Merging Electric and Wireless Infrastructure – Wireless Industry Legal Perspectives

WEI 2009 Joint Use ConferenceBoise, Idaho

September 28, 2009

Richard J. BuschBusch Law Firm PLLCKirkland, WA 425-458-3940Rich.Busch@WirelessCounsel.comPresident, Northwest Wireless Association

Landline telephone -1878 Electric utility - 1882 Cable TV - 1948 Cellular/PCS infrastructure - 1983 Electric and landline telephone first in ROW Latecomers face resistance from incumbents What will the next 100 years bring?

Putting Things Into Perspective

Wireless Service is Part of the Safety Network

Wireless Service is Part of the Safety Network

If we delay through negotiations, public safety is jeopardized

Federal policy – deploy wireless and broadband across America

We all have right to use ROW to serve customers Install new infrastructure with existing

infrastructure We can “Do What’s Right”, or we can “Play by

the Rules”

Society Expects Us to Cooperate

Wireless carriers don’t have the right to attach to utility poles; they aren’t regulated utilities

The Telecom Act only applies to the comm space Wireless carriers must pay whatever I say up front Wireless carriers can’t access transmission towers We need to resolve safety issues before we can proceed We won’t handle a request for 4 sites; too small Utilities may take 2 years to complete pole surveys or

installations Five-day installation and maintenance window every

year

Positions Taken by Electric Utilities

What is “Right”?◦ Installation on transmission and distribution poles

◦ Pole replacements and extensions when appropriate

◦ Reasonable rent – we’re paying rent to 3 landlords

◦ Reasonable pole survey and installation intervals

◦ Competitive bids from list of approved vendors

◦ Detailed receipts for make ready work

◦ Reasonable terms: long term agreements; termination rights; reciprocal default, remedy and indemnity; good faith cooperation; timelines

We Can Do What’s Right, or We Can Play by the Rules

What are the “Rules”?◦ Telecom Act applies to investor owned utilities

◦ Federal law applies, unless state pre-empts FCC

◦ 19 states claim to have pre-empted FCC:

We Can “Do What’s Right”, orWe Can Play by the Rules

What are the “Rules”? Federal law:◦ Wireless carriers are telecommunications service

providers under the Telecom Act

◦ Wireless carriers may attach to poles at regulated rates

◦ Doesn’t matter that wireless is not regulated by states; still have right to attach at regulated rate

◦ Distribution poles: Yes. Interstate transmission towers: No. Intrastate transmission towers: Yes.

◦ Must handle all requests, even small quantity

We Can “Do What’s Right”, orWe Can Play by the Rules

What are the “Rules”? Federal law:◦ Telecom rate for attachments

◦ May not demand payment up front (Bureau chief decision)

◦ Pole surveys and wireless installations must be performed in a reasonable time

◦ Provide detailed receipts for invoices

◦ Pole replacements: Eleventh Circuit: No. FCC to consider “capacity” issue.

◦ Access to rights of way controlled by utility?

We Can “Do What’s Right”, orWe Can Play by the Rules

We Can “Do What’s Right”, orWe Can Play by the Rules

1. Recognize our social responsibilities◦ Right of way is owned by the public

◦ Install new infrastructure with existing

◦ Wireless carriers need access above conductor

◦ Right of way doesn’t stop at the top of the pole

2. If we don’t cooperate for the public good, we deserve the additional regulation we will get

3. Fighting before regulators doesn’t produce creative results

4. Large work groups aren’t efficient

How Do We Get from “Playing by the Rules” to “Doing the Right Thing”?

5. Proposal for Progress: Gather a small group of leading thinkers

2-3 utilities and 2-3 carriers Identify mutual goals Tackle top 5 – 10 goals Participants implement the solutions Present results to UTC as working document

How Do We Get from “Playing by the Rules”

to “Doing the Right Thing”?