As part of an effort to facilitate broadband deployment, and closely tracking recent FCC decisions with respect to the assignment of cost responsibility for pole replacements, the West Virginia Public Service Commission (PSC) declared on October 15, 2025 that pole owners – not broadband providers – must pay to replace utility poles that already have been “red tagged” for replacement as too old, unsafe, or deteriorated.
The PSC order clarifies an August 2025 pole attachment order, which “in line with the FCC’s recent interpretation of its own rules,” required that costs of pole replacements should be shared by all beneficiaries, not imposed entirely on new attachers. The West Virginia PSC’s October 15th order clarified that “red-tagged poles,” i.e. those “already slated for replacement” or “that require replacement due to age, deterioration, safety violations, accident, or any other cause,” must be replaced at the cost of the pole owners. The PSC also observed that “[f]ailure to ‘red-tag’ a pole that should have been red-tagged, would have been red-tagged upon close inspection, or is likely to be red-tagged in the near future does not place that pole in the category of an acceptable pole with remaining life that is replaced solely to accommodate an attacher.”
The PSC said it its order aimed to “promote fairness and efficiency in broadband deployment especially in underserved areas where infrastructure upgrades are critical.” The PSC, moreover, was critical of pole owners that “have not been consistent and aggressive in identifying poles that should be replaced.”
More broadly, and consistent with a demonstrably heightened awareness of state utility commissions that regulate pole attachments, the West Virginia PSC stated that it is “concerned that continuing delays are jeopardizing the availability of federal funding for broadband expansion,” which “is unacceptable.”
West Virginia’s order mirrors several recent actions by the FCC meant to facilitate broadband deployment, including July 2025 and December 2023 orders addressing pole replacement costs and pole attachment application timelines. For example, the FCC’s 2023 pole attachment order expanded the definition of “red tagged” poles, clarifying that a pole replacement is not “necessitated solely” by a new attacher including when (1) a pole replacement is required by applicable law; (2) the current pole fails engineering standards such as those in the National Electrical Safety Code (“NESC”); (3) a pole replacement is necessary due to changes in a utility’s internal construction standards; (4) the pole must be replaced due to road expansion or moves, property development, in connection with storm hardening, or similar government-imposed requirements; or (5) the pole already is on a utility’s replacement schedule.
The FCC also is continuing to examine ways to streamline pole permit applications, make-ready processes, and contractor approvals—and is considering whether light poles should be subject to access mandates of Section 224(f) of the Communications Act.
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Sheppard Mullin’s team of more than a dozen communications infrastructure and pole-attachment attorneys has handled pole attachment matters in more than 40 states—before the FCC, state utility commissions, state legislatures, and various state and federal courts. Our attorneys are also involved in broadband expansion, funding, compliance, and deployment issues in virtually every corner of the nation. We routinely handle commercial and contractual negotiations and disputes, involving facilities and rights-of-way owned and controlled by investor-owned utilities, electrical cooperatives, government-owned utilities, incumbent telephone company pole owners, railroads, and others. If you have questions about state or federal pole attachment law and regulation, or broadband funding and deployment, please contact a Sheppard attorney.