Contested Places, Utility Pole Spaces : A Competition and Safety Framework for Analyzing Utility Pole Association Rules, Roles, and Risks

As climate change augurs longer wildfire seasons, safe, reliable, and competitive energy and communications markets depend on sound infrastructure and well-calibrated regulation. The humble wooden utility pole, first deployed in America in 1844 to extend telegraph service, forms the twenty-first century’s technological scaffold. Utility poles are increasingly contested places where competition, safety, and reliability meet. Yet, regulators and academics have largely overlooked the risks posed by century-old private utility pole associations in California, composed of private and public utility pole owners and some entities who attach facilities to utility poles. No academic articles have examined the rules, roles, and risks Joint Pole Committees (JPCs) pose for energy and communications safety, service, competition, and regulation. This article fills that academic and regulatory gap by examining JPCs’ history and function and offering a framework to put safety, competition, and accountable governance at the forefront of utility regulation. This article lifts the veil over JPC practices obscured through their failure to register as non-profits and operation without government supervision. It examines potential harms to safety and competition posed by the Northern California Joint Pole Association's rules that confer incumbents with effective veto power over potential competitors authorized to attach to utility poles by the California Public Utilities Commission (CPUC). Neither JPCs nor their members enjoy immunity from federal antitrust or state unfair competition laws, nor are they legally entitled to undermine CPUC competition policy or utility pole safety and reliability rules. Neither the CPUC nor competition authorities owe any deference to JPC standards, rules, functions, or decisions. This Article recommends CPUC and competition authority action and regulatory principles to address the competition and safety risks raised by JPC rules and roles