competitors cannot replicate (and which the public probably does not want them to replicate).
When that position is used to extract costs from market entrants that the law says they don’t owe, enforcement is the appropriate response. That is not regulatory overreach. It is the system working as intended.
The FCC deserves credit for moving quickly. Its Rapid Broadband Assessment Team engaged early and attempted mediation, and when that failed, the full commission acted on an accelerated basis.
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The message to all pole owners is clear: The FCC is engaged, and practices that obstruct broadband deployment will have consequences.
Still, the FCC cannot litigate every pole dispute one complaint at a time. State legislators, public utility commissions and governors’ offices must act.
The cost-causation principles the FCC reaffirmed here should be the baseline expectation in every state. States that fail to align their pole attachment regimes with federal standards are not protecting their utilities; they are simply causing delay, erasing affordability and hampering innovation.
Broadband deployment creates jobs, drives economic growth and connects communities left behind. The FCC has drawn a clear line. Policymakers at every level should enforce it.
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• Bartlett Cleland is executive director of the Innovation Economy Institute.