The Attorney General of Texas 

December 7, 1978 

JOHN L. HILL 

Attorney General 

Honorable George M. Cowden, Chairman Opinion No. H- 1273 

Public Utility Commission of Texas 

7800 Shoal Creek Blvd. Re: Whether Public Utility 

Austin, Texas 18757 Commission has regulatory 

authority over utility pole rental 

agreements between cable television companies and public 

utilities. 

Dear Mr. Cowden: 

You have requested our opinion regarding the authority of the Public 

Utility Commission (hereafter PVC) to regulate pole rental agreements 

between cable television companies and public utilities. The impetus for this 

request arises from recently enacted amendments to the Federal 

Communications Act, 47 U&C. S 224, which empower the Federal 

Communications Commission (hereafter FCC) to regulate the 

rates, terms, and conditions for pole attachments to 

provide that such rates, terms and conditions are just 

and reasonable. . , . 

47 U.S.C. S 224(b). A “pole attachment” is defined as 

any attachment by a cable television system to a pole, 

duct, conduit, or right-of-way owned or controlled by a 

utility. 

47 U.S.C. S 224(a)(4). A “utility” includes 

any person whose rates or charges are regulated by the 

Federal Government or a State and who owns or 

controls poles, ducts, conduits, or rights-of-way used, 

in whole or in part, for wire communication. 

47 U.S.C. S 224(a)(l). 

The statute is inapplicable in all instances in which the “rates, terms, 

and conditions for pole attachments” are regulated by a state. 47 U.S.C. 

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Honorable George M. Cowden - Page 2 (H-1273) 

5 224tcXl). If a state provides for such regulation, it must so certify to the FCC, 

and include therein a statement that 

in so regulating such rates, terms, and conditions, the State 

has the authority to consider and does consider the interests 

of the subscribers of cable television services, as well as the 

interests of the consumers of the utility services. 

47 U.S.C. S 224(c)(2). In order to determine whether the PUC should make the 

requisite certification, you ask a number of questions regarding the commission’s 

jurisdiction over the “rates, terms, and conditions” of pole rental agreements. 

Article 1446c, V.T.C.S., the Public Utility Regulatory Act, provides in section 

18: 

Subject to the limitations imposed in this Act, :and for the 

purpose of regulating rates, operations, and servtces so that 

such rates may be just, fair, and reasonable, and the services 

adequate and efficient, the commission shall have exclusive 

original jurisdiction over the business and property of all 

telecommunications utilities in this state. 

Similar jurisdiction over other kinds of utilities is granted in other portions of the 

Act. See art. 1446c, SS 16, 37, 38. The statute defines a “utility” to include, inter 

alia, “any person, corporation, river authority, cooperative corporation, or any 

combination thereof, other than a municipal corporation,” which owns or operates 

for compensation equipment or facilities for: 

. . . . 

(2Xa) the conveyance, transmission, or reception or 

communications over a telephone system; . . . provided . . . 

that nothing in this Act shall be construed to apply to . . . 

communitv antenna television services. . . . 

Section 3(c) (emphasis added). The proviso in section 3(cX2Xa) declares that a 

community television service is not a “utility” as defined in the Act. Since the 

PUC is not empowered to regulate any entity not a “utility,” it is clear that the 

commission has no direct regulatory authority over a cable television company. 

In order to invoke the exclusion of 47 U.S.C. S 224(cXl), a state must certify 

to the FCC not only that it regulates pole rental agreements, but also that it ‘has 

the authority to consider and does consider the interests of the subscribers of cable 

television services” in setting the rates, terms and conditions of such agreements. 

Since the PUC has no direct regulatory authority over cable television companies, 

and may consider the interests of such companies only in the context of their 

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Honorable George M. Cowden - Page 3 (H-1273) 

relationships with a regulated utility, we do not believe that the statute may 

reasonably be extended to include the relationship of a cable television company 

with its subscribers. Since, in the matter of pole rental agreements, those 

subscribers have no direct relationship with the regulated utility, we believe the 

PUC lacks the authority to consider their interests. Thus, in our opinion, the PUC 

should not certify to the FCC that it “has the authority to consider and does 

consider the interests of the subscribers of cable television services” in regulating 

the rates, terms and conditions of pole rental agreements. In view of this 

determination, we need not address your other questions. 

SUMMARY 

The Public Utility Commission should not certify to the 

Federal Communications Commission that it “has the 

authority to consider end does consider the interests of the 

subscribers of cable television services” in regulating 

rates, terms and conditions of pole rental agreements. 

._ Very truly yours, 

APPROVED: 

Attorney General of ‘Texas 

P. 5037