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WIRELESS ANTENNAS ON DISTRIBUTION POLES The Final Frontier

WIRELESS ANTENNAS ON DISTRIBUTION POLES The Final Frontier. Presented to the Florida Utilities Coordinating Committee Marco Island Florida July 14, 2006 Raymond A. Kowalski Troutman Sanders LLP, Washington DC 202-274-2927 Raymond.Kowalski@troutmansanders.com. Washington, DC

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WIRELESS ANTENNAS ON DISTRIBUTION POLES The Final Frontier

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  1. WIRELESS ANTENNAS ON DISTRIBUTION POLESThe Final Frontier Presented to the Florida Utilities Coordinating Committee Marco Island Florida July 14, 2006 Raymond A. Kowalski Troutman Sanders LLP, Washington DC 202-274-2927 Raymond.Kowalski@troutmansanders.com

  2. Washington, DC Representation of Energy Clients Defense of Pole Attachment Complaints Filed with FCC, State Commissions This Presentation Will Be Impartial

  3. Why the Final Frontier? • 10 Years of Law and Policy Regarding Linear Attachments by Cable and Telecom • Little Law and Policy Regarding Wireless Attachments • Nat’l Cable & Telecomms. Ass’n v. Gulf Power Co., 122 S. Ct. 782 (2002), Established the Right to Attach • Omnipoint v PECO Energy Company, 18 FCC Rcd 5484 (March 25, 2003), “the pole attachment formula presumptions may be modified or adjusted in order to address unique attachments associated with wireless systems.” • E.g., Attachment Presumed to Occupy 1 Foot of Space • FCC Public Notice (DA 04-4046, December 23, 2004) Regarding Placement at Top of Poles and not Charging “Access Fees” in Addition to Rent and Make-Ready

  4. Wireless Attachments Have No Federal Access Rights to: • Transmission Structures • Utility’s • Buildings • Rooftops • Communications Towers or Poles

  5. Reasons Not to Put Wireless Antennas on Distribution Poles • Maximum Height Is Rarely More than 45’ • Poles Are Ideally Suited to Bear Downward Forces Associated with Copper Wire, not Lateral Forces Associated with Antennas • Even without Wireless Antennas, Poles May Come Down: • In Storms • From Impacts by Vehicles • Antennas at Pole Top May not Be Accessible by the Antenna Owner • Antennas Must be De-energized for Work by Electric Utility or Linear Attachers to Avoid Exposure to Radio Frequency Energy • Electric Power Facilities Are “Noisy” Environments for Radio Signals

  6. Reasons Why Wireless Companies Put Antennas on Poles Anyway • The Regulated Rate Is Much Cheaper than the Market Rate for Communications Towers • Fill In Dead Spots in Coverage Area • It’s Cheaper than Towers • Towers Cost a Lot More • Because They Can

  7. The Pole Attachments Act47 U.S.C. § 224 • In States – like Florida – Where Disputes over Pole Attachments Are Regulated by the FCC: • The Rates, Terms and Conditions of the Pole Attachment Agreement . . . • . . . Must Be Just and Reasonable • But Note: States Have Jurisdiction over Safety, Reliability, Capacity & Engineering Practices, even if They Have not Preempted FCC Jurisdiction to Resolve Disputes • Considerable Florida Law & Regulation

  8. Open Issues • Rental Rate • Pole Top Access • Installation, Maintenance & Repair • RF Cut-Off Switch • Prior Notification • Prior Review of Antenna Types by Utility • Training of Utility Field Personnel • Location of Power Supplies Off-Pole

  9. Worth Noting • Separate Agreement for Wireline or Microwave Backhaul • Separate Agreement for Purchase of Power • FCC Rules Apply to “Antenna Support Structures” • Florida PSC’s “Hardening” Dockets

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