On June 5, 2023, Florida governor Ron DeSantis signed into law HB1221, subjecting rural electric cooperatives to pole attachment regulation by the Florida Public Service Commission (“FPSC”) if they provide broadband service.
Specifically, the law mandates that if an electric cooperative provides broadband service “directly, through an affiliate, or pursuant to an agreement with a third party,” or if the cooperative accepts state or federal funding to expand broadband service to unserved areas in Florida, then the cooperative’s poles will be subject to the FPSC’s pole attachment regulations applicable to investor-owned electric utilities.
Florida’s new legislation comes almost a year after the state decided to assume pole attachment regulation over investor-owned utility (“IOU”) poles from the FCC, which had regulated access to those poles for approximately 40 years. Florida’s HB1221 also follows several recent state-level efforts to regulate access to poles owned by electric cooperatives (especially those that have entered the competitive broadband field), including in Tennessee, South Carolina, Pennsylvania, Georgia, and Alabama.
State regulation of electric cooperatives fills a gap in federal law, which exempts electric cooperatives from federal pole attachment rules and leaves electric cooperatives largely free to impose unreasonable – and often anticompetitive – pole rates and conditions on broadband providers. More than 250 electric cooperatives today are either providing broadband or planning to. In Florida today, five of the state’s 18 electric cooperatives are providing or developing broadband service. Without regulations requiring nondiscriminatory pole access, cooperatives could (and sometimes do) favor their own broadband service by, among other things, imposing onerous rates and requirements on competing broadband providers that rely on attachments to the cooperatives’ poles. That was the case in South Carolina, where, earlier this year, the Public Service Commission there found that an electric cooperative improperly denied Charter Communications reasonable pole access by requiring it adhere to clearance standards that far exceeded those of the National Electrical Safety Code.
Before passage of HB1221, Florida maintained the same regulatory exemption for electric cooperative poles as Federal law. But with the new law, if an electric cooperative in any way provides broadband service, then it will now be subject to Florida’s pole attachment rules. Under Florida law, a party’s right to nondiscriminatory access to a pole is “identical to the rights afforded under 47 U.S.C. § 224(f)(1),” and a pole owner “may deny access to its poles on a nondiscriminatory basis when there is insufficient capacity, for reasons of safety and reliability, and when required by generally applicable engineering purposes.” The FPSC’s implementing regulations, in turn provide that, if a pole attachment complaint is filed, the FPSC will apply the rates, terms, and conditions using the FCC’s rules and orders, unless a party establishes by competent substantial evidence that an alternative, cost-based rate is “just and reasonable and in the public interest.”
HB1221 also grants the FPSC access to an electric cooperative’s books and records to the extent necessary to enforce the pole attachment rules. The legislation, however, exempts from regulation valid pole attachment agreements in existence before July 1, 2023, but only until the agreements either expire or are terminated.
