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Frontier sues to nix pole attachments section of WV broadband bill

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Frontier says it uses, occupies or owns the majority of telecommunication poles in West Virginia, and that part of a new law recently passed by the Legislature could lead to “substantially less protection for Frontier and its customers.”

Frontier Communications has filed a lawsuit to prevent the enforcement of an article of House Bill 3093, known as the broadband bill, arguing that it conflicts with federal law and increases the chances of an interruption or outage for customers.

The federal lawsuit says Article 4 of the bill allows a third party to alter existing equipment on a telecommunications pole after approval by the pole owner, but it adds that the bill does not require notice or permission from other pole users on those changes. Frontier, which says a “significant portion” of its network consists of pole attachments, along with aerial communications facilities, argues that the section “constitutes an unlawful taking of Frontier’s property” and is in violation of the U.S. Constitution.

The lawsuit, filed in U.S. District Court in Charleston, names Gov. Jim Justice and the three commissioners of the West Virginia Public Service Commission, which regulates public utilities, as defendants. Justice spokesman Grant Herring did not respond to a request for comment.

“House Bill 3093’s Article 4 allows third parties, including Frontier’s competitors, to trespass upon, handle, move, interfere with, and potentially damage Frontier’s facilities attached to utility poles in West Virginia — thereby, among other things, destroying in whole or in part Frontier’s investment and other property and its ability to use its facilities to provide service to its customers, without prior notice to Frontier and an opportunity to protect its property,” the lawsuit says.

The federal law Frontier cites is the Pole Attachment Act, which allows the Federal Communications Commission to regulate rates, terms and conditions for utility pole attachments. A state can enforce pole attachments on its own, but only if it satisfies FCC requirements, including the state certifying that it regulates pole attachments on its own and that it has issued rules and regulations to do so, the lawsuit says. Frontier says West Virginia “has satisfied none of the requirements.”

Proponents say Article 4 allows small internet providers easier access to the poles so they can expand and improve their services.

“It simply opens up the opportunity for a provider to service a territory,” said Delegate Roger Hanshaw, R-Clay. “It’s frustrating that this is seen as an issue, because the whole motivation behind the bill is to provide service to so much of the state that doesn’t have adequate service.”

Hanshaw said he has not looked through the lawsuit in detail but that those involved with the bill were assured that the bill did not have any potential conflicts with federal law. The bill requiring approval by pole owners should satisfy any federal issues, Hanshaw said.

“I think this is just sour grapes by Frontier,” he said.

The lawsuit says that, under federal regulation and contractual obligations, providers sharing space on a pole provide notice and work with each other to move attachments as necessary. Under the broadband bill, a third party can relocate or alter pole attachments without consent, as long as it’s not expected to cause a customer outage, according to the lawsuit.

Frontier, which opposed the pole attachment aspect of the bill throughout the legislative session, said it uses, occupies or owns the majority of telecommunication poles in West Virginia. The enforcement of Article 4 could lead to “substantially less protection for Frontier and its customers,” according to the lawsuit, and increase the risk of interruptions and outages.

“Many of the new attachers are direct competitors of Frontier, and may have little or no incentive to avoid damaging Frontier’s network facilities and other property,” the lawsuit states.

Frontier said its challenge to Article 4 of the bill is “wholly severable” from the rest of the bill and that the lawsuit “will not affect any remaining provisions” of it.

The bill is designed to expand broadband access and promote competition among providers like Frontier through methods such as co-ops and loan guarantees. It easily passed the Senate (31-1 vote) and the House (97-2 vote) before being signed into law by Justice.

Before its passage, the broadband bill was stripped of the pole attachment component and several other key measures by the Senate Government Organization Committee, which Frontier supported. One day later, the Senate committee restored nearly all the measures.

Reach Max Garland at max.garland@wvgazettemail.com, 304-348-4886 or follow @MaxGarlandTypes on Twitter.

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