Pole Attachment Development (January 4, 2005)
Utah Slams Comcast for $3.8 Million in Pole Fees

Date: Jan 05, 2005

On December 21, 2004, the Public Service Commission of Utah found that Comcast Cable Communications owes PacifiCorp $3.8 million, consisting of a $900,000 share of audit expenses and $2.9 million to cover penalties and back rent for unauthorized attachments on 38,919 poles.

Utah's decision is remarkable not only for the size of the award, but for other reasons:

  • It approved the contract's $60/year unauthorized attachment fee, rejecting Comcast's claim that the contract was one of adhesion.
  • It rejected PacifiCorp's 1997/98 audit as a baseline from which unauthorized attachments could be counted, largely because verifiable audit records were unavailable.
  • The baseline instead was set at 75,000 poles, because Comcast was being billed, and was paying, for that many poles prior to the 2002/2003 audit.
  • Comcast was forced to pay its share of the comprehensive and expensive ($12.27 per joint use pole) 2002/2003 audit, in which GPS locations, digital photos, mapstring identifiers, pole numbers and potential safety issues were recorded, because this information was essential for all parties as a foundation for future joint use operations.

In a refreshing change from FCC proceedings, Utah placed the burden squarely on Comcast to prove that its attachments were properly authorized and faulted Comcast as much as PacifiCorp for poor recordkeeping.

If you have any questions or comments about this decision, please contact Tom Magee at 202-434-4128 or magee@khlaw.com.