The war over high-speed access is fought on 40-foot-high wooden sticks.



(Craig F. Walker / Getty Images) America, we have a problem, and it is tall, ubiquitous, and on the side of the road. It is poles. Not the polls that do or do not track the progress of Donald Trump. Not people of Polish extraction. Utility poles. Poles are the key to our future, because poles are critical components of high-speed fiber optic internet access. The lucky towns that have dominion over them have been transformed—take, for example, Chattanooga. As the New York Times trumpeted earlier this month: “Chattanooga’s Innovation District Beckons to Young Entrepreneurs.” Andy Berke, Chattanooga’s dynamic mayor, has the money quote: “What we’re generating here is an ecosystem for business development…We are promoting access to state-of-the-art broadband and recruiting entrepreneurs with the skills to use it.”

Many mayors are undoubtedly listening and turning to their advisors to ask what their city could do to follow Chattanooga’s path. Business development, new energy downtown — what’s not to like? But those mayors ultimately will have to deal with poles. Unless a city has confidence that it can get predictable — timely, cheap, professionally-handled — access to scores of defiantly 20th-century utility poles that no suit in City Hall has ever noticed before, the timing and expense of a city’s entire fiber enterprise is laughably uncertain.

Poles, as it turns out, seethe with operatic drama. They are creosote-soaked, 40-foot-high wooden battlegrounds. And, right now, a handful of companies — the usual villains in the internet access story — is very interested in keeping the status quo in place by quietly making sure that access to these vertical conflict zones is fraught with difficulties.

Chattanooga, again, was lucky. It has a city-owned electric utility that controls its own poles, so the city can use the utility to carry out its fiber dreams. That’s allowed Chattanooga to reap the benefits of roughly $1 billion in the form of new jobs and other spillover effects the city has seen since 2011.

But many cities don’t control their own poles. In some areas, poles are controlled by utilities, or even telecom companies. Anyone hoping to string fiber in those places faces two nightmarish, indefinite periods of delay and uncontrolled costs: first getting an agreement in place with the pole owners, and then getting the poles physically ready for a new wire. We’ll call these steps Swamp One and Swamp Two.

Swamp One: Attachment. At the moment, the FCC gives regulatory assistance (“pole attachment rights”) in negotiations with utility pole owners only to cable TV providers, companies selling internet access, and phone companies. The FCC’s assistance comes in the form of mandatory deadlines and set formulas for calculating fees to be paid to the pole owner.

In effect, the Commission provides a set of default rules, now covering about 50 million of the approximately 130 million poles in the US, aimed at making negotiations for attachment agreements go smoothly. (What happens with the remaining poles? Well, where a state has raised its hand and said “We regulate pole attachments!” the FCC will back off and let the state set default pole attachment rules. And municipally-owned poles aren’t subject to the FCC’s rules, because Congress assumed that local authorities would ensure fees were reasonable.)

But any other actor wanting help in getting onto utility poles has zero leverage.

If you have zero leverage, here is how your negotiation may go:

“Hi, I’d like to string fiber on your poles. Big help for a business ecosystem! Will you sign a contract with me?

“Want to get on our pole? Okay, sometime, someday, maybe. Maybe not, come to think of it.”

“Oh.”

“And if we do sign an agreement, it won’t happen any time soon. It will cost whatever we tell you it will cost to attach to our poles. And we’ll set all the conditions. And you’ll have no one to complain to.”

“Oh.”

Cities and counties don’t get help with Swamp One; they get no assistance with agreement rates or timing. They have zero leverage. As a result, the price a city has to pay to get attachment rights to poles could be four or ten times higher than what phone and cable companies are paying to be on the same pole. Many, many poles in the U.S. are owned by local phone companies. Why would they want a city providing wholesale fiber services to be on their poles at a reasonable cost?

Swamp Two: Make-Ready. Even if a city wrestles into place an agreement with pole-owners that allows it to string fiber on their poles, or uses a company that has pole attachment help from the FCC, there’s still a gruesome, unpredictable process left to get the pole ready for a new attachment.

Let’s say an investor-owned (private) electric company owns a particular pole, with electrical gear at the top and communications equipment from different companies (AT&T and Comcast, say) beneath that. Well, any company wanting to attach additional communications gear to that pole has to notify the electric company and then wait for that company to tell each communications company — one at a time — to send its own truck and its own team to that pole to make room for the new attacher. Delay after bonecrushing delay ensues. Team after team climbs the pole. Sometimes the pole owner claims it needs an entirely new pole put in to make room for the new attacher. It can take nine months to get a pole ready for new occupancy. Hideous.

Between Swamp One and Swamp Two, cities have to take on enormous risk when they deal with the pole situation. It can become so costly and difficult to deal with the whole pole racket that some cities go underground (as Champaign-Urbana did) to avoid using poles at all — because at least in this subterranean approach the costs and timing of construction are predictable, even if they appear higher at first.

But other cities are fighting back. The prize is worth it. Earlier this month, Nashville considered a city ordinance aimed at making the whole Swamp Two process more rational. (Nashville sits on limestone rock, so running fiber underground won’t work.) Nashville wasn’t planning to run fiber itself; rather, Google was volunteering to take it on. Nashville’s ordinance would help Google do the work more efficiently. Because close to 90,000 poles are involved, efficiency is important.

Google wanted to use contractors approved by the companies already on those poles (AT&T and Comcast) to go out once and move everybody’s lines so that Google could come in and attach. This wouldn’t be something that would benefit only Google: Any company coming next to add a wire to a pole would get the same benefit. The city ordinance authorizing this rational process wouldn’t allow any customer outages — and it wouldn’t even kick in unless the existing companies on the pole failed to move their gear within 30 days.

Sounds reasonable. But boy, tell that to AT&T and Comcast. They’re arguing that the city can’t give anyone leverage in pole negotiations. They’re saying that Swamp Two, the make-ready process, should legally be considered part of Swamp One — the part the FCC (or a state) has control over — and so the city doesn’t have the authority to rationalize Swamp Two, because the state is already working in the area of poles generally. Even though neither the FCC nor Tennessee has said anything about Swamp Two rules. Yes, that argument is a bit confusing. That’s almost the point. Squads of lawyers will have to be hired to figure it out. So the lawyers will go trooping up and down from the FCC to the state regulatory agency to city council meetings, all arguing over — poles.

Remember Jarndyce v. Jarndyce? This is Bleak House for competitive internet access in the US. By the time the dust has cleared from the poles, we’ll be left with nothing.

Everyone understands that this is not really about poles at all. (AT&T says that cleaning up the Swamp Two process by allowing a single approved contractor to move things around on poles would “put service reliability and public safety at risk.” Which seems unlikely.) Pole shenanigans represent an exercise of raw, entrenched power. The incumbents don’t want fiber available at a cheap price with a city as a wholesale provider. They’d rather keep things as they are — so Tennessee, for example, remains a state in which more than three quarters of households (and two thirds of businesses) get download speeds that don’t meet the FCC’s requirement of 25 megabits per second. Suffering with slow (or no) internet is like being bashed by big stick of wood.

Nashville is not alone in being pole-axed. AT&T filed a federal lawsuit over a similar Swamp Two city ordinance in Louisville; Connecticut has been stymied in rationalizing its pole regime; Google has had trouble with poles in Silicon Valley; a big fiber effort in Kentucky has run into a buzzsaw of pole issues; and any city thinking about alternative fiber has to now assume it will face a lawsuit if it tries to address its Swamp Two problems.

The FCC should, and must, take this on. (It’s worth noting that Secretary Clinton’s tech policy platform mentions the need for nondiscriminatory access to poles.) There are all kinds of clever ways it could proceed. It could say clearly that Swamp Two is within only its domain — that no state authority applies there — and promulgate rational “climb once” rules for the make-ready process that would apply from coast to coast. The rationale: these shenanigans are getting in the way of the deployment of advanced communications networks. And, arm-in-arm with an economic growth-minded Congress, it could give well-enforced pole-attachment rights to cities and counties.

Until we see some action, though, we’re stuck with the endless murky tricks made possible by poles. They look so innocent, so (literally) upstanding. They’re not. At least as long as those monied interests denying us access keep taking advantage of them.