For BEAD to truly be a success, the Federal Communications Commission (FCC) must continue its good work in taking swift and decisive action to ensure providers can attach fiber to utility poles.

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When President Trump assumed office, the federal government’s $42 billion broadband program was in disarray. Congress had established the Broadband Equity, Access, and Deployment (BEAD) program on a bipartisan basis in the 2021 infrastructure bill, but the Biden Administration then saddled the initiative with partisan social policy, bias against certain technologies, and price controls that undermined participation and private investment.

Last year, President Trump’s Commerce Department began unwinding those harmful Biden Administration policies. Now, money is flowing, communities are making progress towards getting connected, and private providers are investing over $11 billion of their own capital in matching funds, far exceeding the law’s requirements. 

In other words, the conditions for BEAD to succeed now are largely in place. But a mundane yet critical chokepoint could make or break the program’s deployments:  broadband providers’ access to utility poles. For BEAD to truly be a success, the Federal Communications Commission (FCC) must continue its good work in taking swift and decisive action to ensure providers can attach fiber to utility poles.

Two years ago, we cautioned that pole attachments constituted the critical roadblock in rural broadband buildout, with pole attachment requests too often drowning in obstruction, delay, and exorbitant fee demands from pole owners. Unfortunately, events now unfolding in Virginia and other states offer textbook illustrations and a test of whether the rule of law applies to monopoly utilities at all.

In February, the FCC issued a unanimous and bipartisan order in a dispute between a broadband provider and Appalachian Power Company (APCo). The order, the first ever resolved under the agency’s new accelerated procedures, affirmed a straightforward cost-causation principle and applied it to the poles within the FCC’s jurisdiction. A broadband provider attaching new fiber to a utility pole with preexisting safety violations must pay the incremental cost that its new attachment causes. What a pole owner may not do is force that new attacher to pay to fix preexisting safety violations, whether caused by the pole owner's own deferred maintenance or by other parties altogether.

No one disputes that broadband builders should pay for the real costs they impose on pole owners when they make new attachments to their poles. The question the FCC answered in February was simply whether a monopoly landlord may bill its newest tenant for damage the tenant did not cause. The Commission's answer was an emphatic and unanimous no.

Unfortunately, APCo has apparently treated that final federal order as an opening position in a negotiation. In the months since, the utility has reportedly continued imposing charges inconsistent with the ruling, demanding that the broadband provider involved in the dispute cover roughly 20 percent of full pole replacement costs while reserving the right to charge 100 percent in cases where it can’t recover costs from other rule-violating attachers. After FCC-facilitated mediation concluded without agreement, the broadband provider recently filed a second complaint with the FCC asking the Commission to enforce the order it issued five months ago.

The costs of these fights are tangible and have already delayed access for rural families. This particular dispute has already held up BEAD-funded deployments in Virginia that are slated to cover some 13,000 unserved homes and businesses. In neighboring West Virginia, roughly $1 billion in broadband funding has been put at risk by pole disputes, according to state officials. Nationwide, analysts at New York Law School project that pole-related costs could consume up to $4.6 billion in federal BEAD funds. Not to mention the money that utilities and broadband companies alike are spending on litigation—funds that could otherwise go toward pole replacement and fiber builds.

In a nation governed by the rule of law, a final order from a federal agency is not a suggestion or a basis for further haggling. If APCo can simply ignore a unanimous federal ruling without consequence, the lesson will not be lost on every other pole owner across the country. 

Indeed, broadband providers elsewhere are experiencing similar problems. Another telecom company just filed a complaint against Duke Energy for overcharging for pole attachments in the Carolinas. And a broadband provider in West Virginia called pole attachments the “number one challenge” in the state.

The outcome of this dispute could have ripple effects for the rural families, farmers and small businesses still waiting for the connectivity they were promised.

The FCC possesses ample authority to escalate, and it should. The agency should take quick action to halt APCo's unlawful charges and direct it to comply with its February Order and associated rules. It should take the same sensible approach in other pending complaints and rulemaking proceedings for which unreasonable pole costs and terms are the common roadblock.  If defiance persists, the FCC could consider forfeiture proceedings and impose monetary penalties for willful and repeated noncompliance.

The FCC got the policy right in February and acted with commendable speed. And it has launched other pole-related proceedings that propose sensible rules and clarifications to cut through this essential barrier. What remains is not a question of policy, but of enforcing compliance. Rural families, the rule of law, and the overall success of the BEAD program depend on it.