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Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations
Edition, sections NR 660.01, 660.02, 660.07,
660.10, 660.11, 660.20–660.23, 660.30–
660.33, 660.40, 660.41, 661.01–661.04,
661.06–661.11, 661.20–661.24, 661.30–
661.33, 661.35 and 661.38 and chapter NR
661 Appendix I, II, III, VII and VIII, sections
NR 662.010–662.012, 662.020, 662.022,
662.023, 662.027, 662.030–662.034, 662.040–
662.043, 662.050–662.058, 662.060, 662.070,
662.080–662.087, 662.089, 662.190–662.194,
662.220, 663.10–663.13, 663.20–663.22,
663.30, 663.31, 664.0001, 664.0003,
664.0004, 664.0010–664.0019, 664.0025,
664.0030–664.0035, 664.0037, 664.0050–
664.0056, 664.0070–664.0077, 664.0090–
664.0101, 664.0110–664.0120, 664.0140–
664.0148, 664.0151, 664.0170–664.0179,
664.0190–664.0200, 664.0220–664.0223,
664.0226–664.0232, 664.0250–664.0259,
664.0270, 664.0300–664.0304, 664.0309,
664.0310, 664.0312–664.0317, 664.0340–
664.0345, 664.0347, 664.0351, 664.0550–
664.0555, 664.0570–664.0575, 664.0600–
664.0603, 664.1030–664.1036, 664.1050–
664.1065, 664.1080–664.1090, 664.1100–
664.1102 and 664.1200–664.1202, chapter
NR 664 Appendix I, IV, V and IX, sections
NR 665.0001, 665.0004, 665.0010–665.0019,
665.0030–665.0035, 665.0037, 665.0050–
665.0056, 665.0070–665.0077 (excluding
665.0071(1)(b)6), 665.0090–665.0094,
665.0110–665.0121, 665.0140–665.0148,
665.0170–665.0174, 665.0176–665.0178,
665.0190–665.0200, 665.0202, 665.0220–
665.0226, 665.0228–665.0231, 665.0250–
665.0260, 665.0270, 665.0300–665.0304,
665.0309, 665.0310, 665.0312–665.0316,
665.0340, 665.0341, 665.0345, 665.0347,
665.0351, 665.0352, 665.0370, 665.0373,
665.0375, 665.0377, 665.0381–665.0383,
665.0400–665.0406, 665.0430, 665.0440–
665.0445, 665.1030–665.1035, 665.1050–
665.1064, 665.1080–665.1090, 665.1100–
665.1102 and 665.1200–665.1202, chapter
NR 665 Appendix I, III, IV, V and VI, sections
NR 666.020–666.023, 666.070, 666.080,
666.100–666.112, 666.200–666.206, 666.210,
666.220, 666.225, 666.230, 666.235, 666.240,
666.245, 666.250, 666.255, 666.260, 666.305,
666.310, 666.315, 666.320, 666.325, 666.330,
666.335, 666.340, 666.345, 666.350, 666.355,
666.360, chapter NR 666 Appendix I– IX and
XI –XIII, sections NR 668.01–668.07, 668.09,
668.14, 668.30–668.46 and 668.48–668.50,
chapter NR 668 Appendix III, IV, VI–IX and
XI, sections NR 670.001, 670.002, 670.004,
670.005, 670.010–670.019, 670.021–670.033,
670.040–670.043, 670.050, 670.051, 670.061,
670.062, 670.065, 670.066, 670.068, 670.070–
670.073, 670.079, 670.235, 670.401, 670.403–
670.406, 670.408–670.412, 670.415, 670.417,
and 670.431–670.433, chapter NR 670
Appendix I, sections NR 673.01–673.05,
673.09–673.20, 673.30–673.40, 673.50–
673.56, 673.60–673.62, 673.70, 673.80,
673.81, 679.01, 679.10–679.12, 679.20–
679.24, 679.30–679.32, 679.40–679.47,
679.50–679.67, 679.70–679.75, and 679.80–
679.82.
Copies of the Wisconsin regulations that
are incorporated by reference can be obtained
from: Legislative Reference Bureau, One East
Main Street, Suite 200, Madison, Wisconsin
53701–2037.
[FR Doc. 2011–11157 Filed 5–6–11; 8:45 am]
BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 1042
Control of Emissions From New and
In-Use Marine Compression-Ignition
Engines and Vessels; CFR Correction
Correction
In rule correction document C1–
2011–8794 appearing on page 25246 in
the issue of Wednesday, May 4, 2011,
make the following correction:
§ 1042.901
[Corrected]
On page 25246, in the second column,
in the twenty-third through twenty-fifth
lines, the equation should read:
Percent of value = [(Value after
modification)¥(Value before
modification)] × 100% ÷ (Value
after modification)
[FR Doc. C2–2011–8794 Filed 5–6–11; 8:45 am]
BILLING CODE 1505–01–D
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 1
[WC Docket No. 07–245, GN Docket No. 09–
51; FCC 11–50]
A National Broadband Plan for Our
Future
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the
Commission revises its pole attachment
rules to promote competition and to
reduce the potentially excessive costs of
deploying telecommunications, cable,
and broadband networks. The
Commission also revises the
telecommunications rate formula for
pole attachments consistent with the
statutory framework, reinterprets the
Communications Act of 1934, as
amended, to allow incumbent LECs to
file complaints before the Commission if
they believe a pole attachment rate,
term, or condition is unjust and
unreasonable, and confirms wireless
providers are entitled to the same rate
as other telecommunications carriers. In
addition, the Commission resolves
multiple petitions for reconsideration
and addresses various points regarding
the nondiscriminatory use of attachment
techniques.
DATES: Effective June 8, 2011, except for
§§ 1.1420, 1.1422 and 1.1424, which
contain information collection
requirements that have not been
approved by the Office of Management
SUMMARY:
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and Budget. The Commission will
publish a document in the Federal
Register announcing the effective date
for those sections.
ADDRESSES: Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554. In addition to
filing comments with the Office of the
Secretary, a copy of any comments on
the Paperwork Reduction Act
information collection requirements
contained herein should be submitted to
Judith B. Herman, Federal
Communications Commission, Room 1–
B441, 445 12th Street, SW., Washington,
DC 20554, or via the Internet to
[email protected].
FOR FURTHER INFORMATION CONTACT:
Jonathan Reel, Wireline Competition
Bureau, Competition Policy Division,
202–418–1580. For additional
information concerning the Paperwork
Reduction Act information collection
requirements contained in this
document, send an e-mail to
[email protected] or contact Judith B.
Herman at 202–418–0214.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Report
and Order and Order on
Reconsideration (Order), FCC 11–50,
adopted and released on April 7, 2011.
The full text of the Order is available for
inspection and copying during regular
business hours in the FCC Reference
Center, 445 Twelfth Street, SW., Room
CY–A257, Portals II, Washington, DC
20554, and may also be purchased from
the Commission’s copy contractor,
BCPI, Inc., Portals II, 445 Twelfth Street,
SW., Room CY–B402, Washington, DC
20554. Customers may contact BCPI,
Inc. via their Web site, http://
www.bcpi.com, or call 1–800–378–3160.
This document is available in
alternative formats (computer diskette,
large print, audio record, and braille).
Persons with disabilities who need
documents in these formats may contact
the FCC by e-mail: [email protected] or
phone: 202–418–0530 or TTY: 202–418–
0432.
Synopsis of Report and Order and
Order on Reconsideration
1. In 1978, Congress added section
224 to the Communications Act of 1934,
as amended (Communications Act or
Act) thereby directing the Commission
to ensure that the rates, terms, and
conditions for pole attachments by cable
television systems are just and
reasonable. Section 224 provides that
the Commission will regulate pole
attachments except where such matters
are regulated by a state. Section 224 also
withholds from the Commission
jurisdiction to regulate attachments
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Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations
where the utility is a railroad,
cooperatively organized, or owned by a
government entity.
2. The Telecommunications Act of
1996 (1996 Act) expanded the definition
of pole attachments to include
attachments by providers of
telecommunications service, and
granted both cable systems and
telecommunications carriers an
affirmative right of nondiscriminatory
access to any pole, duct, conduit, or
right-of-way owned or controlled by a
utility. However, the 1996 Act permits
utilities to deny access where there is
insufficient capacity and for reasons of
safety, reliability or generally applicable
engineering purposes. Besides
establishing a right of access, the 1996
Act set forth section 224(e) — a rate
methodology for ‘‘attachments used by
telecommunications carriers to provide
telecommunications services’’ — in
addition to the existing methodology in
section 224(d) for attachments ‘‘used by
a cable television system solely to
provide cable service.’’
3. The Commission implemented the
new section 224 access requirements in
the Local Competition Order (47 FR
47283, Sept. 6, 1996, FCC 96–333, rel.
Aug. 8, 1996). At that time, the
Commission concluded that it would
determine the reasonableness of a
particular condition of access on a caseby-case basis. Finding that no single set
of rules could take into account all
attachment issues, the Commission
specifically declined to adopt the
National Electrical Safety Code (NESC)
in lieu of access rules. The Commission
also recognized that utilities typically
develop individual standards and
incorporate them into pole attachment
agreements, and that, in some cases,
Federal, state, or local laws also impose
relevant restrictions. The Local
Competition Order acknowledged
concerns that utilities might deny access
unreasonably, but, rather than adopt a
set of substantive engineering standards,
the Commission decided that
procedures for requiring utilities to
justify the conditions they placed on
access would best safeguard attachers’
rights. The Commission did adopt five
rules of general applicability and several
broad policy guidelines in the Local
Competition Order. The Commission
also stated that it would monitor the
effect of the case-specific approach, and
would propose specific rules at a later
date if conditions warranted.
4. In the 1998 Implementation Order
(63 FR 12013, Mar. 12, 1998, FCC 98–
20, rel. Feb. 6, 1998), the Commission
adopted rules implementing the 1996
Act’s new pole attachment rate formula
for telecommunications carriers. The
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Commission also concluded that cable
television systems offering both cable
and Internet access service should
continue to pay the cable rate. The
Commission further held that wireless
carriers had a statutory right of
nondiscriminatory access to poles.
Although the latter two determinations
were challenged, both were ultimately
upheld by the Supreme Court. In
particular, the Court held that section
224 gives the Commission broad
authority to adopt just and reasonable
rates. The Court also deferred to the
Commission’s conclusion that wireless
carriers are entitled by section 224 to
attach facilities to poles.
5. On November 20, 2007, the
Commission issued the Pole Attachment
NPRM (73 FR 6879, Feb. 6, 2008, FCC
07–187, rel. Nov. 20, 2007) in
recognition of the importance of pole
attachments to the deployment of
communications networks, in part in
response to petitions for rulemaking
from USTelecom and Fibertech
Networks. USTelecom argued that
incumbent LECs, as providers of
telecommunications service, are entitled
to just and reasonable pole attachment
rates, terms, and conditions of
attachment even though, under section
224, they are not included in the term
‘‘telecommunications carriers’’ and
therefore have no statutory right of
access. Fibertech petitioned the
Commission to initiate a rulemaking to
set access standards for pole
attachments, including standards for
timely performance of make-ready work,
use of boxing and extension arms, and
use of qualified third-party contract
workers, among other concerns. The
Pole Attachment NPRM sought
comment on the concerns raised by
USTelecom and Fibertech, as well as the
application of the telecommunications
rate to wireless pole attachments and
other pole access concerns.
6. The American Recovery and
Reinvestment Act of 2009 included a
requirement that the Commission
develop a national broadband plan to
ensure that every American has access
to broadband capability. On March 16,
2010, the National Broadband Plan was
released, and identified access to rightsof-way—including access to poles—as
having a significant impact on the
deployment of broadband networks.
Accordingly, the Plan included several
recommendations regarding pole
attachment access, enforcement, and
pricing policies to further advance
broadband deployment.
7. On May 20, 2010, the Commission
issued the Pole Attachment Order and
FNPRM. In the 2010 Order (75 FR
45494, Aug. 3, 2010, FCC 10–84, rel.
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May 20, 2010), the Commission took
initial steps to clarify the rules
governing pole attachments and to
streamline the pole attachment process.
The Commission clarified the statutory
right of communications providers to
use the same space- and cost-saving
techniques that pole owners use, such
as placing attachments on both sides of
a pole (boxing), and established that
providers have a statutory right to
timely access to poles. In the FNPRM
(75 FR 41338, July 15, 2010, FCC 10–84,
rel. May 20, 2010), the Commission
sought comment on a variety of
measures to speed access to poles. The
Commission proposed a comprehensive
timeline for all wired pole attachment
requests and sought comment on
possible adjustments to that timeline.
The Commission sought comment on
whether to adopt a separate timeline for
wireless attachments. The Commission
proposed to permit attachers to use
independent contractors to perform
surveys and make-ready work if the pole
owner missed its deadlines, subject to
certain conditions. The Commission
further proposed that utilities may deny
access by contractors to work among the
electric lines. In addition, the
Commission proposed a staggered
payment system for make-ready work;
proposed requiring a schedule of makeready charges; proposed requiring joint
pole owners to designate a single
managing utility; and sought comment
on improving the collection and
availability of data.
8. The Commission also sought
comment on whether current rules
governing pole attachment complaints
create appropriate incentives for parties
to settle or resolve disputes informally,
and whether appropriate remedies are
available when parties pursue formal
complaints. The FNPRM sought
comment on ways to reduce the existing
disparities in pole rental rates and
proposed to address those disparities by
reinterpreting the telecom rate formula
and by considering the issues
surrounding possible regulation of pole
attachments by incumbent local
exchange carriers (LECs).
9. On September 2, 2010, various
electric utilities and cable providers
filed petitions seeking clarification or
reconsideration of parts of the 2010
Order concerning the nondiscriminatory
use of attachment techniques. The
petitions ask the Commission to clarify,
among other things, whether a utility
must allow attachers to use the same
attachment techniques that it uses for
itself in the electric space, and whether
a pole owner is free to impose new
boxing and extension arm requirements
going forward.
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10. The Commission has held
workshops addressing pole attachment
issues. On September 28, 2010 the
Wireline Competition Bureau convened
a workshop to ‘‘learn from the
experiences and insights of state
regulators regarding the Commission’s
proposed pole attachment regulations.’’
On February 9, 2011, the Commission
held a Broadband Acceleration
Conference that brought together leaders
from Federal, state, and local
governments; broadband providers;
telecommunications carriers; tower
companies; equipment suppliers; and
utility companies to identify
opportunities to reduce regulatory and
other barriers to broadband build-out.
At this conference, the Commission
announced its Broadband Acceleration
Initiative: an agenda for work inside the
Commission, with our partners in
Tribal, state, and local government, and
with the private sector to reduce barriers
to broadband deployment.
Improved Access to Utility Poles
11. We take several steps to improve
access to utility poles. Our rules are
generally consistent with proposals in
the FNPRM, but also reflect a close
examination of the record developed in
this proceeding. We adopt a four-stage
timeline that provides a maximum of
148 days for attachers to access the
communications space on utility poles.
For wireless attachments above the
communications space, we adopt a
modified form of the timeline. The
timeline begins to run after the requester
submits a complete application. We also
establish that a utility may stop the
clock for emergencies pursuant to a
‘‘good and sufficient cause’’ standard.
We adopt rules that allow attachers to
use independent contractors preauthorized by the utilities to complete
survey and make-ready work in the
communications space, subject to a
number of protections and conditions, if
the pole owner does not meet the
prescribed timelines. In particular,
electric utilities have ultimate decisionmaking authority regarding the
contractor’s work with respect to section
224(f)(2) denial-of-access issues.
12. We allow a utility to limit on a
per-state basis the size of a pole
attachment request that is subject to the
timeline, and allow extra time for large
orders. Specifically, we apply the basic
timeline to requests of up to 300 pole
attachments per state or attachments to
0.5 percent of the utility’s in-state poles,
whichever is less. For larger requests of
up to 3,000 pole attachments per state
or 5 percent of the utility’s in-state
poles, whichever is less, additional time
is provided for survey and make-ready.
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Utilities may treat multiple in-state
requests from a single attacher during a
30-day period as one request. Our rules
further provide that any denial of a
request to attach must cite with
specificity the particular safety,
reliability, engineering, or other valid
concern that is the basis for denial. We
clarify that blanket prohibitions on pole
top access are not permitted. And, as
noted elsewhere in the Order, we
encourage a high degree of pre-planning
and coordination between attachers and
pole owners, to begin as early in the
process as possible.
13. We decline to adopt several
proposals set forth in the FNPRM or that
commenters recommend, and explain
those decisions. For example, we
determine that the timeline will provide
adequate incentives for joint owners of
poles to coordinate, and thus do not
require joint owners to name a single
management entity. We also conclude
that several subsections of section 224
provide the Commission with sufficient
authority to adopt a timeline and other
access rules.
A. Timeline for Section 224 Access.
14. For most attachments, the total
time from submission of the request
through completion of make-ready
should take between 105 and 148 days,
depending on how long the parties take
to prepare and accept an estimate.
Attachers may hire contractors
authorized by the utility to complete
make-ready either on the 133rd or 148th
day, depending on whether an owner
timely notifies the attacher that it
intends to move existing facilities and
conduct make-ready if existing attachers
have failed to move their attachments.
Although we establish this timeline as
a maximum, we recognize that the
necessary work can often proceed more
rapidly, especially at the estimate and
acceptance stages, or for relatively
routine requests. It would not be
reasonable behavior for a utility to take
longer to fulfill any requests simply
because a timeline with maximum
timeframes is being adopted. Likewise,
for large orders, we allow 15 more days
for the survey and 45 more days to
complete make-ready.
15. Stage 1—Survey: 45 days. We
require a utility to respond within 45
days of receipt of a complete application
to attach facilities on the utility’s
poles—for both wireline and wireless
attachments either in or above the
communications space. This required
response is specified in our current 45day response rule, which provides that,
where a utility denies an attachment
request, it must provide a written
explanation of its denial that is specific;
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include all supporting evidence and
information; and explain how the
evidence and information relate to
reasons of lack of capacity, safety,
reliability, or engineering standards.
The 45-day period also accords with the
‘‘survey’’ period in some state models
and a proposal in the record. Indeed, the
FNPRM stated that ‘‘[the 45-day
response] rule is functionally identical
to a requirement for a survey and
engineering analysis when applied to
wired facilities, and is generally
understood by utilities as such.’’ No
commenter disagrees, and most utilities
regularly meet this deadline. According
to a Utilities Telecom Council survey of
its members, utilities meet the 45-day
requirement 81 percent of the time.
More than half of the missed deadlines
are caused by either the size of the
project or errors in the application. Our
new rules address both of these
problems: under the rules we adopt
today the timeline does not start until a
completed application is submitted, and
there is flexibility for larger orders.
Thus, we expect that utilities acting
diligently and in good faith will be able
to conduct surveys within the
prescribed 45-day period. Owners are
given an additional 15 days for large
orders.
16. To constitute a ‘‘request for access’’
necessary to trigger the timeline, a
requester must submit a complete
application that provides the utility
with the information necessary under its
procedures to begin to survey the poles.
We find that pole owners must timely
notify attachers of errors in an
application, and may not stop the clock
to correct errors in an application once
it is accepted as complete, as surveys
that are not interrupted are more
conducive to dependable timeframes.
Furthermore, the timing of any such
notification of deficiencies in an
application must be reasonable. If the
request involves attachment of facilities
that are unfamiliar to the utility,
engineering specifications must be
established prior to submission of the
application. If an application is
submitted for which such engineering
specifications have not been
established, the pole owner must
respond in a manner that is reasonable
and timely under the circumstances, but
in any event within 45 days. We leave
the specific processes for establishing
such engineering specifications to
individual utilities, so long as they are
reasonable and timely.
17. Stages 2 and 3—Estimate and
Acceptance: Where a request for access
is not denied, a utility must present to
a requesting entity an estimate of
charges to perform all necessary make-
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ready work within 14 days of providing
its Stage 1 response—or within 14 days
after the requesting entity delivers its
own survey to the pole owner, as it may
do if the pole owner fails to meet the
timeline’s Stage 1 deadline. The
requesting entity may consider the
estimate for 14 days after receiving it
before the utility may withdraw the
offer. Both offer and acceptance may be
made sooner than the maximum 14
days. Estimates will not expire
automatically after 14 days, but rather
must be actively withdrawn by the
utility. If an estimate is withdrawn by
the utility, the prospective attacher must
resubmit its application for attachment.
18. Stage 4—Make-Ready: Upon
receipt of payment from the attacher, we
require a utility to notify immediately
and in writing all known entities with
existing attachments that may be
affected by the planned make-ready.
The notice shall: (1) Specify where and
what make-ready will be performed; (2)
set a date for completion of make-ready
no later than 60 days after notification
(or 105 days after notification in the
case of larger orders) for attachments in
the communications space, or no later
than 90 days after notification (or 135
days after notification in the case of
larger orders) for wireless attachments
above the communications space; (3)
state that any entity with an existing
attachment may add to or modify the
attachment before the date set for
completion of make-ready; (4) state that
the utility may assert its right to 15
additional days to complete make-ready
and that, for attachment in the
communications space, the requesting
entity may complete the specified makeready itself if make-ready is not
completed by the date set by the utility
(or, if the utility has asserted its 15-day
right of control, by the date 15 days after
that completion date); and (5) state the
name, telephone number, and e-mail
address of a person to contact for more
information about the make-ready
procedure. Under normal
circumstances, performance of makeready will complete the elements of the
timeline that precede actual attachment.
19. For wireless attachments above
the communications space on a pole, we
include an extra 30 days for make-ready
for two reasons. First, these attachments
generally are located in, near or above
the electric space, which can raise
significant safety concerns. Second, the
record reflects that, at present, there is
less experience with application of state
timelines to attachments at the pole top,
and in those circumstances, it is
appropriate to err on the side of caution.
Also, we follow state models that allow
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additional days for make-ready for large
orders within a single state.
20. Completion by Owner: If makeready is not completed by the date
specified in the utility’s notice to
entities with existing attachments, a
utility, prior to the expiration of the 60day notice period (or 105-day notice
period in the case of larger orders), may
notify the requesting attacher in writing
that it intends to assert its right to
complete all remaining work within 15
days. In such cases, the utility will have
an additional 15 days to complete makeready. If make-ready remains unfinished
at the end of the 15-day extension, the
attacher may assume control of makeready at that point (Day 148 of the
timeline, or Day 193 in the case of larger
orders). Thus, we permit a pole owner
to assert its right to 15 days to complete
make-ready in lieu of adopting an
automatic fifth stage for ‘‘multi-party
coordination’’ as proposed in the
FNPRM. For attachments in the
communications space, if the utility
does not timely assert its right to 15
extra days to perform make-ready,
control of the project transfers to the
new attacher immediately at the end of
the 60-day period (or 105-day period in
the case of larger orders), and the
attacher may use a contractor to
complete make-ready.
21. Scope of the Timeline. The
timeline we adopted—which is modeled
after the timeline that has been in use
in Utah—applies to all requests by
telecommunications carriers (including
wireless) and cable operators for
attachment in the communications
space on a pole. The timeline begins
when an application is complete, such
that the utility has been provided with
the information necessary under its
procedures to begin to survey the
requested pole(s), including developed
engineering specifications for the
particular equipment to be attached. A
modified form of the timeline applies to
wireless attachments by
telecommunications carriers and cable
operators that are made above the
communications space. The timeline
does not apply to section 224 ducts,
conduits, or rights-of-way. We affirm
that completion of an initial pole
attachment agreement or ‘‘master
agreement’’ is not a prerequisite to
starting the clock on a completed
application, which may have multiple
attachment requests within it.
Applications that are outside the scope
of the timeline remain subject to the
general requirement that the pole owner
provide a specific written response
within 45 days.
22. Remedy: Utility-Approved
Contractors. Requesters need a way to
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obtain access to poles if a utility does
not meet the deadlines we impose. We
adopt the proposal in the FNPRM and
hold that, if a utility does not meet the
deadline to complete a survey or makeready established in the timeline, an
attacher may hire contractors to
complete the work in the
communications space. We require each
utility to make available a reasonably
sufficient list of contractors that it
authorizes to perform surveys or makeready on its poles, and require that the
attacher must use contractors from this
list. We also seek to ensure that safety
and network integrity are preserved at
all costs. Thus, we require attachers that
hire contractors to perform survey and
make-ready work to provide a utility
with an opportunity for a utility
representative to accompany and
consult with the attacher and its
contractor prior to commencement of
any make-ready work by the contractor.
Consulting electric utilities are entitled
to make final determinations in case of
disputes over capacity, safety,
reliability, and generally applicable
engineering purposes.
23. Limit on Order Size. Based on the
record before us and successful state
models, we adopt limits on the size of
attachment requests that are subject to
the timelines we adopt today. The limits
on size of attachment requests apply
both to attachments in the
communications space and the longer
timeline for wireless attachments above
the communications space. Specifically,
we apply the timeline to orders up to
the lesser of 0.5 percent of the utility’s
total poles within a state or 300 poles
within a state during any 30-day period.
For larger orders—up to the lesser of 5
percent of a utility’s total poles in a state
or 3,000 poles within a state—we add 15
days to the timeline’s survey period and
45 days to the timeline’s make-ready
period, for a total of 60 days. For in-state
orders greater than 3,000 poles, we
require parties to negotiate in good faith
regarding the timeframe for completing
the job. An attacher always has the
ability to submit requests of up to 3,000
poles in any 30-day period, so an
attacher could start a 9,000 pole order
within a single state through the
timeline over three successive months.
24. Stopping the Clock. Emergencies
and certain events during the makeready phase that are beyond a utility’s
control may legitimately interrupt pole
attachment projects, and the FNPRM
sought comment on how best to
reconcile the timeline with this reality.
We adopt a ‘‘good and sufficient cause’’
standard under which a utility may toll
the timeline for no longer than
necessary where conditions render it
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infeasible to complete the make-ready
work within the prescribed timeframe.
A utility must exercise its judgment in
invoking a clock stoppage in the context
of its general duty to provide timely and
nondiscriminatory access, and an
attacher may challenge a utility’s failure
to either meet its deadline or surrender
control of make-ready if a clock
stoppage is not justified by good and
sufficient cause.
B. Wireless
25. Specificity of Denials. We clarify
that, regardless of whether a utility has
a master agreement with a wireless
carrier, the specificity requirement of
§ 1.1403(b) of the Commission’s rules
applies to all denials of requests for
access. The Commission’s rules require
that, when a utility denies a request for
access, it must state with specificity its
reasons for doing so. Section 1.1403(b)
of the Commission’s rules requires that
denials of access be confirmed in
writing within 45 days of the request.
The utility also ‘‘shall be specific, shall
include all relevant evidence and
information supporting its denial, and
shall explain how such evidence and
information relate to a denial of access
for reasons of lack of capacity, safety,
reliability or engineering standards.’’ In
the FNPRM, the Commission proposed
that, where a utility has no master
agreement with a carrier for wireless
attachments requested, the utility may
satisfy the requirement to respond with
a written explanation of its concerns
with regard to capacity, safety,
reliability, or engineering standards.
26. Pole Tops. We clarify that section
224 allows wireless attachers to access
the space above what has traditionally
been referred to as ‘‘communications
space’’ on a pole. On previous occasions,
the Commission has declined to
establish a presumption that this space
may be reserved for utility use only, and
has stated that the only recognized
limits to access for antenna placement
are those contained in the statute. Yet
wireless attachers assert that pole top
access is persistently challenged by pole
owners, who often impose blanket
prohibitions on attaching to some or all
pole tops. Blanket prohibitions are not
permitted under the Commission’s
rules. We reject the assertions of some
utilities that our rule regarding pole tops
will create a ‘‘de facto presumption in
favor of pole top attachments’’ or
otherwise ‘‘restrict an electric utility’s
right to deny access for reasons of safety
and reliability.’’ Instead, we clarify that
a wireless carrier’s right to attach to pole
tops is the same as it is to attach to any
other part of a pole. Utilities may deny
access ‘‘where there is insufficient
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capacity, and for reasons of safety,
reliability, and generally applicable
engineering purposes.’’ The record in
this proceeding is replete with examples
of various types of pole top attachments
that have been successfully
accommodated, both for wireless
attachers and for the utilities
themselves.
C. Use of Contractors for Attachment
27. As proposed in the FNPRM, we
resolve an ambiguity in the
Commission’s rules regarding the use of
contractors to attach facilities ‘‘in the
proximity of electric lines’’ after makeready has been completed and
attachment permits issued. Specifically,
we clarify that ‘‘proximity of electric
lines’’ in this context includes work that
extends into the safety space that
separates the communications space
from the electric space, but does not
include work among the power lines.
While an attacher may use a contractor
to attach a wireless antenna above the
communications space and associated
safety space, we find that an attacher
may only use a contractor that has the
proper qualifications and that the utility
has approved to perform such work.
Utilities are not required to keep a
separate list of contractors for this
purpose, but must be reasonable in
approving or disapproving contractors.
Accordingly, the standard for
attachment by a contractor in the
communications space remains that of
the ‘‘same qualifications’’ as the utility,
but any attachment in the electric space
must be at the higher utility-approved
standard.
D. Joint Ownership
28. In the FNPRM, we proposed to
require owners to consolidate authority
in one managing utility when more than
one utility owns a pole and to make the
identity of this managing utility
publicly available. We decline to adopt
the proposed rules relating to joint
ownership, but we clarify and
emphasize that we expect joint owners
to coordinate and cooperate with each
other and with requesting attachers
consistent with pole owners’ duty to
provide just and reasonable access.
E. Legal Authority
29. We conclude that section 224
authorizes the Commission to
promulgate the access rules we adopted,
including the timeline and its selfeffectuating remedy for failure to meet
the timeline in the communications
space. Through section 224(b)(1),
Congress explicitly delegated authority
to the Commission to ‘‘regulate the rates,
terms, and conditions for pole
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attachments,’’ as well as to develop
procedures necessary for resolving
complaints arising under the
Commission’s substantive regulations,
and to fashion appropriate remedies. In
addition, section 224(b)(2) directs the
Commission to make rules to carry out
the provisions of this section. Congress
also gave more specific substantive
guidance for access to poles in section
224(f): ‘‘just and reasonable’’ access must
also be ‘‘nondiscriminatory.’’
Improving the Enforcement Process
30. Revising Pole Attachment Dispute
Resolution Procedures. In the FNPRM,
we sought comment on whether the
Commission should modify its existing
procedural rules governing pole
attachment complaints. Several
commenters expressed the view that
new procedures and processes are not
needed or that existing procedures can
be improved to address any problems.
Similarly, there was little discussion of,
or support for, the formation of
specialized forums to address
enforcement issues. A number of
commenters, however, maintained that
the Commission should do more to
encourage parties to resolve their
disputes themselves prior to filing a
complaint with the Commission.
31. We agree that parties ought to
make every effort to settle their disputes
informally before instituting formal
processes at the Commission. Section
1.1404(k) of the Commission’s rules
requires a complainant to ‘‘include a
brief summary of all steps taken to
resolve the problem before filing,’’ and,
if no such steps were taken, to ‘‘state the
reason(s) why it believed such steps
were fruitless.’’ In our view, however,
that rule does not adequately ensure
that the parties will engage in serious
efforts to resolve disputes prior to the
initiation of litigation. We believe a
requirement similar to that imposed by
the California Public Utility
Commission, requiring ‘‘executive-level’’
discussions, should be incorporated into
the Commission’s rules. We therefore
revise Commission rule § 1.1404(k) to
require that there be ‘‘executive-level
discussions’’ (i.e., discussions among
individuals who have sufficient
authority to make binding decisions on
behalf of the company they represent),
preferably face-to-face, prior to the filing
of a complaint at the Commission. We
will consider in any enforcement
proceedings whether such coordination
has taken place.
32. In addition, a number of
commenters expressed concern about
the length of time it takes for the
Commission to resolve pole attachment
complaints. We believe that the new
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processes adopted elsewhere in the
Order will have the effect of expediting
the pole access process. And, to the
extent that access disputes remain a
problem, we will make every effort to
resolve them expeditiously. We do not
believe that other substantial changes,
such as new procedures or specialized
forums, are justified at this time.
33. Efficient Informal Dispute
Resolution Process. The FNPRM sought
comment on whether the Commission
should attempt to encourage ‘‘local
dispute resolution,’’ and several
commenters endorsed the notion. We
agree, and believe that it is desirable for
parties to include dispute resolution
procedures in their pole attachment
agreements. Any refusal to enter into an
agreement because it contains a dispute
resolution provision would be
considered unreasonable. We suggest
that issues to be addressed specifically
in a dispute resolution provision might
include the requirement of executivelevel settlement negotiations, and
reliance on a forum other than the
Commission (e.g., an arbitrator or expert
panel) to resolve disputes. We also note
that the Commission’s pre-complaint
mediation process has had marked
success in helping parties resolve pole
attachment disputes, and we encourage
parties to utilize that process.
34. This Order also concludes, as
proposed in the FNPRM, that the
portion of the Commission’s rules
§ 1.1404(m) that provides that potential
attachers who are denied access to a
pole, duct, or conduit must file a
complaint ‘‘within 30 days of such
denial’’ should be eliminated. We
believe the 30-day rule no longer serves
a useful purpose, and is actually
counterproductive at times. Any
concern about stale complaints is
addressed by our modifications of the
Commission’s rules § 1.1410, which
state that remedies must be ‘‘consistent
with the applicable statute of
limitations.’’ We therefore eliminate the
portion of the Commission’s rules
§ 1.1404(m) requiring that denial of
access complaints be filed within
30 days.
35. Remedies. The FNPRM proposed
to amend § 1.1410 of the Commission’s
pole attachment complaint rules to
enumerate the remedies available to an
attacher that proves a utility has
unlawfully delayed or denied access to
its poles, simply codifying the existing
authority and practice, and we
accordingly adopt the rule change as
proposed. The FNPRM also proposed to
amend the Commission’s rules § 1.1410
to specify that compensatory damages
may be awarded where an unlawful
denial or delay of access is established,
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or a rate, term, or condition is found to
be unjust and unreasonable. After
reviewing voluminous and sharply
divided comments on this question, we
decline, at this time, to amend the
Commission’s rules § 1.1410 to allow
compensatory damages. Given all of the
rules designed to improve and expedite
pole access that we adopt herein, we
anticipate that attachers will experience
far fewer difficulties than they have to
date.
36. We also adopt the proposed
modification of the Commission’s rules
§ 1.1410(c), which permits a monetary
award in the form of a ‘‘refund or
payment,’’ measured ‘‘from the date that
the complaint, as acceptable, was filed,
plus interest.’’ We believe that this
modification, which will allow
monetary recovery in a pole attachment
action to extend back as far as the
applicable statute of limitations, will
make injured attachers whole, and will
be consistent with the way that claims
for monetary recovery are generally
treated under the law. It will also
remove the perceived impediment to
pre-complaint negotiations between the
parties to resolve disputes about rates,
terms and conditions of attachment. We
reject the contention that the proposed
rule change creates an incentive for
attaching entities to attempt to
maximize their monetary recovery by
waiting until shortly before the statute
of limitations has expired to bring a
dispute over rates to the Commission.
37. Unauthorized Attachments. In
modifying our rules regarding penalties
for unauthorized attachments, we
acknowledge the wide range of opinions
among commenters regarding the scope
of the problem posed by unauthorized
attachments. Although the record is
insufficient for us to make specific
findings regarding the scope and
severity of non-compliance, there
appears to be a well-founded concern
that the current unauthorized
attachment regime (i.e., the Mile Hi
case), which involves payment
amounting to no more than back rent,
provides little incentive for attachers to
follow authorization processes, and that
competitive pressure to bring services to
market overwhelms any deterrent effect.
That said, we take seriously the
arguments by attachers that utilities may
deem attachments to be unauthorized
because of poor record keeping or
changes in pole ownership, rather than
because of the attacher’s failure to
follow proper protocol. Consequently,
the policy we enunciate today applies
on a prospective basis only—i.e., to new
agreements, or amendments to existing
agreements, executed after the effective
date of this Order.
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26625
38. To address the concerns
implicated by unauthorized
attachments, we explicitly abandon the
Mile Hi limitation on penalties and
instead create a safe harbor for more
substantial penalties. Specifically, going
forward, we will consider contractbased penalties for unauthorized
attachments to be presumptively
reasonable if they do not exceed those
implemented by the Oregon PUC.
Oregon has established a multifaceted
system that contains, among others, the
following provisions:
• An unauthorized attachment fee of
$500 per pole for pole occupants
without a contract (i.e., when there is no
pole attachment agreement between the
parties);
• An unauthorized attachment fee of
five times the current annual rental fee
per pole if the pole occupant does not
have a permit and the violation is selfreported or discovered through a joint
inspection, with an additional sanction
of $100 per pole if the violation is found
by the pole owner in an inspection in
which the pole occupant has declined to
participate.
• A requirement that the pole owner
provide specific notice of a violation
(including pole number and location)
before seeking relief against a pole
occupant.
• An opportunity for attachers to
avoid sanctions by submitting plans of
correction within 60 calendar days of
receipt of notification of a violation or
by correcting the violation and
providing notice of the correction to the
owner within 180 calendar days of
receipt of notification of the violation.
• A mutual obligation of pole owners
and pole occupants to correct
immediately violations that pose
imminent danger to life or property. If
a party corrects another party’s
violation, the party responsible for the
violation must reimburse the correcting
party for the actual cost of corrections.
• The opportunity for resolution of
factual disputes via settlement
conferences before an alternative
dispute resolution forum.
39. In a case where an attacher makes
unauthorized attachments to a pole at a
time when the attacher has no pole
attachment agreement with the utility,
but later enters into such an agreement,
we find that it would be reasonable for
the utility to apply the unauthorized
attachment provisions in that agreement
to attachments that were made before
the agreement was executed, as well as
to any unauthorized attachments made
following execution. If an attacher who
has made unauthorized attachments
without any contract with the utility
refuses to enter into a pole attachment
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agreement, the utility may seek other
remedies including, for example, an
action in state court for trespass.
40. We do not adopt the Oregon
system as Federal law, but rather
continue to favor agreements negotiated
between utilities and attaching entities.
We simply conclude that we have
examined Oregon’s rules and find them
to be reasonable, and that we would
expect to find reasonable any
unauthorized attachment provisions
contained in agreements that do not
exceed the Oregon penalties. As noted
above, however, the Oregon sanctions
are part of a larger system that also
affords protections to attachers that
operate in good faith. Consequently, we
anticipate that, like the Oregon system,
a reasonable pole attachment agreement
also will contain provisions that provide
notice to attachers, a fair opportunity to
remedy violations, and a reasonable
process for resolving factual disputes
that may arise.
41. The ‘‘Sign and Sue’’ Rule. Our
review of the comments responding to
the FNPRM’s proposal to revise the
Commission’s long-standing ‘‘sign and
sue’’ rule, which allows an attacher to
challenge the lawfulness of terms in an
executed pole attachment agreement
that the attacher claims it was coerced
to accept in order to gain access to
utility poles, persuades us that the
Commission should not amend
§ 1.1404(d) of the Commission’s rules to
add a notice requirement to the ‘‘sign
and sue’’ rule. Such a requirement poses
a significant risk of unduly delaying the
negotiation process and adding
unnecessary complexity to the
adjudication of pole attachment
disputes before the Commission.
Moreover, we find that a number of the
intended benefits of the proposed notice
provision will be realized through the
amendment to the Commission’s rules
§ 1.1404(k), requiring executive-level
discussions between the parties.
Pole Rental Rates
42. In the FNPRM, the Commission
sought to limit the distortions present in
the current pole rental rates ‘‘to increase
the availability of, and competition for,
advanced services to anchor institutions
and as middle-mile inputs to wireless
services and other broadband services,’’
some of which potentially could be
classified as telecommunications
services. Accordingly, the Commission
sought comment on alternative
approaches for reinterpreting the
telecom rate formula within the existing
statutory framework, including a
specific Commission proposal based on
elements proposed by TW Telecom
(TWTC). This approach was consistent
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with the National Broadband Plan’s
recommendation to establish rates ‘‘as
low and close to uniform as possible’’
based on evidence that the uncertainty
regarding the applicable rate ‘‘may be
deterring broadband providers that pay
lower pole rates from extending their
networks or adding capabilities (such as
high-capacity links to wireless towers).’’
This uncertainty results from the risk
that, by offering services that potentially
could be classified as
‘‘telecommunications services,’’ a higher
telecom rental rate might then be
applied to the broadband provider’s
entire network.
A. The New Telecom Pole Rental Rate
43. The Commission adopts a
modified form of the FNPRM’s proposal
as the new telecom rate. The new
telecom rate generally will recover the
same portion of pole costs as the current
cable rate, is fully compensatory, and is
grounded in sound economic policies.
Accordingly, the new rate will minimize
the difference in rental rates paid for
attachments that are used to provide
voice, data, and video services, and thus
will help remove market distortions that
affect attachers’ deployment decisions.
Removing these barriers to
telecommunications and cable
deployment will enable consumers to
benefit through increased competition,
affordability, and availability of
advanced communications services,
including broadband.
44. The Order reinterprets the
telecommunications rate formula for
pole attachments consistent with its
authority and the existing statutory
framework. The Commission identifies a
range of possible rates consistent with
section 224(e), from the current
application of the telecom rate formula
based on fully allocated costs at the
upper end, to an alternative application
of the telecom rate formula based on
cost causation principles that results in
a rate closer to incremental costs at the
lower end. Within that range,
Commission seeks to balance the goals
of promoting broadband and other
communications services with the
historical role that pole rental rates have
played in supporting the investment in
pole infrastructure, and thus define the
ambiguous statutory term ‘‘cost of
providing space’’ on that basis.
45. Upper-Bound Rate. To begin
identifying the range of reasonable rates
that could result from the telecom rate
formula, we first identify the present
telecom rate as a reasonable upper
bound. The Commission’s current
telecom rate formula is based on a fully
allocated cost methodology, which
recovers costs that the pole owner
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incurs regardless of the presence of
attachments. It includes a full range of
costs, some of which do not directly
relate to or vary with the presence of
pole attachments.
46. Lower-Bound Rate. As the
Commission observed in the FNPRM, ‘‘a
rate that covers the pole owners’
incremental cost associated with
attachment would, in principle, provide
a reasonable lower limit.’’ However, the
section 224(e) formulas allocate the
relevant costs in such a way that simply
defining ‘‘cost’’ as equal to incremental
cost, as TWTC initially proposed, would
result in pole rental rates below
incremental cost.
47. Thus, to identify a lower-bound
rate that is consistent with this statutory
framework—and enables costs to be
allocated based on the prescribed costapportionment formulas—the
Commission relies on the basic
principles of cost causation that would
underlie a marginal cost rate without
defining ‘‘cost’’ as equivalent to marginal
or incremental cost per se. Under cost
causation principles, if a customer is
causally responsible for the incurrence
of a cost, then that customer—the cost
causer—pays a rate that covers this cost.
This is consistent with the
Commission’s existing approach in the
make-ready context, where a pole owner
recovers the entire associated capital
costs through make-ready fees.
48. For purposes of identifying a
lower bound for the telecom pole rental
rate, we exclude capital costs from the
definition of ‘‘cost of providing space.’’
As an initial matter, we note that if
capital costs arise from the make-ready
process, existing rules are designed to
require attachers to bear the entire
amount of those costs. With respect to
other capital costs, the record
demonstrates that the attacher is not the
‘‘cost causer’’ of these costs. In the case
here of applying cost-causation
principles to identify the lower-bound
telecom rate, the record includes
findings by economists and analysts that
capital costs are justifiably excluded
from the lower-bound rate because the
attachers cause none or no more than a
de minimis amount of these costs, other
than those that are recovered up front
through the make-ready fees.
49. By contrast, we continue to
include certain operating expenses—
namely maintenance and administrative
expenses—in the definition of ‘‘cost’’ for
purposes of the lower bound telecom
rate formula. This is generally
consistent with cost causation
principles because it is likely that an
attacher is causally responsible for some
of the ongoing maintenance and
administrative expenses relating to use
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of the pole. Although the attacher might
not be the cost causer with respect to all
the operating costs that would be
included in the lower bound telecom
rate, Congress’ intention was that the
Commission not ‘‘embark upon a largescale ratemaking proceeding in each
case brought before it, or by general
order’’ to establish pole rental rates.
50. Determining the New Just and
Reasonable Telecom Rate. From within
the range of possible interpretations of
the term ‘‘cost’’ for purposes of section
224(e), the Commission adopts a
particular definition of cost, and
therefore a particular rate as the
appropriate just and reasonable telecom
rate. The definition of cost we select is
based on a balancing of policy goals. We
seek to ensure that the Commission’s
policies promote the availability of
broadband services and efficient
competition for those services. We also
recognize, however, that pole rental
rates historically have helped support
the investment utilities make in their
pole infrastructure, and acknowledge
utilities’ policy concerns about shifting
that burden to utility ratepayers.
51. We agree with commenters who
explain that today, the telecom rate is
sufficiently high that it hinders
important statutory objectives. For
example, commenters explain that
reducing the telecom rate would
improve the business case for providing
advanced services, because it will
reduce the expected incremental cash
outflows of providing such services,
thereby increasing the likelihood that
the present value of the expected
incremental cash inflows will exceed
the present value of the expected
incremental cash outflows. In addition
to reducing barriers to the provision of
new services, reducing the telecom rate
can expand opportunities for
communications network investment.
We thus conclude that lowering the
telecom rates will better enable
providers to compete on a level playing
field, will eliminate distortions in enduser choices between technologies, and
lead to provider behavior being driven
more by underlying economic costs than
arbitrary price differentials. We also
find persuasive the views of consumer
advocates in this respect. Notably,
‘‘NASUCA members are interested in
keeping the costs of pole attachments
down, so as to keep the costs of the[se]
services * * * down. But NASUCA
members also * * * are interested in
ensuring that pole attachment rates
appropriately compensate the owners of
the poles, so that other services are not
required to subsidize the attachments.’’
Balancing these concerns, NASUCA
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recommends that the cable rate ‘‘should
be used for all pole attachments.’’
52. We also observe that pole owners
have the opportunity to recover through
make-ready fees all of the capital costs
actually caused by third-party attachers.
As a result, the pole owner need not
bear any significant risk of unrecovered
pole investment undertaken to
accommodate a third-party attacher.
Thus, permitting recovery of 100
percent of apportioned, fully allocated
costs through the pole rental rate seems
unwarranted under the statute and
could undermine furtherance of
important statutory objectives.
53. Although we do not permit
utilities to recover 100 percent of
apportioned, fully allocated costs
through the new telecom rate, we find
it appropriate to allow the pole owner
to charge a monthly pole rental rate that
reflects some contribution to capital
costs, aside from those recovered
through make-ready fees. For example,
regulated pole attachment rates
historically have included such a
contribution, and we are concerned that
adopting a telecom rate that no longer
permits utilities to recover such capital
costs would unduly burden their
ratepayers. We are also mindful of the
possible adverse impact of other pole
attachment reforms. For one, our
regulation of rates for attachments by
incumbent LECs could reduce the
amount of costs that utilities are able to
recover from other sources. Moreover, in
conjunction with the pole access
reforms adopted in this Order, we are
mindful of Congress’ expectation that
the priority afforded an attacher’s access
to poles would relate to its sharing in
the costs of that infrastructure. We
balance these considerations by
adopting, in most cases, the following
definition of ‘‘cost’’ for purposes of
section 224(e): (a) In urban areas, 66
percent of the fully allocated costs used
for purposes of the pre-existing telecom
rate; and (b) in non-urban areas, 44
percent of the fully allocated costs used
for purposes of the pre-existing telecom
rate. Defining cost in terms of a
percentage of the fully allocated costs
previously used for purposes of the
telecom rate is a readily administrable
approach, and consistent with Congress’
direction that the Commission’s pole
attachment rate regulations be ‘‘simple
and expeditious’’ to implement. Further,
the specific percentages we select
provide a reduction in the telecom rate,
and will, in general, approximate the
cable rate, advancing the Commission’s
policies.
54. We adopt a different definition of
cost in non-urban areas—namely, 44
percent of fully allocated costs—to
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address the fact that there typically are
fewer attachers on poles in non-urban
areas, as reflected by the Commission’s
presumptions. Given the operation of
section 224(e), using the same definition
of cost in both types of areas would
increase the burden pole attachment
rates pose for providers of broadband
and other communications services in
non-urban areas, as compared to urban
areas. Such an outcome would be
problematic given the increased
challenges already faced in non-urban
areas, where cost characteristics can be
different and where the availability of,
and competition for, broadband services
tends to be less today than in urban
areas. By defining cost in non-urban
areas as 44 percent of the fully allocated
costs we largely mitigate that concern,
particularly under the Commission’s
presumptions.
55. We observe that these definitions
of cost, when applied pursuant to the
cost apportionment formula in section
224(e), generally will recover a portion
of the pole costs that is equal to the
portion of costs recovered in the cable
rate. We conclude that the pole owner
will have appropriate incentives to
invest in poles and provide attachments
to third-party attachers, carrying
forward under our new approach to the
telecom rate. Moreover, this approach
will significantly reduce the
marketplace distortions and barriers to
the availability of new broadband
facilities and services that arose from
disparate rates.
56. The Commission’s calculations
show that the costs for urban and nonurban areas typically will be within the
higher- and lower-bound range
permissible under section 224(e), and in
those circumstances, we adopt that
definition of cost for establishing the
just and reasonable telecom rate.
However, if scenarios arise where the
costs identified above would be lower
than the 100 percent of administrative
and operating expenses that serves as a
lower bound for the zone of
reasonableness, we adopt the higher
definition of cost in those
circumstances. In sum, the applicable
cost for purposes of section 224(e) will
be the costs identified above or 100
percent of administrative and operating
expenses, whichever is higher.
57. We also reaffirm that wireless
carriers are entitled to the benefits and
protection of section 224, including the
right to the telecom rate under section
224(e). Specifically, in the 1998
Implementation Order, the Commission
explained that it has authority under
section 224(e)(1) to prescribe rules
governing wireless attachments used by
telecommunications carriers to provide
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telecommunications services. The
Commission also stated that Congress
did not intend to distinguish between
wired and wireless attachments and that
there was no basis to limit the definition
of telecommunications carriers under
the statute only to wireline providers.
The Commission noted that, despite the
‘‘potential difficulties in applying the
Commission’s rules to wireless pole
attachments, as opponents of
attachment rights have argued,’’ it did
not see any need for separate rules.
Instead, it explained that ‘‘[w]hen an
attachment requires more than the
presumptive one-foot of usable space on
the pole,’’ the presumption can be
rebutted. Accordingly, wireless
attachments are entitled to the telecom
rate formula, and where parties are
unable to reach agreement through good
faith negotiations, they may bring a
complaint before the Commission.
58. We also address the role of the
new telecom rate in the context of
commingled services. Some cable
operators express concern that pole
owners will seek to impose rates higher
than both the cable rate and the new
telecom rate where cable operators or
telecommunications carriers also
provide services, such as VoIP, that
have not been classified. We agree that
this outcome would be contrary to our
policy goals of reducing the disparity in
pole rental rates among providers of
competing services and of minimizing
disputes. Consequently, we make clear
that the use of pole attachments by
providers of telecommunications
services or cable operators to provide
commingled services does not remove
them from the pole attachment rate
regulation framework under section 224.
Rather, we will not consider rates for
pole attachments by
telecommunications carriers or cable
operators providing commingled
services to be ‘‘just and reasonable’’ if
they exceed the new telecom rate. This
action does not disturb prior
Commission decisions addressing
particular scenarios regarding
commingled services.
59. We believe that section 224(e)
provides the Commission sufficient
latitude to adopt our definition of costs
underlying the new telecom rate. In
particular, section 224(e)(2) and (3)
describe how ‘‘[a] utility shall apportion
the cost of providing space’’ on a pole—
whether usable or unusable—but does
not define the term ‘‘cost.’’ We therefore
find the term ‘‘the cost of providing
space’’ to be ambiguous.’’ Our new
telecom rate reflects a reasonable
interpretation of the ambiguous
statutory language, and we conclude
that Congress gave the Commission
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authority to interpret section 224(e),
including the ambiguous phrases ‘‘cost
of providing space * * * other than the
usable space’’ in section 224(e)(2) and
‘‘cost of providing usable space’’ in
section 224(e)(3).
60. We are not persuaded by electric
utilities that argue section 224(e) must
be read in a manner that mandates use
of a fully allocated cost methodology
based on legislative history. Primarily,
they cite to language in the legislative
history of the House bill endorsing a
fully allocated cost methodology and
other discussions in the legislative
history attempting to link the benefits
attachers receive from pole attachments
to pole rental rates. We are not
persuaded that these arguments compel
an interpretation of section 224(e) that
is contrary to the Commission’s
approach.
61. We also are not persuaded by
claims of utilities that the new telecom
rate will not enable them to recover
their costs. The new telecom rate is
compensatory and is designed so that
utilities will not be cross-subsidizing
attachers, as it ensures that utilities will
recover more than the incremental cost
of making attachments. The record
provides no evidence indicating that
there is any category or type of costs
that are caused by the attacher that are
not recovered through the new telecom
rate.
B. Incumbent LEC Pole Attachments
62. In the 2010 FNPRM, the
Commission asked parties to refresh the
record on the issues raised in the 2007
Pole Attachment NPRM ‘‘both in light of
the specific telecom rate proposals, as
well as the factual findings of the
National Broadband Plan.’’ In addition,
the Commission sought comment ‘‘on
the relationship between the pole rental
rates paid by incumbent LECs and any
other rights and responsibilities they
have by virtue of their pole access
agreements with utilities,’’ such as joint
use agreements, and whether any
remedies otherwise were available to
incumbent LECs absent the ability to file
complaints with the Commission. The
FNPRM also sought comment on
proposals under which incumbent
LECs’ regulated rate would be an
existing rate, whether the cable rate, the
pre-existing telecom rate, or any new
rate adopted in this proceeding, or an
alternative rate, as well as how to
balance the rate paid with the other
terms and conditions in incumbent
LECs’ pole attachment agreements with
other utilities.
63. Based on the record in this
proceeding, we find it appropriate to
revisit our interpretation of section 224
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with respect to rates, terms and
conditions for pole attachments by
incumbent LECs. We allow incumbent
LECs to file complaints with the
Commission challenging the rates, terms
and conditions of pole attachment
agreements with other utilities.
64. Statutory Analysis. In
implementing section 224, as amended
by the 1996 Act, the Commission
interpreted the exclusion of incumbent
LECs from the term
‘‘telecommunications carrier’’ to mean
that section 224 does not apply to
attachment rates paid by incumbent
LECs. Although these decisions did not
consider alternative interpretations of
incumbent LECs’ rights under section
224 in detail, the Commission’s
interpretation appears to have been
based in part on incumbent LECs’ status
as pole owners and thus ‘‘utilities’’
under section 224, and in part on the
view that ‘‘Congress’ intent’’ was to
‘‘promote competition by ensuring the
availability of access to new
telecommunications entrants.’’
65. We find it appropriate to change
the Commission’s prior interpretation of
section 224(b) with respect to
incumbent LECs given the evidence in
the record regarding current market
realities. Over time, aggregate
incumbent LEC pole ownership has
diminished relative to that of electric
utilities. Thus, incumbent LECs often
may not be in an equivalent bargaining
position with electric utilities in pole
attachment negotiations in some cases.
Further, although we agree with the
Commission’s prior assessment that
‘‘Congress’ intent’’ in section 224—and
the 1996 Act more broadly—was to
‘‘promote competition,’’ we believe this
intent was not limited to entities that
were ‘‘new telecommunications
entrants’’ at the time of the 1996 Act.
66. In reviewing the Commission’s
prior interpretation of section 224, we
note that even incumbent LECs
acknowledge that they are excluded
from the section 224 definition of
‘‘telecommunications carrier,’’ and
generally concede that they thus have
no statutory right to nondiscriminatory
pole access under section 224(f)(1). That
is, they agree that because section
224(f)(1) requires utilities to provide
nondiscriminatory access to
‘‘telecommunications carriers,’’ which
exclude incumbent LECs, they have no
statutory right of nondiscriminatory
access to poles, ducts, conduits or
rights-of-way under this provision of the
Act. We agree. They also contend,
however, that sections 224(b)(1) and
224(a)(4) provide an independent right
to reasonable rates, terms and
conditions for any pole attachment by a
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provider of telecommunications service,
and that the statute thus mandates the
Commission to apply the ‘‘just and
reasonable’’ standard to pole
attachments for all such providers,
including incumbent LECs.
67. We are persuaded to revisit our
prior conclusion, and instead adopt a
new interpretation of section 224(b).
Specifically, we find that the
Commission has authority to ensure that
incumbent LECs’ attachments to other
utilities’ poles are pursuant to rates,
terms and conditions that are just and
reasonable. For one, this reflects the
marketplace evidence discussed above.
This also reflects the fact that actions to
reduce input costs, such as pole rental
rates, can expand opportunities for
investment, especially in combination
with other actions, which is particularly
important given the up to 24 million
Americans that do not have access to
broadband today. Incumbent LECs
identify five specific categories of
consumer benefits arising from ensuring
just and reasonable rates for incumbent
LECs’ attachments to other utilities’
poles: (1) Reduced demand on the
universal service fund arising from
reduced incumbent LEC costs; (2)
automatic flow-through of cost
reductions to the regulated rates of rateof-return incumbent LECs; (3) use of
cost savings to improve service and/or
lower prices for broadband services in
areas with competition; (4) increased
broadband deployment in areas where
incumbent LECs currently do not
provide broadband due to the improved
business case; and (5) a source of capital
for expansion. We expect these
promised consumer benefits to occur,
and we encourage incumbent LECs to
provide data to the Commission on an
ongoing basis demonstrating the extent
to which these benefits are being
realized. We would be concerned if
these consumer benefits were not
realized. We will continue to monitor
the outcomes of the Order, and in the
absence of evidence that expected
benefits are being realized, we may,
among other things, revisit our approach
to this issue.
68. We conclude that neither the
language or structure of section 224
precludes our finding that incumbent
LECs are entitled to pole attachment
rates, terms and conditions that are just
and reasonable pursuant to section
224(b)(1). The Commission’s authority
to regulate the rates, terms and
conditions of pole attachments by
incumbent LECs derives principally
from section 224(b) of the Act. In
particular, section 224(b)(1) provides
that the Commission ‘‘shall regulate the
rates, terms, and conditions for pole
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attachments to provide that such rates,
terms, and conditions are just and
reasonable, and shall adopt procedures
necessary and appropriate to hear and
resolve complaints concerning such
rates, terms, and conditions.’’ The
statute defines the term ‘‘pole
attachment,’’ in turn, as ‘‘any attachment
by a cable television system or provider
of telecommunications service to a pole,
duct, conduit, or right-of-way owned or
controlled by a utility.’’
69. Although section 224(a)(5) cites
section 3 of the Communications Act as
a starting point for defining
‘‘telecommunications carrier,’’ by
excluding incumbent LECs, it deviates
from that baseline, resulting in a
definition that is unique to section 224.
In addition, where Congress did not
intend for the Commission to regulate
rates, terms and conditions in a
particular respect, it stated this clearly.
Section 224’s departure from the
definition in section 3, coupled with the
fact that Congress could have expressly
excluded attachments by incumbent
LECs from the Commission’s
jurisdiction over rates, terms and
conditions under section 224(b)(1),
persuade us to interpret ‘‘provider of
telecommunications service’’ as distinct
from ‘‘telecommunications carrier’’ for
purposes of section 224.
70. Interpreting these terms as distinct
leads us to conclude that the definition
of ‘‘pole attachment’’ includes pole
attachments of incumbent LECs.
Moreover, because section 224(b)
requires the Commission to ‘‘regulate the
rates, terms, and conditions for pole
attachments,’’ under our revised reading
the Commission has a statutory
obligation to regulate the attachments of
incumbent LECs.
71. Guidance Regarding Commission
Review of Incumbent LEC Pole
Attachment Complaints. Having found
that section 224(b) enables the
Commission to ensure that pole
attachments by incumbent LECs are
accorded just and reasonable rates,
terms and conditions, we recognize the
need to exercise that authority in a
manner that accounts for the potential
differences between incumbent LECs
and telecommunications carrier or cable
operator attachers. As we observed in
the FNPRM, the issues related to rates
for pole attachments by incumbent LECs
raise complex questions, both with
respect to potential remedies for
incumbent LECs and the details of the
complaint process itself. These
complexities can arise because, for
example, incumbent LECs also own
many poles and historically have
obtained access to other utilities’ poles
within their incumbent LEC service
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26629
territory through ‘‘joint use’’ or other
agreements. We therefore decline at this
time to adopt comprehensive rules
governing incumbent LECs’ pole
attachments, finding it more appropriate
to proceed on a case-by-case basis. We
do, however, provide certain guidance
below regarding the Commission’s
approach to incumbent LEC pole
attachment complaints.
72. We also note that outside of the
carrier’s incumbent LEC service
territory, it would be subject to the pole
attachment regulations applicable to a
telecommunications carrier. In addition,
we decline to apply our new
interpretation of section 224
retroactively, and make clear that
incumbent LECs only can get refunds of
amounts paid subsequent to the
effective date of this Order.
73. Evidence of Bargaining Power. We
recognize that not all incumbent LECs
are similarly situated in terms of their
bargaining position relative to other
pole owners. For example, although
there has been a general trend of
reduced pole ownership by incumbent
LECs’ relative to other utilities, there is
evidence that circumstances can vary
considerably from location to location.
Where parties are in a position to
achieve just and reasonable rates, terms
and conditions through negotiation, we
believe it generally is appropriate to
defer to such negotiations. Thus, in
evaluating incumbent LEC pole
attachment complaints, the Commission
will consider the incumbent LEC’s
evidence that it is in an inferior
bargaining position to the utility against
which it has filed the complaint.
74. Existing vs. New Agreements. The
record reveals that incumbent LECs
frequently have access to pole
attachments pursuant to joint use
agreements today. Although some
incumbent LECs express concerns about
existing joint use agreements, these
long-standing agreements generally
were entered into at a time when
incumbent LECs concede they were in
a more balanced negotiating position
with electric utilities, at least based on
relative pole ownership. As explained
above, we question the need to second
guess the negotiated resolution of
arrangements entered into by parties
with relatively equivalent bargaining
power. Consistent with the foregoing,
the Commission is unlikely to find the
rates, terms and conditions in existing
joint use agreements unjust or
unreasonable. The record also indicates,
however, that both incumbent LECs and
other utilities have the ability to
terminate existing agreements and seek
new arrangements, and that, at times,
each type of entity has sought to do so.
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To the extent that an incumbent LEC
can demonstrate that it genuinely lacks
the ability to terminate an existing
agreement and obtain a new
arrangement, the Commission can
consider that as appropriate in a
complaint proceeding. The Commission
will review complaints regarding
agreements between incumbent LECs
and other utilities entered into
following the adoption of this Order
based on the totality of those
agreements, consistent with the
additional guidance we offer below. In
addition, to the extent that an
incumbent LEC can show that it was
compelled to sign a new pole
attachment agreement with rates, terms,
or conditions that it contends are unjust
or unreasonable simply to maintain pole
access as a result of a utility’s unequal
bargaining power, we note that the ‘‘sign
and sue’’ rule will apply here in a
manner similar to its application in the
context of pole attachment agreements
between pole owners and either cable
operators or telecommunications
carriers.
75. Reference to Other Agreements.
As discussed above, the historical joint
use agreements between incumbent
LECs and other utilities implicate rights
and responsibilities that differ from
those in typical pole lease agreements
between utilities and
telecommunications carriers or cable
operators. Under any new agreements,
to the extent that the incumbent LEC
demonstrates that it is obtaining pole
attachments on terms and conditions
that leave them comparably situated to
telecommunications carriers or cable
operators, we believe it will be
appropriate to use the rate of the
comparable attacher as the ‘‘just and
reasonable’’ rate for purposes of section
224(b). As discussed above, just and
reasonable pole attachments rates for
incumbent LECs are not bound by the
formulas in sections 224(d) or (e).
Where incumbent LECs are attaching to
other utilities’ poles on terms and
conditions that are comparable to those
that apply to a telecommunications
carrier or a cable operator—which
generally will be paying a rate equal or
similar to the cable rate under our
rules—competitive neutrality counsels
in favor of affording incumbent LECs
the same rate as the comparable
provider (whether the
telecommunications carrier or the cable
operator). In this regard, an incumbent
LEC might demonstrate that it obtains
access to poles on terms and conditions
that are the same as a
telecommunications carrier or cable
operator. Likewise, an incumbent LEC
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may seek the same term or condition
that applies to a telecommunications
carrier or cable operator upon a showing
that it otherwise is comparably situated
to that provider.
76. Even if the terms and conditions
of access are not the same, however,
incumbent LECs may seek to
demonstrate that the arrangement at
issue does not provide a material
advantage to incumbent LECs relative to
cable operators or telecommunications
carriers. To facilitate this analysis, we
modify our pole attachment complaint
rules to require that incumbent LECs
provide, in a complaint proceeding, any
agreements between the defendant
utility and a third party attacher with
whom the incumbent LEC claims it is
similarly situated (or that the other
utility do so if necessary).
77. By contrast, if a new pole
attachment agreement between an
incumbent LEC and a pole owner
includes provisions that materially
advantage the incumbent LEC vis a vis
a telecommunications carrier or cable
operator, we believe that a different rate
should apply. Just as considerations of
competitive neutrality counsel in favor
of similar treatment of similarly situated
providers, so too should differently
situated providers be treated differently.
In particular, we find it reasonable to
look to the pre-existing, high-end
telecom rate as a reference point in
complaint proceedings involving a pole
owner and an incumbent LEC attacher
that is not similarly situated, or has
failed to show that it is similarly
situated to a cable or
telecommunications attacher. As a
higher rate than the regulated rate
available to telecommunications carriers
and cable operators, it helps account for
particular arrangements that provide net
advantages to incumbent LECs relative
to cable operators or
telecommunications carriers. We find it
prudent to identify a specific rate to be
used as a reference point in these
circumstances because it will enable
better informed pole attachment
negotiations between incumbent LECs
and electric utilities. We also believe it
will reduce the number of disputes for
which Commission resolution is
required by providing parties clearer
expectations regarding the potential
outcomes of formal complaints, thus
narrowing the scope of the conflict. For
example, we would be skeptical of a
complaint by an incumbent LEC seeking
a proportionately lower rate to attach to
an electric utility’s poles than the rate
the incumbent LEC is charging the
electric utility to attach to its poles. We
believe that a just and reasonable rate in
such circumstances would be the same
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proportionate rate charged the electric
utility, given the incumbent LEC’s
relative usage of the pole (such as the
same rate per foot of occupied space).
Further, we find it more administrable
to look to the existing, high-end telecom
rate, which historically has been used in
the marketplace, than to attempt to
develop in this Order an entirely new
rate for this context.
78. We also recognize that incumbent
LECs generally are pole owners
themselves and, like electric utilities,
have agreements governing access to
their poles. As appropriate, in
evaluating an incumbent LEC’s
complaint, the Commission may also
consider the rates, terms and conditions
that the incumbent LEC offers to the
electric utility or other attachers for
access to the incumbent LEC’s poles,
including whether they are more or less
favorable than the rates, terms and
conditions the incumbent LEC is
seeking. Further, evidence that a term or
condition was contained in the parties’
prior joint use agreement will carry
significant weight in the Commission’s
assessment of whether a refusal to agree
to a substantially different term or
condition regarding the same subject in
a new agreement is unreasonable.
79. Other Fora for Dispute Resolution.
Some electric utilities and other
commenters have observed that certain
state commissions might provide a
forum for resolving incumbent LECelectric utility pole attachment disputes.
We do not preclude parties from
electing to pursue complaints before
state commissions, rather than before
the Commission. Section 224 ensures
incumbent LECs of appropriate
Commission oversight of their pole
attachments, however, and we therefore
do not require incumbent LECs to
pursue relief in state fora before filing a
complaint with the Commission.
Clarification and Reconsideration of
the 2010 Order
80. Prospective Policies. We clarify
that a utility may not simply prohibit an
attacher from using boxing, bracketing,
or any other attachment technique on a
going forward basis where the utility, at
the time of an attacher’s request,
employs such techniques itself. As
Fibertech points out, even a policy that
is equally applied prospectively is
discriminatory in the sense that it
disadvantages new attachers. Thus, the
relevant standards for purposes of
determining a utility’s ‘‘existing
practices’’ are those that a utility applies
at the time of an attacher’s request to
use a particular attachment technique—
not the standards that a utility wishes to
apply going forward. A utility may,
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however, choose to reduce or eliminate
altogether the use of a particular method
of attachment used on its poles,
including boxing or bracketing, which
would alter the range of circumstances
in which it is obligated to allow future
attachers to use the same techniques.
81. Joint Ownership. We also clarify
that, where a pole is jointly owned and
the owners have adopted different
standards regarding the use of boxing,
bracketing, or other attachment
techniques, the joint owners may apply
the more restrictive standards. For
instance, if an electric utility and an
incumbent LEC jointly own a pole but
have divergent standards regarding the
use of boxing, they may refuse to allow
an attacher to box in a situation where
boxing would be allowed by one
utility’s standards but not the other’s.
We disagree with Fibertech that
permitting application of the more
restrictive standard will allow joint pole
owners to ‘‘double team’’ attachers by
demanding compliance with one set of
standards initially and then a different
set later. In order to avoid a claim that
their terms and conditions for access are
unjust, unreasonable or discriminatory,
joint pole owners should settle on and
apply a single set of standards—not
different sets at different times.
82. Similar Circumstances and the
Electric Space. At the Coalition’s
request, we clarify that an electric
utility’s use of a particular attachment
technique for facilities in the electric
space does not obligate the utility to
allow the same technique to be used by
attachers in the communications space.
We likewise clarify, in response to the
Florida IOUs’ request, that the existence
of boxing and bracketing configurations
in the electric space do not trigger an
attacher’s right to use boxing and
bracketing in the communications
space. The 2010 Order specified that
attachers are entitled to use the same
techniques that the utility itself uses in
similar circumstances, and we agree
with the petitioners that the above
situations do not involve similar
circumstances. For instance, boxing and
bracketing in the communications space
can limit the use of climbing as a means
of maintenance and repair, and also
complicate pole change out.
83. We disagree with the petitioners,
however, that the nondiscrimination
requirement in section 224(f)(1) applies
only to the extent that a pole owner has
allowed itself or others to use an
attachment technique in the
communications space of a pole. As
explained in further detail below, the
Act does not limit a utility’s
nondiscrimination obligations to
activities that take place in the
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communications space. Thus, while an
electric utility’s use of an attachment
technique in the electric space might
not obligate it to permit use of such
technique in the communications space,
its use of an attachment technique (like
boxing and bracketing) in the electric
space may, in fact, obligate it to allow
use of that technique in the electric
space. The salient issue is whether the
attacher’s use of a particular technique
is consistent with the utility’s, not
whether its use is consistent with the
utility’s in the communication space.
84. Insufficient Capacity and the
Electric Space. We deny the Florida
IOUs’ request to find that a pole has
‘‘insufficient capacity’’ if an electric
utility must rearrange its electric
facilities to accommodate a new
attacher. As explained in the 2010
Order, a pole does not have insufficient
capacity where a request for attachment
could be accommodated using
traditional methods of attachment.
Rearrangement of facilities on a pole is
one of these methods, and nothing in
the statute suggests that, for purposes of
gauging capacity, rearrangement of
facilities in the electric space should be
treated differently from rearrangement
of facilities in the communications
space. Thus, where rearrangement of a
pole’s facilities—whether in the
communications space or the electric
space—can accommodate an
attachment, there is not ‘‘insufficient
capacity’’ under section 224(f)(2).
85. Space-and Cost-Saving. The
Florida IOUs argue that section 224(f)(2)
allows an electric utility to deny use of
a particular attachment technique when
the utility itself has not used or
authorized that technique as a means of
saving both space and cost. We disagree
that section 224(f)(2) is so limited. We
find that the Florida IOUs’ restrictive
interpretation has no basis in the text of
section 224 and would enable a utility
to refuse an attacher use of a particular
attachment technique in situations
where the utility itself uses the
technique or authorizes its use by third
parties. If a utility uses bracketing as a
means of saving cost (but not space) in
a particular type of situation, for
instance, it must allow attachers also to
use bracketing. But under the Florida
IOUs’ formulation, the utility would
have no duty to do so.
Paperwork Reduction Act of 1995
Analysis
87. This document contains new
information collection requirements
subject to the Paperwork Reduction Act
of 1995 (PRA), Public Law 104–13. It
will be submitted to the Office of
Management and Budget (OMB) for
review under section 3507(d) of the
PRA. OMB, the general public, and
other Federal agencies are invited to
comment on the new or modified
information collection requirements
adopted in this Order.
Congressional Review Act
B. Summary of the Significant Issues
Raised by the Public Comments in
Response to the IRFA and Summary of
the Assessment of the Agency of Such
Issues
90. One commenter discussed the
IRFA from the FNPRM. A group of
86. The Commission will send a copy
of this Report and Order in a report to
be sent to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
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Final Regulation Flexibility Analysis
88. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), an Initial Regulatory Flexibility
Analysis (IRFA) was included in the
2010 Order and FNPRM in WC Docket
No. 07–245 and GN Docket No. 09–51.
The Commission sought written public
comment on the proposals in these
dockets, including comment on the
IRFA. This Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the
Proposed Rules
89. In this Report and Order and
Order on Reconsideration (Order), FCC
11–50, adopted and released on April 7,
2011, the Commission revises its pole
attachment rules to promote
competition and to reduce the
potentially excessive costs of deploying
telecommunications, cable, and
broadband networks. The Commission
has historically relied primarily on
private negotiations and case-specific
adjudications to ensure just and
reasonable rates, terms, and conditions,
but its experience during the past 15
years has demonstrated the need to
provide more guidance. Accordingly,
the Commission establishes a four-stage
timeline for wireline and wireless
access to poles; provides attachers with
a self-effectuating contractor remedy in
the communications space; improves its
enforcement rules; reinterprets the
telecommunications rate formula within
the existing statutory framework; and
addresses rates, terms, and conditions
for pole attachments by incumbent
LECs. The Commission also resolves
multiple petitions for reconsideration
and addresses various points regarding
the nondiscriminatory use of attachment
techniques.
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associations representing rural
telephone companies argued
specifically that the Commission should
adopt the lowest telecom rate for
broadband connections, adopt an
incumbent LEC dispute resolution
process, and cap pole attachment orders
at 100 poles. We squarely address these
concerns by revising the section 224(e)
rental rate for pole attachments used by
telecommunications carriers to provide
telecommunications services; permitting
incumbent LECs to file complaints with
the Commission to ensure reasonable
rates, terms, and conditions of pole
attachments; and adopting the lesser of
a numerical or a percentage-based cap
on pole orders.
C . Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules May Apply
91. The RFA directs agencies to
provide a description of, and where
feasible, an estimate of the number of
small entities that may be affected by
the proposed rules and policies, if
adopted. The RFA generally defines the
term ‘‘small entity’’ as having the same
meaning as the terms ‘‘small business,’’
‘‘small organization,’’ and ‘‘small
governmental jurisdiction.’’ In addition,
the term ‘‘small business’’ has the same
meaning as the term ‘‘small business
concern’’ under the Small Business Act.
A ‘‘small business concern’’ is one
which: (1) Is independently owned and
operated; (2) is not dominant in its field
of operation; and (3) satisfies any
additional criteria established by the
SBA.
92. Small Businesses. Nationwide,
there are a total of approximately 29.6
million small businesses, according to
the SBA.
93. Small Organizations. Nationwide,
as of 2002, there are approximately 1.6
million small organizations. A ‘‘small
organization’’ is generally ‘‘any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.’’
94. Small Governmental Jurisdictions.
The term ‘‘small governmental
jurisdiction’’ is defined generally as
‘‘governments of cities, towns,
townships, villages, school districts, or
special districts, with a population of
less than fifty thousand.’’ Census Bureau
data for 2002 indicate that there were
87,525 local governmental jurisdictions
in the United States. We estimate that,
of this total, 84,377 entities were ‘‘small
governmental jurisdictions.’’ Thus, we
estimate that most governmental
jurisdictions are small.
95. We have included small
incumbent local exchange carriers in
this present RFA analysis. As noted
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above, a ‘‘small business’’ under the RFA
is one that, inter alia, meets the
pertinent small business size standard
(e.g., a telephone communications
business having 1,500 or fewer
employees), and ‘‘is not dominant in its
field of operation.’’ The SBA’s Office of
Advocacy contends that, for RFA
purposes, small incumbent local
exchange carriers are not dominant in
their field of operation because any such
dominance is not ‘‘national’’ in scope.
We have therefore included small
incumbent local exchange carriers in
this RFA analysis, although we
emphasize that this RFA action has no
effect on Commission analyses and
determinations in other, non-RFA
contexts.
96. Incumbent Local Exchange
Carriers (ILECs). Neither the
Commission nor the SBA has developed
a small business size standard
specifically for incumbent local
exchange services. The appropriate size
standard under SBA rules is for the
category Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees. According to
Commission data, 1,311 carriers have
reported that they are engaged in the
provision of incumbent local exchange
services. Of these 1,311 carriers, an
estimated 1,024 have 1,500 or fewer
employees and 287 have more than
1,500 employees. Consequently, the
Commission estimates that most
providers of incumbent local exchange
service are small businesses that may be
affected by our proposed action.
97. Competitive Local Exchange
Carriers (CLECs), Competitive Access
Providers (CAPs), ‘‘Shared-Tenant
Service Providers,’’ and ‘‘Other Local
Service Providers.’’ Neither the
Commission nor the SBA has developed
a small business size standard
specifically for these service providers.
The appropriate size standard under
SBA rules is for the category Wired
Telecommunications Carriers. Under
that size standard, such a business is
small if it has 1,500 or fewer employees.
According to Commission data, 1005
carriers have reported that they are
engaged in the provision of either
competitive access provider services or
competitive local exchange carrier
services. Of these 1005 carriers, an
estimated 918 have 1,500 or fewer
employees and 87 have more than 1,500
employees. In addition, 16 carriers have
reported that they are ‘‘Shared-Tenant
Service Providers,’’ and all 16 are
estimated to have 1,500 or fewer
employees. In addition, 89 carriers have
reported that they are ‘‘Other Local
Service Providers.’’ Of the 89, all have
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1,500 or fewer employees.
Consequently, the Commission
estimates that most providers of
competitive local exchange service,
competitive access providers, ‘‘SharedTenant Service Providers,’’ and ‘‘Other
Local Service Providers’’ are small
entities that may be affected by our
proposed action.
98. Interexchange Carriers (IXCs).
Neither the Commission nor the SBA
has developed a small business size
standard specifically for providers of
interexchange services. The appropriate
size standard under SBA rules is for the
category Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees. According to
Commission data, 300 carriers have
reported that they are engaged in the
provision of interexchange service. Of
these, an estimated 268 have 1,500 or
fewer employees and 32 have more than
1,500 employees. Consequently, the
Commission estimates that the majority
of IXCs are small entities that may be
affected by our proposed action.
99. Satellite Telecommunications and
All Other Telecommunications. These
two economic census categories address
the satellite industry. The first category
has a small business size standard of
$15 million or less in average annual
receipts, under SBA rules. The second
has a size standard of $25 million or less
in annual receipts. The most current
Census Bureau data in this context,
however, are from the (last) economic
census of 2002, and we will use those
figures to gauge the prevalence of small
businesses in these categories.
100. The category of Satellite
Telecommunications ‘‘comprises
establishments primarily engaged in
providing telecommunications services
to other establishments in the
telecommunications and broadcasting
industries by forwarding and receiving
communications signals via a system of
satellites or reselling satellite
telecommunications.’’ For this category,
Census Bureau data for 2002 show that
there were a total of 371 firms that
operated for the entire year. Of this
total, 307 firms had annual receipts of
under $10 million, and 26 firms had
receipts of $10 million to $24,999,999.
Consequently, we estimate that the
majority of Satellite
Telecommunications firms are small
entities that might be affected by our
action.
101. The second category of All Other
Telecommunications comprises, inter
alia, ‘‘establishments primarily engaged
in providing specialized
telecommunications services, such as
satellite tracking, communications
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telemetry, and radar station operation.
This industry also includes
establishments primarily engaged in
providing satellite terminal stations and
associated facilities connected with one
or more terrestrial systems and capable
of transmitting telecommunications to,
and receiving telecommunications from,
satellite systems.’’ For this category,
Census Bureau data for 2002 show that
there were a total of 332 firms that
operated for the entire year. Of this
total, 303 firms had annual receipts of
under $10 million and 15 firms had
annual receipts of $10 million to
$24,999,999. Consequently, we estimate
that the majority of All Other
Telecommunications firms are small
entities that might be affected by our
action.
102. Wireless Telecommunications
Carriers (except Satellite). Since 2007,
the Census Bureau has placed wireless
firms within this new, broad, economic
census category. Prior to that time, such
firms were within the now-superseded
categories of ‘‘Paging’’ and ‘‘Cellular and
Other Wireless Telecommunications.’’
Under the present and prior categories,
the SBA has deemed a wireless business
to be small if it has 1,500 or fewer
employees. Because Census Bureau data
are not yet available for the new
category, we will estimate small
business prevalence using the prior
categories and associated data. For the
category of Paging, data for 2002 show
that there were 807 firms that operated
for the entire year. Of this total, 804
firms had employment of 999 or fewer
employees, and three firms had
employment of 1,000 employees or
more. For the category of Cellular and
Other Wireless Telecommunications,
data for 2002 show that there were 1,397
firms that operated for the entire year.
Of this total, 1,378 firms had
employment of 999 or fewer employees,
and 19 firms had employment of 1,000
employees or more. Thus, we estimate
that the majority of wireless firms are
small.
103. Common Carrier Paging. As
noted, since 2007 the Census Bureau
has placed paging providers within the
broad economic census category of
Wireless Telecommunications Carriers
(except Satellite). Prior to that time,
such firms were within the nowsuperseded category of ‘‘Paging.’’ Under
the present and prior categories, the
SBA has deemed a wireless business to
be small if it has 1,500 or fewer
employees. Because Census Bureau data
are not yet available for the new
category, we will estimate small
business prevalence using the prior
category and associated data. The data
for 2002 show that there were 807 firms
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that operated for the entire year. Of this
total, 804 firms had employment of 999
or fewer employees, and three firms had
employment of 1,000 employees or
more. Thus, we estimate that the
majority of paging firms are small.
104. In addition, in the Paging Second
Report and Order, the Commission
adopted a size standard for ‘‘small
businesses’’ for purposes of determining
their eligibility for special provisions
such as bidding credits and installment
payments. A small business is an entity
that, together with its affiliates and
controlling principals, has average gross
revenues not exceeding $15 million for
the preceding three years. The SBA has
approved this definition. An initial
auction of Metropolitan Economic Area
(MEA) licenses was conducted in the
year 2000. Of the 2,499 licenses
auctioned, 985 were sold. Fifty-seven
companies claiming small business
status won 440 licenses. A subsequent
auction of MEA and Economic Area
(EA) licenses was held in the year 2001.
Of the 15,514 licenses auctioned, 5,323
were sold. One hundred thirty-two
companies claiming small business
status purchased 3,724 licenses. A third
auction, consisting of 8,874 licenses in
each of 175 EAs and 1,328 licenses in
all but three of the 51 MEAs, was held
in 2003. Seventy-seven bidders claiming
small or very small business status won
2,093 licenses.
105. Currently, there are
approximately 74,000 Common Carrier
Paging licenses. According to the most
recent Trends in Telephone Service, 281
carriers reported that they were engaged
in the provision of ‘‘paging and
messaging’’ services. Of these, an
estimated 279 have 1,500 or fewer
employees and two have more than
1,500 employees. We estimate that the
majority of common carrier paging
providers would qualify as small
entities under the SBA definition.
106. Wireless Telephony. Wireless
telephony includes cellular, personal
communications services, and
specialized mobile radio telephony
carriers. As noted, the SBA has
developed a small business size
standard for Wireless
Telecommunications Carriers (except
Satellite). Under the SBA small business
size standard, a business is small if it
has 1,500 or fewer employees.
According to Trends in Telephone
Service data, 434 carriers reported that
they were engaged in wireless
telephony. Of these, an estimated 222
have 1,500 or fewer employees and 212
have more than 1,500 employees. We
have estimated that 222 of these are
small under the SBA small business size
standard.
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107. Broadband Personal
Communications Service. The
broadband personal communications
services (PCS) spectrum is divided into
six frequency blocks designated A
through F, and the Commission has held
auctions for each block. The
Commission has created a small
business size standard for Blocks C and
F as an entity that has average gross
revenues of less than $40 million in the
three previous calendar years. For Block
F, an additional small business size
standard for ‘‘very small business’’ was
added and is defined as an entity that,
together with its affiliates, has average
gross revenues of not more than $15
million for the preceding three calendar
years. These small business size
standards, in the context of broadband
PCS auctions, have been approved by
the SBA. No small businesses within the
SBA-approved small business size
standards bid successfully for licenses
in Blocks A and B. There were 90
winning bidders that qualified as small
entities in the Block C auctions. A total
of 93 ‘‘small’’ and ‘‘very small’’ business
bidders won approximately 40 percent
of the 1,479 licenses for Blocks D, E, and
F. In 1999, the Commission reauctioned
155 C, D, E, and F Block licenses; there
were 113 small business winning
bidders.
108. In 2001, the Commission
completed the auction of 422 C and F
Broadband PCS licenses in Auction 35.
Of the 35 winning bidders in this
auction, 29 qualified as ‘‘small’’ or ‘‘very
small’’ businesses. Subsequent events,
concerning Auction 35, including
judicial and agency determinations,
resulted in a total of 163 C and F Block
licenses being available for grant. In
2005, the Commission completed an
auction of 188 C block licenses and 21
F block licenses in Auction 58. There
were 24 winning bidders for 217
licenses. Of the 24 winning bidders, 16
claimed small business status and won
156 licenses. In 2007, the Commission
completed an auction of 33 licenses in
the A, C, and F Blocks in Auction 71.
Of the 14 winning bidders, six were
designated entities. In 2008, the
Commission completed an auction of 20
Broadband PCS licenses in the C, D, E
and F block licenses in Auction 78.
109. Advanced Wireless Services. In
2008, the Commission conducted the
auction of Advanced Wireless Services
(AWS) licenses. This auction, which as
designated as Auction 78, offered 35
licenses in the AWS 1710–1755 MHz
and 2110–2155 MHz bands (AWS–1).
The AWS–1 licenses were licenses for
which there were no winning bids in
Auction 66. That same year, the
Commission completed Auction 78. A
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bidder with attributed average annual
gross revenues that exceeded $15
million and did not exceed $40 million
for the preceding three years (small
business) received a 15 percent discount
on its winning bid. A bidder with
attributed average annual gross revenues
that did not exceed $15 million for the
preceding three years (very small
business) received a 25 percent discount
on its winning bid. A bidder that had
combined total assets of less than $500
million and combined gross revenues of
less than $125 million in each of the last
two years qualified for entrepreneur
status. Four winning bidders that
identified themselves as very small
businesses won 17 licenses. Three of the
winning bidders that identified
themselves as a small business won five
licenses. Additionally, one other
winning bidder that qualified for
entrepreneur status won 2 licenses.
110. Narrowband Personal
Communications Services. In 1994, the
Commission conducted an auction for
Narrowband PCS licenses. A second
auction was also conducted later in
1994. For purposes of the first two
Narrowband PCS auctions, ‘‘small
businesses’’ were entities with average
gross revenues for the prior three
calendar years of $40 million or less.
Through these auctions, the
Commission awarded a total of 41
licenses, 11 of which were obtained by
four small businesses. To ensure
meaningful participation by small
business entities in future auctions, the
Commission adopted a two-tiered small
business size standard in the
Narrowband PCS Second Report and
Order. A ‘‘small business’’ is an entity
that, together with affiliates and
controlling interests, has average gross
revenues for the three preceding years of
not more than $40 million. A ‘‘very
small business’’ is an entity that,
together with affiliates and controlling
interests, has average gross revenues for
the three preceding years of not more
than $15 million. The SBA has
approved these small business size
standards. A third auction was
conducted in 2001. Here, five bidders
won 317 (Metropolitan Trading Areas
and nationwide) licenses. Three of these
claimed status as a small or very small
entity and won 311 licenses.
111. Cellular Radiotelephone Service.
Auction 77 was held to resolve one
group of mutually exclusive
applications for Cellular Radiotelephone
Service licenses for unserved areas in
New Mexico. Bidding credits for
designated entities were not available in
Auction 77. In 2008, the Commission
completed the closed auction of one
unserved service area in the Cellular
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Radiotelephone Service, designated as
Auction 77. Auction 77 concluded with
one provisionally winning bid for the
unserved area totaling $25,002.
112. Private Land Mobile Radio
(PLMR). PLMR systems serve an
essential role in a range of industrial,
business, land transportation, and
public safety activities. These radios are
used by companies of all sizes operating
in all U.S. business categories, and are
often used in support of the licensee’s
primary (non-telecommunications)
business operations. For the purpose of
determining whether a licensee of a
PLMR system is a small business as
defined by the SBA, we use the broad
census category, Wireless
Telecommunications Carriers (except
Satellite). This definition provides that
a small entity is any such entity
employing no more than 1,500 persons.
The Commission does not require PLMR
licensees to disclose information about
number of employees, so the
Commission does not have information
that could be used to determine how
many PLMR licensees constitute small
entities under this definition. We note
that PLMR licensees generally use the
licensed facilities in support of other
business activities, and therefore, it
would also be helpful to assess PLMR
licensees under the standards applied to
the particular industry subsector to
which the licensee belongs.
113. As of March 2010, there were
424,162 PLMR licensees operating
921,909 transmitters in the PLMR bands
below 512 MHz. We note that any entity
engaged in a commercial activity is
eligible to hold a PLMR license, and that
any revised rules in this context could
therefore potentially impact small
entities covering a great variety of
industries.
114. Fixed Microwave Services. Fixed
microwave services include common
carrier, private operational-fixed, and
broadcast auxiliary radio services. At
present, there are approximately 22,015
common carrier fixed licensees and
61,670 private operational-fixed
licensees and broadcast auxiliary radio
licensees in the microwave services.
The Commission has not created a size
standard for a small business
specifically with respect to fixed
microwave services. For purposes of
this analysis, the Commission uses the
SBA small business size standard for the
category Wireless Telecommunications
Carriers (except Satellite), which is
1,500 or fewer employees. The
Commission does not have data
specifying the number of these licensees
that have no more than 1,500
employees, and thus are unable at this
time to estimate with greater precision
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the number of fixed microwave service
licensees that would qualify as small
business concerns under the SBA’s
small business size standard.
Consequently, the Commission
estimates that there are 22,015 or fewer
common carrier fixed licensees and
61,670 or fewer private operationalfixed licensees and broadcast auxiliary
radio licensees in the microwave
services that may be small and may be
affected by the rules and policies
proposed herein. We note, however, that
the common carrier microwave fixed
licensee category includes some large
entities.
115. Local Multipoint Distribution
Service. Local Multipoint Distribution
Service (LMDS) is a fixed broadband
point-to-multipoint microwave service
that provides for two-way video
telecommunications. The auction of the
986 LMDS licenses began and closed in
1998. The Commission established a
small business size standard for LMDS
licenses as an entity that has average
gross revenues of less than $40 million
in the three previous calendar years. An
additional small business size standard
for ‘‘very small business’’ was added as
an entity that, together with its affiliates,
has average gross revenues of not more
than $15 million for the preceding three
calendar years. The SBA has approved
these small business size standards in
the context of LMDS auctions. There
were 93 winning bidders that qualified
as small entities in the LMDS auctions.
A total of 93 small and very small
business bidders won approximately
277 A Block licenses and 387 B Block
licenses. In 1999, the Commission reauctioned 161 licenses; there were 32
small and very small businesses
winning that won 119 licenses.
116. Rural Radiotelephone Service.
The Commission has not adopted a size
standard for small businesses specific to
the Rural Radiotelephone Service. A
significant subset of the Rural
Radiotelephone Service is the Basic
Exchange Telephone Radio System
(BETRS). In the present context, we will
use the SBA’s small business size
standard applicable to Wireless
Telecommunications Carriers (except
Satellite), i.e., an entity employing no
more than 1,500 persons. There are
approximately 1,000 licensees in the
Rural Radiotelephone Service, and the
Commission estimates that there are
1,000 or fewer small entity licensees in
the Rural Radiotelephone Service that
may be affected by the rules and
policies proposed herein.
117. Broadband Radio Service and
Educational Broadband Service.
Broadband Radio Service systems,
previously referred to as Multipoint
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Distribution Service (MDS) and
Multichannel Multipoint Distribution
Service (MMDS) systems, and ‘‘wireless
cable,’’ transmit video programming to
subscribers and provide two-way high
speed data operations using the
microwave frequencies of the
Broadband Radio Service (BRS) and
Educational Broadband Service (EBS)
(previously referred to as the
Instructional Television Fixed Service
(ITFS)). In connection with the 1996
BRS auction, the Commission
established a small business size
standard as an entity that had annual
average gross revenues of no more than
$40 million in the previous three
calendar years. The BRS auctions
resulted in 67 successful bidders
obtaining licensing opportunities for
493 Basic Trading Areas (BTAs). Of the
67 auction winners, 61 met the
definition of a small business. BRS also
includes licensees of stations authorized
prior to the auction. At this time, we
estimate that of the 61 small business
BRS auction winners, 48 remain small
business licensees. In addition to the 48
small businesses that hold BTA
authorizations, there are approximately
392 incumbent BRS licensees that are
considered small entities. After adding
the number of small business auction
licensees to the number of incumbent
licensees not already counted, we find
that there are currently approximately
440 BRS licensees that are defined as
small businesses under either the SBA
or the Commission’s rules. In 2009, the
Commission conducted Auction 86, the
sale of 78 licenses in the BRS areas. The
Commission offered three levels of
bidding credits: (i) A bidder with
attributed average annual gross revenues
that exceed $15 million and do not
exceed $40 million for the preceding
three years (small business) will receive
a 15 percent discount on its winning
bid; (ii) a bidder with attributed average
annual gross revenues that exceed $3
million and do not exceed $15 million
for the preceding three years (very small
business) will receive a 25 percent
discount on its winning bid; and (iii) a
bidder with attributed average annual
gross revenues that do not exceed $3
million for the preceding three years
(entrepreneur) will receive a 35 percent
discount on its winning bid. Auction 86
concluded in 2009 with the sale of 61
licenses. Of the ten winning bidders,
two bidders that claimed small business
status won 4 licenses; one bidder that
claimed very small business status won
three licenses; and two bidders that
claimed entrepreneur status won six
licenses.
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118. In addition, the SBA’s Cable
Television Distribution Services small
business size standard is applicable to
EBS. There are presently 2,032 EBS
licensees. All but 100 of these licenses
are held by educational institutions.
Educational institutions are included in
this analysis as small entities. Thus, we
estimate that at least 1,932 licensees are
small businesses. Since 2007, Cable
Television Distribution Services have
been defined within the broad economic
census category of Wired
Telecommunications Carriers; that
category is defined as follows: ‘‘This
industry comprises establishments
primarily engaged in operating and/or
providing access to transmission
facilities and infrastructure that they
own and/or lease for the transmission of
voice, data, text, sound, and video using
wired telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies.’’ The SBA has developed a
small business size standard for this
category, which is: all such firms having
1,500 or fewer employees. To gauge
small business prevalence for these
cable services we must, however, use
current census data that are based on
the previous category of Cable and
Other Program Distribution and its
associated size standard; that size
standard was: all such firms having
$13.5 million or less in annual receipts.
According to Census Bureau data for
2002, there were a total of 1,191 firms
in this previous category that operated
for the entire year. Of this total, 1,087
firms had annual receipts of under $10
million, and 43 firms had receipts of
$10 million or more but less than $25
million. Thus, the majority of these
firms can be considered small.
119. Cable Television Distribution
Services. Since 2007, these services
have been defined within the broad
economic census category of Wired
Telecommunications Carriers; that
category is defined as follows: ‘‘This
industry comprises establishments
primarily engaged in operating and/or
providing access to transmission
facilities and infrastructure that they
own and/or lease for the transmission of
voice, data, text, sound, and video using
wired telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies.’’ The SBA has developed a
small business size standard for this
category, which is: all such firms having
1,500 or fewer employees. To gauge
small business prevalence for these
cable services we must, however, use
current census data that are based on
the previous category of Cable and
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Other Program Distribution and its
associated size standard; that size
standard was: all such firms having
$13.5 million or less in annual receipts.
According to Census Bureau data for
2002, there were a total of 1,191 firms
in this previous category that operated
for the entire year. Of this total, 1,087
firms had annual receipts of under $10
million, and 43 firms had receipts of
$10 million or more but less than $25
million. Thus, the majority of these
firms can be considered small.
120. Cable Companies and Systems.
The Commission has also developed its
own small business size standards, for
the purpose of cable rate regulation.
Under the Commission’s rules, a ‘‘small
cable company’’ is one serving 400,000
or fewer subscribers, nationwide.
Industry data indicate that, of 1,076
cable operators nationwide, all but
eleven are small under this size
standard. In addition, under the
Commission’s rules, a ‘‘small system’’ is
a cable system serving 15,000 or fewer
subscribers. Industry data indicate that,
of 6,635 systems nationwide, 5,802
systems have fewer than 10,000
subscribers, and an additional 302
systems have 10,000–19,999
subscribers. Thus, under this second
size standard, most cable systems are
small.
121. Cable System Operators. The
Communications Act of 1934, as
amended, also contains a size standard
for small cable system operators, which
is ‘‘a cable operator that, directly or
through an affiliate, serves in the
aggregate fewer than 1 percent of all
subscribers in the United States and is
not affiliated with any entity or entities
whose gross annual revenues in the
aggregate exceed $250,000,000.’’ The
Commission has determined that an
operator serving fewer than 677,000
subscribers shall be deemed a small
operator, if its annual revenues, when
combined with the total annual
revenues of all its affiliates, do not
exceed $250 million in the aggregate.
Industry data indicate that, of 1,076
cable operators nationwide, all but ten
are small under this size standard. We
note that the Commission neither
requests nor collects information on
whether cable system operators are
affiliated with entities whose gross
annual revenues exceed $250 million,
and therefore we are unable to estimate
more accurately the number of cable
system operators that would qualify as
small under this size standard.
122. Open Video Systems. The open
video system (OVS) framework was
established in 1996, and is one of four
statutorily recognized options for the
provision of video programming
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services by local exchange carriers. The
OVS framework provides opportunities
for the distribution of video
programming other than through cable
systems. Because OVS operators provide
subscription services, OVS falls within
the SBA small business size standard
covering cable services, which is ‘‘Wired
Telecommunications Carriers.’’ The SBA
has developed a small business size
standard for this category, which is: All
such firms having 1,500 or fewer
employees. To gauge small business
prevalence for such services we must,
however, use current census data that
are based on the previous category of
Cable and Other Program Distribution
and its associated size standard; that
size standard was: all such firms having
$13.5 million or less in annual receipts.
According to Census Bureau data for
2002, there were a total of 1,191 firms
in this previous category that operated
for the entire year. Of this total, 1,087
firms had annual receipts of under $10
million, and 43 firms had receipts of
$10 million or more but less than $25
million. Thus, the majority of cable
firms can be considered small. In
addition, we note that the Commission
has certified some OVS operators, with
some now providing service. Broadband
service providers (BSPs) are currently
the only significant holders of OVS
certifications or local OVS franchises.
The Commission does not have
financial or employment information
regarding the entities authorized to
provide OVS, some of which may not
yet be operational. Thus, again, at least
some of the OVS operators may qualify
as small entities.
123. Cable Television Relay Service.
This service includes transmitters
generally used to relay cable
programming within cable television
system distribution systems. This cable
service is defined within the broad
economic census category of Wired
Telecommunications Carriers; that
category is defined as follows: ‘‘This
industry comprises establishments
primarily engaged in operating and/or
providing access to transmission
facilities and infrastructure that they
own and/or lease for the transmission of
voice, data, text, sound, and video using
wired telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies.’’ The SBA has developed a
small business size standard for this
category, which is: All such firms
having 1,500 or fewer employees. To
gauge small business prevalence for
cable services we must, however, use
current census data that are based on
the previous category of Cable and
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Other Program Distribution and its
associated size standard; that size
standard was: all such firms having
$13.5 million or less in annual receipts.
According to Census Bureau data for
2002, there were a total of 1,191 firms
in this previous category that operated
for the entire year. Of this total, 1,087
firms had annual receipts of under $10
million, and 43 firms had receipts of
$10 million or more but less than $25
million. Thus, the majority of these
firms can be considered small.
124. Multichannel Video Distribution
and Data Service. MVDDS is a terrestrial
fixed microwave service operating in
the 12.2–12.7 GHz band. The
Commission adopted criteria for
defining three groups of small
businesses for purposes of determining
their eligibility for special provisions
such as bidding credits. It defined a very
small business as an entity with average
annual gross revenues not exceeding $3
million for the preceding three years; a
small business as an entity with average
annual gross revenues not exceeding
$15 million for the preceding three
years; and an entrepreneur as an entity
with average annual gross revenues not
exceeding $40 million for the preceding
three years. These definitions were
approved by the SBA. On January 27,
2004, the Commission completed an
auction of 214 MVDDS licenses
(Auction No. 53). In this auction, ten
winning bidders won a total of 192
MVDDS licenses. Eight of the ten
winning bidders claimed small business
status and won 144 of the licenses. The
Commission also held an auction of
MVDDS licenses on December 7, 2005
(Auction 63). Of the three winning
bidders who won 22 licenses, two
winning bidders, winning 21 of the
licenses, claimed small business status.
125. Internet Service Providers. The
2007 Economic Census places these
firms, whose services might include
voice over Internet protocol (VoIP), in
either of two categories, depending on
whether the service is provided over the
provider’s own telecommunications
connections (e.g. cable and DSL, ISPs),
or over client-supplied
telecommunications connections (e.g.
dial-up ISPs). The former are within the
category of Wired Telecommunications
Carriers, which has an SBA small
business size standard of 1,500 or fewer
employees. The latter are within the
category of All Other
Telecommunications, which has a size
standard of annual receipts of $25
million or less. The most current Census
Bureau data for all such firms, however,
are the 2002 data for the previous
census category called Internet Service
Providers. That category had a small
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business size standard of $21 million or
less in annual receipts, which was
revised in late 2005 to $23 million. The
2002 data show that there were 2,529
such firms that operated for the entire
year. Of those, 2,437 firms had annual
receipts of under $10 million, and an
additional 47 firms had receipts of
between $10 million and $24,999,999.
Consequently, we estimate that the
majority of ISP firms are small entities.
126. Electric Power Generation,
Transmission and Distribution. The
Census Bureau defines this category as
follows: ‘‘This industry group comprises
establishments primarily engaged in
generating, transmitting, and/or
distributing electric power.
Establishments in this industry group
may perform one or more of the
following activities: (1) Operate
generation facilities that produce
electric energy; (2) operate transmission
systems that convey the electricity from
the generation facility to the distribution
system; and (3) operate distribution
systems that convey electric power
received from the generation facility or
the transmission system to the final
consumer.’’ This category includes
Electric Power Distribution,
Hydroelectric Power Generation, Fossil
Fuel Power Generation, Nuclear Electric
Power Generation, and Other Electric
Power Generation. The SBA has
developed a small business size
standard for firms in this category: ‘‘A
firm is small if, including its affiliates,
it is primarily engaged in the generation,
transmission, and/or distribution of
electric energy for sale and its total
electric output for the preceding fiscal
year did not exceed 4 million megawatt
hours.’’ According to Census Bureau
data for 2002, there were 1,644 firms in
this category that operated for the entire
year. Census data do not track electric
output and we have not determined
how many of these firms fit the SBA
size standard for small, with no more
than 4 million megawatt hours of
electric output. Consequently, we
estimate that 1,644 or fewer firms may
be considered small under the SBA
small business size standard.
127. Natural Gas Distribution. This
economic census category comprises:
‘‘(1) Establishments primarily engaged in
operating gas distribution systems (e.g.,
mains, meters); (2) establishments
known as gas marketers that buy gas
from the well and sell it to a distribution
system; (3) establishments known as gas
brokers or agents that arrange the sale of
gas over gas distribution systems
operated by others; and (4)
establishments primarily engaged in
transmitting and distributing gas to final
consumers.’’ The SBA has developed a
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small business size standard for this
industry, which is: All such firms
having 500 or fewer employees.
According to Census Bureau data for
2002, there were 468 firms in this
category that operated for the entire
year. Of this total, 424 firms had
employment of fewer than 500
employees, and 18 firms had
employment of 500 to 999 employees.
Thus, the majority of firms in this
category can be considered small.
128. Water Supply and Irrigation
Systems. This economic census category
‘‘comprises establishments primarily
engaged in operating water treatment
plants and/or operating water supply
systems.’’ The SBA has developed a
small business size standard for this
industry, which is: All such firms
having $6.5 million or less in annual
receipts. According to Census Bureau
data for 2002, there were 3,830 firms in
this category that operated for the entire
year. Of this total, 3,757 firms had
annual sales of less than $5 million, and
37 firms had sales of $5 million or more
but less than $10 million. Thus, the
majority of firms in this category can be
considered small.
D. Description of Projected Reporting,
Recordkeeping and Other Compliance
Requirements
129. The timeline for access to poles
that we adopt today will marginally
affect recordkeeping and compliance
requirements for utilities and attachers.
We anticipate that utilities and attachers
will modify their recordkeeping
regarding the performance of makeready work, including timeliness, safety,
and capacity, in order to show
compliance with the timeline in the
case of a dispute. The notification rule
requires the inclusion of certain
information in make-ready notifications
sent to other attachers. We also
anticipate that the rule regarding the
publication of qualified third-party
contract workers will involve more
recordkeeping for utilities that must
maintain and make available the list to
prospective attachers. However, we
expect the costs of complying with these
rules to be minimal, since they do not
measurably differ from the requirements
in place before the adoption of this
Order.
130. The changes we adopt today in
the enforcement process, specifically for
pole attachment complaints, similarly
do not produce significant differences in
recordkeeping and compliance
requirements from the requirements in
place before the adoption of this Order.
For example, although our decision to
permit recovery of a monetary award to
extend as far back as the appropriate
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statute of limitations allows, rather than
beginning the award period with the
filing of the complaint, may increase the
period of time over which a
complainant must produce data to
support its monetary claim, we have not
adopted any requirements of data
collection or filing per se.
131. We expect the costs of complying
with the new rules affecting attachment
rates to be minimal, since any of these
compliance costs do not significantly
differ from requirements in place before
the adoption of this Order.
E. Steps Taken to Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
132. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
(among others) the following four
alternatives: (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.
133. The specific timeline and
additional rules adopted in this Order
provide a predictable, timely process for
parties to seek and obtain pole
attachments, while maintaining a
utility’s interest in preserving safety,
reliability, and sound engineering. We
do not adopt different requirements for
small entities because we expect the
economic impact on small entities to be
minimal. Since we cap the number of
poles subject to the timeline based on
the lesser of a numerical cap or a
percentage of poles owned by a utility
in a state, small entities do not undergo
any disproportionate hardship. The 100
pole order cap proposed by NTCA et al.
does not achieve the same benefit for
small entities because it is not
specifically tailored to the size of the
entity. Also, it is unlikely that the
timeline will result in any significant
recordkeeping burdens for small entities
since prudent utilities and attachers
already keep records regarding makeready work and pole capacity and we do
not impose any additional information
collection requirements. Similarly,
identifying the contractors that utilities
themselves already use to prospective
attachers should not require an
additional resource burden. Finally, the
Commission does not have authority to
regulate (and the proposed rules, thus,
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26637
do not apply to) small utilities that are
municipally or cooperatively owned.
134. Further, in this Order, the
Commission revises the section 224(e)
rental rate for pole attachments used by
telecommunications carriers to provide
telecommunications services. This new
telecom rate generally will recover the
same portion of pole costs as the current
cable rate. The new formula will
minimize the difference in rental rates
paid for attachments that are used to
provide voice, data, and video services,
and thus will help remove market
distortions that pose barriers to
deployment of new services by small
cable and telecommunications
providers. The Commission also revisits
its prior interpretation of the statute and
allows incumbent LECs to file pole
attachment complaints before the
Commission if they are unable to
negotiate just and reasonable rates,
terms, and conditions with other pole
owners. Thus, we believe that the rules
adopted in this Order to ensure that
pole attachment rates are just and
reasonable will have a positive
economic benefit on small entities in
areas that fall under the Commission’s
regulatory jurisdiction, rather than an
adverse impact.
135. Specifically, NTCA et al. asserts
that small rural incumbent LECs are
concerned about unreasonably high
rates and ‘‘face difficulties in negotiating
and, in some cases, litigating contractual
terms for pole attachments.’’ NCTA et al.
also asserts that ‘‘[t]he Commission’s
current pole attachment rules effectively
deny rural ILECs a remedy against
unreasonable pole attachment
provisions which has a significant
economic impact on a substantial
number of small ILECs.’’ NTCA
requested that the Commission adopt a
‘‘remedy mechanism by which [rural
ILECs] can present claims of unjust or
unreasonable pole attachment rates,
terms and conditions imposed by
utilities’’—and stated that such a
provision ‘‘would reduce the economic
impact on small rural communications
providers.’’ The Commission, in fact,
adopts such a rule in this Order—
allowing incumbent LECs to file pole
attachment complaints. Further, the
Commission provides guidance
regarding its approach to evaluating
those complaints and what the
appropriate rate may be.
136. Also in this Order, the
Commission responds to small cable
operator concerns about ‘‘possible
increases in rates for comingled Internet
and video services,’’ as noted by the U.S.
Small Business Administration.
Addressing the role of the new telecom
rate in the context of commingled
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services, the Commission recognized
concerns by some cable operators that
pole owners may seek to impose rates
higher than both the cable rate and the
new telecom rate where cable operators
or telecommunications carriers also
provide services, such as VoIP, that
have not been classified. The
Commission stated that this outcome
would be contrary to its policy goals
here in which it adopts a lower and
more uniform attachment rate to reduce
the disparity in pole rental rates among
providers of competing services to
minimize disputes resulting from the
disparity between cable and pre-existing
higher telecom rates. This disparity has
acted to deter investment and network
expansion for new services by cable
providers because of the risk that some
of those services could potentially be
classified as ‘‘telecommunications
services’’—triggering disputes and
litigation as to whether the higher
telecom rate should be applied over
their entire pole attachment network.
The Commission also makes clear that
the use of pole attachments by
telecommunications carriers or cable
operators to provide commingled
services does not remove them from the
pole rate regulation framework, and that
rates generally will not be considered
just and reasonable if they exceed the
new telecom rate.
137. In addition, the new rate for
attachments used by
telecommunications carriers will have a
positive economic impact on small
competitive LECs. It will minimize
competitive disadvantages that these
carriers faced by having to pay higher
rates for these key inputs to
communications services. The Order
also confirms that wireless carriers are
entitled to the same rate under the
statute as other telecommunications
carriers. Specifically, the Commission
explains that wireless carriers are
entitled to the benefits and protection of
section 224, including the right to the
telecom rate under section 224(e), in
response to reports by the wireless
industry of cases where wireless
providers were not afforded the
regulated rate and instead had been
charged higher rates that were
unreasonable.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
138. None.
Ordering Clauses
Accordingly, it is ordered that
pursuant to sections 1, 4(i), 4(j), 224,
251(b)(4), and 303, of the
Communications Act of 1934, as
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amended, and section 706 of the
Telecommunications Act of 1996, as
amended, 47 U.S.C. 151, 154(i), 154(j),
224, 251(b)(4), 303(r), 1302, this Report
and Order and Order on
Reconsideration is adopted.
It is further ordered that part 1 of the
Commission’s rules is amended as set
forth in Appendix A.
It is further ordered that, pursuant to
§§ 1.4(b)(1) and 1.103(a) of the
Commission’s rules, 47 CFR 1.4(b)(1),
1.103(a), this Report and Order and
Order on Reconsideration shall become
effective June 8, 2011. The information
collection requirements contained in the
Report and Order will become effective
following OMB approval.
It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Report and Order and Order on
Reconsideration, including the Final
Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 1
Administrative practices and
procedure, Cable television,
Communications common carriers,
Communications equipment,
Telecommunications, Telephone,
Television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 1 to
read as follows:
1. The authority citation for part 1
continues to read as follows:
Authority: 15 U.S.C. 79 et seq.; 47 U.S.C.
151, 154(i), 154(j), 155, 160, 201, 225, and
303.
Subpart J—Pole Attachment Complaint
Procedures
2. Revise § 1.1401 to read as follows:
Purpose.
The rules and regulations contained
in subpart J of this part provide
complaint and enforcement procedures
to ensure that telecommunications
carriers and cable system operators have
nondiscriminatory access to utility
poles, ducts, conduits, and rights-of-way
on rates, terms, and conditions that are
just and reasonable. They also provide
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Definitions.
*
*
*
*
*
(d) The term complaint means a filing
by a cable television system operator, a
cable television system association, a
utility, an association of utilities, a
telecommunications carrier, or an
association of telecommunications
carriers alleging that it has been denied
access to a utility pole, duct, conduit, or
right-of-way in violation of this subpart
and/or that a rate, term, or condition for
a pole attachment is not just and
reasonable. It also means a filing by an
incumbent local exchange carrier (as
defined in 47 U.S.C. 251(h)) or an
association of incumbent local exchange
carriers alleging that a rate, term, or
condition for a pole attachment is not
just and reasonable.
(e) The term complainant means a
cable television system operator, a cable
television system association, a utility,
an association of utilities, a
telecommunications carrier, an
association of telecommunications
carriers, an incumbent local exchange
carrier (as defined in 47 U.S.C. 251(h))
or an association of incumbent local
exchange carriers who files a complaint.
*
*
*
*
*
■ 4. Section 1.1404 is amended by
revising paragraphs (g)(1)(ix), (k) and
(m) to read as follows:
Complaint.
*
■
§ 1.1401
§ 1.1402
§ 1.1404
PART 1—PRACTICE AND
PROCEDURE
■
complaint and enforcement procedures
for incumbent local exchange carriers
(as defined in 47 U.S.C. 251(h)) to
ensure that the rates, terms, and
conditions of their access to pole
attachments are just and reasonable.
■ 3. Section 1.1402 is amended by
revising paragraphs (d) and (e) to read
as follows:
*
*
*
*
(g) * * *
(1) * * *
(ix) The annual carrying charges
attributable to the cost of owning a pole.
The utility shall submit these charges
separately for each of the following
categories: Depreciation, rate of return,
taxes, maintenance, and administrative.
These charges may be expressed as a
percentage of the net pole investment.
With its pleading, the utility shall file a
copy of the latest decision of the state
regulatory body or state court that
determines the treatment of
accumulated deferred taxes if it is at
issue in the proceeding and shall note
the section that specifically determines
the treatment and amount of
accumulated deferred taxes.
*
*
*
*
*
(k) The complaint shall include a
certification that the complainant has,
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claims that it has been denied access to
a pole, duct, conduit or right-of-way
despite a request made pursuant to
section 47 U.S.C. 224(f), the complaint
shall include the data and information
necessary to support the claim,
including:
(1) The reasons given for the denial of
access to the utility’s poles, ducts,
conduits, or rights-of-way;
(2) The basis for the complainant’s
claim that the denial of access is
unlawful;
(3) The remedy sought by the
complainant;
(4) A copy of the written request to
the utility for access to its poles, ducts,
conduits, or rights-of-way; and
(5) A copy of the utility’s response to
the written request including all
information given by the utility to
support its denial of access. A
complaint alleging unlawful denial of
access will not be dismissed if the
complainant is unable to obtain a
utility’s written response, or if the
utility denies the complainant any other
information needed to establish a prima
facie case.
(ii) The following formula applies to
the extent that it yields a rate higher
than that yielded by the applicable
formula in paragraph 1.1409(e)(2)(i) of
this section:
*
prescribe a just and reasonable rate,
term, or condition and may:
(1) Terminate the unjust and/or
unreasonable rate, term, or condition;
(2) Substitute in the pole attachment
agreement the just and reasonable rate,
term, or condition established by the
Commission;
(3) Order a refund, or payment, if
appropriate. The refund or payment will
*
*
*
*
■ 6. Section 1.1410 is amended by
revising paragraphs (a) and (b) to read
as follows:
§ 1.1410
Remedies.
*
*
*
*
*
(a) If the Commission determines that
the rate, term, or condition complained
of is not just and reasonable, it may
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5. Section 1.1409 is amended by
revising paragraph (e)(2) to read as
follows:
■
§ 1.1409 Commission consideration of the
complaint.
*
*
*
*
*
(e) * * *
(2) With respect to attachments to
poles by any telecommunications carrier
or cable operator providing
telecommunications services, the
maximum just and reasonable rate shall
be the higher of the rate yielded by
paragraphs (e)(2)(i) or (e)(2)(ii) of this
section.
(i) The following formula applies to
the extent that it yields a rate higher
than that yielded by the applicable
formula in paragraph 1.1409(e)(2)(ii) of
this section:
Rate = Space Factor × Cost
Where Cost
in Urbanized Service Areas = 0.66 × (Net Cost
of a Bare Pole × Carrying Charge Rate)
in Non-Urbanized Service Areas = 0.44 × (Net
Cost of a Bare Pole × Carrying Charge
Rate).
normally be the difference between the
amount paid under the unjust and/or
unreasonable rate, term, or condition
and the amount that would have been
paid under the rate, term, or condition
established by the Commission, plus
interest, consistent with the applicable
statute of limitations; and
(b) If the Commission determines that
access to a pole, duct, conduit, or right-
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in good faith, engaged or attempted to
engage in executive-level discussions
with the respondent to resolve the pole
attachment dispute. Executive-level
discussions are discussions among
representatives of the parties who have
sufficient authority to make binding
decisions on behalf of the company they
represent regarding the subject matter of
the discussions. Such certification shall
include a statement that, prior to the
filing of the complaint, the complainant
mailed a certified letter to the
respondent outlining the allegations that
form the basis of the complaint it
anticipated filing with the Commission,
inviting a response within a reasonable
period of time, and offering to hold
executive-level discussions regarding
the dispute. A refusal by a respondent
to engage in the discussions
contemplated by this rule shall
constitute an unreasonable practice
under section 224 of the Act.
*
*
*
*
*
(m) In a case where a cable television
system operator or telecommunications
carrier as defined in 47 U.S.C. 224(a)(5)
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of-way has been unlawfully denied or
delayed, it may order that access be
permitted within a specified time frame
and in accordance with specified rates,
terms, and conditions.
*
*
*
*
*
■ 7. Add § 1.1420 to subpart J to read as
follows:
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§ 1.1420
poles.
Timeline for access to utility
(a) The term ‘‘attachment’’ means any
attachment by a cable television system
or provider of telecommunications
service to a pole owned or controlled by
a utility.
(b) All time limits in this subsection
are to be calculated according to § 1.4.
(c) Survey. A utility shall respond as
described in § 1.1403(b) to a cable
operator or telecommunications carrier
within 45 days of receipt of a complete
application to attach facilities to its
utility poles (or within 60 days, in the
case of larger orders as described in
paragraph (g) of this section). This
response may be a notification that the
utility has completed a survey of poles
for which access has been requested. A
complete application is an application
that provides the utility with the
information necessary under its
procedures to begin to survey the poles.
(d) Estimate. Where a request for
access is not denied, a utility shall
present to a cable operator or
telecommunications carrier an estimate
of charges to perform all necessary
make-ready work within 14 days of
providing the response required by
§ 1.1420(c), or in the case where a
prospective attacher’s contractor has
performed a survey, within 14 days of
receipt by the utility of such survey.
(1) A utility may withdraw an
outstanding estimate of charges to
perform make-ready work beginning 14
days after the estimate is presented.
(2) A cable operator or
telecommunications carrier may accept
a valid estimate and make payment
anytime after receipt of an estimate but
before the estimate is withdrawn.
(e) Make-ready. Upon receipt of
payment specified in paragraph (d)(2) of
this section, a utility shall notify
immediately and in writing all known
entities with existing attachments that
may be affected by the make-ready.
(1) For attachments in the
communications space, the notice shall:
(i) Specify where and what makeready will be performed.
(ii) Set a date for completion of makeready that is no later than 60 days after
notification is sent (or 105 days in the
case of larger orders, as described in
paragraph (g) of this section).
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(iii) State that any entity with an
existing attachment may modify the
attachment consistent with the specified
make-ready before the date set for
completion.
(iv) State that the utility may assert its
right to 15 additional days to complete
make-ready.
(v) State that if make-ready is not
completed by the completion date set by
the utility (or, if the utility has asserted
its 15-day right of control, 15 days later),
the cable operator or
telecommunications carrier requesting
access may complete the specified
make-ready.
(vi) State the name, telephone
number, and e-mail address of a person
to contact for more information about
the make-ready procedure.
(2) For wireless attachments above the
communications space, the notice shall:
(i) Specify where and what makeready will be performed.
(ii) Set a date for completion of makeready that is no later than 90 days after
notification is sent (or 135 days in the
case of larger orders, as described in
paragraph (g) of this section).
(iii) State that any entity with an
existing attachment may modify the
attachment consistent with the specified
make-ready before the date set for
completion.
(iv) State that the utility may assert its
right to 15 additional days to complete
make-ready.
(v) State the name, telephone number,
and e-mail address of a person to
contact for more information about the
make-ready procedure.
(f) For wireless attachments above the
communications space, a utility shall
ensure that make-ready is completed by
the date set by the utility in paragraph
(e)(2)(ii) of this section (or, if the utility
has asserted its 15-day right of control,
15 days later).
(g) For the purposes of compliance
with the time periods in this section:
(1) A utility shall apply the timeline
described in paragraphs (c) through (e)
of this section to all requests for pole
attachment up to the lesser of 300 poles
or 0.5 percent of the utility’s poles in a
state.
(2) A utility may add 15 days to the
survey period described in paragraph (c)
of this section to larger orders up to the
lesser of 3000 poles or 5 percent of the
utility’s poles in a state.
(3) A utility may add 45 days to the
make-ready periods described in
paragraph (e) of this section to larger
orders up to the lesser of 3000 poles or
5 percent of the utility’s poles in a state.
(4) A utility shall negotiate in good
faith the timing of all requests for pole
attachment larger than the lesser of 3000
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poles or 5 percent of the utility’s poles
in a state.
(5) A utility may treat multiple
requests from a single cable operator or
telecommunications carrier as one
request when the requests are filed
within 30 days of one another.
(h) A utility may deviate from the
time limits specified in this section:
(1) Before offering an estimate of
charges if the parties have no agreement
specifying the rates, terms, and
conditions of attachment.
(2) During performance of make-ready
for good and sufficient cause that
renders it infeasible for the utility to
complete the make-ready work within
the prescribed time frame. A utility that
so deviates shall immediately notify, in
writing, the cable operator or
telecommunications carrier requesting
attachment and other affected entities
with existing attachments, and shall
include the reason for and date and
duration of the deviation. The utility
shall deviate from the time limits
specified in this section for a period no
longer than necessary and shall resume
make-ready performance without
discrimination when it returns to
routine operations.
(i) If a utility fails to respond as
specified in paragraph (c) of this
section, a cable operator or
telecommunications carrier requesting
attachment in the communications
space may, as specified in § 1.1422, hire
a contractor to complete a survey. If
make-ready is not complete by the date
specified in paragraph (e)(1)(ii) of this
section, a cable operator or
telecommunications carrier requesting
attachment in the communications
space may hire a contractor to complete
the make-ready:
(1) Immediately, if the utility has
failed to assert its right to perform
remaining make-ready work by
notifying the requesting attacher that it
will do so; or
(2) After 15 days if the utility has
asserted its right to perform make-ready
by the date specified in paragraph
(e)(1)(ii) of this section and has failed to
complete make-ready.
■ 8. Add § 1.1422 to subpart J to read as
follows:
§ 1.1422
ready.
Contractors for survey and make-
(a) A utility shall make available and
keep up-to-date a reasonably sufficient
list of contractors it authorizes to
perform surveys and make-ready in the
communications space on its utility
poles in cases where the utility has
failed to meet deadlines specified in
§ 1.1420.
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Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Rules and Regulations
(b) If a cable operator or
telecommunications carrier hires a
contractor for purposes specified in
§ 1.1420, it shall choose from among a
utility’s list of authorized contractors.
(c) A cable operator or
telecommunications carrier that hires a
contractor for survey or make-ready
work shall provide a utility with a
reasonable opportunity for a utility
representative to accompany and
consult with the authorized contractor
and the cable operator or
telecommunications carrier.
(d) The consulting representative of
an electric utility may make final
determinations, on a nondiscriminatory
basis, where there is insufficient
capacity and for reasons of safety,
reliability, and generally applicable
engineering purposes.
9. Add § 1.1424 to subpart J to read as
follows:
■
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§ 1.1424 Complaints by incumbent local
exchange carriers.
Complaints by an incumbent local
exchange carrier (as defined in 47 U.S.C.
251(h)) or an association of incumbent
local exchange carriers alleging that a
rate, term, or condition for a pole
attachment is not just and reasonable
shall follow the same complaint
procedures specified for other pole
attachment complaints in this part, as
relevant. In complaint proceedings
where an incumbent local exchange
carrier (or an association of incumbent
local exchange carriers) claims that it is
similarly situated to an attacher that is
a telecommunications carrier (as
defined in 47 U.S.C. 251(a)(5)) or a cable
television system for purposes of
obtaining comparable rates, terms or
conditions, the incumbent local
exchange carrier shall bear the burden
of demonstrating that it is similarly
situated by reference to any relevant
evidence, including pole attachment
agreements. If a respondent declines or
refuses to provide a complainant with
access to agreements or other
information upon reasonable request,
the complainant may seek to obtain
such access through discovery.
Confidential information contained in
any documents produced may be
subject to the terms of an appropriate
protective order.
[FR Doc. 2011–11137 Filed 5–6–11; 8:45 am]
BILLING CODE 6712–01–P
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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 64
[CG Docket No. 10–210; FCC 11–56]
Relay Services for Deaf-Blind
Individuals
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the
Commission adopts rules to establish
the National Deaf-Blind Equipment
Distribution Program (NDBEDP) pilot
program in accordance with the
Twenty-First Century Communications
and Video Accessibility Act of 2010
(CVAA). The CVAA adds a new section
to the Communications Act of 1934, as
amended (the Act). This new section of
the Act requires the Commission to
establish rules that define as eligible for
support those programs approved by the
Commission for the distribution of
specialized customer premises
equipment (CPE) to low-income
individuals who are deaf-blind. For
these purposes, this new section of the
Act authorizes $10 million annually
from the Interstate Telecommunications
Relay Service (TRS) Fund. The
equipment distributed under the
NDBEDP pilot program will make
telecommunications service, Internet
access service, and advanced
communications, including
interexchange services and advanced
telecommunications and information
services, accessible to individuals who
are deaf-blind.
DATES: Effective June 8, 2011, except for
47 CFR 64.610(b), (e)(1)(ii), (viii), and
(ix), (f), and (g), which contain
information collection requirements
subject to the Paperwork Reduction Act
(PRA) that have not been approved by
the Office of Management and Budget
(OMB). The Commission will publish a
document in the Federal Register
announcing the effective date of these
requirements. Written comments by the
public on the new information
collections are due July 8, 2011.
ADDRESSES: Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554. In addition to
filing comments with the Secretary, a
copy of any comments on the
information collection requirements
contained herein should be submitted to
Cathy Williams, Federal
Communications Commission via e-mail
at [email protected] and
[email protected].
SUMMARY:
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26641
FOR FURTHER INFORMATION CONTACT:
Rosaline Crawford, Consumer and
Governmental Affairs Bureau, Disability
Rights Office, at (202) 418–2075 or
e-mail [email protected].
For additional information concerning
the PRA information collection
requirements contained in this
document, contact Cathy Williams,
Federal Communications Commission,
at (202) 418–2918, or via e-mail
[email protected].
This is a
synopsis of the Commission’s National
Deaf-Blind Equipment Distribution
Program (NDBEDP) Report and Order
(Order), document FCC 11–56, adopted
April 4, 2011, and released April 6,
2011, in CG Docket No. 10–210.
The full text of document FCC 11–56
and copies of any subsequently filed
documents in this matter will be
available for public inspection and
copying via ECFS, and during regular
business hours at the FCC Reference
Information Center, Portals II, 445 12th
Street, SW., Room CY–A257,
Washington, DC 20554. They may also
be purchased from the Commission’s
duplicating contractor, Best Copy and
Printing, Inc., Portals II, 445 12th Street,
SW., Room CY–B402, Washington, DC
20554, telephone: (800) 378–3160, fax:
(202) 488–5563, or Internet:
www.bcpiweb.com. Document FCC 11–
56 can also be downloaded in Word or
Portable Document Format (PDF) at
http://www.fcc.gov/cgb/dro/
headlines.html and at http://
www.fcc.gov/cgb/dro/cvaa.html.
To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an e-mail to
[email protected] or call the Consumer
and Governmental Affairs Bureau at
202–418–0530 (voice), 202–418–0432
(TTY).
SUPPLEMENTARY INFORMATION:
Final Paperwork Reduction Act of 1995
Analysis
This document contains new and
modified information collection
requirements. The Commission, as part
of its continuing effort to reduce
paperwork burdens, invites the general
public to comment on the information
collection requirements contained in
document FCC 11–56 as required by the
PRA of 1995, Public Law 104–13. In
addition, the Commission notes that
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, the Commission
previously sought specific comment on
how the Commission might ‘‘further
reduce the information collection
burden for small business concerns with
E:\FR\FM\09MYR1.SGM
09MYR1
| File Type | application/pdf |
| File Modified | 2012-06-27 |
| File Created | 2012-06-23 |