Davis Wright Tremaine LLP

On Monday August 12, the Federal Communications Commission (FCC) Enforcement Bureau issued a Memorandum Opinion and Order in MAW Communications, Inc. v. PPL Electric Utilities Corp., finding that PPL had unlawfully denied access to PPL poles located in the City of Lancaster, Pennsylvania. DWT filed the denial of access complaint in February 2019 on behalf of MAW.

Communications seeking an order requiring PPL to process MAW’s pending pole attachment applications under the FCC’s new complaint procedures, which require the FCC to act on an access complaint within 180 days.

The applications were filed in connection with MAW’s partnership with the City of Lancaster to rebuild the City’s fiber network, known as LanCity Connect. At present, LanCity Connect has between 250 and 300 customers. MAW is a family-owned and operated telecommunications provider based in Reading, Pennsylvania providing service to Berks and Lancaster counties over its network of 4,500 strand miles of fiber.

PPL Ordered to Process Applications

The Order finds that PPL violated Section 224(f) and FCC rule 1.1403(a), and orders PPL to respond to MAW’s 142 long-pending applications, covering approximately 1,000 attachments, under the newly effective (as of May 20, 2019) pole attachment timeframes, which the FCC deems to have started running on the date the order was issued. MAW had attached its facilities as part of a rebuild of Lancaster’s municipal broadband offering using the attachment locations previously occupied by the city.

Prior to DWT’s engagement, PPL sued MAW in county court alleging breach of contract and had obtained preliminary injunctive relief in the form of an order requiring MAW to file applications for all attachments PPL claimed were unauthorized, permitting PPL to remove existing attachments, and preventing MAW from attaching to PPL’s poles or accessing existing attachments without consent.

MAW promptly submitted applications for all of the attachments. Nevertheless, under cover of the court order, PPL refused to process the applications (citing a payment dispute between the parties), began dismantling MAW’s network, and denied multiple requests by MAW to perform maintenance on its attached facilities.

Key Takeaways from the Decision

  • The Order finds that PPL did not rebut MAW’s prima facie showing that it is a telecommunications carrier (MAW’s CPCN), finding PPL’s assertion that it was not providing telecommunications service because MAW’s Lancaster project website describes the service as a “Community-Based Broadband Solution,” without further evidence from PPL, was insufficient.
  • The Order reaffirmed the Kansas City Cable Partners holding that a denial cannot be based on nonpayment of disputed charges and went on to reject PPL’s claim that MAW had to remove all of its alleged unauthorized attachments (for which applications had since been filed) as part of a “holistic solution.”
  • The ruling stated “The reasons PPL has offered for this refusal [of access]—MAW’s failure to pay past charges or escrow amounts or to present a ‘holistic solution’ to disputed matters—run afoul of section 224(f) of the Act and rule 1.1403(a), which permit a denial of access for reasons of insufficient capacity, safety, reliability, and generally applicable engineering purposes, but not simply for nonpayment of a disputed claim,” and “PPL is obligated to process MAW’s applications in accordance with the requirements of rule 1.1403, regardless of whether they contribute to a ‘holistic solution’ in PPL’s view.”
  • Significantly, the Commission found the FCC’s new pole attachment time frames, including the one touch make-ready rules, displace the terms of the parties’ existing agreement.
  • This decision will be helpful to other attachers as there had been some question as to whether pole owners would agree that the new rules would trump less favorable terms in existing contracts. 

Maria Browne and Van Bloys handled this case for MAW.

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