By MAX GARLAND
Charleston Gazette-Mail
CHARLESTON, W.Va. — The state Public Service Commission has filed a motion to dismiss Frontier Communication’s federal lawsuit which names all three of its commissioners, stating it has no role in enforcing the section of House Bill 3093, known as the broadband bill, Frontier says conflicts with federal law.
“Under WV law, the provision of broadband service that allows high-speed internet access is not a public utility service, and the PSC has no jurisdiction over such service,” according to a memorandum of law the PSC filed in support of the motion to dismiss.
Frontier’s lawsuit, filed in the U.S. District Court in Charleston in July, challenges Article 4 of the bill, which allows a third party to alter telecommunications pole equipment without needing to notify pole users, just the pole owner. Frontier says this “constitutes an unlawful taking of Frontier’s property,” since a “significant portion” of its network relies on pole attachments, which help build broadband networks.
Frontier’s complaint appears to assume lawmakers “intended for the PSC to enforce the provisions” of the contested pole attachments section of the bill despite not mentioning the public utility regulator in the bill, the memorandum says.
The memorandum added that the commissioners – Michael Albert, Brooks McCabe and Renee Larrick – “have taken no action nor have they threatened to take action to enforce the legislation,” which Gov. Jim Justice signed into law in April.
“The Supreme Court of Appeals of West Virginia has held that the Public Service Commission only has jurisdiction lawfully delegated to it by the Legislature, and if such power has not been delegated, it has no jurisdiction,” the memorandum says.
Frontier’s lawsuit also says West Virginia still has to follow the federal Pole Attachment Act, which gives the Federal Communications Commission the power to regulate utility pole attachments. FCC approval is required if a state intends to regulate its own pole attachments and West Virginia has not done so, the lawsuit adds.
Twenty states and Washington, D.C., have certified with the FCC that they regulate their own pole attachments, but West Virginia is not yet on that list so federal pole attachment laws still apply to the state, an FCC spokesman confirmed. FCC law may soon change, however, as the agency announced in April it is reviewing its own pole attachment regulations and how the agency can “remove regulatory barriers.”
Rob Hinton, chairman of the state Broadband Enhancement Council, said the council is “waiting to hear what the courts decide” on how pole attachment regulations will be enforced in the state.
Frontier’s lawsuit also underlines concerns of Article 4 increasing the chances of service interruptions and power outages. But the PSC said in its memorandum that property rights, civil liability and damages is not something it can enforce.
The lawsuit “fails to state a claim against the Commission defendants upon which relief can be granted,” the PSC’s motion to dismiss says.
Frontier, FirstEnergy and American Electric Power own the majority of the state’s utility poles. Proponents of the pole attachments section of the broadband bill say it would prevent delay tactics by other pole occupiers and jumpstart broadband expansion in the state.
Frontier spokesman Andy Malinoski said in a statement that Frontier opposes the motion to dismiss and “will state our comments in our response filed with the court.”
Frontier’s lawsuit also names Justice as a defendant. A spokesman for Justice did not return a phone call seeking comment.
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