AT&T Prompts Florida PSC to Punt on Pole Attachments

The PSC must finalize the dispute rules before it can reverse preempt FCC pole attachment authority as required by a 2021 state law. PSC Senior Attorney Kathryn Cowdery said staff would probably bring the item back for the PSC’s March 1 or April 5 meeting. A March vote could allow the PSC to vote on notifying the FCC about reverse preemption as soon as at the state agency's May 3 meeting if there aren’t more delays.

“We want to get this right,” said Chairman Andrew Fay, noting the commission met its statutory deadline to propose rules and faces no deadline to finalize them. Fay scolded AT&T for the lateness of its filing. Commissioner Gary Clark said he wishes the company came to the table sooner but is willing to take more time to find compromise because there's “probably no one more affected here than AT&T.”

General Counsel Keith Hetrick urged acting now on the staff proposal and two minor wording edits suggested by AT&T that other parties didn’t mind. As to the carrier’s four other suggestions, “We feel pretty strongly that they are vague and arbitrary and enlarging upon the statute,” Hetrick said. “That language will probably be a nonstarter for a lot of the parties, and so we’ll have to come up with alternative language. And I don’t think based on what we’ve seen and how much we’ve put into this that we’re going to get anywhere.”

Commission staff proposed changes last week, negotiated with the cable industry to resolve a challenge to unanimously adopted Nov. 2 complaint rules by the Florida Internet and Television (FIT), Atlantic Broadband, Comcast, Charter Communications and Cox Communications (see 2201250038). Under that Jan. 25 staff proposal, the PSC would consider the FCC rate formula a default standard when assessing pole attachment rate disputes.

AT&T sought more edits in Monday's letter in docket 20210137. A complainant seeking to use an alternative rate would have to "state in detail the legal and factual basis for its view that" the alternative method “yields” a just and reasonable cost-based rate. “Pleading with particularity is the better practice for putting the commission and other parties on notice of the action sought and the basis for the request,” AT&T explained.

“Let’s get it right, not fast,” said AT&T outside attorney Jon Moyle at Tuesday’s meeting: The carrier wasn’t part of recent talks and wants to ensure rules are clear and precise.

Staff’s Jan. 25 proposed changes would give more detail about what information should be filed with complaints, said Cowdery. They would be consistent with commission authority and legislative direction and wouldn’t change the proposed rule’s intent, the staff counsel said. Staff has no problems with the first and fifth wording changes suggested in AT&T’s filing but doesn’t recommend four others that could add vagueness and ambiguity and subject the commission to challenges, she said.

Cable operators support AT&T’s proposed changes but isn’t “interested in blowing up an agreement,” FIT counsel Floyd Self of Berger Singerman told commissioners. If the commission adopted the Jan. 25 plan with the two staff-supported AT&T edits, cablers would withdraw their complaint about the original proposed rules, he said.

Requiring a legal basis for proposed alternative rate methods would be contrary to the 2021 Florida law, said Florida Power and Light Senior Attorney Maria Jose Moncada: FPL supports the PSC staff’s proposed changes with the two staff-supported AT&T edits.

Tampa Electric saw AT&T's filing only Tuesday morning, complained counsel Jeffry Wahlen of Ausley McMullen. The utility had been prepared to support staff’s Jan. 25 recommendation, he noted. “We’re kind of changing the tires while the car’s going down the road.”