Before the STATE OF CONNECTICUT PUBLIC UTILITY REGULATORY AUTHORITY

Before the STATE OF CONNECTICUT PUBLIC UTILITY REGULATORY AUTHORITY In the Matter of ) ) Fiber Technologies, L.L.C. s Petition ) ) Docket No. 11-11-02 for Authority Investigation of Rental Rates ) ) Charged to Telecommunications Providers ) ) by Pole Owners ) COMMENTS OF PCIA THE WIRELESS INFRASTRUCTURE ASSOCIATION AND THE DAS FORUM (A MEMBERSHIP SECTION OF PCIA) By: /s/ Michael T.N. Fitch, Esq. President and CEO Jonathan Campbell Director, Government Affairs D. Zachary Champ Government Affairs Counsel Kara Leibin Azocar Policy Analyst 901 N. Washington St., Suite 600 Alexandria, VA 22314 P (703) 739-0300 F (703) 836-1608 February 13, 2012

TABLE OF CONTENTS I. INTRODUCTION... 2 II. BACKGROUND... 3 A. Past Attempts to Resolve the Rate Dispute... 4 B. Fibertech s Petition for PURA Intervention in the Rate Dispute... 4 C. The DAS Forum and PCIA Support Fibertech s Petition... 5 III. DAS IS VITAL TO PUBLIC SAFETY, BROADBAND AND WIRELESS SERVICES... 6 IV. RECENT FCC PROMULGATED FORMULAS PROVIDE AN IMPROVED METHOD FOR CALCULATING RENTAL RATES CHARGED TO POLE ATTACHERS... 8 A. Historic FCC Regulation of Pole Attachments... 8 B. The NATIONAL BROADBAND PLAN s Call for Pole Attachment Rate Reform... 10 C. Recent FCC Amendments to the Rental Rate Calculation for Pole Attachments... 11 V. CONNECTICUT HISTORICALLY FOLLOWED FCC METHODOLOGIES FOR POLE RATES... 15 VI. BY STATUTE THE RATE CHARGED TO POLE ATTACHERS MUST BE JUST AND REASONABLE... 17 VII. CONCLUSION... 19 1

I. INTRODUCTION Pursuant to the Notice of Request for Written Comments and Reply Comments issued by the Public Utility Regulatory Authority ( PURA or Authority ), 1 PCIA The Wireless Infrastructure Association ( PCIA ) and The DAS Forum (a membership section of PCIA) respectfully submit these comments in response to Fiber Technologies, L.L.C. s November 7, 2011 Petition for Authority Investigation of Rental Rates Charged to Telecommunications Providers by Pole Owners ( Fibertech s Petition ). 2 As detailed herein, PCIA and The DAS Forum urge the PURA to revise the calculation of rates pole owners charge to telecommunications providers in the state of Connecticut, in accordance with the Federal Communications Commission s ( Commission or FCC ) Report and Order regarding pole attachments released April 7, 2011 3 and Fibertech s Petition, and clarify that it applies to wireless telecommunications pole attachers, including distributed antenna systems ( DAS ). Adopting the FCC s recently amended rate formula will ensure just and reasonable rates for pole attachment and spur deployment of advanced wireless services in the State of Connecticut, consistent with the PURA s policy goals. PCIA is the national trade association representing the wireless telecommunications infrastructure industry. PCIA s members own and manage more than 125,000 telecommunications towers and antenna structures across the country upon which cell sites can 1 Authority and PURA is herein used to refer to the State of Connecticut Public Utility Regulatory Authority, formerly the Department of Public Utility Regulation (DPUC). About Us, Department of Energy & Environmental Program, Public Utilities Regulatory Authority, available at http://www.ct.gov/pura/cwp/view.asp?a=3157&q=404410&puranav_gid=1702 (last visited Jan. 27, 2012). 2 Petition of Fiber Technologies Networks, L.L.C. For Authority Investigation of Rental Rates Charged to Telecommunications Providers by Pole Owners, PURA Docket No. 11-11-02 (November 7, 2011)( Fibertech Petition ). 3 Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, Report and Order and Order on Reconsideration, WC Docket No. 07-245, GN Docket No. 09-51, 26 FCC Rcd 5240, 1 (2011), available at http://fjallfoss.fcc.gov/ecfs/document/view?id=7021686856 ( FCC Pole Attachment R&O ). 2

be collocated. PCIA seeks to facilitate the widespread deployment of communications networks across the country, consistent with the mandate of the Telecommunications Act of 1996. The DAS Forum, a membership section of PCIA, is dedicated to the development of DAS and small cell solutions as elements of the nation s wireless infrastructure. The DAS Forum s members include DAS providers and CMRS carriers that construct, modify, own, operate, lease and manage distributed antenna system facilities nationwide. II. BACKGROUND In Connecticut, the PURA asserted its authority over the regulation of pole rates, terms and conditions. 4 The FCC regulates pole attachment rates, terms and conditions for states that have not asserted such regulatory authority. Nonetheless, the Commission s promulgated rules for pole attachments provide persuasive guidance for the State of Connecticut. The Authority historically accepted this fact, allowing the use of the FCC promulgated rate formulas for pole attachments and recognizing the efficiency and effectiveness of such rates. 5 The DAS Forum, PCIA and our members participated in past dockets with the Authority regarding DAS pole attachments. 6 Through extended negotiations, utility pole owners agreed to and formulated a Temporary Pole Attachment Guide and instituted a pilot program. In spite of the efforts of our members, pole attachers and pole owners were unable to agree on a resolution 4 Regarding 47 U.S.C. 224, the Department regulates the rates, terms, conditions and access to distribution poles and conduit of public rights-of-way for utility pole attachments. In accordance with the provisions of the Federal Communications Commission s (FCC) Rules 1.1414 (b), the states may certify to the FCC that they self-regulate matters relating to pole attachments. Connecticut is one of the states that regulates such matters. Decision, DPUC Investigation into the Deployment of Distributed Antenna System (DAS) in the Public Rights of Way in Connecticut, PURA Docket No.08-06-19, Sept. 29, 2010. 5 Decision, Application of the Southern New England Telephone Company to Amend its Rates and Rate Structure, PURA Docket No. 92-09-19, July 7, 1993 ( SNET 1992 Rate Decision ); Decision, Application of the Connecticut Light & Power Company to Amend its Rate Schedules, PURA Docket No. 09-12-05, June 30, 2010 ( 2009 CL&P Decision). 6 PCIA and The DAS Forum participated in DPUC Investigation into the Deployment of Distributed Antenna System (DAS) in the Public Rights of Way in Connecticut, PURA Docket No. 08-06-19, and DPUC Review Of The State's Public Service Company Utility Pole Make Ready Procedures, PURA Docket No. 07-02-13. 3

to disputes over rental rate formulas for pole attachment. PCIA and The DAS Forum urge the Authority to intervene to resolve the dispute in this proceeding. A. Past Attempts to Resolve the Rate Dispute In Docket No. 08-06-19, the Authority instructed pole owners and various attachers involved in the proceeding to work together to resolve the applicable attachment and equipment standards and specifications for DAS equipment and applicable rates for those DAS attachments. In the proceeding, the attacher side was represented by potential attachers including all the major wireless carriers, DAS providers and other affected parties, including PCIA. Eventually, both sides agreed on the specifications and standards. However, by April 2011, there was still no progress made on the rate disagreement. The pole owners stated at a working group meeting held April 13, 2011 that they were only interested in charging market-based rates a position strongly contested by the attaching parties and inconsistent with the FCC s newly established rate formula. 7 In addition, when asked for an indication of what those market-based rates would be, the pole owners refused to provide an answer, asking only that the parties submit what they were willing to pay. Further, the pole owners were unwilling to provide any transparency as to the rates agreed on or paid by any other party, which could result in discriminatory application of rates, or at least bring into question whether rates are applied on a non-discriminatory basis. During this proceeding, no material DAS networks were built, though there were likely many commercial opportunities. B. Fibertech s Petition for PURA Intervention in the Rate Dispute 7 Meeting Minutes, DPUC Investigation into the Deployment of Distributed Antenna System (DAS) in the Public Rights of Way in Connecticut, PURA Docket No. 08-06-19(April 13, 2011). 4

Fibertech petitioned the Authority to investigate the rental rates charged to telecommunications providers by utility pole owners. 8 Fibertech requests that the PURA exercise its authority to investigate the appropriateness of the formula used by utility pole owners to calculate recurring rental fees charged to Fibertech and all other certified telecommunications providers for attachments on utility poles in light of recent changes by the FCC to its pole rate formula. 9 Fibertech requests that the Authority revise pole attachment rental rates to achieve competitive neutrality and promote broadband deployment in accordance with recent rulings by the FCC. Further, Fibertech requests that the PURA order each pole owner in the State of Connecticut to utilize the FCC s revised formula for pole attachment rental rates. 10 C. The DAS Forum and PCIA Support Fibertech s Petition PCIA and The DAS Forum support Fibertech s Petition and urge the PURA to revise the telecom pole attachment rate formula currently utilized by pole owners in the State of Connecticut. The Authority gave the pole owners and DAS attachers an opportunity to resolve the dispute regarding pole attachment rates in Docket No. 08-06-19, and they failed to come to an agreement. Based on these circumstances, and given that both negotiations and deployment stand at a halt, the Authority must intervene and resolve the dispute. In doing so, the Authority should adopt the FCC s modified rental rate calculation for telecom pole attachments promulgated in its April 2011 Report and Order and clarify that it applies to DAS pole attachers. 8 Fibertech Petition at 6. 9 Id. At 7(a) 10 Id. 5

III. DAS IS VITAL TO PUBLIC SAFETY, BROADBAND AND WIRELESS SERVICES Wireless services, from basic voice communication to broadband, require dense deployment of wireless infrastructure. DAS, as a crucial part of the wireless network ecosystem, is vital to meeting growing need and demand for wireless services. The DAS Forum takes this opportunity to emphasize the importance of developing efficient and predictable processes for the attachment of wireless telecommunications facilities to utility poles attachments that comprise the bulk of the increasingly utilized outdoor DAS. Mobile Internet users are predicted to outnumber wireline users by 2015, when a majority of Americans will utilize a wireless device as their primary Internet access tool. 11 In the State of Connecticut, the percentage of adults living in wireless-only households has increased over 150% in the last few years. 12 Further, more than 70% of all emergency calls each day are placed with a wireless device. Without wireless infrastructure, the ability to access first responders is significantly hindered. As need and demand for wireless services increases, our nation s wireless infrastructure needs will also grow, demanding the expansion and augmentation of wireless infrastructure. The Connecticut Academy of Science and Engineering recommended that the state of Connecticut monitor and work to expand broadband services because broadband is a major driver of the global economy, and an engine of growth for the state that enables innovation. 13 Unfortunately, the build out of infrastructure is often subject to persistent and costly 11 Hayley Tsukayama, IDC: Mobile Internet users to outnumber wireline users by 2015, WASHINGTON POST, available at http://www.washingtonpost.com/blogs/post-tech/post/idc-mobile-internet-users-to-outnumber-wirelineusers-by-2015/2011/09/12/giqakzp7mk_blog.html?wprss=post-tech (last accessed December 5, 2011). 12 Stephen J. Blumberg, Ph.D., et al., Wireless Substitution: State-level Estimates From the National Health Interview Survey, January 2007 June 2010, National Health Statistics Reports Number 39, at Table 1 (April 20, 2011). 13 Connecticut Academy of Science and Engineering, Key Points: Guidelines for the Development of a Strategic Plan for Accessibility to and Adoption of Broadband Services in Connecticut, available at http://ctcase.org/reports/case_broadband_keypoints.pdf (last accessed January 30, 2012). See also Janice 6

barriers, such as the unpredictable costs and lengthy disputes that result from the current pole attachment rate formula regime in the State of Connecticut. Analysts anticipate that global mobile data traffic will increase 26-fold between 2010 and 2015. The Commission and Congress have recognized a growing and significant deficit of spectrum sufficient for wireless service providers to meet future capacity and coverage demands, specifically for wireless broadband services. 14 As a supplement to macro-level siting, DAS is a near-term solution to the dearth of spectrum for wireless communications and wireless broadband. DAS increases capacity and coverage through the use of many antennas, each with a relatively small and localized footprint. Utilizing many antennas with isolated signals allows each antenna in a given deployment to use the same spectrum bands. In outdoor environments, DAS antennas are typically mounted on existing structures, primarily utility poles, to improve capacity and coverage. DAS network architecture relies on the ability and cost of placing antennas at regular intervals at elevations of approximately 30 to 40 feet above ground level. By locating antennas at the tops of utility poles, DAS providers are able to utilize existing infrastructure that is already capable of accommodating the attachment. The cost of and ability to quickly deploy this technology determines its utility and efficiency. The Authority must act to ensure that telecom attachers, which include wireless attachers, are afforded access to utility infrastructure at just and reasonable rates, terms and conditions as Podsada, Science Academy Urges Creation of State Board to Oversee Broadband; Industry Says Hands Off, HARTFORD COURANT, January 27, 2012, available at http://www.courant.com/business/hc-ct-strategic-broadbandplan-20120125,0,3269995.story (last accessed January 30, 2012). 14 Chairman Julius Genachowski Remarks, Jobs and the Broadband Economy, LivingSocial Washington DC, at 6-7 (Sept 27, 2011) ( Sept. 27, 2011 Chairman Remarks ), available at http://transition.fcc.gov/daily_releases/daily_business/2011/db0927/doc-309898a1.pdf. See NOI, 26 FCC Rcd at 5404 (Statement of Chairman Julius Genachowski). Congress recognized the need for a broadband initiative in the 2009 stimulus bill, which funded the Broadband Technologies Improvement Program at the Department of Commerce and the Broadband Initiatives Program at the Department of Agriculture and directed the FCC to prepare the NATIONAL BROADBAND PLAN. American Recovery and Reinvestment Act, Pub. L. No. 111-5, 123 Stat. 115, 516 (2009). 7

mandated by Section 224 of the Telecommunications Act. 15 DAS is an essential input into a holistic strategy to achieve wireless and broadband deployment goals, but is often burdened and stifled by utility pole owners who impose unjust rates. Today, the largest obstacle to DAS deployment, and as a result to the deployment of critical wireless services such as wireless broadband, is the lack of access to utility poles at equitable rates. The Authority has the power to resolve this problem and must do so, consistent with Fibertech s Petition. IV. RECENT FCC PROMULGATED FORMULAS PROVIDE AN IMPROVED METHOD FOR CALCULATING RENTAL RATES CHARGED TO POLE ATTACHERS The rates charged for DAS attachments are unclear and thus prohibitively high under the current rate formula for pole attachers providing telecommunications service. The Authority should adopt the FCC s recently amended formula for pole attachments used by telecommunications carriers, which is based on a cost recovery methodology that establishes a low, uniform rate. A. Historic FCC Regulation of Pole Attachments Congress first directed the Commission to ensure that the rates, terms and conditions for pole attachments by cable television systems ( CATV ) were just and reasonable in 1978 when it added section 224 to the Communications Act. 16 In a series of orders, the Commission implemented a formula that cable television system attachers and utilities could use to determine a minimum and maximum allowable just and reasonable pole attachment rate referred to as the 15 47 U.S.C. 224(b)(1). 16 Pole Attachment Act of 1978, Pub. L. No. 95-234, 92 Stat. 33, codified at Communications Act of 1934, as amended; 47 U.S.C. 224. Congress reacted to an apparent need in the cable television industry to resolve conflicts between such providers, then known as CATV systems, and utility pole, duct, and conduit owners over the charges for use of such facilities. See generally 1977 Senate Report, reprinted in 1978 U.S.C.C.A.N. 109. 8

cable or CATV rate formula and procedures for resolving rate complaints. 17 The Commission set the minimum at a fee reflecting the additional costs incurred by the pole owners by reason of the attachment and the maximum at a fee reflecting a percentage of the total operational and capital costs associated with the pole itself. Congress expanded the reach of section 224 in the 1996 Act to promote infrastructure investment and competition. Among other things, Congress added provider[s] of telecommunications service[s] as a category of attachers entitled to pole attachments at just and reasonable rates, terms and conditions under section 224, 18 and added section 224(e), which provides a methodology to govern the charges for pole attachments used by telecommunications carriers to provide telecommunications services. 19 Section 224(e) provides for the determination of pole attachment rates based on the cost of providing space on a pole. 20 The statute explained how the costs should be divided, or allocated, between the pole owner and attacher. 21 By virtue of the 1996 Act revisions, section 224 of the Act set forth two separate methodologies to determine the maximum rates for pole attachments one applies to pole attachments used by telecommunications carriers ( the telecom rate formula ) and the other to pole attachments used solely to provide cable service ( the cable or CATV rate formula ). 22 As the Commission implemented these statutory formulas, the telecom rate formula generally resulted in higher pole rental rates than the cable rate formula. 23 17 FCC Pole Attachment R&O 127-129. 18 47 U.S.C. 224(a)(4), (b)(1). 19 47 U.S.C. 224(e)(1) (4). 20 47 U.S.C. 224(e)(2). 21 47 U.S.C. 224(e)(2) (3). 22 47 U.S.C. 224(d), (e). 23 See 47 C.F.R. 1.1417 18. See also Fibertech Petition at 19; FCC Pole Attachment R&O 130-131. 9

The difference between the cable and telecom rate formulas is how they allocate the costs associated with the unusable portion of the pole the space on a pole that cannot be used for attachments. 24 The cable and telecom rate formulas both allocate the costs of usable space on a pole based on the fraction of the usable space that an attachment occupies. Under the cable rate formula, the costs of unusable space are allocated in the same way. 25 Under the telecom rate formula, however, two-thirds of the costs of the unusable space is allocated equally among the number of attachers, including the owner, and the remaining one third of these costs is allocated solely to the pole owner. This leads to a result where each attacher under the cable rate formula, other than the pole owner, pays about 7.4% of the annual cost of a pole, while each attacher under the telecom rate formula pays about 11.2% to 16.9% of the annual cost of a pole. 26 B. The NATIONAL BROADBAND PLAN s Call for Pole Attachment Rate Reform The FCC s NATIONAL BROADBAND PLAN (PLAN) identified as one of its Goals for a High Performance America that [t]he United States should lead the world in mobile innovation, with the fastest and most extensive wireless networks of any nation. 27 Yet, the PLAN also recognized that this goal was not feasible without infrastructure deployment, noting that [b]roadband is the great infrastructure challenge of the early twenty-first century. 28 To overcome this challenge, the PLAN devoted an entire chapter to infrastructure deployment, urging the government to take steps to improve utilization of existing infrastructure to ensure 24 Compare 47 C.F.R. 1.1409(e)(1) with 47 C.F.R. 1.1409(e)(2). 25 See 47 U.S.C. 224(d). 26 FCC Pole Attachment R&O n. 399. ( These rates are based on the Commission s rebuttable presumptions of 37.5 feet for the height of a pole, 24 feet for the unusable space on a pole, 13.5 feet for the usable space, 1 foot for the space occupied by an attachment, 3 attachers in non-urban areas, and 5 attachers in urban areas. ) 27 Federal Communications Commission, CONNECTING AMERICA: THE NATIONAL BROADBAND PLAN 9 (Mar. 16, 2010) ( NATIONAL BROADBAND PLAN ). 28 Id. at XI. 10

that network providers have easier access to poles, conduits, ducts and rights-of-way. 29 The PLAN recognized the disparity between the rates charged for different pole attachments, and the consequential impact on deployment. The PLAN recommended that the FCC should establish rental rates for pole attachments that are as low and close to uniform as possible..., 30 and the Commission followed suit with its April 2011 order amending pole attachment rate formulas. C. Recent FCC Amendments to the Rental Rate Calculation for Pole Attachments The DAS Forum and PCIA support a rate structure that encourages broadband deployment while justly compensating pole owners for use of their infrastructure. The FCC s recent Report and Order regarding pole attachments, released April 7, 2011, incorporates cost recovery principles to accomplish these goals. 31 The FCC revised the pole attachment rules to improve the efficiency and reduce the potentially excessive costs of deploying telecommunications, cable and broadband networks, in order to accelerate broadband buildout. 32 The Commission identified a range of possible rates, from the current application of the telecom rate formula at the upper end, to an alternative application of the telecom rate formula based on cost causation principles at the lower end. Within that range, the Commission sought to balance the goals of promoting broadband and other communications services with the historical role that pole rental rates have played in supporting the investment in pole infrastructure, and thus defined the cost to pole owners on that basis. 33 The Report and Order established a new pole 29 Id. at 109. 30 NATIONAL BROADBAND PLAN at 110. 31 FCC Pole Attachment R&O at 1. 32 Id. 33 FCC Pole Attachment R&O at 135 11

rental rate for pole attachments, so that attachments to poles by any telecommunications carrier or cable operator providing telecommunications services utilized the same rate. The Commission confirmed explicitly that wireless services, including DAS, are telecommunications services, and that the new pole attachment rate applies to wireless attachments, meaning that under the revised formula pole owners may only charge DAS providers the same rate as it charges other telecommunications providers. 34 In effect, the FCC s recent ruling modified the cost element of the existing telecom rate, such that the new definition of cost results in a cost recovery that is virtually equal to the cable rate. The Report and Order established two different standards for cost: (1) in urban areas, 66 percent of the fully allocated costs; (2) in non-urban areas, 44 percent of the fully allocated cost. 35 The FCC s new pole attachment rate methodology substantially reduced telecommunications pole attachment rates, to a level essentially equal to the rental fees charged to CATV attachers, establishing a low, uniform reasonable cost recovery rate. 36 The full rate formula is provided below. The maximum just and reasonable rate shall be the higher of the rate yielded by #1 or #2 below: 34 Id. at 153. 35 Id. at 149. An urban service area has a population of at least 50,000, and a non-urban area has a population of fewer than 50,000. Id. at n. 449. 36 FCC Pole Attachment R&O 126, 176-177. 12

#1 - The following formula applies to the extent that it yields a rate higher than that yielded by the applicable formula in #2. Rate = Space Factor x Cost Where Cost: In Urbanized Service Areas = 0.66 x (Net Cost of a Bare Pole x Carrying Charge Rate). An Urban Service Area has a population of at least 50,000. In Non-Urbanized Service Areas = 0.44 x (Net Cost of a Bare Pole x Carrying Charge Rate) Space 2 UnusableSpace Occupied 3 No. of Attaching Entities Where Space Factor Pole Height #2 - The following formula applies to the extent that it yields a rate higher than that yielded by the applicable formula in #1. Maintenance and Administrative Rate Space Factor Net Cost of a Bare Pole CarryingCharge Rate Space 2 Unusable Space Occupied 3 No.of AttachingEntities WhereSpace Factor PoleHeight The FCC found that reasonable pole attachment rates are crucial to broadband deployment, and sought to resolve that issue with this revised rate formula. The Commission, in its discussion of the disparities between the cable rate and the telecom rate, noted a finding in a previous proceeding that a mere $3.00 difference between different rate formulas amounted to a 13

disparity of hundreds of millions of dollars, creating a true barrier to wireless infrastructure deployment. 37 The Commission also found that a lack of regulatory certainty and high cost leads to decreased investment, agreeing with commenters that there is uncertainty surrounding future attachment... [and] risk that the additional cost of extra pole capacity... would not be recovered, deterring deployment of advanced telecommunications and wireless systems. 38 Finding that widely disparate pole rental rates distort infrastructure investment decisions and negatively affect the availability of advanced services and broadband, the FCC determined that a low and more uniform rate will reduce disputes and costly litigation... that distort attachers deployment decisions. 39 The Commission took the opportunity in its April 2011 Report and Order regarding pole attachments to encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans... by utilizing, in a manner consistent with the public interest, convenience, and necessity... regulating methods that remove barriers to infrastructure investment. 40 While DAS deployments are undoubtedly on the rise as a supplement to traditional macro-siting, the revised rate methodology implemented by the Commission better serve[s] the public interest by making broadband and other advanced services more widely available, because it spurs investment in accelerating broadband deployment. At the same time, the new rate formula ensures that pole owners receive fair, cost-based compensation. The new rate formula promulgated by the FCC provides certainty for 37 Id. at 175 (citing In re: Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, Order and Further Notice of Proposed Rulemaking, WC Docket No. 07-245, GN Docket No. 09-5, at 116 (May 20, 2010)). 38 Id. at 188 39 FCC Pole Attachment R&O 174, April 7, 2011 40 FCC Pole Attachment R&O at 173 (citing to 47 U.S.C. 1302(a)). 14

rates, upon which wireless attachers and pole owners alike can rely on to ensure just and reasonable treatment and reduce disputes over rates that are costly in both time and expense. V. CONNECTICUT HISTORICALLY FOLLOWED FCC METHODOLOGIES FOR POLE RATES This proceeding gives the Authority an opportunity to follow the Commission s example and take action to facilitate the deployment of advanced communications services in Connecticut by ensuring just and reasonable rates for telecom pole attachments. As early as 1992, the Authority found that the issue of pole attachment rates requires periodic reevaluation and, as recently as 2005, the Authority recognized that it is far from clear as to whether the price differential between the cable and telecommunication attachment fee is due to any real reflection of increased costs. 41 In a number of recent decisions, the State of Connecticut committed itself to adopt policies mimicking or furthering the policies of the Commission. 42 In its 2008 Pole Make-Ready Procedure Order, the Authority explained that, in light of the changing Connecticut telecommunications market, it sought to ensure equal access to poles to all telecommunications providers and promote competition, 43 much like recent FCC s policy decisions confirming that DAS providers have a right to access pole tops and establishing a make ready procedure with timelines, terms and dispute resolution procedures. 44 In a 2009 decision, the Authority vowed to 41 Decision, Petition of United Illuminating Company for a Declaratory Ruling Regarding Availablity of Cable Tariff Rate for Pole Attachments by Cable Systems Providing Telecommunications Services and Internet Access, PURA Docket No. 05-06-01, December 14, 2006, at5. 42 See generally CL&P 2009 Rate Decision; Decision, Petition of United Illuminating Company for a Declaratory Ruling Regarding Availability of Cable Tariff Rate for Pole Attachments by Cable Systems Providing Telecommunications Services and Internet Access, PURA Docket No. 05-06-01, December 14, 2006 ( UI Decision ). 43 Decision, DPUC Review of the State s Public Service Company Utility Pole Make-Ready Procedure, PURA Docket No. 07-08-13, April 30, 2008 at 26 ( 2008 PURA Decision ). 44 FCC Pole Attachment R&O 19-89. 15

maintain a policy supporting the FCC s National Broadband Plan. 45 As explained in detail above, the PLAN urged the FCC to facilitate pole attachments, recognizing the disparity between the rates charged for different pole attachments and the consequential impact on the deployment of advanced wireless infrastructure solutions, such as DAS. The PLAN recommended low, uniform rental rates for pole attachments. The Authority also approved use of past FCC developed formulas for pole attachment rates. In 1992, the Authority found that FCC promulgated formulas consistently fell within a reasonable range and offered a significant improvement. In that order, the Authority allowed use of the FCC s cable attacher rates. 46 In 2009, the Authority permitted pole owners to use the FCC formula for the calculation of telecommunications pole attacher rates. 47 In its decision, the Authority noted that Connecticut s pole attachment rulings had mirrored the FCC s federal policies and utility pole attachment processes and determined that it would continue to enforce more efficient and effective utility pole attachment agreements and intends to provide equitable access to the public rights of way. 48 The Authority should continue follow FCC policy by adopting the amended pole attachment rate formula for telecom pole attachers, including DAS pole attachers. Charging telecommunications providers a higher rate for the same kind of pole attachments as cable attachers, and the lack of clarity evidenced in Docket No. 08-06-19 regarding what rate applies to DAS, conflicts with the PURA s goal to enforce more efficient and effective utility pole 45 CL&P 2009 Rate Decision 137. 46 SNET 1992 Rate Decision at 8. 47 CL&P 2009 Rate Decision. 48 CL&P 2009 Rate Decision at 136-137. 16

attachment polices and its commitment to the FCC policies, especially the NATIONAL BROADBAND PLAN. VI. BY STATUTE THE RATE CHARGED TO POLE ATTACHERS MUST BE JUST AND REASONABLE By federal statute, the rate charged to pole attachers must be just, reasonable and based on the costs of adding the attachment. 49 The current formulas to calculate pole rates in the State of Connecticut have resulted in a higher fee being charged to telecommunications providers by the pole owners than to cable attachers, without a justification for the difference in rates. In contravention of the federal mandate otherwise and as established above, the Authority recognized that it is far from clear why a price differential exists and whether it is due to increased costs. 50 The current rate regime also resulted in a lack of clarity regarding what rate DAS providers should be charged for pole attachments, as evidenced by the standoff in Docket No. 08-06-19. Like other attachments, telecom pole attachments, including DAS, should not constitute an additional revenue stream for the utility pole owners. As established above, a low, uniform rate for DAS attachments will ensure that deployment is not unnecessarily impeded. Some utility pole owners attempt to justify inflated rates for DAS attachments because they utilize the pole top, which is a scarce space each pole only has one top. However, all attachments occupy space on a pole to the exclusion of any other attachment, so the location on the pole should not be relevant the rental rates charged to the attacher. Moreover, many poles are available for attachment in any given area, so there may be many accessible pole tops for a given deployment. 49 47 U.S.C. 224 (b)(1). 50 UI Decision at 5. 17

PCIA and The DAS Forum urge the Authority eliminate the disparity between pole attachment rental rates for telecom and cable pole attachers by adopting the FCC s recent ruling setting forth a low, uniform rate formula for telecom pole attachments that results in virtually the same rate as cable attachments. The FCC s new formula for telecom pole attachers creates just and reasonable rates for pole attachment, based on the costs associated, consistent with federal law. PCIA and The DAS Forum also urge the Authority to clearly articulate that telecommunications services include DAS, such that the revised telecom pole attachment rental rate applies to DAS pole attachments. 18

VII. CONCLUSION For the foregoing reasons, PCIA and The DAS Forum request that, consistent with Fibertech s petition, the Authority amend the calculation of telecom pole attachment rates in Connecticut to reflect the FCC s amended telecom pole attachment rate formula and clarify that this rate applies to DAS pole attachments. Respectfully submitted, PCIA THE WIRELESS INFRASTRUCTURE ASSOCIATION and THE DAS FORUM (A MEMBERSHIP SECTION OF PCIA) By: /s/ Michael T.N. Fitch, Esq. President and CEO Jonathan Campbell Director, Government Affairs D. Zachary Champ Government Affairs Counsel Kara Leibin Azocar Policy Analyst 901 N. Washington St., Suite 600 Alexandria, VA 22314 February 13, 2012 19