Joint Use & Pole Attachments

Balch & Bingham has represented electric utility clients in regulatory matters, litigated disputes and contract negotiations since its inception. A natural outgrowth of this representation was significant work in the unique, often regulated relationship between electric utilities (as pole owners) and cable/communications companies (as third-party attachers). Through the years, Balch attorneys have advocated the interests of electric utility clients on joint use and pole attachment matters before state and federal regulatory bodies, before legislators, in contract negotiations with attachers, and at the trial and appellate levels in both state and federal courts. Balch attorneys also work as “team members” with joint use professionals on a wide variety of issues, ranging from day-to-day counseling to long term planning.

Balch understands how joint use fits into a utility’s portfolio from a business, regulatory, engineering and political perspective. Specific areas of joint use practice include the following:

• Contract Development Negotiation
• FCC Complaint Proceedings
• Rulemaking Comments/Evidence/Advocacy
• Substantive Support to State and Federal lobbying efforts
• Policy Development
• Regulatory Compliance
• Audit Planning/Implementation
• Standards Development
• Smart Grid Implementation
• Contract Management
• Collection Actions
• Rate Analysis/Strategies
• Trial and Appellate Work
• Process Development/Implementation
• State Regulatory Proceedings

Joint use is a dynamic field. Over the past decade, there have been significant changes in both the legal and business relationships between electric utilities and communications companies. Balch works with its joint use clients to manage the regulatory and practical issues in a way that comports with the business strategies and objectives of a particular client. We look for opportunities to maximize joint use revenue and protect the company’s distribution assets (and interests, where applicable) while evaluating the risk/reward of certain actions.

Different electric utilities have different priorities. What may be a “hot” issue to one utility may be a non-issue to another. From our perspective, the “hot” issues are the issues which are, or soon may be, important to our clients. The issues we are currently following on a national level include:

• The appellate challenges to portions of the FCC's April 2011 pole attachments order
• The recent surge in state-level pole attachment regulatory activity
• The implementation of the FCC's April 2011 pole attachments order 
• The shifting sands in traditional joint use relationships between electric utilities and incumbent local exchange telephone companies 
• The renewed focus on pole top wireless antenna attachments, including access parameters and rate development 
• The implementation of Smart Grid technologies and its impact on pole attachment issues
• State-level efforts to regulate the rates, terms and conditions of access to poles owned by electric cooperatives and municipalities
• The potential for "new" states to join the list of states which regulate pole attachments
• The regulatory classification of broadband, and broadband enabled service like Voice over Internet Protocol (“VoIP”).

REPRESENTATIVE MATTERS 

• Contract Negotiation: work with numerous electric utilities on negotiation of joint use and pole attachment agreements, including negotiation with state cable associations on state-wide, uniform agreements
• Rulemaking Proceedings: work with numerous electric utilities on strategy, written comments and ex parte communications in FCC pole attachment rulemaking proceedings
• FCC Complaint Proceedings: work with various electric utilities on defense of FCC pole attachment complaint proceedings, including preparation of written pleadings, evidentiary submissions, participation in FCC mediations and evidentiary hearings
• Trial Court Litigation: work with various electric utilities in state and federal court litigation to recover unpaid/underpaid pole attachment rentals from CATV, ILEC and other attaching entities
• Appellate Work:  work with numerous electric utilities on various appeals of pole attachment matters, ranging from appeals of complaint proceeding decisions to appeals of final orders in rulemaking proceedings
• Rate Strategies: work with numerous electric utilities on development of pole attachment and joint use rates for various types of attachments, including both regulated and unregulated relationships