FCC Denies Emergency Stay of Pole Attachment Order
The FCC has denied an emergency motion from utility companies to stay parts of its April pole attachments order (CD May 27 p10). The way is now set for a request for an injunction from the U.S. Court of Appeals for the D.C. Circuit, utility lawyers told us. American Electric Power Service, Duke Energy, Entergy Services, Florida Power & Light, Florida Public Utilities, Oncor Electric Delivery, Progress Energy, Southern and Tampa Electric did not meet “any of the four prongs” required to demonstrate the need for a stay, Wireline Bureau Chief Sharon Gillett wrote in an order released late Wednesday. The four elements, similar to the standard set for a court injunction, require a petitioner to demonstrate that it’s likely to prevail on the merits, that it “will suffer irreparable harm,” that “other interested parties will not be harmed if the stay is granted” and that “the public interest” favors a stay, Gillett said.
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The same companies have already filed a challenge with the D.C. Circuit, claiming that rules in the order “exceed or are inconsistent with the FCC’s jurisdiction and statutory authority, violate the Administrative Procedure Act, and are arbitrary, capricious, an abuse of discretion or otherwise contrary to law.” The power companies’ lawyer Eric Langley declined to say which parts of the order he and his clients will challenge or whether they will actually seek an injunction.
Under the April order, the FCC reinterpreted language in Sections 224(a) and (b) to lower CLEC pole attachment rates and to give ILECs a chance to challenge their rates (CD April 8 p3). Utility company lawyers have made clear that they object to the new interpretation. Other power companies are also weighing court challenges (CD May 10 p1). “It’s not a shocker that the FCC thinks its Pole Attachment decision is wonderful,” Keller and Heckman utility lawyer Jack Richards said in an email. “What remains to be seen is whether the court will agree, and whether the Commission will be open to tweaking its decision on reconsideration to try and make it more workable for the electric utility industry.”
Gillett said the power companies “have not shown that they would suffer irreparable harm in the absence of a stay because the harms they allege are either speculative, purely economic in nature, or insubstantial.” Meanwhile, a stay “would deny those attachers the benefit of the lower rate and could factor into their decisions whether to offer new, advanced services. This, in turn, has the potential to deny customers the benefits of new advanced services and competition. In sum, we find that the Petitioners have not demonstrated that the balance of equities warrants a stay."
Tw telecom had urged the commission to reject the emergency stay. It attacked directly the power companies’ arguments over Section 224. The “Petitioners seem to assume that the cable companies’ attachments rates are governed by the statutory language in Section 224(d). … But this is not the case,” tw lawyer Thomas Jones wrote. “The vast majority of cable companies use pole attachments to provide commingled services. Such attachments are governed by Section 224(b). That provision only requires that pole attachment rates are just and reasonable.” We couldn’t reach Jones to ask whether his client would intervene in the appellate case.