FCC Clarifies Statute of Limitations for Pole Attachment Complaints
November 30, 2020
On November 25th, the Federal Communications Commission (“FCC” or “Commission”) issued an order (“Verizon Order”) in a complaint proceeding initiated by Verizon Maryland LLC (“Verizon”) against the Potomac Edison Company (“Potomac Edison”) regarding the attachment rates found in the parties’ joint use agreement. In the Verizon Order, the FCC found that the rates that Verizon paid Potomac Edison to attach facilities to Potomac Edison’s poles were unjust and unreasonable under 47 U.S.C. § 224 (“Section 224”). In doing so, the Commission also set a maximum pole attachment rate Potomac Edison may charge Verizon based on what the FCC found to be the relevant pole attachment rate formulas.
Importantly, the Commission resolved a long-standing debate regarding the appropriate statute of limitations for a pole attachment complaint filed with the FCC. Neither Section 224 nor the Commission’s pole attachment rules specify a limitations period for pole attachment complaints. This lack of guidance has led to much confusion and litigation.
In the Verizon complaint proceeding, the Commission found that the applicable statute of limitations was the three-year limitations period for contract actions under Maryland state law. In doing so, the Commission reasoned that where there is no applicable statute of limitations under a federal statute, federal courts generally borrow an analogous statute of limitations from state law and apply it to a federal claim. The Commission also rejected the argument that the two-year limitations period found in section 415(b) of the Communications Act was a more appropriate statute of limitations because Section 415(b) applies to complaints against a “carrier” and Potomac Edison does not meet the Communications Act’s definition of a “carrier.” This means that the statute of limitations applicable to a pole attachment complaint will differ in each instance based on the state where the parties are located.