No. 00-843 

In the Supreme Court of the United States 

FEDERAL COMMUNICATIONS COMMISSION AND THE 
UNITED STATES OF AMERICA, PETITIONERS 

v. 
GULF POWER COMPANY, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI 
TOTHE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

APPENDIX TO THE 
PETITION FOR A WRIT OF CERTIORARI 

CHRISTOPHER J. WRIGHT 

General Counsel 

JONATHAN E. NUECHTERLEIN 

Deputy General Counsel 

JOHN E. INGLE 

Deputy Associate General 

Counsel 

GREGORY M. CHRISTOPHER 

Counsel 
Federal Communications 

Commission 
Washington, D.C. 20554 
SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

A. DOUGLAS MELAMED 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

ROBERT B. NICHOLSON 
ROBERT J. WIGGERS 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

TABLE OF CONTENTS 

Page 

Appendix A (opinion of the court of appeals, 

Nos. 98-6222 et al., Apr. 11, 2000) ............................. 

1a 

Appendix B (per curiam opinion of court of appeals, 

Nos. 98-6222 et al., Sept. 12, 2000) ............................ 

42a 

Appendix C (order of the court of appeals (denial 
of rehearing) (en banc), Nos. 98-6222 et al., 
Sept. 12, 2000) ............................................................... 
55a 

Appendix D (FCC report and order, CS Docket 

No. 97-151) ..................................................................... 

56a 

Appendix E (statutory provision) .................................... 205a 

(I) 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

Nos. 98-6222, 98-2589, 98-4675, 98-6414, 
98-6430, 98-6431, 98-6442, 98-6458, 
98-6476 to 98-6478, 98-6485 and 98-6486 

GULF POWER COMPANY; ALABAMA POWER COMPANY, 
ET AL., PETITIONERS 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

TAMPA ELECTRIC COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

FLORIDA POWER & LIGHT COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

COMMONWEALTH EDISON COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

POTOMAC ELECTRIC POWER COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

TEXAS UTILITIES ELECTRIC COMPANY, PETITIONER 

v. 

(1a) 

2a 

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

UNION ELECTRIC COMPANY, D.B.A. AMERENUE, 
PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

AMERICAN ELECTRIC POWER SERVICES CORPORATION, 
PETITIONER 

v. 

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

DUKE ENERGY CORPORATION, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

VIRGINIA ELECTRIC AND POWER COMPANY, 
PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

CAROLINA POWER & LIGHT COMPANY, PETITIONER 

v. 

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

DUQUESNE LIGHT COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 
DELMARVA POWER AND LIGHT, PETITIONER 

v. 

3a 

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

April 11, 2000 

Before: TJOFLAT and CARNES, Circuit Judges, and 
GARWOOD,* Senior Circuit Judge. 

TJOFLAT, Circuit Judge: 

The 1996 Pole Attachment Act, 47 U.S.C. § 224 
(Supp. II. 1996) (the “1996 Act”), gives providers of 
cable and telecommunications services the right to 
attach wires to the poles of power and telephone 
companies. If the power and telephone companies will 
not accept the rent the providers offer to pay, the 
Federal Communications Commission (the “FCC” or 
“Commission”) sets the rent. In In re Implementation 
of Section 703(e) of the Telecommunications Act of 
1996, 13 F.C.C.R. 6777, 1998 WL 46987 (1998) (codified 
at 47 C.F.R. §§ 1.1401-1.1418 (1999) 47 CFRS1.1418 
CFRLQ) (“Report and Order”), the FCC promulgated a 
formula for computing that rent. The FCC also ruled 
(in the Report and Order) that the 1996 Act precluded 
utilities (power and telephone) from receiving rent for 
wires that were “overlashed” to wires previously 
attached to their poles;1 that the 1996 Act gave it 
authority to regulate the placement of wireless com- 

* Honorable Will L. Garwood, Senior U.S. Circuit Judge for the 
Fifth Circuit, sitting by designation. 

1 Overlashing occurs when an attacher physically ties addi- 
tional cables to cables already attached to a pole. See Report and 
Order, 13 F.C.C.R. 6777, 6805, 1998 WL 46987 (1998). 

4a 

munications equipment and attachments for Internet 
service on utility poles; and that the Act precluded 
utilities from receiving rent for unused wires contained 
within fiber optic cables, “dark fiber,2” attached to the 
poles. 

In these consolidated petitions for review of the 
Report and Order, several power companies3 (the Peti- 
tioners”) challenge the FCC’s formula for determining 
rent on the ground that, when implemented, the 
formula will operate to take their property without just 
compensation, in violation of the Fifth Amendment. We 
decline to reach this takings claim, because it is not 
ripe. The Petitioners also challenge the FCC’s other 
rulings. As to those rulings, we find unripe their 
challenge to the overlashing provision of the Report 
and Order; we hold that the FCC lacks authority to 
regulate the placement of wireless equipment on utility 
poles and attachments for Internet service; and that its 
decision regarding dark fiber constitutes a reasonable 
interpretation of the 1996 Act. 

2 Dark fiber is “bare capacity and does not involve any of the 
electronics necessary to transmit or receive signals over that 
capacity.” Report and Order, 13 F.C.C.R. at 6810. 

3 The utilities involved in this proceeding either as petitioners 
or intervenors are Gulf Power Company, Alabama Power Com- 
pany, Georgia Power Company, Southern Company Services, 
Tampa Electric Company, Potomac Electric Power Company, 
Virginia Electric & Power Company, Carolina Power & Light 
Company, Duquesne Light Company, Delmarva Power & Light 
Company, Public Service Electric & Gas Company, Houston 
Lighting & Power Company, Texas Utilities Electric Company, 
American Electric Power Service Corporation, Commonwealth 
Edison Company, Duke Energy Corporation, Union Electric 
Company, and Florida Power and Light Company. 

5a 

I. 

A. 

From its inception, the cable television industry has 
attached its cables to the utility poles of power and 
telephone companies.4 They have done so because 
factors such as zoning restrictions, environmental regu- 
lations, and start-up costs have rendered other options 
infeasible. Despite this dearth of alternatives, the 
attachment agreements between cable television com- 
panies and utility companies have generally been 
voluntary. But, the lack of alternatives has given the 
power and telephone companies an advantage in nego- 
tiating attachment agreements: their monopoly in the 
supply of poles that could accommodate television 
cables has allowed them, in the past, to charge monop- 
oly rents. 

In an effort to solve the monopoly pricing problem, 
Congress, in 1978, enacted the Pole Attachment Act, 
Pub. L. 95-234, 92 Stat. 33 (1978) (codified at 47 U.S.C. 
§ 224 (1994)) (the “1978 Act”), as an amendment to the 
Communications Act of 1934. The solution Congress 
articulated in that act was to specify a range of rents 
telephone and power companies could charge the cable 
television companies they allowed to attach to their 

4 In 1978, when Congress decided to intervene as described in 
the text infra, approximately 95 percent of cable television wires 
were attached to utility poles because cable television companies 
owned less than 10,000 poles, compared to over ten million poles 
owned by the power and telephone companies. See S. Rep. No. 95- 
580, at 12-13 (1978), reprinted in 1978 U.S.C.C.A.N. 109, 120-21. 

6a 

poles.5 Congress’ solution, in the 1978 Act, did not, 
however, change the voluntary nature of the attach- 
ment arrangement. As before, the cable television 
companies had no right to attach; thus, utilities could 
reject a cable television company’s offer to attach. As 
for the attachments already in place, the 1978 Act 
effectively changed their terms.6 In the event the 
parties could not agree to the rent and conditions of an 
attachment, and the State chose not to regulate the 
terms of attachments, the FCC would settle the issue.7 

The rule the FCC promulgated to implement its 
authority under the 1978 Act reflected its limited 
authority; that rule merely “provided complaint and 
enforcement procedures to ensure that rates, terms and 

5 Congress expressed this range as: 

[N]ot less than the additional costs of providing pole attach- 
ments, nor more than an amount determined by multiplying 
the percentage of the total usable space, or the percentage of 
the total duct or conduit capacity, which is occupied by the pole 
attachment by the sum of the operating expenses and actual 
capital costs of the utility attributable to the entire pole, duct, 
conduit, or right-of-way. 

47 U.S.C. § 224(d)(1) (1994). This range is more commonly ex- 
pressed as not less than the incremental cost of adding a particular 
attachment, nor more than the fully allocated costs of the pole. 

6 Since the 1978 Act did not give the cable television companies 
the right to attach, the utilities could have avoided the FCC’s 
regulation of rent and conditions of attachment under the Act by 
canceling the existing arrangements, and having the attachments 
removed. For obvious reasons, the utilities did not take this step. 

7 The FCC already possessed regulatory authority over the 
telephone industry. See 47 U.S.C. § 151 (1994). The passage of the 
1978 Act gave the FCC the authority to regulate power companies 
as well, albeit in the limited manner described in the text. See 47 
U.S.C. § 224(a)-(c) (1994). 

7a 

conditions for cable television pole attachments [we]re 
just and reasonable.” 47 C.F.R. § 1.1401 (1978). The 
rule set forth (1) the procedure for filing a complaint 
about rents or conditions of attachment, see i d.; (2) 
factors to be considered by the administrative law 
judge in determining the lawfulness of the rent or con- 
ditions the utility sought, see id.; and (3) a formula for 
determining the maximum rent the utility could 
receive, see 47 C.F.R. § 1.1409. Under the formula, the 
maximum rent a utility could charge was the attacher’s 
proportionate share8 of the bare costs of maintaining 
the pole and the “carrying charges”9 associated with the 
pole. 

After the FCC promulgated its rule, several cable 
television companies in Florida filed complaints with 
the FCC, contending that Florida Power Corporation 
was charging them unreasonable rents to attach. See 
FCC v. Florida Power Corp., 480 U.S. 245, 248-49, 107 
S. Ct. 1107, 1110, 94 L.Ed.2d 282 (1987). The FCC 
agreed that the rents were unreasonable and set a 
lower rent. Florida Power appealed the FCC’s decision 
to this court, which held that the rent the FCC had set 
effected a taking of Florida Power’s property without 

8 The attacher’s proportionate share equaled the amount of 
space occupied by the attacher divided by the amount of total 
“usable space.” 

9 The FCC regulations do not define carrying charges, but 
according to Black’s Law Dictionary, they are “[e]xpenses incident 
to property ownership, such as taxes and upkeep.” Black’s Law 
Dictionary 205 (7th ed. 1999). The Department of Agriculture’s 
regulations define carrying charges as incidental costs associated 
with storing a commodity before delivery under a sales contract, 
see 7 C.F.R. § 1488.2(f) (1999), and the Securities and Exchange 
Commission defines them in the leverage contract context as 
service and interest charges, see 17 C.F.R. § 31.4(l) (1999). 

8a 

just compensation. Florida Power Corp. v. FCC, 772 
F.2d 1537, 1546 (11th Cir. 1985). The Supreme Court 
reversed, holding that no taking occurred because 
Florida Power had voluntarily agreed to the cable com- 
panies’ attachments. Had Congress, in the 1978 Act, re- 
quired utilities to allow the attachments, a taking may 
have occurred, the court suggested. See Florida Power 
Corp., 480 U.S. at 251 n.6, 107 S. Ct. at 1111 n.6. 

The Florida Power decision clarified two fundamen- 
tal precepts underlying the 1978 Act and the FCC’s 
implementing regulations: (1) the FCC had narrow 
authority under the 1978 Act; it could regulate the 
power companies only to ensure that, once they con- 
sented to an attachment, the conditions of attachment 
and the rent they were to receive were reasonable; and 
(2) the FCC’s rent formula was not subject to judicial 
review under the Fifth Amendment’s Takings Clause 
because the 1978 Act’s voluntary attachment provision 
effected no taking for which just compensation would 
be due. 

Not long after the Court decided Florida Power, 
Congress decided to foster competition in the cable 
television industry. To that end, it enacted the Cable 
Communications Policy Act of 1984, Pub. L. No. 98-549, 
98 Stat. 2779 (1984) (codified at 47 U.S.C. §§ 521-559 
(1994)) (the “Cable Act”). Prior to this enactment, cable 
television companies operated under exclusive fran- 
chises granted by a local government, usually a munici- 
pality. Because these franchises effectively gave the 
companies monopolies in the franchise territory, the 
local governments regulated the rates they could 
charge subscribers. See H.R. Rep. No. 98-934, at 23-24, 

9a 

10 The 
approach Congress adopted to encourage competition 
was to eliminate the power of local governments to set 
rates for “basic” cable service. Congress realized that, 
in the short run at least, this would give incumbent 
cable operators the ability to charge their subscribers 
monopoly prices. Prices would decrease in the long run, 
however, as local governments granted additional 
franchises for a given territory. See Johnson Enters., 
Inc. v. FPL Group, Inc., 162 F.3d 1290, 1296 (11th Cir. 
1998). New cable companies would be able to enter the 
market and compete with the incumbent cable company 
though, only if they could obtain utility pole attach- 
ments on the same terms as those given to the incum- 
bent. 

In addition to these new demands for pole space, a 
host of new telecommunications carriers (such as new 
long distance telephone carriers and wide area tele- 
phone service providers), which used wires to carry 
their signals, began calling on the power and telephone 
companies to lease them space. They did so because 
utility poles afforded the only feasible means for 
stringing their wires. Since the 1978 Act only regulated 
the rents utilities could charge cable television com- 
panies, many utilities demanded monopoly rents from 
telecommunications carriers. In an effort to alleviate 
this problem, Congress, in 1996, amended the 1978 Act 
to give entities providing telecommunications and cable 
television service the right to “nondiscriminatory 

10 The local governments set the rates the cable companies could 
charge subscribers for “basic” services. Some states and the FCC 
set the rates the companies could charge for other services, such as 
Home Box Office. See H.R. Rep. No. 98-934, at 24 (1984); reprinted 
in 1984 U.S.C.C.A.N. at 4661. 

reprinted in 1984 U.S.C.C.A.N. 4655, 4660-61. 

10a 

access” to utility poles. See 47 U.S.C. § 224(f) (Supp. II 
1996). 

11 In the event the parties could not agree to the 
terms of the attachment, including the rent, the 1996 
Act authorized the FCC to set “just and reasonable” 
terms. See id. § 224(b)(1). 

The 1996 Act also (1) redefined “utility,” changing the 
definition from “any person whose rates or charges are 
regulated by the Federal Government or a State” to 
“any person who is a local exchange carrier, or a elec- 
tric, gas, water, steam, or other public utility;” 

12 (2) 
redefined “pole attachment” to include attachments by 
providers of telecommunications service; 

13 (3) directed 

11 Section 224(f) provides: 

(1) A utility shall provide a cable television system or any 

telecommunications carrier with nondiscriminatory access to 
any pole, duct, conduit, or right-of-way owned or controlled by 
it. 

(2) Notwithstanding paragraph (1), a utility providing electric 

service may deny a cable television system or any 
telecommunications carrier access to its poles, ducts, conduits, 
or rights-of-way, on a nondiscriminatory basis where there is 
insufficient capacity and for reasons of safety, reliability, and 
generally applicable engineering purposes. 

12 Both definitions of “utility” also require the ownership of 
poles, used at least in part, for wire communication. Compare 47 
U.S.C. § 224(a)(1) (1994), with 47 U.S.C. § 224(a)(1) (Supp. II 1996). 
Thus, if an entity’s poles do not have attachments that are trans- 
mitting “writing, signs, signals, pictures, and sounds of all kinds by 
aid of wire, cable or other like connection,” 47 U.S.C. § 153(51) 
(Supp. II 1996), the entity is not a utility for purposes of the Act. 

13 Compare 47 U.S.C. 224(a)(4) (1994), with 47 U.S.C. § 224(a)(4) 
(Supp. II 1996). The 1996 version of the Act defined telecommuni- 

11a 

the FCC to create a formula for determining the attach- 
ment rent a utility could charge a telecommunications 
service provider; 

14 and (4) instructed utilities on how to 
apportion the costs of “unusable” and “usable” space on 
their poles among telecommunications service pro- 
viders. 

15 

cations, telecommunications carrier, and telecommunications ser- 
vice as follows: “Telecommunications” is “the transmission, be- 
tween or among points specified by the user, of information of the 
user’s choosing, without change in the form or content of the 
information as sent and received,” 47 U.S.C. § 153(43) (Supp. II 
1996); “telecommunications carrier” is any provider of telecom- 
munications services, 47 U.S.C. § 153(44) (Supp. II 1996); “telecom- 
munications service” is the “offering of telecommunications for a 
fee directly to the public, or to such classes of users as to be effec- 
tively available directly to the public, regardless of facilities used,” 
47 U.S.C. § 153(46) (Supp. II 1996). 

14 See 47 U.S.C. § 224(e)(1) (Supp. II 1996). For purposes of 
this opinion, the term “telecommunications service providers” 
includes cable television companies that provide telecommunica- 
tions services in addition to cable services. 

15 See 47 U.S.C. § 224(e)(2), (3) (Supp. II 1996). Section 
224(e)(2) requires utilities to apportion the costs of “unusable 
space” as follows: 

A utility shall apportion the cost of providing space on a pole, 

duct, conduit, or right-of-way other than the usable space 
among entities so that such apportionment equals two-thirds 
of the costs of providing space other than the usable space that 
would be allocated to such entity under an equal apportion- 
ment of such costs among all attaching entities. 

Section 224(e)(3) requires utilities to apportion the costs of “usable 
space” as follows: 

A utility shall apportion the costs of providing usable space 

among all entities according to the percentage of usable space 
required for each entity. 

12a 

On February 6, 1998, the FCC promulgated regula- 
tions implementing its authority under the 1996 Act. 
See Report and Order, 13 F.C.C.R. 6777, 1998 WL 
46987. In the Report and Order, the FCC interpreted 
section 224(f) of the 1996 Act to require that utility 
companies give Internet providers access to their poles 
because the Internet was a cable service. See id. at 
6795-96. Further, it interpreted the language of section 
224(a)(4), which states that pole attachment meant any 
attachment, and section 224(d)(3), which provides that 
the FCC’s rate applied to any attachment by a tele- 
communications carrier, to mean that telephone and 
power companies would have to accept pole attach- 
ments for wireless telephone equipment. See id. at 
6798-99; see also infra n.22. The agency also deter- 
mined that the Act precludes utilities from receiving 
rent for overlashed wires unless those wires signifi- 
cantly increase the burden on the pole. See id. at 6807. 
Finally, the FCC interpreted the Act to prohibit utili- 
ties from receiving rent for dark fiber. See id. at 6810. 

Having thus interpreted the scope of its authority, 
the FCC articulated formulas for determining the 
attachment rents utilities may charge telecommuni- 
cations service providers. See i d. at 6820-30. Until 
February 2001, the 1978 Act’s maximum rent formula 
for cable providers applies to attachments by telecom- 
munications service providers. After that, the maxi- 
mum rent will equal the sum of the “unusable” and 
“usable” rate factors. 

16 

16 For poles, the “unusable space” factor = 2/3 x (the per- 
centage of the total pole space that is unusable) x (the attacher’s 
share of the bare costs of maintaining the pole) x (carrying 
charges). The “usable space” factor = (the percentage of total 

13a 

In this amended rule, the FCC incorporated almost 
verbatim the complaint process articulated in its 1978 
rule. See 47 C.F.R. §§ 1.1404, 1.1409 (1999). If the 
parties cannot agree to the rent or other terms of an 
attachment (or if the utility denies access to its poles), 
the party contending that the rent or other terms are 
unjust and unreasonable may petition the Commission 
to settle the matter. That party bears the burden of 
establishing a prima facie case that the other party’s 
position is unjust and unreasonable. 

17 If the com- 
plainant fails to make out a prima facie case, the FCC 
must dismiss its complaint, in which case the rent or 
conditions offered or demanded govern the trans- 
action. 

18 If a prima facie case is established, the 
Commission determines the maximum just and rea- 

usable space occupied by the attacher) x (the percentage of total 
pole space that is usable) x (net costs of the bare pole) x (carrying 
charges). For conduits, the “unusable space” factor = 2/3 x (net 
linear costs of unusable space divided by the number of attachers) 
x (carrying charges). The “usable space” factor for conduits = 1/2 x 
(1 duct divided by the average number of ducts less adjustments 
for maintenance ducts) x (linear cost of usable conduit space) x 
(carrying charges). 47 C.F.R. §§ 1.1417, 1.1418 (1999); Report and 
Order, 13 F.C.C.R. at 6820-33. 

17 For example, if the party seeking attachment complains that 
the utility is demanding an unreasonable rent (i.e., more than the 
maximum allowed under the FCC’s formula), it bears the burden 
of proving that the rent demanded is more than the fully allocated 
costs of the pole. 

18 It is possible that the Commission’s disposition of a 
complaint—whether a dismissal or an order setting one or more 
terms—may turn out to be provisional if, after the decision issues, 
the putative attacher decides to withdraw its request for an 
attachment. In this opinion, we assume for sake of discussion that 
the putative attacher does not withdraw its request and abides by 
the Commission’s decision. 

14a 

sonable rent allowed under the rule’s formula. Then, it 
decides the specific just and reasonable rent the 
complainant should pay or receive for the attachment. 
This determination involves reviewing items such as 
costs, rate of return on investment, the utility’s filings 
before state or federal regulatory agencies, and engi- 
neering studies, see 47 C.F.R. § 1.1404(g)(1)-(13) (1999), 
in addition to considering the maximum rent the FCC’s 
formula yields. The FCC’s final rate order, like any of 
its final orders, is then subject to judicial review under 
47 U.S.C. § 402(a) (1994) (providing for judicial review 
of FCC orders) and 28 U.S.C. §§ 2342, 2344 (1994) 
(providing for judicial review of FCC orders in a United 
States Court of Appeals). 

B. 

In response to the FCC’s Report and Order, power 
companies across the country filed petitions for review 
in various courts of appeals. On March 23, 1998, Gulf 
Power Company, Alabama Power Company, Georgia 
Power Company, and Southern Company Services filed 
a joint petition for review in the Eleventh Circuit Court 
of Appeals. On April 28, 1998, Florida Power & Light 
Company also filed a petition for review in the 
Eleventh Circuit. Subsequently, on May 8, 1998, Tampa 
Electric Company filed a petition for review in the 
Eleventh Circuit, and Potomac Electric Company filed 
a petition for review in the D.C. Circuit. The same day, 
Virginia Electric & Power Company, Duke Energy 
Company, and Carolina Power & Light Company filed 
petitions for review in the Fourth Circuit; Duquesne 
Light Company and Delmarva Power & Light Com- 
pany filed in the Third Circuit; American Electric 
Power Service Corporation filed in the Sixth Circuit; 

15a 

Commonwealth Edison Company filed in the Seventh 
Circuit; and Union Electric Company filed in the 
Eighth Circuit. Finally, on June 17 and July 16, 1998, 
respectively, Houston Lighting & Power Company and 
Public Service Electric & Gas Company filed motions to 
intervene in the first case filed in the Eleventh Circuit. 
Their motions were granted on August 4, 1998, the 
same day we granted the FCC’s motion to consolidate 
all of the petitions for review. 

In their petitions for review, the Petitioners chal- 
lenge (1) the implementation of the FCC’s formula for 
computing attachment rents as a taking without just 
compensation; (2) the implementation of the FCC’s 
overlashing interpretation as a taking without just 
compensation; (3) the FCC’s authority to include wire- 
less communications equipment within the 1996 Act’s 
regulated rate framework; (4) the FCC’s authority to 
include Internet service providers within the 1996 Act’s 
regulated rate framework; and (5) the FCC’s decision 
not to count dark fibers as separate attachments. We 
discuss each of these challenges below, in parts III-VI. 

On the day Gulf Power Company and its co-plaintiffs 
filed their joint petition for review, Gulf Power and 
several other utilities 

19 brought an action in the United 
States District Court for the Northern District of 
Florida seeking declaratory and injunctive relief. See 
Gulf Power Co. v. United States, 998 F. Supp. 1386 
(N.D. Fla. 1998). Contending that the range of rental 
compensation the 1996 Act provided would in every 
case operate to deny a utility just compensation, these 

19 The other utilities were Alabama Power Company, Georgia 
Power Company, Duke Power Company, Mississippi Power Com- 
pany, Ohio Edison Company, and Florida Power Corporation. 

16a 

plaintiffs sought a declaration that the 1996 Act was 
facially invalid under the Fifth Amendment Takings 
Clause, and a permanent injunction prohibiting the 
Commission from enforcing the 1996 Act. See id. at 
1389. The plaintiffs also claimed that allowing the FCC 
to determine just compensation violated the Separation 
of Powers doctrine. The district court granted the 
United States’ motion for summary judgment. It con- 
cluded that, although the 1996 Act authorized a taking 
of the plaintiffs’ property, it did not deny the plaintiffs 
just compensation. Rather, it provided a procedure—a 
proceeding before the Commission—for determining 
just compensation which did not violate the Separation 
of Powers doctrine because the Commission’s decision 
was subject to judicial review. See id. at 1397- 98. 

The plaintiff utilities appealed. A panel of this court 
upheld the district court’s conclusion that the 1996 Act 
authorized a taking of the plaintiffs’ property, but 
declined to review the court’s ruling on just compensa- 
tion. That issue was not ripe for review because the 
plaintiffs had not shown that the 1996 Act would 
operate to deny them just compensation in every case. 
See Gulf Power Co. v. United States, 187 F.3d 1324, 
1338 (11th Cir. 1999) (Gulf Power I ). Finally, the panel 
affirmed the district court’s holding that allowing the 
FCC to determine just compensation in the first 
instance did not violate the Separation of Powers 
doctrine. Id. at 1332- 37. 

II. 

In their petitions for review, the Petitioners do not 
present the same challenges the plaintiffs made in Gulf 
Power I. Instead of attacking the facial validity of the 
Act under the Fifth Amendment Takings Clause and 

17a 

the Separation of Powers doctrine, the Petitioners 
question the facial validity of several aspects of the 
FCC’s Report and Order. 

We review constitutional challenges to agency regu- 
lations de novo. See Rural Tel. Coalition v. FCC, 838 
F.2d 1307, 1313 (D.C. Cir. 1988); see also 5 U.S.C. 
§ 706(2)(B) (1994). We use the two-step Chevron 
analysis to review agency interpretations of a statute. 
See Chevron U.S.A., Inc. v. Natural Resources Defense 
Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694 
(1984); Legal Envtl. Assistance Found., Inc. v. EPA, 
118 F.3d 1467, 1473 (11th Cir. 1997). Under Chevron 
step one, we determine whether Congress has spoken 
unambiguously to the question at issue. If it has, our 
inquiry ends; we give effect to Congress’ intent. See 
Chevron, 467 U.S. at 842-43, 104 S. Ct. at 2781. Under 
Chevron step two, if we determine that Congress’ 
intent is ambiguous, we defer to a reasonable agency 
interpretation of Congress’ intent. See id. at 843, 104 
S.Ct. at 2781-82. In resolving whether an ambiguity 
exists, we use normal tools of statutory construction, 
without affording agency interpretations any deference. 
See INS v. Cardoza-Fonseca, 480 U.S. 421, 446, 107 S. 
Ct. 1207, 1221, 94 L.Ed.2d 434 (1987); National Mining 
Ass’n v. Secretary of Labor, 153 F.3d 1264, 1267 (11th 
Cir. 1998). 

III. 

The Petitioners’ primary challenge to the FCC’s 
Report and Order is that the rate formula it establishes 
cannot pass muster under the Fifth Amendment 
Takings Clause. The Petitioners’ challenge presents 
two separate questions: will the Commission’s formula, 
when implemented, effect a taking of part of utility 

18a 

poles, and if so, will the formula operate to deny the 
utilities just compensation in every case. 

The Gulf Power I panel decided that the 1996 Act 
authorized a taking of utilities property, but concluded 
that the issue of whether the statute would operate to 
deny just compensation in every case was not ripe for 
review. See Gulf Power I, 187 F.3d at 1338; see also 
Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 
1507, 1515, 18 L.Ed.2d 681 (1967). The panel’s resolu- 
tion of the takings issue constitutes binding precedent. 
See Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 
1997). We therefore begin with the premise that the 
1996 Act authorizes the Commission, when faced with a 
complaint filed by an entity providing cable television 
or telecommunications services, to take a utility’s 
property. Thus, our answer to the first question the 
Petitioners pose is yes: when the Commission rules on 
a complaint, a taking may result. 

The second question the Petitioners present is 
whether the Commission’s formula will operate to deny 
utilities just compensation in every case. The Gulf 
Power I panel held that the just compensation question, 
when raised in a facial challenge to the 1996 Act, was 
not ripe unless the plaintiffs could show that just com- 
pensation would be denied in all cases. The compensa- 
tion limits—the maximum and minimum rents—that 
the Commission’s rule prescribes mirror the compensa- 
tion limits prescribed by the 1996 Act. Compare 47 
U.S.C. § 224(b), (d)(1), with 47 C.F.R. § 1.1409. Under 
the 1996 Act, the lowest rent that may be considered 
just and reasonable is an amount equal to the incre- 
mental cost of adding the new attachment to the 
utility’s pole; the highest rent that may be considered 

19a 

just and reasonable is an amount equal to the fully 
allocated costs of the pole. See 47 U.S.C. § 224(b), 
(d)(1). A rent that is higher or lower than these statu- 
tory limits would be unjust and unreasonable. Because 
the outer boundaries of the FCC’s formula are identical 
to those of the 1996 Act, Gulf Power I’s ripeness stan- 
dard binds us. Thus, we inquire whether the 
Petitioners have shown that the Commission’s formula 
will always deny utilities just compensation. 

In this case, we are not called upon to review an FCC 
determination that a utility provide pole space at a rent 
that does not amount to the just compensation man- 
dated by the Takings Clause. All that is before us is a 
facial attack on the Commission’s formula and the 
Petitioners’ allegation that factors the Commission took 
into account in fashioning the formula could never 
provide just compensation. This is essentially the same 
argument the utilities made to the Gulf Power I panel. 
The panel’s response was that the utilities failed to 
establish that “ ‘no set of circumstances exists under 
which the Act would be valid.’ ” Gulf Power I, 187 F.3d 
at 1336 (quoting United States v. Salerno, 481 U.S. 739, 
745, 107 S. Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)). 
Although the Petitioners posit circumstances in which 
the FCC’s formula will deny just compensation, we are 
not confident, given the record at hand, that the 
formula will deny just compensation in all cases. The 
Petitioners’ facial challenge to the formula is therefore 
unripe, and we do not address it. Gulf Power I, 187 F.3d 
at 1338; Cargill, 120 F.3d at 1386. 

20 

20 For the same reasons, the issue of whether mandatory 
overlashing effects a taking without just compensation is also not 
ripe for review. Utilities, under the FCC’s rule, are required to 

20a 

IV. 

The Petitioners challenge the FCC’s decision to 
include wireless carriers within the “nondiscriminatory 
access” provision of section 224(f ), claiming that the 
FCC has no statutory authority to regulate wireless 
carriers under the 1996 Act. 

21 We agree. 

The FCC contends that Congress’ frequent use of the 
word “any” in the 1996 Act indicates an intent to have 
the Commission broadly regulate pole attachments. 

22 

allow overlashing of cables for no additional compensation unless 
the additional cables “significantly increase the burden on the 
pole.” Report and Order, 13 F.C.C.R. at 6807. This regulatory 
exception essentially reflects the exception, sometimes called the 
“engineering and safety exception,” present in the Act. See 47 
U.S.C. § 224(f )(2). That exception did not prevent the Gulf Power 
I panel from finding that the 1996 Act authorized a taking, and 
neither does the regulatory exception prevent us from concluding 
that the FCC’s overlashing rule authorizes a taking. Just com- 
pensation was too abstract to determine for the original statutory 
taking, and thus is also too abstract to determine for the taking 
authorized by the FCC’s overlashing rule. See Gulf Power I, 187 
F.3d at 1338; see also Abbott Lab., 387 U.S. at 148-49, 87 S. Ct. at 
1515. 

21 As stated in part II supra, questions of pure statutory 
construction fall within a Chevron step one analysis. We therefore 
owe no deference to an agency’s construction of a statute. See 
Cardoza-Fonseca, 480 U.S. at 446, 107 S. Ct. at 1221; National 
Mining Ass’n, 153 F.3d at 1267. 

22 Specifically, the FCC cites Congress’ use of the word “any” 
in the following two provisions: 

The term “pole attachment” means 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. 

47 U.S.C. § 224(a)(4) (emphasis added). 

21a 

As long as an attachment is made by a cable television 
company or a telecommunications service provider, the 
FCC contends, the attachment may be regulated under 
section 224(d) or (e), no matter what kind of attachment 
it is. This position is contrary to the Commission’s 
narrow authority to regulate power companies. The 
FCC’s organic statute does not give it authority to 
regulate power utilities. See 47 U.S.C. § 151 (1994) 
(creating the FCC to regulate interstate and foreign 
commerce in radio and wire communication). Congress 
placed power companies within the agency’s regulatory 
authority for pole attachment purposes only. See 47 
U.S.C. § 224(a)(1). 

Section 224(a)(4) defines a pole attachment 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.” A 
utility, according to section 224(a)(1) is “any person 

. . . who owns or controls poles, ducts, conduits, or 
rights-of-way used, in whole or in part, for any wire 
communications.” 

23 Read in combination, these two 

This subsection shall apply to the rate for any pole attachment 

used by a cable television system solely to provide cable 
service. Until the effective date of the regulations required 
under subsection (e) of this section, this subsection shall also 
apply to the rate for any pole attachment used by a cable 
system or any telecommunications carrier (to the extent such 
carrier is not a party to a pole attachment agreement) to 
provide any telecommunications service. 

47 U.S.C. § 224(d)(3) (emphasis added). 

23 The term “wire communications” is defined as “the transmis- 
sion of writing, signs, signals, pictures, and sounds of all kinds by 
aid of wire, cable, or other like connection between the points of 
origin and reception of such transmission, including all instru- 

22a 

provisions give the FCC authority to regulate attach- 
ments to poles used, at least in part, for wire com- 
munications, and by negative implication does not give 
the FCC authority over attachments to poles for wire- 
less communications. 

24 

That wires are integral to the FCC’s authority is 
supported by the legislative history of the 1978 Act. 

25 

mentalities, facilities, apparatus, and services (among other things, 
the receipt, forwarding, and delivery of communications) incidental 

to such transmission.” 47 U.S.C. § 153(51) (emphasis added). 

24 The fact that power companies that do not use their poles to 
transmit wire communications are not covered by the Act and the 
FCC’s implementing regulations, see supra nn.12 & 23, further 
supports this narrow reading of the FCC’s authority. The dissent 
takes issue with this reading of section 224, stating that we make 
more of the wire-based definition of utility than Congress 
intended. The dissent’s reasoning is contrary to its own suggestion 
that we follow the straightforward statutory language of section 
224. The language of section 224 plainly says that attachments 
may be made to poles used for wire communications; it says 
nothing about attachments for wireless communications. 

25 The statutory language of section 224 itself prohibits the 
FCC from regulating pole attachments for wireless communi- 
cations; thus, we may end our review with that language. An 
understanding of the communications industry and Congress’ 
attempts at regulating it helps one understand why Congress 
wrote section 224 to prohibit the FCC from regulating wireless 
communications. To provide this understanding, we use normal 
tools of statutory construction and eliminate any hint of ambiguity 
in the statutory language. See Cardoza-Fonseca, 480 U.S. at 432 

n.12, 107 S. Ct. at 1213 n. 12 (“As we have explained, the plain lan- 
guage of this statute appears to settle the question before us. 
Therefore, we look to the legislative history to determine only 
whether there is ‘clearly expressed legislative intention’ contrary 
to that language, which would require us to question the strong 
presumption that Congress expresses its intent through the lan- 
guage it chooses.”) (quoting United States v. James, 478 U.S. 597, 

23a 

Congress’ reason for passing it was that the Com- 
mission did not believe it had authority to regulate 
power companies since pole attachment arrangements 
“d[id] not constitute communication by wire or 
radio.” S. Rep. No. 95-580, at 14, reprinted in 1978 
U.S.C. C.A.N. at 122 (internal quotation marks omit- 
ted). The FCC reasoned that: 

The fact that cable operators ha[d] found in-place 
facilities convenient or even necessary for their 
businesses [wa]s not sufficient basis for finding that 
the leasing of those facilities [wa]s wire or radio 
communications. If such were the case, we might be 
called upon to regulate access and charges for use of 
public and private roads and right of ways essential 
for the laying of wire, or even access and rents for 
antenna sites. 

Id. Before 1978, the FCC’s regulatory authority did not 
extend to power companies because power companies 
did not use their poles primarily for communication by 
wire or radio. This hindered the growth of the cable 
television market. The FCC could regulate what telep- 
hone companies charged to attach, but could not regu- 
late what the power companies charged to attach. 
Because telephone and power poles generally did not 
run side-by-side, the cable companies at times were 
forced to attach to power company poles instead of 
telephone poles, and to pay monopoly rents. To prevent 
the power companies from taking unfair advantage of 
their bottleneck facilities in this manner, Congress 
brought them under the FCC’s regulatory umbrella, 
permitting “[f ]ederal involvement in pole attachments 

606, 106 S. Ct. 3116, 3121, 92 L.Ed.2d 483 (1986)); see also infra 

n.39 (Carnes, J., dissenting). 

24a 

matters . . . where space on a utility pole ha[d] been 
designated and [wa]s actually being used for communi- 
cations services by wire or cable.” Id. at 15, reprinted 
in 1978 U.S.C.C.A.N. at 123 (emphasis added). The 
reason Congress gave this pole attachment authority to 
the FCC was that the Commission already regulated all 
other aspects of the cable industry and cable companies 
were the only entities seeking to attach to poles in 1978. 

In 1996, when Congress amended the 1978 Act, it 
once again expanded the FCC’s jurisdiction; this time 
to include attachments by telecommunications service 
providers. Nothing in the legislative history indicates 
that the original purpose behind regulating utility 
poles—to prevent the telephone and power companies 
from charging monopoly rents to connect to their 
bottleneck 

26 facilities—changed. Rather, the legislative 
history suggests the same thing the language alteration 
suggests: Congress wanted to allow telecommuni- 
cations service providers, like the cable television com- 
panies before them, to attach to the utilities’ bottleneck 
facilities without having to pay monopoly rents. See 
H. Rep. No. 104-204, at 92 (1996), reprinted in 1996 
U.S.C.C.A.N. 10, 58. 

The Petitioners’ poles are not bottleneck facilities for 
wireless carriers. Wireless attachments to poles “in- 
clude an antenna or antenna clusters, a communications 
cabinet at the base of the pole, coaxial cables connecting 
antennas to the cabinet, concrete pads to support the 
cabinet, ground wires and trenching, and wires for 
telephone and electric service.” Report and Order, 13 

26 See AT&T Corp. v. Iowa Util. Bd., 525 U.S. 366, 388, 119 S. 
Ct. 721, 734, 142 L.Ed.2d 835 (1999) (defining bottleneck facilities 
as something akin to essential facilities of antitrust law). 

25a 

F.C.C.R. at 6799. Most of this equipment can be placed 
on any tall building, and the whole set-up requires more 
physical space then a wireline system. Further, 
wireless systems operate in a completely different way 
than do wireline systems. Wireline networks transmit 
through linear networks of cables strung between 
poles. Wireless networks, on the other hand, transmit 
through a series of concentric circle emissions that 
allow the network to continue working if one antenna 
malfunctions. Indeed, it is highly questionable whether 
there are any bottleneck facilities for wireless systems. 
What is beyond question is that utility poles are not 
bottleneck facilities for wireless systems. Because they 
are not, and because the 1996 Act deals with wire and 
cable attachments to bottleneck facilities, the act does 
not provide the FCC with authority to regulate 
wireless carriers. 

27 

Although Congress did not give the FCC authority to 
regulate the placement of wireless carriers’ equipment 
under section 224 (or any other section) of the Tele- 
communications Act of 1996, that statute did address, in 
part, such regulation by state and local governments. 
Section 332 

28 states that “[t]he regulation of the place- 
ment, construction, and modification of personal wire- 
less services facilities by any State or local government 

27 The FCC seemed to recognize that this might be the case 
when it stated that, “[t]here are potential difficulties in applying 
the Commission’s rules to wireless pole attachments.” Report and 
Order, 13 F.C.C.R. at 6799. 

28 The wireless communications section of the Telecommuni- 
cations Act of 1996 follows the pole attachment section; as codified, 
however, the two sections do not follow one another. Compare 
Pub. L. No. 104-104, §§ 703, 704, 110 Stat. 149 (1996), with 47 
U.S.C. §§ 224, 332 (Supp. II 1996). 

26a 

or instrumentality thereof—shall not unreasonably 
discriminate among providers of functionally equivalent 
services; and shall not prohibit or have the effect of 
prohibiting the provision of personal wireless service.” 
Pub. L. No. 104- 104, § 704(B)(i)(I),(II), 110 Stat. 149 
(1996) (codified at 47 U.S.C. § 332(7)(B)(i)(I), (II)). The 
section goes on to require a state to act on requests to 
site wireless equipment within a reasonable time, to 
require a state to put its reasons for denying any such 
request in writing, and to limit the reasons a state can 
assert for determining where wireless carriers can 
locate their equipment. See id. § 704(B)(ii)-(iv) (codified 
at 47 U.S.C. § 332(7)(B)(ii)-(iv)). The specificity with 
which Congress addressed the siting of wireless equip- 
ment in section 332 indicates that it did not intend that 
section 224 provide the FCC authority to regulate the 
placement of wireless carriers’ equipment. 

V. 

Next, Petitioners challenge the FCC’s statutory 
authority to regulate attachments for Internet service 
under the 1996 Act. As with wireless carriers, we 
agree that the FCC has no authority under that act to 
regulate Internet service providers. The 1996 Act 
allows the Commission to regulate the rates for cable 
service and telecommunications service; Internet ser- 
vice is neither. 

The FCC argues that Internet service provided by a 
cable television system is either “solely cable services” 
or is subject to regulation under section 224(b)(1)’s 
mandate to “ensure that the rates, terms, and condi- 
tions [for pole attachments] are just and reasonable.” 
Report and Order, 13 F.C.C.R. at 6795-96 (internal 
quotation marks omitted). To accept this argument 

27a 

requires us to disregard the unambiguous language of 
the 1996 Act, which we cannot do. See Robinson v. 
Shell Oil Co., 519 U.S. 337, 340-41, 117 S. Ct. 843, 846, 
136 L.Ed.2d 808 (1997). The 1996 Act calls for the Com- 
mission to establish two rates for pole attachments. 

29 

One, described in section 224(d), applies to “any pole 
attachment used by a cable television system solely to 
provide cable service.” 47 U.S.C. § 224(d)(3). The 
second rate applies to “charges for pole attachments 
used by telecommunications carriers to provide tele- 
communications services.” 47 U.S.C. § 224(e)(1). For 
the FCC to be able to regulate the rent for an attach- 
ment that provides Internet service then, Internet 
service must qualify as either a cable service or a 
telecommunications service. 

Cable service, defined in section 522, is “the one-way 
transmission to subscribers of (i) video programming, 
or (ii) other programming service, and subscriber 
interaction, if any, which is required for the selection or 
use of such video programming or other programming 
service.” 47 U.S.C. § 522(6)(A), (B)(1994 & Supp. II 
1996). 

30 The only difference between this definition of 

29 The dissent contends that our reading of section 224 ignores 
subsection (b)(1)’s mandate that the FCC provide just and reason- 
able rates for pole attachments. To the contrary, our reading gives 
effect to all parts of section 224 while the dissent’s reading ignores 
the fact that subsections (d) and (e) narrow (b)(1)’s general man- 
date to set just and reasonable rates. The straightforward lan- 
guage of subsections (d) and (e) directs the FCC to establish two 
specific just and reasonable rates, one for cable television systems 
providing solely cable service and one for telecommunications 
carriers providing telecommunications service; no other rates are 
authorized. 

30 Although section 522 states that its definitions apply only to 
that subchapter, we give words a consistent meaning throughout 

28a 

“cable service” and the definition included in the 1978 
Act is the addition of the words “or use.” According to 
the House Report accompanying the 1996 amendments, 
the inclusion of the words “or use” was meant to 
“reflect[ ] the evolution of video programming toward 
interactive services.” H. Rep. No. 104-204, at 97, 
reprinted in 1996 U.S.C.C.A.N. at 64. This is the only 
sentence in the legislative history that attempts to 
explain Congress’ change to the definition of “cable 
service.” Although what it means to reflect an evolu- 
tion of video programming toward interactive service is 
not exactly clear, it is clear from Congress’ lack of 
discussion of this change that it was minor in both 
language and intent. If Congress by the addition of 
these two words meant to expand the scope of the 
“cable service” definition from its traditional video base 
to include all interactive services, video and non-video, 
it would have said so. Without any substantive com- 
ment, we will not read this minor change to effectuate a 
major statutory shift. See Walters v. National Ass’n of 
Radiation Survivors, 473 U.S. 305, 318, 105 S. Ct. 3180, 
3187, 87 L.Ed.2d 220 (1985) (stating that without sub- 
stantive comment “it is generally held that a change 
during codification is not intended to alter the statute’s 
scope”) (citing Muniz v. Hoffman, 422 U.S. 454, 467-74, 
95 S. Ct. 2178, 2185-89, 45 L.Ed.2d 319 (1975)). How 
then did the addition of the words “or use” alter the 
definition of “cable service”? The statute’s plain lan- 
guage and Congress’ one sentence explanation suggest 

the statute unless otherwise instructed by Congress. See Richards 

v. United States, 369 U.S. 1, 11, 82 S. Ct. 585, 591-92, 7 L.Ed.2d 492 
(1962) (“We believe it fundamental that a section of a statute 
should not be read in isolation from the context of the whole Act.”) 
(footnotes and internal quotations omitted); Nipper v. Smith, 39 
F.3d 1494, 1515 (11th Cir. 1994). 

29a 

that Congress expanded the definition to include ser- 
vices that cable television companies offer to their cus- 
tomers to allow them to interact with traditional video 
programming. 

31 

Although the statute includes interaction with other 
programming—in addition to video programming— 
within the definition of “cable service,” we cannot read 
the language “other programming” broadly to include 
Internet services. “Other programming” has been part 
of the definition of “cable service” since 1978, when the 
Internet was only a tool for researchers and the mili- 
tary, not a commodity that would require regulation. 
When Congress used this language then, it could not 
have intended it to cover Internet services provided by 
cable companies. Again, we will not radically expand 
the scope of the definition of “cable service” from a 
video base to an all-interactive-services base without 
some substantive indication from Congress that this is 

31 Video programming means “programming provided by, or 
generally considered comparable to programming provided by, a 
television broadcast station.” 47 U.S.C. § 522(20). 

30a 

indeed its intent. See Walters, 473 U.S. at 318, 105 S. 
Ct. at 3187. 

32 

Furthermore, as an aside, we note that the FCC, 
itself, has defined the Internet as an information ser- 
vice, not as a cable service. See In Re Fed.-State Joint 
Bd. on Universal Serv., 13 F.C.C.R. 11501 ¶ 66, 1998 
WL 166178 (“Internet service providers themselves 
provide information services. . . .”). Thus, the FCC 

32 The Commission urges us to adopt the D.C. Circuit’s reason- 
ing in Texas Utilities Electric Co. v. FCC, 997 F.2d 925 (D.C. Cir. 
1993), in determining whether pole attachments used by a cable 
television company to provide Internet service are entitled to a 
regulated rent under the 1996 Act. We decline to do so. The D.C. 
Circuit decided Texas Utilities Electric Co. before the 1996 amend- 
ments were enacted. Prior to 1996, section 224 instructed the FCC 
to set a reasonable rent for “any attachment by a cable television 
system.” 47 U.S.C. § 224(a)(4), (d)(1) (1994). It did not specify the 
particular services of a cable television system that were entitled 
to a regulated rent. Because Congress, in passing the 1978 Act, did 
not specify whether it “place[d] greater emphasis on the type of 
service to be distributed over the attachment or the type of entity 
doing the attaching,” Texas Utils. Elec. Co., 997 F.2d at 930, the 
court found the statute ambiguous. The court, therefore, deferred 
to the FCC’s interpretation that co-mingled services were covered 
by section 224. Today we are faced with an entirely different 
situation from that faced by the D.C. Circuit in Texas Utilities 
Electric Co. because Congress, in 1996, amended the Act to elimi- 
nate the ambiguity at issue in that case. The new section 224(d)(3) 
states that “solely cable services” receive regulated rents. (Tele- 
communications services, which also receive regulated rents are 
discussed in the text infra.) Because we now know that the stat- 
ute emphasizes the type of service over the type of entity acquir- 
ing the attachment, we have no need to follow the reasoning of 
Texas Utilities Electric Co. Indeed, to follow that reasoning would 
be to disregard our duty under Chevron to give effect to Congress’ 
unambiguous intent. Chevron, 467 U.S. at 842-43, 104 S. Ct. at 
2781. 

31a 

lacks statutory authority to regulate the Internet under 
the 1996 Act based on the theory that Internet service 
is a cable service. 

The only remaining basis for the Commission’s 
authority to regulate the Internet under the 1996 Act is 
to treat the Internet as a telecommunications service. 
See 47 U.S.C. § 224(d)(3), (e) (directing the Commission 
to develop a rate for telecommunications carriers pro- 
viding telecommunications service). The FCC, how- 
ever, did not raise that argument before us. Nor could 
it have because the FCC has specifically said that the 
Internet is not a telecommunications service. See 
Report and Order, 13 F.C.C.R. at 6795 (“The Universal 
Service Order concluded that Internet service is not the 
provision of a telecommunications service under the 
1996 Act.”); In Re Fed.-State Joint Bd. on Universal 
Serv., 12 F.C.C.R. 87 ¶ 69 (1996) (“Internet service does 
not meet the statutory definition of a ‘telecommuni- 
cations service.’ “). 

33 Accordingly, there is no statutory 
basis for the FCC to regulate the Internet as a tele- 
communications service under the 1996 Act. 

In sum, Congress, in the 1996 Act, authorized the 
FCC to develop rent formulas for attachments pro- 
viding cable and telecommunications services. Internet 
service does not meet the definition of either a cable 

33 The FCC has given the following examples of telecommuni- 
cations services: cellular telephone and paging services; mobile 
radio services; operator services; PCS (personal communications 
services); access to interexchange service; special access; wide area 
telephone service (WATS); toll-free service; 900 service; MTS; 
private line; telex; telegraph; video services; satellite services; and 
resale services. In re Fed.-State Joint Bd. on Universal Serv., 12 
F.C.C.R. 8776 ¶ 780 (1997). Even if this list is not exhaustive, all of 
these examples are materially different from the Internet. 

32a 

service or a telecommunications service. Therefore, the 
1996 Act does not authorize the FCC to regulate pole 
attachments for Internet service. 

VI. 

The Petitioners’ final challenge is to the FCC’s statu- 
tory authority to regulate the rents utilities charge for 
dark fiber attachments. Dark fiber, which exists within 
a fiber optic cable, “consists of . . . bare capacity and 
does not involve any of the electronics necessary to 
transmit or receive signals over that capacity.” Report 
and Order, 13 F.C.C.R. at 6810. The advantage of 
stringing cables with lit and dark fiber is that dark fiber 
provides excess distribution and transmittal capacity 
for a cable or telecommunications company to use as its 
service network expands. Dark fiber also may be 
leased to a third party. Because dark fiber is bare 
capacity, it technically is neither a telecommunications 
service nor a cable service. In fact, it is not a service at 
all; it is simply an inactive fiber. 

The 1996 Act authorizes the FCC to regulate the pole 
attachments of cable television and telecommunications 
companies that provide cable and telecommunications 
services. See 47 U.S.C. § 224; supra part V. The 1996 
Act says nothing about regulating bare capacity. But, 
these bare capacity fibers do not generally exist on 
their own. They are usually located within cables that 
also contain fibers providing cable or telecommuni- 
cations services, i.e., lit fibers the FCC clearly has the 
authority to regulate. Thus, unlike Internet service or 
wireless carriers, the statute’s silence does not resolve 
the issue of whether the Commission may regulate dark 
fiber. Both Internet service and wireless carriers are 
similar to items the statute covers. The statute defines 

33a 

the kinds of attachers it covers, and wireless carriers do 
not fall within that definition. Similarly, the statute 
defines the types of wire services it covers, and 
Internet services are not one of those services. We can, 
therefore, say, based on the 1996 Act alone, that the 
FCC lacks the authority to regulate wireless carriers 
and the provision of Internet services. Dark fiber, 
however, is not a service (nor, of course, is it a type of 
attacher). Thus, the fact that it falls outside the 
definitions of “cable service” and “telecommunications 
service” tells us nothing about Congress’ intent to 
regulate dark fiber. Congress did say that it did not 
intend to have an attacher pay twice for a single 
attachment, see H.R. Rep. No. 104-204, at 92, reprinted 
in 1996 U.S.C.C.A.N. at 59, but the legislative history 
does not indicate whether dark fiber and its host were 
to be considered a single attachment. Congress’ intent 
is ambiguous; therefore, we proceed to step two of the 
Chevron analytical framework and consider whether 
the FCC reasonably interpreted Congress’ silence on 
dark fiber. See Chevron, 467 U.S. at 843, 104 S. Ct. at 
2781-82. 

34 

The FCC decided that dark fiber is not a separate 
attaching entity from its host attachment. See Report 

34 Our conclusion that Congress’ intent is ambiguous is con- 
sistent with our conclusion that section 224 does not authorize the 
FCC to regulate wireless carriers or the provision of Internet 
services because, as we state in the text, wireless carriers and 
Internet service are similar in kind to the attachers and services 
the 1996 Act discusses. Dark fiber, however, is a different bird 
altogether. Neither the statute nor the legislative history dis- 
cusses anything similar to dark fiber. Therefore, we cannot even 
begin to discern, let alone declare unambiguous, Congress’ intent 
regarding dark fiber. 

34a 

35 According to the 
FCC, dark fibers place no more burden on a pole than 
do their host attachments. See id. This makes sense 
since dark fiber, by definition, is merely bare capacity 
and is included within its host attachment at the time 
that cable is attached to the pole. Further, we presume 
that in determining the rent for the host attachment, 
the utility and the FCC will account for the dark fibers 
contained within the attaching host. By accounting for 
the dark fibers in the rent determination for the host 
cable, the Commission ensures that the utility receives 
just compensation for any burden the dark fiber may 
cause the pole at the time the host attaches. Hence, 
once the utility has been compensated, there is no 
reason to treat dark fiber as a separate attaching 
entity, and the FCC’s decision not to do so is rea- 
sonable. 

and Order, 13 F.C.C.R. at 6811. 

36 

VII. 

For the foregoing reasons, we hold that the non- 
discriminatory access provision of the 1996 Act 

35 Section 224(e)(2) directs a utility to “apportion the cost of 
providing space on a pole, duct, conduit, or right-of-way other than 
the usable space among entities,” and section 224(e)(3) directs a 
utility to “apportion the cost of providing usable space among all 
entities.” The FCC determined that dark fiber did not constitute a 
separate entity from its host attacher for purposes of sections 
224(e)(2) and (3). 

36 Our ruling on dark fiber is narrow; holding only that it was 
reasonable for the FCC to consider pure dark fiber and its host as 
one attaching entity. We are not presented with a factual scenario 
involving dark fiber that becomes lit, thus we do not address the 
status of such a fiber. Nor do we address dark fiber located within 
a cable whose attachment the FCC lacks authority to regulate 
under section 224(f). 

35a 

authorizes a taking of a portion of the Petitioners’ poles, 
which occurs when the FCC issues a rent determination 
order as to a particular pole or set of poles. Whether 
the rent formula developed by the FCC, including its 
decision not to require additional compensation for 
overlashed wires, provides just compensation is not 
ripe for review because it is not presented in a suffi- 
ciently concrete form for adjudication. Further, we 
hold that the FCC lacks the authority to regulate 
wireless carriers and the provision of Internet service 
under the 1996 Act. Finally, we hold that the FCC’s 
decision not to count leased dark fiber as an additional 
attaching entity is reasonable. 

SO ORDERED. 

CARNES, Circuit Judge, concurring in part and dis- 
senting in part: 

On review in these cases is In the Matter of Imple- 
mentation of Section 703(e) of the Telecommunications 
Act of 1996, 13 F.C.C.R. 6777, 1998 WL 46987 (1998) 
(“Order “), the order of the Federal Communications 
Commission which implements the amendments to the 
Pole Attachment Act of 1978, 47 U.S.C. § 224, contained 
in the Telecommunications Act of 1996. Because I 
believe that the Pole Attachment Act of 1978, as 
amended, extends regulated rates to all pole attach- 
ments, including those used for wireless telecom- 
munications service and Internet service, I dissent from 
the parts of the Court’s decision reaching a contrary 
conclusion. 

36a 

I do agree with the majority opinion’s conclusions 
regarding the petitioners’ facial attack on the rate 
formula prescribed in the Order. As this Court held in 
Gulf Power Co. et al. v. United States, 187 F.3d 1324 
(11th Cir. 1999) (“Gulf Power I “), section 224(f), the 
statutory provision requiring utilities to accept pole 
attachments, effects a per se taking of property under 
the Fifth Amendment for which just compensation is 
required.1 Id. at 1328-31. But the petitioners have 
failed to show that the Order’s rate formula will deny 
just compensation in every case. Consequently, their 
facial challenge to the formula is unripe and, as the 
majority opinion concludes, it should not be considered 
by this Court.2 Id. 

1 Section 224(f) reads as follows: 

(1) A utility shall provide a cable television system or any 

telecommunications carrier with nondiscriminatory access to 
any pole, conduit, or right-of-way owned or controlled by it. 

(2) Notwithstanding paragraph (1), a utility providing elec- 
tric service may deny a cable television system or any tele- 
communications carrier access to its poles, ducts, conduits, or 
rights-of-way, on a non-discriminatory basis where there is in- 
sufficient capacity and for reasons of safety, reliability and 
generally applicable engineering purposes. 

2 Likewise, I agree with the majority opinion’s conclusion re- 
garding the petitioners’ argument that the rate formula denies just 
compensation when wires are overlashed because no additional 
compensation is awarded. It is possible that in some cases the rate 
formula will provide just compensation for both the original attach- 
ment and the overlashed cables without additional compensation. 
Again, the petitioners have failed to show that the rate formula 
will deny just compensation in every case. Thus, their challenge is 
unripe. 

37a 

I disagree, however, with the majority opinion’s 
holdings regarding wireless telecommunications service 
and Internet service. It concludes that the FCC has no 
authority to regulate either wireless telecommuni- 
cations carriers or Internet service providers, but the 
plain language of the statute mandates the opposite 
conclusion.3 

Section 224(b)(1) provides that the FCC “shall regu- 
late the rates, terms, and conditions for pole attach- 
ments to provide that such rates, terms, and conditions 
are just and reasonable.” The term “pole attachment” 
is defined in section 224(a)(4) as “any attachment by a 
cable television system or provider of telecommuni- 
cations service to a pole, duct, conduit, or right-of-way 
owned or controlled by a utility.” (emphasis added). As 
this Court has stated, more than once, “the adjective 
‘any’ is not ambiguous; it has a well-established mean- 
ing.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 
(11th Cir. 1997); accord Lyes v. City of Riviera Beach, 
Florida, 166 F.3d 1332, 1337 (11th Cir. 1999) (en banc). 
“Read naturally, the word ‘any’ has an expansive mean- 

3 As noted in the majority opinion, we apply the two-step 
Chevron analysis to agency interpretations of a statute. See Chev- 
ron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 
837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). “First, the court is to 
determine if the intent of Congress is clear; if so, that is the end of 
the matter. On the other hand, if Congress has not spoken directly 
to the precise question at issue, a second step of review comes into 
play, and the court must determine whether the agency’s answer 
to the question Congress left open reflects a permissible construc- 
tion of the statute.” Jaramillo v. INS, 1 F.3d 1149, 1152 (11th Cir. 
1993) (en banc). We use the normal tools of statutory construction 
to judge whether Congress’ intent is clear. See INS v. Cardoza 
Fonseca, 480 U.S. 421, 446, 107 S. Ct. 1207, 1221, 94 L.Ed.2d 434 
(1987) (quoting Chevron, 467 U.S. at 843 n.9, 104 S. Ct. at 2782 n.9). 

38a 

ing, that is, ‘one or some indiscriminately of whatever 
kind.’ ” United States v. Gonzales, 520 U.S. 1, 5, 117 S. 
Ct. 1032, 1035, 137 L.Ed.2d 132 (1997) (citations omit- 
ted) (as quoted in Merritt, 120 F.3d at 1186). Applying 
that definition to sections 224(a)(4) and (b)(1), the FCC 
has the authority to regulate all attachments, i.e., 
attachments “of whatever kind,” id., by a cable televi- 
sion system or provider of telecommunications service 
to a pole, duct, conduit, or right-of-way owned or con- 
trolled by a utility. Obviously, all attachments includes 
those attachments used to provide wireless and 
Internet services. 

The majority opinion does not attempt to justify its 
conclusions regarding wireless service with the lan- 
guage of the statute, except to say that there is a 
“negative implication” created by the statutory defini- 
tion of a pole attachment coupled with the definition of 
a utility.4 But the negative implication, if there is one at 
all, is not nearly as strong as the majority seems to 
think. The statutory definition of utility serves merely 
to exempt from mandatory access any utility that does 
not make its poles available for wire communications at 
all. If a utility does not make its poles available for wire 
communications, it does not have to make its poles 
available for wireless communications. However, once 
a utility makes its poles available, even “in part,” for 
wire communications, it is subject to mandatory access 
for all pole attachments. Nothing about the definition 

4 Pole attachment is defined in section 224(a)(4) as “any attach- 
ment . . . to a pole, duct, conduit, or right-of-way owned or con- 
trolled by a utility.” Utility is defined in section 224(a)(1) as “any 
person . . . who owns or controls poles, ducts, conduits, or rights- 
of-way used, in whole or in part, for any wire communications.” 

39a 

of utility negates the FCC’s mandate to regulate rates 
for all pole attachments. 

Notwithstanding the straightforward statutory lan- 
guage, the majority opinion turns to legislative history 
to justify its conclusion about wireless communications. 
But the Supreme Court, as well as this Court, has 
repeatedly held when the meaning of a statute is clear 
from its plain language, it is unnecessary to look to 
legislative history. See Gonzales, 520 U.S. at 6, 117 S. 
Ct. at 1035 (“Given the straightforward statutory com- 
mand, there is no reason to resort to legislative his- 
tory.”); Ratzlaf v. United States, 510 U.S. 135, 147-48, 
114 S. Ct. 655, 662, 126 L.Ed.2d 615 (1994) (“we do not 
resort to legislative history to cloud a statutory text 
that is clear”); United States v. Paradies, 98 F.3d 1266, 
1288 (11th Cir. 1996) (“Because the language in the 
statute is clear, it would be improper to look to the leg- 
islative history for clarification.”). Because the statu- 
tory language at issue is unambiguous, resort to legisla- 
tive history in order to undermine it is unnecessary and 
improper. 

With respect to Internet service, the majority opin- 
ion concludes that the FCC has no authority to regulate 
it because Internet service is neither a cable service nor 
a telecommunications service, and is thus not covered 
by the rate formulas described in section 224(d) for 
“solely” cable services and in section 224(e) for telecom- 
munications services. But the majority opinion fails to 
address the section 224(b)(1) mandate that the FCC 
“regulate the rates, terms, and conditions for pole 
attachments to provide that such rates, terms, and 
conditions are just and reasonable. . . .” Because pole 

attachment is defined as “any attachment,” and because 

40a 

of the unambiguous definition of “any,” section 224(b)(1) 
requires the FCC to ensure just and reasonable rates 
for all pole attachments, including those used to provide 
Internet service. 

Finally, I agree with the majority opinion’s con- 
clusion that the FCC has the authority to regulate dark 
fiber and that the FCC’s decision not to treat dark fiber 
as a separate attaching entity is reasonable. For rea- 
sons I have already discussed, dark fiber is within the 
definition of pole attachment, and it is therefore within 
the FCC’s regulatory authority. The FCC’s decision to 
treat dark fiber and its host attachment as one 
attaching entity is reasonable, because, as the majority 
opinion notes, “dark fiber, by definition, is merely bare 
capacity and is included within its host attachment at 
the time that cable is attached to the pole.” 

The problem is how the majority opinion reaches the 
conclusion that the FCC is authorized to regulate dark 
fiber. It does so by concluding that because dark fiber 
is neither a cable service nor a telecommunications ser- 
vice, the statute is ambiguous. But the same majority 
opinion also concludes that because Internet service is 
neither a cable service nor a telecommunications ser- 
vice, the statute is unambiguous and Internet service is 
outside the FCC’s regulatory authority. The majority 
cannot have it both ways—either the statute unambigu- 
ously gives the FCC the authority to regulate only 
cable and telecommunications services, or the statute is 
ambiguous about whether the FCC has authority to 
regulate more than cable and telecommunications ser- 
vices. My view is consistent: The statute unambigu- 
ously gives the FCC authority to regulate any and all 

41a 

pole attachments. The majority opinion’s view is not 
consistent. 

Because I believe that the statute unambiguously 
gives the FCC regulatory authority over wireless tele- 
communications service and Internet service, I dissent 
from those parts of the majority opinion holding to the 
contrary. 

42a 

APPENDIX B 

UNITED STATES COURT OF APPEALS, 
ELEVENTH CIRCUIT 

Nos. 98-6222, 98-2589, 98-4675, 98-6414, 
98-6430, 98-6431, 98-6442, 98-6458, 
98-6476 to 98-6478, 98-6485 and 98-6486 

GULF POWER COMPANY; ALABAMA POWER COMPANY, 
ET AL., PETITIONERS 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

TAMPA ELECTRIC COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

FLORIDA POWER & LIGHT COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

COMMONWEALTH EDISON COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

POTOMAC ELECTRIC POWER COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

TEXAS UTILITIES ELECTRIC COMPANY, PETITIONER 

43a 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

UNION ELECTRIC COMPANY, D.B.A. AMERENUE, 
PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

AMERICAN ELECTRIC POWER SERVICES CORPORATION, 
PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

DUKE ENERGY CORPORATION, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

VIRGINIA ELECTRIC AND POWER COMPANY, 
PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

CAROLINA POWER & LIGHT COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

DUQUESNE LIGHT COMPANY, PETITIONER 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 
DUQUESNE LIGHT COMPANY, PETITIONER 

44a 

v. 
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, RESPONDENTS 

Sept. 12, 2000 

Before: TJOFLAT, EDMONDSON, BLACK, CARNES, 
BARKETT, MARCUS and WILSON, Circuit Judges. 

PER CURIAM: 

The Court having been polled at the request of one of 
the members of the Court and a majority of the Circuit 
Judges who are in regular active service not having 
voted in favor of it (Rule 35, Federal Rules of Appellate 
Procedure; Eleventh Circuit Rule 35-5), the Suggestion 
of Rehearing En Banc is DENIED. 

All other active judges of the Court were recused. 

CARNES, Circuit Judge, concerning the denial of 
rehearing en banc: 

My opinion concurring in part and dissenting in part 
from the panel decision, see Gulf Power Co. v. FCC, 208 
F.3d 1263, 1279 (11th Cir. 2000), explains why I think 
the panel majority erred in holding the Pole Attach- 
ment Act’s regulated rate provisions do not extend to 
attachments used for wireless communications and 
Internet services. There is no point in reiterating here 
what I said there. Instead, I write separately upon the 
denial of rehearing en banc, because this case is a good 
example of why the absolute majority provision of 
Federal Rule of Appellate Procedure 35(a) needs to be 

45a 

changed by Congress or by the Supreme Court through 
the Rules Enabling Act, see 28 U.S.C. § 2072.1 

Rule 35(a) provides that: “A majority of the circuit 
judges who are in regular active service may order that 
an appeal or other proceeding be heard or reheard by 
the court of appeals en banc.” This Court, along with 
some of the other federal courts of appeals, has 
interpreted “circuit judges who are in regular active 
service” to include all active circuit judges serving on 
the court at the time of the poll including those judges 
who are disqualified from participating. In other 
words, we interpret the rule to mean that the votes of 
absolute majority, or seven of the twelve judges in 
active service on our court now, are necessary to take a 
case en banc. I do not quarrel with our interpretation 
of the rule, although we are on the short side of a circuit 
split regarding it, see Judith A. McKenna et al., Federal 
Judicial Center, Case Management Procedure in the 
Federal Courts of Appeals 23 (2000) (table indicating 
that eight circuits do not count disqualified judges 
when calculating a majority for en banc rehearing 
purposes, while five circuits do).2 But I do think that 
Rule 35(a) should be amended so that it is clear that 

1 The operative language in Rule 35(a) is drawn from 28 U.S.C. 
§ 46(c), which would need to be amended by Congress or super- 
ceded by an amendment to the rule, see 28 U.S.C. § 2072(b). 

2 A good recounting of the history of the interpretative issue 
and a summary of the arguments on both sides of it are contained 
in James J. Wheaton, Note, Playing with Numbers: Determining 
the Majority of Judges Required to Grant En Banc Sittings in the 
United States Courts of Appeals, 70 Va. L. Rev. 1505 (1984). See 
also Michael Ashley Stein, Uniformity in the Federal Courts: A 
Proposal for Increasing the Use of En Banc Appellate Review, 54 
U. Pitt. L. Rev. 805, 807-17, 825-27, 851-54 (1993). 

46a 

disqualified judges are not counted, in effect, as a vote 
against rehearing en banc. 

As the order denying rehearing en banc in this case 
indicates, five of the twelve judges in active service on 
this Court are disqualified from participating in this 
important case.3 

That leaves only seven judges. Two 
of those seven judges split on the legal issue in 
question—one of them authored the panel majority 
opinion and the other one dissented from an important 
holding in it. Yet the dissenting judge and the five 
remaining, non- disqualified judges in active service are 
unable to vote the case en banc under Rule 35(a), no 
matter how wrong they may think the panel majority’s 
holding is, unless the judge who authored the panel 
majority opinion votes with them to do it. It sometimes 
happens that a judge who authors a panel opinion votes 
to take the case en banc, see Songer v. Wainwright, 756 
F.2d 799 (11th Cir. 1985) (Roney, J., specially concur- 
ring in the order granting rehearing en banc), but not 
very often.4 

3 Some may say that all the order indicates is that five judges 
did not participate and that they obviously recused themselves, 
but not necessarily that they were disqualified from participating. 
See generally 28 U.S.C. § 46(b) (“unless such judges cannot sit 
because recused or disqualified”). Whether there is any real 
distinction between recusal and disqualification is a collateral issue 
not material to the present discussion. What is material is that 
five judges of this Court in active service felt compelled not to 
participate in the en banc poll. I will follow what appears to be the 
practice of most commentators and decisions by using disqualifica- 
tion as a synonym for recusal. 

4 Sometimes a judge will author or join a panel decision dic- 
tated by a prior panel precedent that the judge feels should be 
changed by the en banc court. In that circumstance, which does 
not occur with much frequency, it is not unusual for a judge who 

47a 

Assume with me, for present purposes, that this is 
not one of those rare cases in which the judge who 
authored the majority opinion for the panel wants to 
have it reviewed by the court sitting en banc—assume 
that judge has voted against en banc rehearing. If this 
is one of the usual cases where the author of the panel 
opinion votes against rehearing en banc, then this case 
could not be taken en banc no matter how strongly the 
remaining six non-disqualified judges thought it should 
be. En banc rehearing is not possible in such a situation 
because six is not seven, and Rule 35(a) insists on seven 
votes, and it is not satisfied by any fewer number, not 
even by six out of seven. The result is that the law of 
this circuit is decided not on the basis of the votes of a 
majority of the seven non-disqualified judges of this 
Court in active service, but instead by the vote of the 
senior judge from another circuit who was on the panel 
and broke the tie created by the conflicting votes of the 
two judges of this court in active service who were on 
the panel.5 That is how Rule 35(a)’s absolute majority 
requirement operates. 

As bad as the operation of Rule 35(a) is in this case, it 
can be worse. If one more judge in active service on 
this Court had been disqualified, it would have been 
impossible for the remaining six non-disqualified judges 
to vote the case en banc, even if the judge who 

wrote or joined the panel decision to vote to take the case en banc, 
in effect using it as a vehicle for overruling the prior panel pre- 
cedent. 

5 In the usual case there will be a visiting judge or a senior 
judge of this Court sitting on a panel with two active judges. That 
was the way more than 70 percent of our panels were composed 
this court year. 

48a 

authored the majority opinion was willing to take the 
extraordinary step of voting for en banc rehearing. 

The rule as written can even operate to impose on 
the circuit and its judges law with which every non- 
disqualified judge in active service disagrees. It is not 
unusual for our court to sit in panels consisting of one 
active judge plus two senior judges, or an active judge 
plus one senior judge and one visiting judge.6 With 
such panels, if six or more judges in active service are 
disqualified from participating in a case, Rule 35(a) 
makes it possible for the law of the circuit to be set by 
one senior judge and one visiting judge, even though 
every one of the non-disqualified judges in active 
service (up to six in number) adamantly disagree with 
them about what that law should be. 

It can be worse still. If the chief judge of the circuit 
declares an emergency, which is defined to include the 
illness of a judge, the requirement that a majority of 
each panel of a court of appeals be members (active or 
senior) of that court of appeals is lifted. See 28 U.S.C. 
§ 46(b).7 Although not frequently invoked, this emer- 
gency provision has recently resulted in a panel of our 
Court being composed of one judge in active service 
and two visiting judges. See Parris v. The Miami 

6 By “visiting judge” I mean one who was not appointed to sit 
on this Court. A visiting judge can be a district judge from this or 
another circuit, or a senior circuit judge from another circuit. 

7 “In each circuit the court may authorize the hearing and 
determination of cases and controversies by separate panels, each 
consisting of three judges, at least a majority of whom shall be 
judges of that court, unless such judges cannot sit because recused 
or disqualified, or unless the chief judge of that court certifies that 
there is an emergency including, but not limited to, the unavailabil- 
ity of a judge of the court because of illness.” 28 U.S.C. § 46(b). 

49a 

Herald Publ’g Co., 216 F.3d 1298, 1299 (11th Cir. 2000) 
(panel consisting of one judge of this Court, a senior 
judge of another circuit, and a senior district court 
judge). In that circumstance, if six or more judges in 
active service on this Court were disqualified, Rule 
35(a) could operate to have the law of the circuit made 
by two visiting judges, and there would be nothing that 
the six active judges of this Court who were not dis- 
qualified could do about it. 

What possible justification can there be for the 
absolute majority rule—why make it possible to have 
the law of the circuit determined by one active judge 
against the views of six others, or by a senior and a 
visiting judge or two visiting judges against the views 
of six judges in active service? Why not let the decision 
whether to rehear a case en banc be made by a majority 
of the judges in active service who are not disqualified? 
More than a quarter of a century ago, Judge Mansfield, 
joined by two other Second Circuit judges, put forward 
two justifications for the absolute majority requirement 
of Rule 35(a), and 28 U.S.C. § 46(a) from which Rule 
35(a) is drawn. See Zahn v. Int’l Paper Co., 469 F.2d 
1033, 1041 (2d Cir. 1972) (Mansfield, J., concurring in 
the denial of rehearing en banc). 

First, Judge Mansfield suggested, the absolute 
majority rule seeks “to achieve intracircuit uniformity 
by assuring that where questions of exceptional impor- 
tance are presented the law of the circuit will be estab- 
lished by the vote of a majority of the full court rather 
than by a three-judge panel.” Id. If protecting major- 
ity rule is the goal of Rule 35(a), then it is counter- 
productive. Under our prior panel precedent rule, a 
panel decision is the law of the circuit unless and until it 

50a 

is overruled by the Supreme Court or the en banc 
court. See United States v. Steele, 147 F.3d 1316, 1318 
(11th Cir. 1998) (“The law of this circuit is emphatic 
that only the Supreme Court or this court sitting en 
banc can judicially overrule a prior panel decision.”) 
(internal marks and citation omitted). Every other cir- 
cuit, or virtually every one, follows the same principle: 
The law of the circuit is established not just by en banc 
decisions, but by panel decisions as well. See United 
States v. Washington, 127 F.3d 510, 517 (6th Cir. 1997) 
(“In the Sixth Circuit, as well as all other federal cir- 
cuits, one panel cannot overrule a prior panel’s pub- 
lished decision.”); Phillip M. Kannan, The Precedential 
Force of Panel Law, 76 Marq. L. Rev. 755, 755-56 (1993) 
(“[A]ll thirteen circuits, with the possible exception of 
the Seventh Circuit, have developed the interpanel 
doctrine: No panel can overrule the precedent estab- 
lished by any panel in the same circuit; all panels are 
bound by prior panel decisions in the same circuit.”). 
The absolute majority requirement does nothing to 
prevent panel decisions from establishing the law of the 
circuit; instead, the requirement makes it more difficult, 
or impossible, to have the law made in some panel 
decisions reviewed en banc. 

By insulating panel decisions from en banc review, 
the absolute majority rule makes it less likely that the 
law of the circuit will represent the views of a majority 
of the judges in active service. After all, which is a 
better bet to reflect the views of seven of twelve active 
judges—the views of six of those judges, or the views of 
one? And where a question of exceptional importance 
is involved, shouldn’t the law of the circuit be decided 
by six out of twelve active judges instead of by one 
active judge coupled with a visiting judge? With en 

51a 

banc worthy issues is it not better to have the law of 
the circuit decided by six of twelve judges in active 
service than by one of them, or by none of them—which 
is what can happen under Rule 35(a) when a panel 
includes two senior judges or a senior and a visiting 
judge. 

Judge Mansfield also suggested that the absolute 
majority requirement “serves the further salutary pur- 
pose of limiting en banc hearings to questions of excep- 
tional importance rather than allow the court to drift 
into the unfortunate habit of requiring such hearings in 
every case where a minority of the court may desire a 
decision by the full court.” Zahn, 469 F.2d at 1041. 
Two things about that. First, the question is not 
whether to limit en banc review to questions of excep- 
tional importance, but who is better to decide whether a 
case meets that standard and warrants en banc 
review—a majority of the judges in active service who 
are not disqualified, or a minority of those non-dis- 
qualified judges, perhaps only one of them? Second, 
whatever may have been the case a quarter of a cen- 
tury ago, viewed from the perspective of federal appel- 
late courts struggling under the heavy and increasing 
caseloads of the present day, the notion that courts 
might “drift” into the “unfortunate habit” of having too 
many en banc rehearings is quaint. En banc rehearings 
take a lot of judicial resources and no court of appeals is 
going to drift into the habit of having too many of them 
regardless of whether Rule 35(a) is amended. 

Judge Adams of the Third Circuit also had a go at 
justifying the absolute majority requirement. The case 
was Lewis v. Univ. of Pittsburgh, 725 F.2d 910 (3d Cir. 
1983), and the vote was five for rehearing en banc, 

52a 

three against, and two disqualified, id. at 928-29 (opin- 
ion of Adams, J., on the petition for rehearing). Fearing 
that the result—denial of rehearing en banc when the 
vote was five to three in favor of it—“must appear quite 
unfair” to the losing litigant, Judge Adams attempted 
to explain the reason for the absolute majority require- 
ment. Id. at 929. The “main reason” for the require- 
ment, he said, “is that it insures that major develop- 
ments in the law of the Circuit reflect the participation 
of all members of the Court.” Id. But, of course, 
because of the prior panel precedent rule the absolute 
majority requirement does not do that at all. The deci- 
sion of the panel majority, even if it was composed of 
only one active judge (or none), is the law of the circuit 
unless and until overruled en banc or by the Supreme 
Court. Coupled with the prior panel precedent rule, the 
absolute majority requirement actually operates to 
make it more likely that the law of the circuit will not 
represent the views of a majority of the judges in active 
service. It does that by preventing the non- 
disqualified active judges from voting a case en banc in 
some circumstances even where they (because of their 
greater number) are more likely to reflect the views of 
the majority of judges in active service than those, if 
any, voting against en banc rehearing. 

Judge Adams also suggested that lowering the 
absolute majority bar would lead to the law becoming 
more unsettled. See id. He gave as a hypothetical for 
his court, which had ten active members, the situation 
in which there were five recusals and a vote of three to 
two in favor of en banc rehearing. See id. Two things 
about that. First, Judge Adams did not explain why 
letting the law be decided by three active judges in- 
stead of by two would unsettle it. Perhaps the assump- 

53a 

tion is that en banc rehearings are unsettling, and 
therefore the fewer of them the better. But leaving a 
panel opinion in place, particularly if en banc review is 
sought because the panel opinion conflicts with one or 
more prior panel decisions, or with a Supreme Court 
decision, can also unsettle the law. Second, the argu- 
ment that the absolute majority requirement promotes 
stability in the law by reducing the number of en banc 
rehearings knows no end. If cutting down on the 
number of en banc rehearings is the goal, why limit the 
effort to recusal situations? Why not raise the bar in all 
cases by requiring the vote of some super majority, 
such as three-fifths or three-fourths, of all active 
judges? 

Rule 35(a) should be clarified through amendment, 
because the circuits are split eight to five on the issue, 
see McKenna, supra, and there is no good reason why a 
uniform rule should not be followed in all the circuits. 
For example, both the Tenth Circuit and this circuit 
have twelve authorized judgeships. If five active 
judges are disqualified and six of the remaining seven 
are convinced the panel decision should be corrected en 
banc, in the Tenth Circuit it will be. In this circuit, it 
will not be. A litigant who loses before a panel in this 
circuit should not be treated differently in terms of the 
basic en banc procedures than one who loses before a 
panel in the same circumstances in another circuit. The 
definition of “majority of the circuit judges who are in 
regular active service” should not vary with geography. 

It is particularly unfortunate that the geographic 
lottery relating to Rule 35(a) has worked against en 
banc rehearing in this case, because this is an important 
case that may affect every person who uses wireless 

54a 

communication or Internet service in this country. The 
case comes to us on consolidated petitions for review 
filed by power companies from around the country and 
involves the competing interests of those companies, 
telephone companies, cable television companies, wire- 
less communication companies, Internet service pro- 
viders, and of course, consumers. A more national case 
could hardly be imagined. And, as the Department of 
Justice points out, “because this case arose on Hobbs 
Act review of FCC rules, it may present the last 
opportunity for any court to address the core, industry- 
shaping issues presented here.” FCC’s Petition for 
Panel Rehearing and Suggestion for Rehearing En 
Banc at 2. Yet the law on those industry-shaping issues 
of exceptional importance is decided not by a majority 
of the judges in active service on this Court but instead 
solely by one active judge of this Court joined by a 
senior judge from another court. 

In his defense of the absolute majority requirement, 
Judge Mansfield said that it is not unfair, because “[i]n 
cases of exceptional importance, or where there is a 
conflict between circuits, it may be expected that the 
Supreme Court will grant certiorari and settle the 
questions in issue.” Zahn, 469 F.2d at 1041. We will 
see. 

55a 

APPENDIX C 

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 

No. 98-6486 
FCC Agency No. 97-151 

DUQUESNE LIGHT COMPANY, PETITIONER 

v. 

FEDERAL COMMUNICATION COMMISSION 

AND UNITED STATES OF AMERICA, RESPONDENTS 

Petitions for Review of an Order of the Federal 
Communications Commission 

[Filed: Sept. 12, 2000] 

BEFORE: TJOFLAT and CARNES, Circuit Judges, and 

GARWOOD*, Senior Circuit Judge. 

PER CURIAM: 

The petition(s) for rehearing filed by Respondents, 
Federal Communications Commission is DENIED. 

ENTERED FOR THE COURT: 

/s/ ILLEGIBLE 

UNITED STATES CIRCUIT JUDGE 

* Honorable Will L. Garwood, Senior U.S. Circuit Judge for the 
Fifth Circuit, sitting by designation. 

56a 

APPENDIX D 

BEFORE THE 
FEDERAL COMMUNICATIONS COMMISSION 
WASHINGTON, D.C. 20554 

CS Docket No. 97-151 

IN THE MATTER OF 

IMPLEMENTATION OF SECTION 703(e) 

OF THE TELECOMMUNICATIONS ACT OF 1996 

AMENDMENT OF THE COMMISSION’S RULES 

AND POLICIES GOVERNING POLE ATTACHMENTS 

Adopted: February 6, 1998 
Released: February 6, 1998 

REPORT AND ORDER 

By the Commission: 

TABLE OF CONTENTS 

Paragraph No. 

I. Introduction .............................................................. 1 

II. Background ............................................................... 2 

III. Preference for Negotiated Agreements and 
Complaint Resolution Procedures ........................ 
10 

IV. Charges for Attaching ............................................ 
22 

A. Poles .................................................................. 22 

1. Formula Presumptions ........................... 

22 

2. Restrictions on Services Provided 
over Pole Attachments ............................ 26 

57a 

Paragraph No. 

3. Wireless Attachments ............................. 

36 

4. Allocating the Cost of Other than 

Usable Space ............................................... 

43 

a. Method of Allocation ............................ 
43 

b. Counting Attaching Entities .............. 
45 

(1) Telecommunications Carriers, 

Cable Operators and Non- 
Incumbent LECs ........................ 
45 

(2) Pole Owners Providing Tele- 
communicatoins Services and 
Incumbent LECs ........................ 
46 

(3) Government Attachments ........ 
52 

(4) Space Occupied on Pole ............. 
55 

c. Overlashing ............................................ 
59 

(1) Background .................................. 59 

(2) Discussion .................................... 61 

(a) Overlashing One’s Own Pole 

Attachment ........................... 61 

(b) Third Party Overlashing .... 

65 

(c) Lease and Use of Excess 

Capacity/Dark Fiber ........... 

70 

d. Presumptive Average Number of 

Attaching Entities .............................. 

74 

5. Allocating the Cost of Usable Space ...... 
80 

a. Background ............................................ 
80 

b. Discussion ............................................... 
83 

(1) Applying the 13.5 Foot Pre- 
sumption and the One Foot 
Presumption to Telecommuni- 
cations Carriers ........................... 
83 

(2) Overlashing and Dark Fiber .... 
92 

B. Application of the Pole Attachment For- 
mula to Telecommunications Carriers ........ 96 

58a 

Paragraph No. 

C. Application of the Pole Attachment For- 
mula to Conduits ............................................. 
103 

1. Background ................................................. 103 

2. Discussion .................................................... 

107 

a. Counting Attaching Entities for 

Purposes of Allocating Cost of Other 
than Usable Space ............................... 

107 
b. Unusable Space in a Conduit Sys- 
tem ......................................................... 108 

c. Half-Duct Presumption for Deter- 
mining Usable Conduit Space ........... 
112 

d. Conduit Pole Attachment Formula . 
116 

D. Rights-of-Way ................................................. 117 

V. Cost Elements of the Formula for Poles and 
Conduit ...................................................................... 122 

VI. Implementation and Effecitve Date of Rules .... 

125 

VII. Final Regulatory Flexibility Act Analysis ......... 
131 

VIII. Paperwork Reduction Act of 1995 Analysis ....... 
171 

IX. Ordering Clauses ..................................................... 173 

Appendix A: 
Revised Rules 

Appendix B: List of Commenters 

59a 

I. INTRODUCTION 

1. In this Report and Order (“Order”), the Com- 
mission adopts rules implementing Section 703 of the 
Telecommunications Act of 1996 (“1996 Act”)1 relating 
to pole attachments.2 Section 703 requires the Com- 
mission to prescribe regulations to govern the charges 
for pole attachments used by telecommunications carri- 
ers to provide telecommunications services.3 Section 
703 also requires that the Commission’s regulations 
ensure that a utility charges just, reasonable, and non- 
discriminatory rates for pole attachments.4 We adopt 
the rules set forth in Appendix A hereto based upon the 
comments and reply comments filed in response to the 
Notice of Proposed Rulemaking in this docket (the 
“Notice”).5 A list of commenters, as well as the 

1 Pub. L. No. 104-104, 110 Stat. 61, 149-151, codified at 47 
U.S.C. § 224. 

2 Section 703 amended Section 224 of the Communications 
Act. Currently Section 224 defines “pole attachment” as any 
attachment by a cable television system or provider of telecom- 
munications service to a pole, duct, conduit or right-of-way owned 
or controlled by a utility. 47 U.S.C. § 224(a)(4). Section 224 defines 
“utility” as any person who is a local exchange carrier or an elec- 
tric, gas, water, steam or other public utility, and who owns or con- 
trols poles, ducts, conduits or rights-of-way used, in whole or in 
part, for any wire communications, not including any railroad, any 
person who is cooperatively organized, or any person owned by the 
federal government or any state. 47 U.S.C. § 224(a)(1). 

3 47 U.S.C. § 224(e)(1). 

4 Id. 

5 Notice of Proposed Rulemaking, CS Docket No. 97-151, 12 
FCC Rcd 11725 (1997). In addition, to the extent relevant, we 
have considered the comments and reply comments filed in 
response to the Notice of Proposed Rulemaking in CS Docket No. 
97-98 relating to the existing formula for pole attachments. Notice 
of Proposed Rulemaking, CS Docket No. 97-98 (Amendment of 

60a 

abbreviations used in this Order to refer to such 
parties, is contained in Appendix B hereto. The com- 
menters generally represent the interests of one of the 
following three categories: (1) utility pole owners;6 
(2) cable operators;7 and (3) telecommunications car- 
riers.8 

II. BACKGROUND 

2. The purpose of Section 224 of the Communica- 
tions Act9 is to ensure that the deployment of communi- 
cations networks and the development of competition 
are not impeded by private ownership and control of 
the scarce infrastructure and rights-of-way that many 
communications providers must use in order to reach 

Rules and Policies Governing Pole Attachments), 12 FCC Rcd 7449 
(1997) (“Pole Attachment Fee Notice”). The Pole Attachment Fee 
Notice specifically seeks comment on the Commission’s use of the 
current presumptions, on carrying charge and rate of return 
elements of the formula, on the use of gross versus net data and on 
a conduit methodology. 

6 Commenting utility pole owners generally include American 
Electric, et al., Carolina Power, et al., Colorado Springs Utilities, 
New York State Investor Owned Electric Utilities, Dayton Power, 
Duquesne Light, Edison Electric/UTC, Ohio Edison, Texas 
Utilities and Union Electric. 

7 Commenting cable operator interests generally include 
Adelphia, et al., New York Cable Television Assn., Comcast, et al., 
NCTA, SCBA and Summit. 

8 Commenting telecommunications carrier interests generally 
include Ameritech, AT&T, Bell Atlantic, BellSouth, Champlain 
Valley Telecom, et al., GTE, ICG Communications, KMC Telecom, 
MCI, Omnipoint, RCN, SBC, Sprint, Teligent, USTA, U S West 
and Winstar. 

9 Pub. L. No. 95-234 (“1978 Pole Attachment Act”) codified at 
Communications Act of 1934, as amended (“Communications Act”), 
§ 224, 47 U.S.C. § 224. 

61a 

10 The rules we adopt in this Order further 
the pro-competitive goals of Section 224 and the 1996 
Act by giving incumbents and new entrants in the 
telecommunications market fair and nondiscriminatory 
access to poles and other facilities, while safeguarding 
the interests of the owners of those facilities. 

3. As originally enacted, Section 224 was designed to 
ensure that utilities’ control over poles and rights-of- 
way did not create a bottleneck that would stifle the 
growth of cable television. Congress sought to prohibit 
utilities from engaging in “unfair pole attachment 
practices . . . and to minimize the effect of unjust or 
unreasonable pole attachment practices on the wider 
development of cable television service to the public.” 

customers. 

11 

As mandated by Section 224, the Commission estab- 
lished a formula to calculate maximum rates that utili- 
ties could charge cable operators for the installation of 
attachments on utility facilities where such rates are 
not regulated by a state. 

12 In subsequent proceedings 

10 S. Rep. No. 580, 95th Cong., 1st Sess. 19, 20 (1977) (“1977 
Senate Report”), reprinted in 1978 U.S.C.C.A.N. 109, 121. 

11 Id. 

12 First Report and Order (Adoption of Rules for the 
Regulation of Cable Television Pole Attachments), CC Docket No. 
78-144, 68 FCC 2d 1585 (1978) (“First Report and Order”); see also 
Second Report and Order, 72 FCC 2d 59 (1979) (“Second Report 
and Order”); Third Report and Order, 77 FCC 2d 187 (1980) 
(“Third Report and Order”), aff’d Monongahela Power Co. v. FCC, 
655 F.2d 1254 (D.C. Cir. 1985) (per curiam); Report and Order, CC 
Docket No. 86-212 (Amendment of Rules and Policies Governing 
the Attachment of Cable Television Hardware to Utility Poles), 2 
FCC Rcd 4387, 4387-4407 (1987) (“Pole Attachment Order”), recon. 
denied, 4 FCC Rcd 468 (1989). 

62a 

the Commission amended and clarified its methodology 
for establishing rates and its complaint process. 

13 

4. The 1996 Act amended Section 224 in several 
important respects. While previously the protections of 
Section 224 had applied only to cable operators, the 
1996 Act extended those protections to telecommuni- 
cations carriers as well. 

14 Further, the 1996 Act gave 
cable operators and telecommunications carriers a man- 
datory right of access to utility poles, in addition to 
maintaining a scheme of rate regulation governing such 
attachments.15 In the Local Competition Order, we 
adopted a number of rules implementing the new access 
provisions of Section 224. 

16 

13 Second Report and Order, 72 FCC 2d 59; Memorandum 
Opinion and Order (Petition to Adopt Rules Concerning Usable 
Space on Utility Poles, RM 4556), FCC 84-325 (released July 25, 
1984) (“Usable Space Order”); see also Alabama Power Co. v . 
FCC, 773 F.2d 362 (D.C. Cir. 1985) (upholding challenge to the 
Commission’s pole attachment formula relating to net pole invest- 
ment and carrying charges). Following Alabama Power, the Com- 
mission revised its rules in the Pole Attachment Order, 2 FCC Rcd 
4387. 

14 47 U.S.C. § 224. 

15 47 U.S.C. § 224(a), (f ). 

16 First Report and Order, CC Docket No. 96-98 (Implementa- 
tion of the Local Competition Provisions in the Telecommuni- 
cations Act of 1996), 11 FCC Rcd 15499, 16058-107, paras. 1119- 
1240 (1996) (the “Local Competition Order”), rev’d on other 
grounds, Iowa Utilities Board v. FCC, 120 F.3d 753 (8th Cir. 1997), 
cert. granted sub nom., AT&T Corp. v. Iowa Utilities Board, 66 
U.S.L.W. 3387, 66 U.S.L.W. 3484, 66 U.S.L.W. 3490 (U.S. Jan. 26, 
1998) (No. 97-826, 97-829, 97-830, 97-831, 97-1075, 97-1087, 97-1099, 
97-1411). In August 1996, the Commission also issued a Report 
and Order in CS Docket No. 96-166 (Implementation of Section 703 
of the Telecommunications Act of 1996), 11 FCC Rcd 9541 (1996), 

63a 

5. As amended by the 1996 Act, Section 224 defines 
a utility as one “who is a local exchange carrier or an 
electric, gas, water, steam, or other public utility and 
who owns or controls poles, ducts, conduits, or rights- 
of-way used, in whole or in part, for wire communi- 
cations.” 

17 The 1996 Act, however, specifically excluded 
incumbent local exchange carriers (“ILECs”) from the 
definition of telecommunications carriers with rights as 
pole attachers. 

18 Because, for purposes of Section 224, 
an ILEC is a utility but is not a telecommunications 
carrier, an ILEC must grant other telecommunications 
carriers and cable operators access to its poles, even 
though the ILEC has no rights under Section 224 with 
respect to the poles of other utilities. This is consistent 
with Congress’ intent that Section 224 promote com- 
petition by ensuring the availability of access to new 
telecommunications entrants. 

19 

6. Section 224 contains two separate provisions 
governing maximum rates for pole attachments, one of 
which covers attachments used to provide cable service 
and one of which covers attachments for telecommuni- 
cations services (including attachments used jointly for 
cable and telecommunications). Section 224(b)(1), which 
was not amended by the 1996 Act, grants the Commis- 
sion authority to regulate the rates, terms, and condi- 
tions governing pole attachments for cable service to 

amending its rules to reflect the self-effectuating additions and 
revisions to Section 224. 

17 47 U.S.C. § 224(a). 

18 47 U.S.C. § 224(a)(5). 

19 Conference Report to S. 652 and Joint Explanatory 
Statement of the Committee of Conference, 104th Cong., 2d Sess. 
98-100, 113 (“Conf. Rpt.”). 

64a 

ensure that they are just and reasonable.20 Section 
224(d)(1) defines a just and reasonable rate as ranging 
from the statutory minimum (incremental costs) to the 
statutory maximum (fully allocated costs). 

21 Incre- 
mental costs include pre-construction survey, engineer- 
ing, make-ready and change-out costs incurred in 
preparing for cable attachments. 

22 Fully allocated costs 
refer to the portion of operating expenses and capital 
costs that a utility incurs in owning and maintaining 
poles that is equal to the portion of usable pole space 
that is occupied by an attacher. 

23 

7. Separately, Section 224(e)(1), the subject of this 
Order, governs rates for pole attachments used in the 

20 Cf. 47 U.S.C. § 224(c)(1). The Commission does not have 
authority where a state regulates pole attachment rates, terms, 
and conditions. Section 224(c)(3) directs that jurisdiction for pole 
attachments reverts to the Commission generally if the state has 
not issued and made effective rules implementing the state’s 
regulatory authority over pole attachments. Reversion to the 
Commission also occurs, with respect to individual cases, if the 
state does not take final action on a complaint within 180 days after 
its filing with the state, or within the applicable period prescribed 
for such final action in the state’s rules, as long as that prescribed 
period does not extend more than 360 days beyond the complaint’s 
filing. 

47 U.S.C. § 224(c)(3). 

21 47 U.S.C. § 224(d)(1). 

22 “Make-ready” generally refers to the modification of poles 
or lines or the installation of guys and anchors to accommodate 
additional facilities. See 1977 Senate Report at 19. A pole “change- 
out” is the replacement of a pole to accommodate additional users. 
Pole Attachment Order, 2 FCC Rcd at 4405 n.3. Congress ex- 
pected pole attachment rates based on incremental costs to be low 
because utilities generally recover the make-ready or change-out 
charges directly from cable systems. See 1977 Senate Report at 19. 

23 Id. at 19-20. 

65a 

provision of telecommunications services, including 
single attachments used jointly to provide both cable 
and telecommunications service. Under this section, 
the Commission must prescribe, no later than two years 
after the date of enactment of the 1996 Act, regulations 
“to govern charges for pole attachments used by tele- 
communication carriers to provide telecommunications 
services, when the parties fail to resolve a dispute over 
such charges.” 

24 Section 224(e)(1) states that such 
regulations “shall ensure that a utility charges just, 
reasonable, and nondiscriminatory rates for such pole 
attachments.” 

25 The section also sets forth a transition 
schedule for implementation of the new rate formula for 
telecommunications carriers. Until the effective date of 
the new formula governing telecommunications attach- 
ments, the existing pole attachment rate methodology 
of cable services is applicable to both cable television 
systems and to telecommunications carriers. 

26 

8. In the Notice, the Commission sought comment on 
implementing a methodology to ensure just, reasonable, 
and nondiscriminatory maximum pole attachment and 

24 47 U.S.C. § 224(e)(1). The 1996 Act was enacted on Febru- 
ary 8, 1996. 

25 Id. 

26 47 U.S.C. § 224(d)(3); 47 C.F.R. § 1.1401. Pursuant to 
Section 224(d)(3), the current formula will continue to be applicable 
to cable systems providing only cable service and, until February 
8, 2001, to cable systems and telecommunications carriers provid- 
ing telecommunications services. See Section VI below regarding 
the implementation and the effective date of the rules we adopt 
herein. 

66a 

conduit 

27 rates for telecommunications carriers. 

28 

Under the present formula, a portion of the total annual 
cost of a pole is included in the pole attachment rate 
based on the portion of the usable space occupied by the 
attaching entity. 

29 Under the 1996 Act’s amendments, 
the portion of the total annual cost included in the pole 
attachment rate for cable systems and telecommunica- 
tions carriers providing telecommunications services 
will be determined under a more delineated method. 
This method allocates the costs of the portion of the 
total pole cost associated with the usable portion of the 
pole and the portion of the total pole cost associated 
with the unusable portion of the pole in a different 
manner. The Commission also sought comment on how 
to ensure that rates charged for use of rights-of-way 
are just, reasonable, and nondiscriminatory. 

30 

9. The rules we adopt today implement the plain 
language of Section 224. That section provides that the 
regulations promulgated will apply “when the parties 
fail to resolve a dispute over such charges.” 

31 Accord- 
ingly, and as discussed below, we encourage parties to 
negotiate the rates, terms, and conditions of pole 
attachment agreements. Although the Commission’s 
rules will serve as a backdrop to such negotiations, we 
intend the Commission’s enforcement mechanisms to be 
utilized only when good faith negotiations fail. Based on 

27 A conduit is a pipe placed in the ground through which 
cables are pulled. FCC ARMIS Operating Data Report, FCC Re- 
port 43-08 (January 1992). 

28 Notice, 12 FCC Rcd at 11739-40, paras. 36-41. 

29 See Third Report and Order, 77 FCC 2d 187 (1980). 

30 Notice, 12 FCC Rcd at 11740, paras. 42-43. 

31 47 U.S.C. § 224(e)(1). 

67a 

the Commission’s history of successful implementation 
and enforcement of rules governing attachments used 
to provide cable service, we believe that the new rules 
we adopt today will foster competition in the provision 
of communications services while guaranteeing fair 
compensation for the utilities that own the infrastruc- 
ture upon which such competition depends. 

III. PREFERENCE FOR NEGOTIATED AGREEMENTS 
AND COMPLAINT RESOLUTION PROCEDURES 

A. Background 

10. The 1996 Act amended Section 224 by adding a 
new subsection (e)(1) to: 

. . . govern the charges for pole attachments used 
by telecommunications providers to provide tele- 
communications services when the parties fail to 
resolve a dispute over such charges. Such regula- 
tions shall ensure that a utility charges just, rea- 
sonable and nondiscriminatory rates for pole attach- 
ments. 

32 

The statute, 

33 legislative policy, 

34 administrative 

authority, 
35 and current industry practices 

36 all make 

32 47 U.S.C. § 224(e)(1). 

33 47 U.S.C. §§ 224(b)(1), (d)(1), (e)(1). 

34 1977 Senate Report at 19-20; Conf. Rpt. at 205-207. 

35 First Report and Order, 68 FCC 2d 1585 (setting initial 
rules for the complaint process, formula elements and the use of 
historical costs); Second Report and Order, 72 FCC 2d 59 (setting 
spatial presumptions and defined incremental and fully allocated 
costs for use in formula); Third Report and Order, 72 FCC 2d 187, 
aff’d Monongahela Power Co. v. FCC, 655 F.2d 1254; Pole 
Attachment Order, 2 FCC Rcd 4387, recon. denied, 4 FCC Rcd 468. 

68a 

private negotiation the preferred means by which pole 
attachment arrangements are agreed upon between a 
utility pole owner and an attaching entity. 

37 Pursuant 
to the Commission’s authority to provide for just, rea- 
sonable, and nondiscriminatory rates, terms and condi- 
tions for pole attachments, 

38 attaching entities have 
recourse to the Commission when unable to resolve a 
dispute with a utility pole owner. The Commission’s 
rules establish a specific complaint process. 

39 Under the 
current rule, in reviewing a complaint about rates, the 
Commission will compare the utility’s proposed rate to 
a maximum rate calculated using the statutory for- 
mula. 

40 

11. In proposing a methodology to implement 
Section 224(e), the Commission stated in the Notice 
that the Commission’s role is limited to circumstances 
when the parties fail to resolve a dispute and that 
negotiations between a utility and an attacher should 
continue to be the primary means by which pole 

36 See, e.g., Carolina Power, et al., Comments at 11; NCTA 
Comments at 4-7; USTA Reply at 2. 

37 From 1979, when the first pole attachment complaint was 
filed with the Commission, to 1991, approximately 246 pole attach- 
ment complaints were filed. From 1991 through 1996, approxi- 
mately 44 such complaints were filed. Currently, there are seven 
pole attachment complaints under review by the Commission’s 
Cable Services Bureau. We view this number of complaints to the 
Commission, in light of the penetration of cable service in the 
nation’s communities, to be indicative that most pole attachment 
rates are negotiated without resort to the Commission. 

38 47 U.S.C. §§ 224(b)(1), (e)(1), (f )(1). 

39 47 C.F.R. §§ 1.1401-1.1416. 

40 47 U.S.C. § 224(d)(1). 

69a 

41 The Commission also 
indicated that Congress recognized the importance of 
access in enhancing competition in telecommunications 
markets and that parties in a pole attachment negotia- 
tion do not have equal bargaining positions. 

42 To 
further Congressional intent to foster competition in 
telecommunications, the Commission proposed to apply 
to telecommunications carriers the Commission’s exist- 
ing complaint rules developed to resolve pole attach- 
ment rate disputes between cable operators and 
utilities. 

attachment issues are resolved. 

43 

12. Some telecommunications carriers and utility 
pole owners agree that negotiations between a utility 
and an attaching entity will continue, under Section 
224(e), to be the primary means by which pole attach- 
ment issues are resolved. 

44 Several utility pole owners, 
however, suggest a number of changes to the complaint 
process, such as adding a mandatory negotiation period 
and establishing a statute of limitations and a minimum 

41 Notice, 12 FCC Rcd at 11731, para. 12. 

42 Id. 

43 Id. The current complaint rule provides that “[t]he com- 
plaint shall include a brief summary of all steps taken to resolve 
the problem prior to filing. If no such steps were taken, the com- 
plaint shall state the reason(s) why it believed such steps were 
fruitless.” 47 C.F.R. § 1.1404(i). 

44 See Bell Atlantic Reply at 2 (negotiation is essential means 
to establish just and reasonable rates for pole attachments); Caro- 
lina Power, et al., Reply at 11 (private negotiations are the corner- 
stone of attachment agreements); GTE Comments at 4-5; USTA 
Reply at 2. But see MCI Comments at 2 (formula for maximum 
rate is a necessary condition to making negotiations, and therefore 
industry resolution of disputes, possible at all). 

70a 

45 American Electric, et al., also 
contend that meaningful negotiations can occur “only 
when the default pricing mechanism established by the 
Commission is somewhere close to the price on which 
the parties would agree absent such regulation.” 

amount in controversy. 

46 

Attaching entities respond that the American Electric, 
et al., proposals would eliminate recourse to the Com- 
mission, contrary to the content and spirit of the law. 

47 

13. The Association of Local Telecommunications 
Services (“ALTS”) 

48 asserted in its comments in re- 
sponse to the Pole Attachment Fee Notice that its 
members have experience attempting to obtain pole 
attachments from numerous utilities, 

49 and many nego- 
tiations were unsatisfactory in part due to the intransi- 
gence by or blatant refusal of utilities to negotiate. 

50 

USTA, a national trade association representing over 

45 See American Electric, et al., Reply at 30; Carolina Power, 
et al., Comments at 18-19; Duquesne Light Comments at 18-20; 
Edison Electric/UTC Comments at 7; GTE Reply at 4-5; USTA 
Comments at 2. 

46 American Electric, et al., Comments at 12-13. American 
Electric, et al., believe that any default pricing formula established 
pursuant to Section 224(e) should be based on Forward-Looking 
Economic Pricing Model based on economic capital costs. American 
Electric, et al., Comments at 13,39 and CS Docket No. 97-98 
Comments at 4, 42-46, 91-94. 

47 See, e.g., NCTA Reply at 4; see also Association for Local 
Telecommunications Services CS Docket No. 97-98 Comments at 2; 
USTA CS Docket No. 97-98 Reply at 6. 

48 ALTS is a national trade association representing over 30 
telecommunications carriers that are facilities based competitive 
local exchange carriers (“CLECs”). ALTS CS Docket No. 97-98 
Comments at 1. 

49 ALTS CS Docket No. 97-98 Comments at 2. 

50 Id. 

71a 

51 contends that while the most efficient 
manner to determine just and reasonable pole attach- 
ment rates is that of permitting pole owners and 
attachers to negotiate reasonable agreements, 

52 the 
proposal by American Electric, et al., contravenes the 
statute. 

1,000 LECs, 

53 

14. Electric utility pole owners oppose the continued 
use of the current negotiation process and complaint 
procedures established for cable operators, claiming the 
current regulatory scheme has resulted in government- 
sponsored unilateral contract modification and sub- 
sidization of the cable industry by the electric utility 
ratepayer. 

54 American Electric, et al., contend that the 
Commission must recognize that the bargaining rela- 
tionship between electric utilities and cable companies 
has changed since 1978 when Congress provided the 
cable television industry with access to the distribution 
poles of utilities at just and reasonable rates. 

55 In 
asserting that attaching entities no longer represent an 
industry that needs rate regulation under Section 224, 

56 

American Electric, et al., acknowledge that in 1978 

51 USTA Comments at 1. 

52 USTA CS Docket No. 97-98 Comments at 2. 

53 USTA CS Docket No. 97-98 Reply at 5-6. 

54 See, e.g., American Electric, et al., Comments at 18-20. 

55 American Electric, et al., CS Docket No. 97-98 Comments at 
8 (stating that since 1977, the cable industry has grown to a 67% 
coverage of homes in America, citing Third Annual Report, CS 
Docket No. 96-133 (In the Matter of Annual Assessment of Status 
of Competition in the Market for Delivery of Video Programming), 
12 FCC Rcd 4358, 4368, para. 14 (1997)); see also American 
Electric, et al., Reply at 5. 

56 American Electric, et al., CS Docket No. 97-98 Comments at 

23. 

72a 

“Congress was concerned with the cable companies’ 
inferior bargaining position vis-a-vis utilities and 
wanted to assist an industry in its infancy.” 

57 USTA 
interprets Congressional intent as expecting the Com- 
mission to intervene and rely on the statutory formula 
only in instances where negotiating parties are unable 
to reach a mutually acceptable agreement. 

58 USTA 
further states that the Commission has established and 
maintained a case-by-case dispute resolution process 
since 1978, rather than adopting a uniform pole attach- 
ment rate prescription process in compliance with that 
Congressional mandate. 

59 Cable and telecommunica- 
tions carriers assert that potential and existing attach- 
ing entities do still need pole attachment rate regula- 
tion because they are still not able to bargain from a 
level position with utility pole owners. 

60 Cable opera- 
tors and telecommunications carriers urge the Com- 
mission to extend the existing negotiation and com- 
plaint resolution system to telecommunications carri- 
ers. 

61 

57 Id. 

58 USTA CS Docket No. 97-98 Comments at 2 (quoting the 
1977 Senate Report at 3 (“The basic design of S. 1547, as reported, 
is to empower the [Commission] to exercise regulatory oversight 
over the arrangements between utilities and [cable television] 
systems in any case where the parties themselves are unable to 
reach a mutually satisfactory arrangement”)). 

59 USTA CS Docket No. 97-98 Comments at 2. 

60 See Comcast, et al., Reply at 16; NCTA Reply at 3-6; New 
York Cable Television Assn. at 2-3; Teligent Reply at 5-6. 

61 See, e.g., AT&T Comments at 2, Reply at 4; Champlain 
Valley Telecom, et al., Reply at 6 (objecting to attitude of Ameri- 
can Electric, et al., reminding the Commission that its authority is 
not plenary); Comcast, et al., Reply at 16; NCTA Reply at 3-6. Cf. 
New York Cable Television Assn. at 2-3 (current rule gives utility 

73a 

15. Some attaching entities suggest that the Com- 
mission impose on itself a 90-day time frame in which to 
issue a decision on a pole attachment complaint. 

62 Other 
cable and telecommunications carriers request that the 
Commission impose upon utility pole owners the 
requirement that pole attachment agreements between 
private parties be on public record so that an attaching 
entity will have notice of: (1) the expectations of the 
utility; and (2) the terms provided to other attaching 
entities. 

63 The result would be that the most favored 
provisions from various agreements would then be 
available to all attaching entities. 

64 Pole owners assert 
that attaching entities have no legitimate expectation 
that all provisions be available to all attaching entities. 

65 

B. Discussion 

16. Our rules for complaint resolution will only apply 
when the parties are unable to arrive at a negotiated 
agreement. 

66 We affirm our belief that the existing 

pole owner too much leverage); Teligent Reply at 5-6 (sole reliance 

on negotiations is not enough). 

62 See Ameritech Reply at 3-4 (complaint process should pro- 
vide for expeditious resolution of disputes); KMC Telecom Com- 
ments at 5-6 (90 days for the Commission to resolve complaints as 
a means to workable solutions). 

63 See ICG Communications Comments at 16, Reply at 1-2; 
KMC Telecom Comments at 5-6. 

64 See ICG Communications Comments at 16. 

65 See American Electric, et al., Reply at 34; Duquesne Light 
Comments at 19; Edison Electric/UTC Comments at 6-7; Ohio 
Edison Comments at 18; Union Electric Comments at 17. 

66 See American Electric, et al., Comments at 15; AT&T Com- 
ments at 2; Bell Atlantic Reply at 2; Carolina Power, et al., Reply 
at 11; GTE Reply at 5; MCI Comments at 2; NCTA Comments at 

74a 

methodology for determining a presumptive maximum 
pole attachment rate, as modified in this Order, facili- 
tates negotiation because the parties can predict an 
anticipated range for the pole attachment rate. 

67 We 
further conclude that the current complaint procedures 
are adequate to establish just and reasonable rates, 
terms, and conditions for pole attachments. 

68 No party 
has demonstrated that the Commission’s time for 
resolution has been a problem in the past. While we 
will not impose a deadline for Commission action, we 
will continue to endeavor to resolve complaints expedi- 
tiously. An uncomplicated complaint process and a 
clear formula for rate determination are essential to 
promote the use of negotiations for pole attachment 
rates, terms, and conditions. 

69 We are committed to an 
environment where attaching entities have enforceable 
rights, where the interests of pole owners are recog- 
nized, and where both parties can negotiate for pole 
attachment rates, allowing the availability of telecom- 
munications services to expand. 

17. We agree with attaching entities that time is 
critical in establishing the rate, terms, and conditions 

3-4; New York State Investor Owned Electric Utilities Comments 
at 6; USTA Reply at 2. 

67 See, e.g., AT&T Reply at 4; ICG Communications Comments 
at 11; MCI Comments at 2; NCTA Comments at 3-4; see also 
Ameritech Reply at 3-5 (favors transparent maximum rate 
determinations); GTE Reply at 4-5 (uniform and transparent rate 
formula facilitates private negotiations); KMC Telecom Reply at 1- 
2 (clear formula and complaint process supports negotiation). 

68 See AT&T Comments at 2; MCI Comments at 2; NCTA 
Comments at 3-4. 

69 See GTE Reply at 4-5. 

75a 

70 Prolonged negotiations can deter com- 
petition because they can force a new entrant to choose 
between unfavorable and inefficient terms on the one 
hand or delayed entry and, thus, a weaker position in 
the market on the other. 

71 For these reasons, we reject 
a proposal by utilities that we mandate a 180-day 
negotiation period prior to filing a complaint with the 
Commission. We agree with cable and telecommuni- 
cations carriers that such a requirement would not be 
conducive to a pro-competitive, deregulatory environ- 
ment. 

72 Such an extended period of time could delay a 
telecommunications carrier’s ability to provide service 
and unnecessarily obstruct the process. 

for attaching. 

73 

18. We disagree with utilities suggesting that, in 
addition to the existing time frames, the pole owner 
should receive 30 days’ notice by a cable operator or 
telecommunications carrier of any intention to file a 
complaint. 

74 Such a notice requirement would be redun- 
dant under our rule and would unnecessarily prolong 
the resolution of disputes. The current rule provides 

70 See AT&T Reply at 4; Ameritech Reply at 3; ICG Com- 
munications Comments at 11; MCI Reply at 3. 

71 See AT&T Reply at 4 (time is of the essence in negotiation); 
Ameritech Reply at 3-4 (the Commission should provide for 
expeditious resolution so that market entry is not delayed); ICG 
Communications Comments at 11 (timing is important); MCI 
Reply at 3 (time to market is critical). 

72 See ICG Communications Reply at 2-3; KMC Telecom Reply 
at 4; MCI Reply at 2-3. 

73 But see Duquesne Light Comments at 18; Edison Electric/ 
UTC Comments at 7; Carolina Power, et al., Comments at 18-19. 

74 See American Electric, et al., Reply at 30; Edison Electric/ 
UTC Reply at 6; GTE Comments at 4-5; USTA Comments at 2, 
Reply at 4. 

76a 

for a 45-day period in which the utility pole owner must 
respond to the request for access filed by a cable 
operator or telecommunications carrier seeking to 
install an attachment. 

75 A complaint to the Commission 
must be filed within 30 days of the denial of a request 
for access. 

76 The utility then has an additional 30 days to 
respond to the complaint. 

77 When a cable operator or a 
telecommunications carrier believes it has cause to 
complain that a pole attachment rate, term, or condition 
is not just or reasonable, 

78 a detailed set of data and 
information is required under the current rule. 

79 A 
utility has 30 days in which to respond to an attaching 
entity’s request for the data and information regarding 
the rate, term, or condition required for the complaint. 

80 

Under the present rules, the utility has had communi- 
cation with the attaching entity prior to the filing of the 
complaint, to such a degree as is necessary to under- 
stand the issues in conflict outlined in the complaint. 
The utility has sufficient notice of the issues involved, 
making additional notice requirements unnecessary. 

19. GTE suggests that we impose a one year statute 
of limitations on the filing of a complaint and suggests 
an amount in controversy threshold of $5,000. 

81 We 
view these proposals as unnecessarily restrictive as 
they could foreclose remedy of an unjust or unreason- 
able rate, term, or condition of pole attachments, 

75 47 C.F.R. § 1.1403(b). 

76 47 C.F.R. § 1.1404(k). 

77 47 C.F.R. § 1.1407(a). 

78 47 U.S.C. §§ 224(b)(1), (d)(1), (e)(1). 

79 47 C.F.R. §§ 1.1404(g)(1-12), (h), (i). 

80 47 C.F.R. § 1.1404(h). 

81 See GTE Comments at 4-5. 

77a 

82 There is no provision 
in the statute for such restrictions. Establishing a 
threshold of any dollar amount could preclude relief to 
small entities and would be inconsistent with Section 
257 and the pro-competitive goals of the 1996 Act. 

especially for small enterprises. 

83 

20. Utility pole owners must provide access to 
attaching entities on a non-discriminatory basis. 

84 

While we do not agree that all pole attachment agree- 
ments have to be identical, differing provisions must 
not violate the statutory requirement that terms be 
just, reasonable, and nondiscriminatory. We believe 
that these statutory standards are enforceable under 
the current rule. 

21. We believe it is implicit in our current rule 

85 that 
all parties must negotiate in good faith for non-dis- 
criminatory access at just and reasonable pole attach- 
ment rates. 

86 In the Local Competition Order, the 

82 See generally, SCBA Reply. 

83 47 U.S.C. § 257. This section requires the Commission to 
eliminate market entry barriers for entrepreneurs and other small 
businesses in the provision or ownership of telecommunication 
services or in the provision of parts or services to telecommunica- 
tions providers. 

84 47 U.S.C. § 224(f)(1). 

85 47 C.F.R. § 1.1404. 

86 In furtherance of our original mandate to institute an expe- 
ditious procedure for determining pole attachment rates with a 
minimum of administrative costs and consistent with fair and effi- 
cient regulation, we adopted a program for non-discriminatory 
access to poles, ducts, conduits and rights-of-way in the Local 
Competition Order. 11 FCC Rcd at 16059, para. 1122 (citing the 
1977 Senate Report at 19). In the Notice, the Commission affirmed 
its interpretation of Congressional intent that negotiations be- 
tween a utility and an attacher should continue to be the primary 

78a 

Commission addressed the requirement of Section 251 
that requires an ILEC to provide interconnection and 
other rights to new entrants, and observed that new 
entrants have little to offer the incumbent. 

87 Rather, 
these new competitors seek to reduce the incumbent’s 
subscribership and weaken the incumbent’s dominant 
position in the market. An ILEC is likely to have scant, 
if any, economic incentive to reach agreement. 

88 In the 
Local Competition Order, the Commission determined 
that a utility stood in a position vis-a-vis the competi- 
tive telecommunications provider seeking pole attach- 
ment agreements that was virtually indistinguishable 
from that of the ILEC with respect to a new entrant 
seeking interconnection agreements under Sections 251 
and 252 of the 1996 Act. 

89 We find that a utility’s de- 
mand for a clause waiving the licensee’s right to 

means by which pole attachment issues are resolved. See Notice, 
12 FCC Rcd at 11731, para. 12; see also 47 U.S.C. § 224(f )(1). 

87 11 FCC Rcd at 15570, para. 141. 

88 Id. The Commission continued, determining that a request 
by an incumbent that a new entrant contractually waive its legal 
rights or remedies could constitute a violation of the duty to 
negotiate in good faith imposed by Sections 251(c)(1) and 252, 
stating: “We reject the general contention that a request by a 
party that another party limit its legal remedies as part of a 
negotiated agreement will in all cases constitute a violation of the 
duty to negotiate in good faith. A party may voluntarily agree to 
limit its legal rights or remedies in order to obtain a valuable 
concession from another party. . . . [W]e find that it is a per se 

failure to negotiate in good faith for a party to refuse to include in 
an agreement a provision that permits the agreement to be 
amended in the future to take into account changes in Commission 
or state rules. Refusing to permit a party to include such a pro- 
vision would be tantamount to forcing a party to waive its legal 
rights in the future.” Id. at 15576, para. 152. 

89 See id. at 15570, para. 141. 

79a 

federal, state, or local regulatory relief would be per se 
unreasonable and an act of bad faith in negotiation. In 
particular, a request that a pole attachment agreement 
include a clause waiving statutory rights to file a 
complaint with the Commission is per se unrea- 
sonable. 

90 

IV. CHARGES FOR ATTACHING 

A. Poles 

1. Formula Presumptions 

22. In determining a just and reasonable rate, two 
elements of the pole are examined: usable space and 
other than usable space. The costs relating to these 
elements are allocated to those using the pole. In the 
Second Report and Order, consistent with Section 
224(d)(2), the Commission defined total usable space as 
the space on the utility pole above the minimum grade 
level 

91 that is usable for the attachment of wires, cables, 
and related equipment. 

92 This determination was based 
upon survey results, consideration of the National Elec- 
tric Safety Code (“NESC”), and practical engineering 
standards used in constructing utility poles. The Com- 
mission found that “the most commonly used poles are 
35 and 40 feet high, with usable spaces of 11 to 16 feet, 
respectively.” 

93 The Commission recognized the NESC 

90 See Letter from Meredith J. Jones, Chief, Cable Services 
Bureau to Danny E. Adams, Esq., Kelley Drye & Warren LLP, 
DA No. 97-131 (January 17, 1997). 

91 In this context, minimum grade level generally refers to the 
ground level or elevation above which distances are measured for 
determining required clearances. 

92 See 72 FCC 2d at 69; 47 C.F.R. § 1.1402(c). 

93 72 FCC 2d at 69. 

80a 

guideline that 18 feet of the pole space must be 
reserved for ground clearance 

94 and that six feet of pole 
space is for setting the depth of the pole. 

95 To avoid a 
pole by pole rate calculation, the Commission adopted 
rebuttable presumptions of an average pole height of 

37.5 feet, an average amount of usable space of 13.5 
feet, and an average amount of 24 feet of unusable 
space on a pole. The Commission established a rebutta- 
ble presumption of one foot as the amount of space a 
cable television attachment occupies. 

96 These presump- 
tions serve as the premise for calculating pole attach- 
ment rates under the current formula. 

23. A group of electric utilities filed a white paper 
(“White Paper”) in anticipation of the Notice and the 
Pole Attachment Fee Notice 

97 in which they suggest 
that an increase in the current presumptive pole height 
is appropriate. The White Paper asserts that over time, 
and with increased demand, the average pole height has 
increased to 40 feet. At the same time, the White Paper 
contends that the usable space presumption should be 
reduced from 13.5 feet to 11 feet. 

98 The Commission 
sought comment on these presumptions in the Pole 
Attachment Fee Notice and sought further comment in 
the Notice to establish a full record for attachments 

94 Id. at 68, n.21. 

95 Id. 

96 Id. at 69-70. 

97 See White Paper filed by the law firm of McDermott, Will 
and Emery on August 28, 1996, on behalf of the American Electric 
Power Service Corporation, Commonwealth Edison Company, 
Duke Power Company, Entergy Services, Inc., Florida Power and 
Light Company, Northern States Power Company, The Southern 
Company and Washington Water Power Company. 

98 Id. at 11. 

81a 

made by telecommunications carriers under the 1996 
Act. 

99 

24. We will address changing the existing presump- 
tions in the Pole Attachment Fee Notice rulemaking. 

100 

Until resolution of that proceeding, we will apply our 
presumptions as they presently exist and proceed with 
the implementation under the 1996 Act of a methodol- 
ogy used in the provision of telecommunications ser- 
vices by telecommunications carriers and cable opera- 
tors. 

25. The Notice also sought comment on an issue 
raised by Duquesne Light in its reconsideration peti- 
tion of the Commission’s decision in the Local Competi- 
tion Order proceeding. 

101 Duquesne Light advocates 
that the number of physical attachments of an attaching 
entity is not necessarily reflective of the burden on the 
pole, and therefore of the costs relating to the attach- 
ment. Duquesne Light states that varying attachments 
place different burdens on the pole and proposes that 
any presumption include factors addressing weight and 
wind loads. 

102 We will address whether any presump- 

99 Notice, 12 FCC Rcd at 11733, para. 17. 

100 See Pole Attachment Fee Notice, 12 FCC Rcd at 7458-59, 
paras. 18-20. We reserve decision on issues regarding the 37.5 ft. 
presumptive pole height, the 13.5 ft. presumptive amount of usable 
space, the minimum ground clearance amount, the allocation of the 
40-inch safety space, and the exclusion of 30 ft. poles from the 
calculation of costs of a bare pole and the determination as to 
whether such poles lack a sufficient amount of usable space to 
accommodate multiple attachments. 

101 Notice, 12 FCC Rcd at 11733, para. 18 (citing Local Com- 
petition Order, 11 FCC Rcd at 16058-107, paras. 1119-1240); see 
also Duquesne Light CC Docket No. 96-98 Comments at 17-18. 

102 Duquesne Light CC Docket No. 96-98 Comments at 17-18. 

82a 

tions should reflect these factors in the Pole Attach- 
ment Fee Notice rulemaking. 

2. Restrictions on Services Provided over Pole 
Attachments 

26. In the Notice, we sought comment on whether 
the Commission’s decision in Heritage Cablevision 
Associates of Dallas, L.P. v. Texas Utilities Electric 
Company (“Heritage”) 

103 should be extended. 

104 In 
Heritage, a cable operator provided traditional cable 
services as well as nontraditional services through its 
facilities. Those facilities consisted of coaxial cable 
lashed to aerial support strands and fiber optic cable 
overlashed to the aerial support strands. 

105 The non- 
traditional services provided by the cable operator 
consisted of non-video broadband communications ser- 
vices, including data transmission services. 

106 The pole 
owner attempted to charge the cable operator an addi- 
tional, unregulated rate for those poles with pole 
attachments supporting the facilities transmitting both 
video signals and data. 

107 

27. In Heritage, which was decided prior to the 1996 
Act, the Commission determined that the provision by 
a cable operator of both traditional cable services and 
nontraditional services on a commingled basis over a 
single network within the cable operator’s franchise 

103 6 FCC Rcd 7099 (1991), recon. dismissed, 7 FCC Rcd 4192 
(1992), aff’d sub nom. Texas Utilities Electric Co. v. FCC, 977 F.2d 
925 (D.C. Cir. 1993). 

104 Notice, 12 FCC Rcd at 11731, para. 13. 

105 Heritage, 6 FCC Rcd at 7100. 

106 Id. 

107 Id. 

83a 

area justified only a single, regulated pole attachment 
charge by the utility pole owner. 

108 The Commission 
affirmed its longstanding view of cable as a provider of 
video and nonvideo broadband services and determined 
that its pole attachment authority includes nonvideo 
broadband services under Section 224. The Commis- 
sion stated that its jurisdiction under Section 224 was 
not limited by definitions emanating from the Cable 
Communications Policy Act of 1984 (“Cable Act of 
1984”) 

109 because such definitions apply only for pur- 
poses of Title VI. 

110 Further, it stated that, even when 
Section 224 is read in conjunction with the Cable Act of 
1984, the Cable Act of 1984 and its legislative history 
indicate that a cable system providing both video and 
nonvideo broadband services is not excluded from the 
benefits of Section 224. 

111 

28. Whether Heritage continues to apply raises 
significant issues as cable operators expand into new 
service areas, such as Internet services. Generally, 
commenters disagree as to the applicability of Heritage 
since the passage of the 1996 Act amendments to 
Section 224. Some utility pole owners contend that 
Heritage has been overruled by the 1996 Act, but they 

108 Id. at 7107. 

109 Cable Communications Policy Act of 1984, Pub. L. No. 98- 
549, 98 Stat. 2779 (Oct. 30, 1984). 

110 Heritage, 6 FCC Rcd at 7103-04. 

111 Id. at 7104. The U.S. Court of Appeals for the District of 
Columbia Circuit upheld the Commission’s decision on appeal 
because it was “consistent with the congressional purpose to avoid 
abusive pole attachment practices by utilities for the FCC to 
regulate any attachment by a cable operator within its franchise 
area and within its cable television system.” Texas Utilities v. 
FCC, 977 F.2d at 936. 

84a 

do not agree as to the effect of the overruling. Some of 
the utility pole owners argue that the new Sections 
224(d)(3) and 224(e) create a new regime requiring new 
rules, 

112 and therefore Heritage is no longer applicable. 
Some of these commenters also argue that, after the 
year 2001, a cable company is entitled to the old 
incremental rate under Section 224(d)(3) if the pole 
attachment is used solely to provide cable services. 
They contend that the use of a cable attachment to 
provide nonvideo services in addition to video would 
not be an attachment used solely for cable service and 
such attachment would be subject to the Section 224(e) 
telecommunications services rate. 

113 Other utility pole 
owners argue that the provision of services other than 
cable and telecommunications services are outside the 
scope of Section 224 and are therefore not subject to the 
Commission’s jurisdiction. 

114 They contend that such 
services will be subject to market place negotiations. 

115 

29. Cable operators generally contend that Heritage 
has not been overruled by the 1996 Act. They also con - 
tend that high speed Internet access is a cable service 
and an operator offering such service should not be as- 
sessed the Section 224(e) telecommunications services 

112 Texas Utilities Reply at 2; GTE Comments at 8; USTA 
Comments at 4. 

113 Edison Electric/UTC Comments at 9. 

114 American Electric, et al., Comments at 11 (citing Report 
and Order, CC Docket No. 96-45 (In the Matter of Federal-State 
Joint Board on Universal Service), 12 FCC Rcd 8776 (“Universal 
Service Order”), 9176, para. 781); Duquesne Light Comments at 21; 
Ohio Edison Comments at 20; Union Electric Comments at 19. 

115 Duquesne Light Comments at 21; Ohio Edison Comments at 
20; Union Electric Comments at 19. 

85a 

116 Telecommunications carriers generally agree 
that Heritage has not been overruled, and therefore the 
pre-1996 Act rules continue to provide that a utility 
should not charge different pole attachment rates based 
on the type of service provided by the cable operator, 
and further that a utility should be prohibited from 
placing unreasonable restrictions on the use of pole 
attachments by permitted attachers. 

117 Some of the 
telecommunications carriers, however, oppose any 
extension of Heritage, arguing that such extension 
would provide preferential treatment for cable opera- 
tors. 

118 At least one telecommunications carrier argues 
that the distinctions established by Congress effec- 
tively overrule Heritage and that cable operators pro- 
viding additional services besides video service are to 
be treated as telecommunications carriers under Sec- 
tion 224. 

rate. 

119 

30. We disagree with the utility pole owners who 
assert that the Heritage decision has been “overruled” 
by the passage of the 1996 Act insofar as it held that a 
cable system is entitled to a Commission-regulated rate 
for pole attachments that the cable system uses to 
provide commingled data and video. The definition of 
“pole attachment” does not turn on what type of service 
the attachment is used to provide. Rather, a “pole 
attachment” is defined to include any attachment by a 

116 Comcast, et al., Comments at 18; NCTA Comments at 6-7, 

n.9; New York Cable Television Assn. Comments at 8. 

117 RCN Comments at 5-6; Sprint Comments at 2, Reply at 1-2 
(citing MCI Comments at 4-5); U S West Comments at 4-5. 

118 MCI Comments at 6. 

119 See Ameritech Comments at 4. 

86a 

120 Thus, the rates, terms and 
conditions for all pole attachments by a cable television 
system are subject to the Pole Attachment Act. 

“cable television system.” 

121 

Under Section 224(b)(1), the Commission has a duty to 
ensure that such rates, terms, and conditions are just 
and reasonable. 

122 We see nothing on the face of Sec- 
tion 224 to support the contention that pole owners may 
charge any fee they wish for Internet and traditional 
cable services commingled on one transmission facility. 

31. The history of Section 224 further supports our 
conclusion. The purpose of the amendments to Section 
224 made by the 1996 Act was similar to the purpose 
behind Section 224 when it was first enacted in 1978, 

i.e., to remedy the inequitable position between pole 
owners and those seeking pole attachments. 

123 The 
nature of this relationship is not altered when the cable 
operator seeks to provide additional service. Thus, it 
would make little sense to conclude that a cable 
operator should lose its rights under Section 224 by 
commingling Internet and traditional cable services. 
Indeed, to accept contentions that cable operators 
expanding their services to include Internet access no 
longer are entitled to the benefits of Section 224 would 
penalize cable entities that choose to expand their 
services in a way that will contribute “to promot[ing] 
competition in every sector of the communications 
industry,” as Congress intended in the 1996 Act. 

124 

120 47 U.S.C. § 224(a)(4). 

121 47 U.S.C. § 224(b)(1). 

122 Texas Utilities v. FCC, 977 F.2d at 934-35. 

123 1977 Senate Report at 19, 20. 

124 Preamble to the 1996 Act; see also 142 Cong. Rec. S687-01, 
S687 (daily ed. February 1, 1996) (Statement of Sen. Hollings). 

87a 

32. Having decided that cable operators are entitled 
to the benefits of Section 224 when providing commin- 
gled Internet and traditional cable services, we next 
turn to the appropriate rate to be applied. We con- 
clude, pursuant to Section 224 (b)(1), that the just and 
reasonable rate for commingled cable and Internet 
service is the Section 224(d)(3) rate. In specifying this 
rate, we intend to encourage cable operators to make 
Internet services available to their customers. 

125 We 
believe that specifying a higher rate might deter an 
operator from providing non-traditional services. Such 
a result would not serve the public interest. Rather, we 
believe that specifying the Section 224(d)(3) rate will 
encourage greater competition in the provision of 
Internet service and greater benefits to consumers. 

33. We emphasize that our decision to apply the Sec- 
tion 224(d)(3) rate is based on our regulatory authority 
under Section 224(b)(1). Several commenters suggested 
that cable operators providing Internet service should 
be required to pay the Section 224(e) telecommuni- 
cations rate. 

126 We disagree. The Universal Service 
Order concluded that Internet service is not the pro- 
vision of a telecommunications service under the 1996 
Act. 

127 Under this precedent, a cable television system 

125 We have, through social contracts, encouraged cable opera- 
tors to provide Internet services to their customers. See Social 
Contract for Continental Cablevision, 10 FCC Rcd 299 (1995), 
amended by 11 FCC Rcd 11118 (1996); Social Contract for Time 
Warner, 11 FCC Rcd 2788 (1995), amended by FCC Rcd 3099 

(1995), further amended by 12 FCC Rcd 14881(1996). 

126 See, e.g., Ameritech Comments at 4; Edison Electric/UTC 
Comments at 9-10; GTE Comments at 6; MCI Comments at 6. 

127 See Federal-State Joint Board on Universal Service, Report 
and Order, CC Docket No. 96-45, 12 FCC Rcd 8776, at 9180-81, 

88a 

providing Internet service over a commingled facility is 
not a telecommunications carrier subject to the revised 
rate mandated by Section 224(e) by virtue of providing 
Internet service. We note, however, that Congress has 

para.789 (rel. May 8, 1997), as corrected by Federal-State Joint 
Board on Universal Service, Errata, CC Docket No. 96-45, FCC 
97-157 (rel. June 4, 1997), appeal pending in Texas Office of Public 
Utility Counsel v. FCC and USA, No. 97-60421 (5th Cir. 1997); 
Federal-State Joint Board on Universal Service, Order on 
Reconsideration, CC Docket No. 96-45, 12 FCC Rcd 10095 (rel. 
July 10, 1997); Changes to the Board of Directors of the National 
Exchange Carrier Association Inc., Federal-State Joint Board on 
Universal Service, Report and Order and Second Order on 
Reconsideration, CC Docket Nos. 97-21, 96-45, FCC 97-253 (rel. 
July 18, 1997), as corrected by Federal-State Joint Board on 
Universal Service, Errata, CC Docket No. 96-45, DA 97-2477 (rel. 
Dec. 3, 1997); Changes to the Board of Directors of the National 
Exchange Carrier Association Inc., Federal-State Joint Board on 
Universal Service, Order on Reconsideration, Second Report and 
Order and Further Notice of Proposed Rulemaking, CC Docket 
Nos. 97-21, 96-45, FCC 97-292, 12 FCC Rcd 12437 (rel. Aug. 15, 
1997); Federal-State Joint Board on Universal Service, Third 
Report and Order, CC Docket No. 96-45, (rel. Oct. 14, 1997), as 
corrected by Federal-State Joint Board on Universal Service, 
Erratum, CC Docket Nos. 96-45 and 97-160 (rel. Oct. 15, 1997); 
Changes to the Board of Directors of the National Exchange 
Carrier Association, Inc., Federal-State Joint Board on Universal 
Service, Second Order on Reconsideration in CC Docket 97-21, CC 
Docket Nos. 97-21, 96-45, FCC 97-400 (rel. Nov. 26, 1997); Federal- 
State Joint Board on Universal Service, Third Order on Reconsi- 
deration, CC Docket No. 96-45, FCC 97-411 (rel. Dec. 16, 1997); 
Federal-State Joint Board on Universal Service, Access Charge 
Reform, Price Cap Performance Review for Local Exchange Car- 
riers, Transport Rate Structure and Pricing, End User Common 
Line Charge, Fourth Order on Reconsideration, CC Docket Nos. 
96-45, 96-262, 94-1, 91-213, 95-72, FCC 97-420 (rel. Dec. 30, 1997), as 
corrected by Federal-State Joint Board on Universal Service, 
Errata, CC Docket Nos. 96-45, 96-262, 94-1, 91-213, 95-72, DA 98- 
158 (rel. Jan 29, 1998). 

89a 

directed the Commission to undertake a review of the 
implementation of the provisions of the 1996 Act 
relating to universal service, and to submit a report to 
Congress no later than April 10, 1998. 

128 That report is 
to provide a detailed description of, among other things, 
the extent that the Commission’s definition of “telecom- 
munications” and “telecommunications service,” and its 
application of those definitions to mixed or hybrid 
services, are consistent with the language of the 1996 
Act. 

129 We do not intend, in this proceeding, to fore- 
close any aspect of the Commission’s ongoing examina- 
tion of those issues. 

34. We need not decide at this time, however, the 
precise category into which Internet services fit. Such 
a decision is not necessary in order to determine the 
pole attachment rate applicable to cable television sys- 
tems using pole attachments to provide traditional 
cable services and Internet services. Regardless of 
whether such commingled services constitute “solely 
cable services” under Section 224(d)(3), we believe that 
the subsection (d) rate should apply. If the provision of 
such services over a cable television system is a “cable 
service” under Section 224(d)(3), then the rate encom- 
passed by that section would clearly apply. 

130 Even if 

128 Pub. L. 105-119, 111 Stat. 2440 (1997), sec. 623. 

129 Id. 

130 The legislative history of the 1996 Act may be read to 
support such a conclusion. See Conf. Rpt. at 206 which indicates 
that, “to the extent that a company seeks pole attachment for a 
wire used solely to provide cable television services (as defined by 
Section 602(6) of the Communications Act), that cable company will 
continue to pay the rate authorized under current law (as set forth 
in subparagraph (d)(1) of the 1978 Act).” Further, the Conference 
Report states that “[t]he conferees intend the amendment to 

90a 

the provision of Internet service over a cable television 
system is deemed to be neither “cable service” nor 
“telecommunications service” under the existing defini- 
tions, the Commission is still obligated under Section 
224(b)(1) to ensure that the “rates, terms and conditions 
[for pole attachments] are just and reasonable,” and, as 
Section 224(a)(4) states, a pole attachment includes 
“any attachments by a cable television system.” And 
we would, in our discretion, apply the subsection (d) 
rate as a “just and reasonable rate” for the pro-competi- 
tive reasons discussed above. We again emphasize the 
pervasive purpose of the 1996 Act and the premise of 
the Commission’s Heritage decision, to encourage ex- 
panded services, and that a higher or unregulated rate 
deters this purpose. 

131 We note that in the one case 
where Congress affirmatively wanted a higher rate for 
a particular service offered by a cable system, it pro- 
vided for one in section 224(e). In requiring that the 
Section 224(d) rate apply to any pole attachment used 
‘solely to provide cable service,’ we do not believe Con- 
gress intended to bar the Commission from determin- 
ing that the Section 224(d) rate methodology also would 
be just and reasonable in situations where the Com- 
mission is not statutorily required to apply the higher 
Section 224(e) rate. 

35. We also disagree with utility pole owners that 
submit that all cable operators should be “presumed to 
be telecommunications carriers” and therefore charged 

reflect the evolution of cable to interactive services such as game 
channels and information services made available to subscribers by 
the cable operator, as well as enhanced services,” but was not in- 
tended to “cause dial-up access to information services over tele- 
phone lines to be classified as a cable service.” Conf. Rpt. at 169. 

131 See also Texas Utilities v. FCC, 977 F.2d at 931-933. 

91a 

at the higher rate unless the cable operator certifies to 
the Commission that it is not “offering” 

132 telecommu- 

nications 133 We think that a certification pro- 
cess would add a burden that manifests no benefit. We 
believe the need for the pole owner to be notified is met 
by requiring the cable operator to provide notice to the 
pole owner when it begins providing telecommunication 
services. The rule we adopt in this Order will reflect 
this required notification. We also reject the sugges- 
tions of utility pole owners that the Commission should 
be responsible for monitoring and enforcing a certifica- 
tion of cable operators regarding their status. 

134 The 
record does not demonstrate that cable operators will 
not meet their responsibilities. If a dispute arises, the 
Commission’s complaint processes can be invoked. 

3. Wireless Attachments 

a. Background 

36. In the Notice, the Commission stated that, 
although wireless carriers have not historically affixed 
their equipment to utility poles, the 1996 Act gives 
them the right to do so and entitles them to rates con- 
sistent with Commission rules. 

services. 

135 The Local 

132 Telecommunications services means the offering of tele- 
communications for a fee directly to the public, or to such classes of 
users as to be effectively available directly to the public, regard- 
less of the facilities used. 47 U.S.C. § 153(43). 

133 See American Electric, et al., Comments at 46-47; Bell At- 
lantic Comments at 3; Colorado Springs Utilities Comments at 3; 
ICG Communications Comments at 27; MCI Comments at 6-9. 

134 See American Electric, et al., Comments at 46-47; Bell At- 
lantic Comments at 3; Colorado Springs Utilities Comments at 3; 
ICG Communications Comments at 27; MCI Comments at 6-9. 

135 Notice, 12 FCC Rcd at 11741, para. 61. 

92a 

Competition Order held that Section 224 does not de- 
scribe the specific type of telecommunications equip- 
ment that an entity may attach, and that establishing 
an exhaustive list of equipment is not advisable or even 
possible. 

136 

37. Some utility pole owners argue for limiting the 
type of equipment that a party may attach to facilities 
and assert that wireless carriers should not have the 
benefit of Section 224. They rely on legislative history 
accompanying the 1978 Pole Attachment Act 

137 and the 
failure of Section 224 to include the word “wireless” in 
its language. 

138 According to the pole owners, Congress 
intended to cover pole attachments only for wire com- 
munications, and would have explicitly expanded that 
scope in the 1996 Act if it wanted to do so. 

139 These 
interests cite the 1977 Senate Report stating, “Federal 
involvement in pole attachment matters will occur only 
where space on a utility pole has been designated and is 
actually being used for communications services by 

136 11 FCC Rcd at 16085, para. 1186. 

137 1977 Senate Report. 

138 See, e.g., American Electric, et al., Comments at 11; Edison 
Electric/UTC Reply at 8; Petition for Reconsideration by Consoli- 
dated Edison Company of NY in CC Docket No. 96-98 at 11-12; 
Petition for Reconsideration by Duquesne Light Co. in CC Docket 
No. 96-98 at 17-18; Petition for Reconsideration by American Elec- 
tric Power, et al., in CC Docket No. 96-98 at 1-18, 26-29; Petition 
for Reconsideration by Florida Power & Light in CC Docket No. 
96-98 at 24-26; see also Carolina Power, et al., CS Docket 97-98 
Reply at 34-37; Edison Electric/UTC CS Docket No. 97-98 Com- 
ments at 3-7. 

139 Id. 

93a 

140 In contrast, wireless providers assert 
that they are telecommunications carriers entitled to 
the protection of Section 224. 

141 These parties cite Sec- 
tion 3(44), which defines “telecommunications carrier” 
as “any provider of telecommunications services,” and 
Section 3(46), which defines “telecommunications ser- 
vice” as “the offering of telecommunications for a fee 

. . . regardless of the facilities used.” 

142 Wireless pro- 
viders contend they do not have easy alternatives for 
placing their equipment because they have had diffi- 
culty getting permits to erect antennas. 

143 They argue 
that telecommunications competition arises in many 
forms and the Commission’s regulations should not de- 
ter any particular method of delivering services. 

144 In 
short, they ask the Commission to decide that Section 
224 “unambiguously affords all telecommunications pro- 
viders a legal right of access to poles.” 

wire or cable.” 

145 

38. Telecommunications carriers and the utility pole 
owners acknowledge that determining an appropriate 
formula for wireless attachments is difficult. 

146 Some 
utility pole owners assert it is beyond the scope of this 

140 1977 Senate Report at 15; see, e.g., Petition for Recon- 
sideration by American Electric Power, et. al., in CC Docket No. 
96-98 at 10-11. 

141 See, e.g., Bell Atlantic Reply at 6-9; Omnipoint Reply at 2-3; 
Teligent Comments at 2. 

142 47 U.S.C. § 3(44), (46); see, e.g., Bell Atlantic Reply at 6-9; 
Omnipoint Reply at 3. 

143 See, e.g., Bell Atlantic Reply at 6-9. 

144 See, e.g., Teligent Comments at 2. 

145 Omnipoint Reply at 3. 

146 See, e.g., Bell Atlantic Reply at 6-9; Edison Electric/UTC 
Reply at 2. 

94a 

147 Some telecommunications carriers and 
utility pole owners agree that previous and proposed 
rate formulas do not lend themselves to the require- 
ments of wireless attachments.148 On the other hand, 
wireless interests emphasize that pole attachment fees 
are assessed for the use of space, and should not depend 
primarily on what type of equipment occupies that 
space.149 These parties contend that rates for wire and 
wireless attachments should be the same so that 
discriminatory pricing does not occur.150 

b. Discussion 

39. Wireless carriers are entitled to the benefits and 
protection of Section 224. Section 224(e)(1) plainly 
states: “The Commission shall . . . prescribe regula- 
tions to govern the charges for pole attachments used 
by telecommunications carriers to provide telecommu- 
nications services.” 

151 This language encompasses 
wireless attachments. 

40. Statutory definitions and amendments by the 
1996 Act demonstrate Congress’ intent to expand the 
pole attachment provisions beyond their 1978 origins. 
Section 224(a)(4) previously defined a pole attachment 
as “any attachment by a cable television system,” but 

147 See, e.g., American Electric, et al., Comments at 5-6; 
Carolina Power, et al., Reply at 17-18; Edison Electric/UTC Reply 
at 2-3. 

148 See, e.g., Bell Atlantic Reply Comments at 6-9; Comments at 
Edison Electric/UTC Comments at 3; GTE Reply at 18. 

149 See, e.g., Teligent Comments at 9-10. 

150 See, e.g., AT&T Reply at 21; Omnipoint Reply at 3; Teligent 
Comments at 9; Winstar Comments at 2. 

151 47 U.S.C. § 224(e)(1). 

rulemaking. 

95a 

now states that a pole attachment is “any attachment 
by a cable television system or provider of telecom- 
munications service.” 

152 Moreover, in Section 224(d)(3), 
Congress applied the current pole attachment rules as 
interim rules for “any telecommunications carrier . . . 
to provide any telecommunications service.” 

153 In both 
sections, the use of the word “any” precludes a position 
that Congress intended to distinguish between wire 
and wireless attachments. Section 224(e)(1) contains 
three terms whose definitions support this conclusion. 
Section 3(44) defines telecommunications carrier as 
“any provider of telecommunications services.” 

154 Sec- 
tion 3(46) states that telecommunications services is the 
“offering of telecommunications for a fee directly to the 
public . . . regardless of the facilities used,” and Sec- 
tion 3(43) specifies telecommunications to be “the trans- 
mission, between or among points specified by the user, 
or information of the user’s choosing, without change in 
the form or content of the information as sent and re- 
ceived.” 

155 The use of “any” in Section 3(44) precludes 
limiting telecommunications carriers only to wireline 
providers. Wireless companies meet the definitions in 
Sections 3(43) and 3(46). In fact, the Commission has 
already recognized that cellular telephone, mobile radio, 
and PCS are telecommunications services. 

156 

41. There are potential difficulties in applying the 
Commission’s rules to wireless pole attachments, as 

152 47 U.S.C. § 224(a)(4) (emphasis added). 

153 47 U.S.C. § 224(d)(3). 

154 47 U.S.C. § 153(44). 

155 47 U.S.C. §§ 153(46), (43). 

156 See, e.g., Universal Service Order, 12 FCC Rcd at 9175; 
Local Competition Order, 11 FCC Rcd at 15997. 

96a 

opponents of attachment rights have argued. They 
note that previous and proposed rate formulas do not 
account for the unusual requirements of wireless 
attachments. 

157 These parties assert that such attach- 
ments are usually more than a traditional box-like de- 
vice and cable wires strung between poles. They 
include an antenna or antenna clusters, a communica- 
tions cabinet at the base of the pole, coaxial cables 
connecting antennas to the cabinet, concrete pads to 
support the cabinet, ground wires and trenching, and 
wires for telephone and electric service. One com- 
menter noted that there are “far greater costs and 
operational considerations” for wireless attachments. 

158 

42. There is no clear indication that our rules cannot 
accommodate wireless attachers’ use of poles when 
negotiations fail. When an attachment requires more 
than the presumptive one-foot of usable space on the 
pole, or otherwise imposes unusual costs on a pole 
owner, the one-foot presumption can be rebutted. In 
addition, when wireless devices do not need to use 
every pole in a utility’s inventory, the parties can agree 
on some reasonable percentage of poles for developing a 
presumptive number of attaching entities. If parties 
cannot modify or adjust the formula to deal with unique 
attachments, and the parties are unable to reach agree- 
ment through good faith negotiations, the Commission 
will examine the issues on a case-by-case basis. 

157 See, e.g., Edison Electric/UTC Comments at 4; see also Peti- 
tion for Reconsideration filed by Duquesne Light in CC Docket 
No. 96-98 at 17-18. 

158 Edison Electric/UTC Comments at 5. 

97a 

4. Allocating the Cost of Other than Usable Space 

a. Method of Allocation 

43. To determine the rate that a telecommunications 
carrier must pay for pole attachments, Section 224(e)(2) 
provides that: 

A utility shall apportion the cost of providing space 
on a pole, duct, conduit, or right-of-way other than 
the usable space among entities so that such ap- 
portionment equals two-thirds of the costs of pro- 
viding space other than the usable space that would 
be allocated to such entity under an equal apportion- 
ment of such costs among all attaching entities. 

159 

This statutory language requires an equal apportion- 
ment of two-thirds of the costs of providing other than 
usable (“unusable”) space among all attaching entities. 
The Commission proposed a methodology to apportion 
these costs which translates to the following formula: 

Unusable Next Cost of 

Space = 2 X Unusable Space X a Bare Pole X Carrying 

Factor 3 Pole Height 
Number of Charge 

Attachers Rate 

160 

159 47 U.S.C. § 224(e)(2). 

160 The final component of the overall pole attachment formula 
is the carrying charge rate. Carrying charges are the costs in- 
curred by the utility in owning and maintaining poles regardless of 
the presence of pole attachments. The carrying charges include 
the utility’s administrative, maintenance, and depreciation ex- 
penses, a return on investment, and taxes. To help calculate the 
carrying charge rate, we developed a formula that relate each of 
these components to the utility’s pole investment. See Pole 
Attachment Fee Notice at Appendix A. 

98a 

44. We adopt our proposed methodology to appor- 
tion the cost of unusable space. We believe this formula 
most accurately determines the apportionment of cost 
of unusable space. As mandated by Congress, it equally 
apportions two-thirds of the costs of unusable space 
among attaching entities. 

b. Counting Attaching Entities 

(1) Telecommunications Carriers, Cable 

Operators and Non-Incumbent LECs 

45. Under Section 224(e)(2), the number of attaching 
entities is significant because the costs of the unusable 
space assessed to each entity decreases as the number 
of entities increases. Therefore, determining which 
entities are attachers and which are not has a sub- 
stantial effect on the proper apportionment of the costs 
of unusable space. The Commission proposed in the 
Notice that any telecommunications carrier, cable op- 
erator, or LEC attaching to a pole be counted as a sepa- 
rate entity for the purposes of the apportionment of 
two-thirds of the costs of the unusable space. 

46. We will count as separate entities any telecom- 
munications carrier, any cable operator, and any non- 
incumbent LEC. 

161 This approach is consistent with the 
language of the statute and comports with Congress’ 
intent to count all attaching entities when allocating the 
costs of unusable space. 

162 The statute uses the term 

161 See Adelphia, et al., Comments at 6; American Electric, et 
al., Comments at 40; AT&T Comments at 9; AT&T Reply at 9; 
Comcast, et al., Reply at 12; KMC Telecom Comments at 6; NCTA 
Comments at 17-18; New York Cable Television Assn. Comments 
at 22; Summit Comments at 2-3; U S West Comments at 6-7. 

162 See Conf. Rpt. at 206. 

99a 

“entities” not “telecommunications carriers” when indi- 
cating how the costs of unusable space should be 
allocated. We interpret this use to indicate the inclu- 
sion of cable operators as well as telecommunications 
carriers when allocating the cost of unusable space. 

47. Some commenters argue that cable operators 
providing only cable service should not be counted 
because it would result in requiring the incumbent LEC 
that owns a pole, but not the competitors of the incum- 
bent LEC, to subsidize “pure” cable attachments. 

163 

Similarly, other commenters argue that cable operators 
that solely provide cable service should not be included 
in the count because their attachments are not subject 
to rate regulation under Section 224(e)(2). We find 
these arguments unpersuasive. The statutory language 
compels a different conclusion. The statute states that 
the cost of unusable space shall be allocated under an 
equal apportionment “among all attaching entities.” 

164 

While the cable operator rate is different, Congress 
made no indication that it intended to exclude any 
attaching entity when apportioning the costs of unus- 
able space. On the contrary, the legislative history of 
the 1996 Act states that all attaching entities should be 
counted. 

165 Congress explicitly provided for a different 
formula when determining pole attachment rates for 
cable operators providing cable services, but it made no 
such provision for the exclusion of those operators in 
the allocation of costs for unusable space. Moreover, 

163 Ameritech Comments at 11; Duquesne Light Comments at 
39; MCI Comments at 14; Ohio Edison Comments at 37; Union 
Electric Comments at 34. 

164 47 U.S.C. § 224(e)(2). 

165 Conf. Rpt. at 206. 

100a 

Section 224(e)(2) does not restrict the use of the term 
“entities” to those entities that pay rates under Section 
224(e). 

(2) Pole Owners Providing Telecommu- 
nications Services and Incumbent 
LECs 

48. In the Notice, the Commission tentatively con- 
cluded that, where a pole-owning utility is providing 
telecommunications services, the utility would also be 
counted as an attaching entity for the purposes of allo- 
cating the costs of unusable space under Section 
224(e). 

166 The Commission also tentatively concluded 
that an ILEC with attachments on a pole should be 
counted for the purposes of apportionment of the costs 
of unusable space. The Commission sought comment on 
how these two definitions impact its tentative con- 
clusion. 

167 The Commission noted that the definition of 
telecommunications carrier under Section 224 excludes 
ILECs, and a pole attachment is defined as any attach- 
ment by a cable television system or a provider of tele- 
communications service. 

49. American Electric, et al., oppose counting an 
ILEC with attachments on the pole because the defini- 
tion of a telecommunications carrier excludes ILECs 
and the definition of pole attachments specifically 
includes only attachments made by telecommunications 
carriers or cable operators. 

168 Inclusion of ILECs in the 
apportionment of costs of unusable space, they 
conclude, would improperly extend the scope of Section 

166 Notice, 12 FCC Rcd at 11734, para. 22. 

167 Id. at 11735, para. 23. 

168 American Electric, et al., Comments at 41. 

101a 

169 We dis- 
agree. The exclusion in Section 224(a)(5) of ILECs 
from the term telecommunications carrier is directed to 
the purpose of amended Section 224, to provide an 
important means of access. ILECs generally possess 
that access and Congress apparently determined that 
they do not need the benefits of Section 224. 

170 The 
fundamental precept of the 1996 Act was to enhance 
competition, and the amendments to Section 224, like 
many of the amendments to the 1996 Act, 

171 are di- 

224 and contradict Congressional intent. 

rected 172 In contrast, Section 224(e), 
which delineates a new means to allocate costs, does not 
refer to “telecommunications carriers,” but to “attach- 
ing entities.” 

173 Moreover, the term pole attachment is 
defined in terms of attachments by a “provider of tele- 
communications service” not as an attachment by a 
“telecommunications carrier.” 

174 The Conference Re- 
port confirms that Congress concluded that the unus- 
able space “is of equal benefit to all entities attaching to 
the pole” and intended that the associated costs be 
apportioned “equally among all such attachments.” 

to new entrants. 

175 

We thus think the statute draws a clear distinction 
between those entities that may invoke Section 224 and 
those entities that count for purposes of allocating the 
costs of unusable space. 

176 

169 Id. 

170 See, e.g., Section 224(f )(1) (requiring utilities to afford tele- 
communications carriers non-discriminatory access). 

171 See Conf. Rpt at 113 (“Preamble to the 1996 Act”). 

172 Local Competition Order, 11 FCC Rcd at 15543, para. 83. 

173 47 U.S.C. § 224(e). 

174 47 U.S.C. § 224(a)(4). 

175 Conf. Rpt. at 206. 

176 47 U.S.C. § 224. 

102a 

50. We affirm our tentative conclusion that any pole 
owner providing telecommunications services, including 
an ILEC, should be counted as an attaching entity for 
the purposes of allocating the costs of unusable space 
under Section 224(e)(2). 

177 This includes pole owners 
that use only a part of their physical plant capacity to 
provide these services and is consistent with our rec- 
ognition that pole attachments are defined in terms of 
attachments by a “provider of telecommunication ser- 
vice.” Section 224(e)(2) states that the costs of unusable 
space shall be allocated on the basis of “all attaching 
entities.” 

178 There is no indication from the statutory 
language or legislative history that any particular at- 
taching entity should not be counted. 

51. We also believe this conclusion is supported by 
Section 224(g) which requires that a utility providing 
telecommunications services impute to its costs of pro- 
viding service an amount equal to the rate for which it 
would be liable under Section 224. 

179 This section 

177 See Adelphia, et al., Comments at 6; AT&T Comments at 9; 
AT&T Reply at 9; Comcast, et al., Reply at 12; KMC Telecom 
Comments at 6; MCI Comments at 12; NCTA Comments at 17-18; 
Summit Comments at 2-3; U S West Comments at 5-6. But see 
American Electric, et al., Comments at 41 (the definition of a tele- 
communications carrier excludes incumbent ILECs and the defini- 
tion of pole attachments specifically includes only attachments 
made by telecommunications carriers or cable operator). 

178 47 U.S.C. § 224(e)(2). 

179 47 U.S.C. § 224(g) states: 

A utility that engages in the provision of telecommunications 

services or cable services shall impute to its costs of providing 
such services (and charge any affiliate, subsidiary, or associate 
company engaged in the provision of such services) an equal 
amount to the pole attachment rate for which such company 
would be liable under this section. 

103a 

reflects Congress’ recognition that as a provider of 
telecommunications services, a pole owner uses and 
benefits from the unusable space in the same way as the 
other attaching entities. Section 224(g) also directs the 
utility to impute the costs relating to these services to 
the appropriate affiliate, making clear that another 
entity is using the facility and should be counted as an 
attaching entity. We will count any pole owner pro- 
viding telecommunications services, including an ILEC, 
as an attaching entity for the purpose of allocating costs 
of unusable space. 

(3) Government Attachments 

52. The Notice proposed that government entities 
with attachments, like other entities present on the 
utility pole, be counted as entities on the pole for pur- 
poses of allocating the costs of unusable space. A utility 
may be required under its franchise or statutory 
authorization to provide certain attachments for public 
use, such as traffic signals, festoon lighting, and specific 
pedestrian lighting. Often the responsible government 
agency does not directly pay for the attachment. The 
Commission proposed that, since the government 
agency is using space on the pole, its attachments be 
counted for purposes of allocating the cost of unusable 
space. This cost would be borne by the pole owner, 
since it relates to a responsibility under its franchise or 
statutory authorization. 

53. Some cable operators and telecommunications 
carriers agree with our proposal to count as a separate 
attaching entity government agencies that have 

104a 

attachments to the pole. 

180 Utility pole owners and 
other telecommunications carriers disagree, stating 
that the utilities would be responsible for a cost that 
should be shared by all users of the pole because all 
parties benefit from the existence of the pole as allowed 
by the government. 

181 Since the agencies do not pay 
fees to the pole owner, the commenters continue, the 
utility must unfairly absorb the government agency’s 
share of the cost of unusable space, in addition to the 
one-third share of the cost for which the pole owner is 
automatically liable. Still other utility pole owners 
disagree, asserting that government attachments are 
not wire attachments, do not provide telecommunica- 
tions or cable services and are not included in the defi- 
nition of “pole attachment.” 

182 In defending its recom- 
mendation not to count government attachments, ICG 
Communications adds that government attachments 
are normally installed in the pole’s unusable space so as 
to avoid interference with other parties’ use of the pole 
space. 

183 

54. To the extent that government agencies provide 
cable or telecommunications service, we affirm our 

180 See, e.g., AT&T Reply at 9 & 12; Comcast, et al., Reply at 12; 
KMC Telecom Comments at 6; MCI Comments at 12; NCTA 
Comments at 19. 

181 See, e.g., Ameritech Comments at 12; Dayton Power Com- 
ments at 2; Duquesne Light Comments at 42; ICG Communi- 
cations Comments at 35; New York State Investor Owned Electric 
Utilities Comments at 22-23; Ohio Edison Comments at 36,40, 
Reply at 9-11; Union Electric Comments at 33 & 37, Reply at 9-11. 

182 See, e.g., American Electric, et al., Comments at 41-42; 
Carolina Power, et al., Comments at 5-6; New York State Investor 
Owned Electric Utilities Comments at 22-23. 

183 See ICG Communications Comments at 35. 

105a 

proposal that they be included in the count of attaching 
entities for purposes of allocating the cost of unusable 
space. We will not include government agencies in the 
count as a separate entity if they only provide certain 
attachments for public use, such as traffic signals, 
festoon lighting, and specific pedestrian lighting. We 
conclude that, where a government agency’s 
attachment is used to provide cable or tele- 
communications service, the government attachment 
can accurately be described as a “pole attachment” 
within the meaning of Section 224(a)(4) of the 1996 
Act. 

184 Like a private pole attachment, it benefits 
equally from the unusable space on the pole and the 
costs for this benefit are properly placed on the gov- 
ernment entity or the pole owner. Since the govern- 
ment attacher and the pole owner have a relationship 
that benefits both parties, we are not persuaded that 
the pole owner is unfairly absorbing the cost of the 
government’s telecommunications attachments to the 
extent the pole owner’s franchise so provides. We will 
not include a government agency with an attachment 
that does not provide cable or telecommunications 
service as an entity in the count when apportioning the 
costs of unusable space because such an attachment is 
not a “pole attachment” within the meaning of Section 
224(a)(4). 

185 

(4) Space Occupied on Pole 

55. The Notice sought information on alternative 
methodologies to apportion costs of unusable space, 
such as by allocating to each entity a proportion of the 

184 47 U.S.C. § 224(a)(4). 

185 Id. 

106a 

unusable space equal to the proportion of usable space 
occupied by the entity’s attachment. 

186 Specifically, the 
Commission sought comment on an alternate approach 
that counts any telecommunications carrier as a sepa- 
rate attaching entity for each foot, or partial increment 
of a foot, it occupies on the pole. The Commission also 
asked whether such a methodology is consistent with 
the statutory requirement in Section 224(e)(2) for equal 
apportionment among all attaching entities. 

56. Based on the record, we reject this alternate 
proposal. U S West, in opposing the alternate method, 
argues that if Congress had intended to allocate the 
costs of unusable space based on space occupied, it 
would not have distinguished between usable and unus- 
able space. 

187 RCN supports the alternative method 
because, it argues, not all attaching entities benefit to 
the same degree from the unusable space and those 
using more space should be allocated more of the costs 
of unusable space.188 Similarly, SBC argues that we 
should consider the amount of space occupied when 
allocating the costs of unusable space because an at- 
taching entity that occupies two spaces on the pole 
should be allocated twice as much costs as an attaching 
entity that only occupies one space. 

189 

57. In suggesting the alternative approach that enti- 
ties using more than one foot be counted as a separate 
entity for each foot or increment thereof, we sought to 
ensure that entities be allocated the costs of the unus- 

186 Notice, 12 FCC Rcd at 11735, para. 23. 

187 See U S West Comments at 7-8. 

188 RCN Comments at 3-4. 

189 SBC Comments at 24-25. 

107a 

able space through a means reflecting their relative 
use. The record does not indicate whether use of more 
than one foot by an entity will be a pervasive or 
occasional circumstance. We agree with those parties 
that state that allocating space in such a manner will 
add a level of complexity, and not necessarily produce a 
fairer allocation of the cost of unusable space. We are 
also convinced that the alternative proposal is incon- 
sistent with the plain meaning of Section 224(e) which 
apportions the cost of unusable space “under an equal 
apportionment of such costs among all attaching 
entities.” 

190 

58. As another alternative method to apportioning 
cost equally, MCI argues that the apportionment of 
two-thirds of the costs of unusable space should be 
based on the number of attachments rather than the 
number of attaching entities. 

191 Allocating costs by the 
number of entities, it argues, would not allocate any 
unusable space to overlashings and will result in an 
incentive for “speculative” overlashing by existing 
attachers. We also will not adopt MCI’s proposal to 
count attachments instead of attaching entities. The 
record does not demonstrate that overlashing leads to 
distortion of the allocation of the costs of the pole. 

190 47 U.S.C. § 224(e)(2). 

191 MCI Comments at 12. 

108a 

c. Overlashing 

(1) Background 

59. Overlashing, whereby a service provider physi- 
cally ties its wiring to other wiring already secured to 
the pole, is routinely used to accommodate additional 
strands of fiber or coaxial cable on existing pole 
attachments. 

192 The Commission sought information in 
the Notice on how each attaching and overlashing 
entity should be treated for purposes of allocating the 
costs of unusable and usable space. 

193 We observed that 
each possible “host attachment” may be overlashed 
with wiring providing other types of services or owned 
by other types of providers. 

194 The Commission also 
requested that commenters discuss whether and to 
what extent overlashing facilitates the provision of 
services other than cable service by cable operators. 

195 

60. In addressing overlashing in the cable operator 
context, the Commission issued a public notice in Janu- 
ary 1995 (the “Overlashing Public Notice”) 

196 cautioning 

192 See Comcast, et al., Reply at 8 (cable operators have 
routinely overlashed for 30 years); NCTA Comments at 5 (over- 
lashing has been a critical component of cable industry’s construc- 
tion strategy for decades). 

193 Notice, 12 FCC Rcd at 11732, para. 15. 

194 For example, the utility pole owner, an ILEC, a cable op- 
erator, and a telecommunications carrier that already have attach- 
ments on the pole may expand their services through overlashing 
their existing lines, or a third party attachment may overlash any 
existing attachment, under certain circumstances which we will 
address in this Order. 

195 Notice, 12 FCC Rcd at 11732, para. 15. 

196 Common Carrier Bureau Cautions Owners of Utility Poles, 
Public Notice, DA 95-35 (January 11, 1995). 

109a 

owners of utility poles against restricting cable opera- 
tors from overlashing their own pole attachments with 
fiber optic cable. The Commission noted the serious 
anti-competitive effects of preventing cable operators 
from adding fiber to their systems by overlashing. The 
Commission believed improper constraints were being 
placed on cable systems that sought to overlash fiber 
optic lines to their existing coaxial cable lines in order 
to build out their facilities. While recognizing concerns 
regarding engineering specifications and arranging for 
access and notification in cases of emergencies or 
modification, the Commission affirmed its commitment 
to ensure that the growth and development of cable 
system facilities are not hindered by an unreasonable 
denial of overlashing by a utility pole owner. 

197 Over- 
lashing capability continues to be a facet of a pro- 
competitive market because it maximizes the usable 
capacity on a pole. 

198 

(2) Discussion 

(a) Overlashing One’s Own Pole 

Attachment 

61. The 1996 Act ushered in an era of transition from 
regulation to competition in telecommunications mar- 
kets. The 1996 Act is grounded in the belief that com- 
petition will bring the greatest benefits to consumers 
and the greatest diversity of telecommunications ser- 
vices to communities. These broad aims include those 
expressed in Section 1 of the Communications Act, to 
“make available . . . to all the people of the United 
States . . . a rapid, efficient, Nation-wide, and world- 

197 Id. 

198 Local Competition Order, 11 FCC Rcd at 16075, para. 1161. 

110a 

199 and those ex- 
pressed in the 1996 Act, to establish a “pro-competitive, 
de-regulatory national policy framework designed to 
accelerate private sector deployment of advanced 
telecommunications and information technologies and 
services to all Americans by opening all telecommuni- 
cations markets to competition.” 

200 To implement this 
framework, the 1996 Act made numerous amendments 
to the Communications Act, including the expansion of 
Section 224 jurisdiction to pole attachments for tele- 
communications carriers and expanded access to utility 
poles for the purposes of providing cable and telecom- 
munications services. 

201 As the Commission has made 
clear, determining whether actions enhance competition 
requires examining those actions in light of the 
significant changes to the laws governing the provision 
of telecommunications services made by the 1996 Act. 

wide . . . communication service,” 

202 

62. We believe overlashing is important to imple- 
menting the 1996 Act as it facilitates and expedites 
installing infrastructure essential to providing cable 
and telecommunications services to American commu- 
nities. Overlashing promotes competition by accom- 
modating additional telecommunications providers and 
minimizes installing and financing infrastructure 

199 47 U.S.C. § 151. These goals date to the original passage of 
the Communications Act of 1934. See H.R. Rep. No. 1918, 73rd 
Cong., 2d Sess. 1 (1934). 

200 See Preamble to 1996 Act. 

201 1996 Act § 703. 

202 Memorandum Opinion and Order (In the Applications of 
NYNEX Corporation and Bell Atlantic Corporation for Consent to 
Transfer Control of NYNEX Corporation and Its Subsidiaries), 
FCC 97-286 (released August 14, 1997) at para. 32, 38. 

111a 

203 We think that overlashing is an important 
element in promoting the policies of Sections 224 and 
257 

204 to provide diversity of services over existing 
facilities, fostering the availability of telecommuni- 
cations services to communities, 

205 and increasing op- 
portunities for competition in the marketplace. 

facilities. 

206 

63. Utility pole owners oppose overlashing as an 
expansion of their obligation to provide for pole 
attachments and, further, as an unsupervised burden on 
the poles. 

207 Cable operators and telecommunications 
carriers assert that overlashing is a routine con- 
struction practice that has gone on for decades without 
interference from the pole owners until the utilities 

203 See ICG Communications Comments at 20; NCTA Com- 
ments at 7; RCN Comments at 6-7. 

204 Section 257 provides that the Commission shall seek to pro- 
mote policies that eliminate market entry barriers for small busi- 
ness and others. 47 U.S.C. § 257. 

205 See New York Cable Television Assn. Comments at 7-8; 
NCTA Comments at 6-7. 

206 See Preamble to 1996 Act. 

207 See American Electric, et al., Comments at 46; Carolina 
Power, et al., Comments at 8-9; Colorado Springs Utilities Com- 
ments at 3; Dayton Power Comments at 1; Duquesne Light Com- 
ments at 26-27; Edison Electric/UTC Comments at 11; New York 
Investor Owned Electric Utilities Comments at 9-10; Ohio Edison 
Comments at 24-26; SBC Comments at 8-12; Sprint Comments at 
2-3; Texas Utilities Comments at 6; Union Electric Comments at 
23-24; USTA Comments at 8. Cf. Ameritech Comments at 6-7; 
AT&T Comments at 5; New York Cable Television Assn. Com- 
ments at 4-5; Comcast, et al., Comments at 3-4; ICG Communi- 
cations Comments at 21; MCI Comments at 8; NCTA Comments at 

7. 

112a 

208 Some tele- 
communications carriers urge the Commission to bar 
utility pole owners from prohibiting overlashing. 

began entering competitive businesses. 

209 

64. We have been presented with no persuasive rea- 
son to change the Commission’s policy that encourages 
overlashing, and we agree with representatives of the 
cable and telecommunications industries that, to the 
extent that it does not significantly increase the burden 
on the pole, overlashing one’s own pole attachment 
should be permitted without additional charge. 

210 To 
the extent that the overlashing does create an addi- 
tional burden on the pole, any concerns should be satis- 
fied by compliance with generally accepted engineering 
practices. 

211 We note that we have deferred decision on 
the issue of the effect any increased burden may have 
on the rate the utility pole owner may charge the host 
attacher. As stated above, we believe that the Pole 
Attachment Fee Notice rulemaking is a more appropri- 
ate forum for resolution of this issue 

.212 As also stated 
above, we affirm our current presumptions for the time 
being. We also do not believe that overlashing is an 
expansion of a pole owners’ obligation. Overlashing has 

208 See, e.g., Comcast, et al., Comments at 3-5; NCTA Com- 
ments at 7; New York Cable Television Assn. Comments at 4-5. 

209 See, e.g., ICG Communications Comments at 21; New York 
Cable Television Assn. Comments at 4. 

210 See AT&T Comments at 6; Comcast, et al., Comments at 3- 
4, 11; New York Cable Television Assn. Comments at 4-5. But see 
ICG Communications Comments at 20-21. 

211 See 47 U.S.C. § 224(f)(2) (permitting a pole owner to deny 
access for reasons of safety, reliability and generally applicable 
engineering purposes). 

212 See Section IV.A.1. above (Duquesne Light proposes that 
any presumptions include weight and wind load factors). 

113a 

213 We believe utility 
pole owners’ concerns are addressed by Section 224’s 
assurance that pole owners receive a just and rea- 
sonable rate and that pole attachments may be denied 
for reasons of safety, reliability, and generally applica- 
ble engineering purposes. 

(b) Third Party Overlashing 

65. Telecommunications carriers seeking expedi- 
tious means to gain access to poles have begun con- 
tracting with existing attaching entities to overlash to 
existing attachments. 

214 In the Notice, the Commission 
inquired whether a third party should be permitted to 
overlash an existing cable system or telecommuni- 
cations carrier’s attachment without the agreement of 
the pole owner. 

been in practice for many years. 

215 

66. As stated above, NCTA reports that it is current 
practice for cable operators routinely to overlash their 
existing attachments without specific prior notification 
to the pole owners outside of provisions for major modi- 
fication contained in their pole attachment agree- 
ments. 

216 Attaching entities assert that pole owners can 
exert a veto to market entry if allowed to restrict 
overlashing of the pole attachment facilities. 

217 Utility 
pole owners object to overlashing by third parties 

213 See NCTA Comments at 5. 

214 Local Competition Order, 11 FCC Rcd at 16075-77, paras. 
1161-64. 

215 Notice, 12 FCC Rcd at 11732, para. 15. 

216 See NCTA Comments at 6. 

217 See AT&T Comments at 6; Comcast, et al., Comments at 3- 
4, 11; New York Cable Television Assn. Comments at 4-8; NCTA 
Comments at 7. 

114a 

unless the pole owner is compensated for what they 
view as an additional infringement on their property, 
but comment that, if third party overlashing is per- 
mitted without additional compensation, pole owners 
should have notice of the nature and engineering 
requirements of the overlasher. 

218 

67. Utility pole owners assert that overlashed 
attachments must occupy the same amount of space as 
the initial attachment, be considered a separate attach- 
ment, and that the overlasher should be required to pay 
the same rate as though it were an initial attaching 
entity. 

219 Cable operator and telecommunications car- 
rier interests voice varying opinions on if and how a 
third party overlasher should be counted as an attach- 
ing entity, 

220 indicating that cross interests are at stake 

218 See American Electric, et al., Comments at 46; Bell Atlantic 
Comments at 2; Dayton Power Comments at 1; Colorado Springs 
Utilities Comments at 3; GTE Comments at 7; New York State 
Investor Owned Electric Utilities Comments at 8-9; SBC Com- 
ments at 10-12; Sprint Comments at 2-3; USTA Comments at 6-7. 

219 See, e.g., American Electric, et al., Comments at 46-50. Also 
commenting that an overlashing entity should be considered an 
original attaching entity were: Colorado Springs Utilities Com- 
ments at 2-3; Edison Electric/UTC Comments at 11; New York 
State Investor Owned Electric Utilities Comments at 9-10; Sprint 
Comments at 2; Texas Utilities Comments at 6. 

220 See Comcast, et al., Comments at 11 (attaching entity will 
likely charge the telecommunications overlasher a charge to reflect 
the unusable space so the overlasher would not be a separate 
attaching entity); KMC Telecom Comments at 7-8 (no separate 
payment to pole owner); Summit Comments at 2-3 (charging by 
number of strands on an attachment would be futile, anti-com- 
petitive, and ignore the utility’s monopoly obligation to operate for 
the common good). But see Bell Atlantic Reply at 21 (consider 
overlasher an entity for unusable costs); ICG Communications 
Comments at 21-22 (consider overlasher an entity for unusable 

115a 

in facilitating competitive access to the pole, minimizing 
disruption to existing attachments, and reducing pole 
attachment fees for the existing attachers. 

221 

68. The record does not indicate that third party 
overlashing adds any more burden to the pole than 
overlashing one’s own pole attachment. We do not 
believe that third party overlashing disadvantages pole 
owners in either receiving fair compensation or in being 
able to ensure the integrity of the pole. Facilitating 
access to the pole is a tangible demonstration of en- 
hancing competitive opportunities in communications. 

222 

Allowing third party overlashing will also reduce 
construction disruption (and the expense associated 
therewith) which would otherwise likely take place by 
third parties installing new poles and separate 
attachments. Accordingly, we will allow third party 
overlashing subject to the same safety, reliability, and 
engineering constraints that apply to overlashing one’s 
own pole attachment. Concerns that third party over- 
lashing will increase the burden on the pole can be 
addressed by compliance with generally accepted engi- 
neering practices. 

69. We believe that when a host attaching entity 
allows an overlashing attachment to be installed to its 

space only); NCTA Comments at 19-20 (if a third party conductor 
is overlashed to the strand, count that as an entity but charge it 
only a portion of the support space shared); USTA Comments at 7- 
8 (overlasher should pay host attacher for the unusable space 
portion but not usable space portion of pole attachment fee). 

221 The more entities that are counted as attaching entities, 
generally the lower the pole attachment fee for existing attaching 
entities is. 

222 See Preamble to 1996 Act. 

116a 

own pole attachment by a third party for the purposes 
of that third party offering and providing cable or 
telecommunications services to the public, that third 
party overlashing entity should be classified as a 
separate attaching entity for purposes of allocating 
costs of unusable and usable space 

223 because Congress 
indicated that the unusable space was of equal benefit 
to all attaching entities. 

224 In order to implement the 
allocation of unusable space, the third party overlasher 
will necessarily need to have some understanding or 
agreement with the pole owner, and an agreement with 
the host attaching entity. Commenters assert that 
overlashing under these circumstances should be classi- 
fied as a separate attachment. 

225 We agree. 

(c) Lease and Use of Excess Capac- 
ity/Dark Fiber 

70. Recent technological advances have made it 
possible for excess capacity within a fiber optic cable, 
known as “dark fiber,” to be leased from an attaching 
entity by a third party. Dark fiber consists of the bare 
capacity and does not involve any of the electronics 

223 See Bell Atlantic Comments at 2-3; Edison Electric/UTC 
Comments at 14; Carolina Power, et al., Comments at 11; Colorado 
Springs Utilities Comments at 2-3; Dayton Power Comments at 1; 
Duquesne Comments at 28; GTE Comments at 7; New York In- 
vestor Owned Utilities Comments at 7-9; Ohio Edison Comments 
at 26; SBC Comments at 18, Reply at 19; Sprint Comments at 2-3; 
Texas Utilities Comments at 6; Union Electric Comments at 24. 
But see Ameritech Comments at 6-7. 

224 Conf. Rpt. at 206. 

225 See Bell Atlantic Comments at 2-3; Edison Electric/UTC 
Comments at 13-14; Carolina Power, et al., Comments at 8-9; GTE 
at 7; Sprint Comments at 2-3; Texas Utilities Comments at 5. But 
see Ameritech Comments at 6-7. 

117a 

necessary to transmit or receive signals over that 
capacity. It thus differs from dim or lit fiber by which 
the carrier provides some or all of the electronics neces- 
sary to power the fiber. The Commission requested 
comment on whether a third party using dark fiber 
should be counted as a separate pole attaching entity 
for purposes of establishing the number of attaching 
entities on a pole among whom to apportion the costs of 
unusable space. 

226 

71. SBC asserts that the Commission should not 
address the issue of dark fiber because it is the subject 
of a remand from the U. S. Court of Appeals for the 
D.C. Circuit. 

227 In Southwestern Bell, LECs challenged 
a series of Commission orders finding that the LECs 
were offering dark fiber on a common carrier basis and 
prescribing tariffed rates for the service. The peti- 
tioners claimed that the Commission exceeded its juris- 
diction because they had offered dark fiber only on an 
individualized basis, thereby placing this service be- 
yond the Commission’s authority over common carrier 
offerings under Title II of the Communications Act. 

228 

72. We believe that our jurisdiction to consider the 
leasing and use of dark fiber to the extent it is used to 
provide telecommunications services is consistent with 
the court’s holding in Southwestern Bell. The court 
concluded that the Communications Act delegates 
broad authority to the Commission to regulate con- 
stantly evolving communications facilities that have 

226 Notice, 12 FCC Rcd at 11735, para. 25. 

227 See SBC Comments at 12-13 (citing Southwestern Bell Tel. 
Co. v. FCC, 19 F.3d 1475 (D.C. Cir. 1994)). 

228 Southwestern Bell, 19 F.3d at 1484. 

118a 

transcended in complexity and power far beyond the 
specific technologies known to its drafters in 1934. 

229 

Section 224 gives the Commission the mandate and the 
jurisdiction to regulate pole attachment rates for facili- 
ties over which cable television or telecommunications 
services are provided, and therefore our consideration 
of dark fiber in this context is appropriate for this 
proceeding. 

73. There is general consensus among cable opera- 
tors and telecommunications carriers that the leasing 
and use of dark fiber by third parties places no addi- 
tional spatial or physical requirements on the utility 
pole. 

230 Cable operators, telecommunications carriers, 
and utility pole owners all contend that the use of dark 
fiber is a pro-competitive, environmentally sound and 
economical use of existing facilities. 

231 We agree and 
conclude that the leasing of dark fiber by a third party 
is not an individual pole attachment separate from the 
host attachment. Such use will not require payment to 
the pole owner separate from the payment by the host 
attaching entity. 

232 We also agree with cable operators, 

229 Id. 

230 See Ameritech Comments at 6; AT&T Comments at 6; 
Comcast, et al., Comments at 18; ICG Communications Comments 
at 21; KMC Telecom Comments at 7-8; MCI Comments at 9; NCTA 

Comments at 7; RCN Comments at 5. 

231 See, e.g., AT&T Comments at 6; Edison Electric/UTC Com- 
ments at 13, Reply at 15; GTE Comments at 7-8; KMC Telecom 
Comments at 7-8; NCTA Comments at 7; New York Cable 
Television Assn., Comments at 7-8; New York Investor Owned 
Electric Utilities Comments at 11; U S West Comments at 10. 

232 See AT&T Comments at 6; New York Cable Television 
Assn. Comments at 7-8; Edison Electric/UTC Comments at 13; 
GTE Comments at 7; ICG Communications Comments at 17-19; 

119a 

telecommunications carriers, and utility pole owners 

233 

that, if an attachment previously used for providing 
solely cable services would, as a result of the leasing of 
dark fiber, also be used for providing telecommuni- 
cations services, the rate for the attachment would be 
determined under Section 224(e), consistent with our 
discussion regarding restrictions on services provided 
over pole attachments. 

234 

d. Presumptive Average Number of Attaching 
Entities 

74. The Commission presently uses rebuttable 
presumptions in the context of establishing reasonable 
pole attachment rates. These presumptions help to 
reduce reporting requirements and record-keeping, and 
are more efficient so there is less administrative burden 
on all parties. The use of presumptions provides a level 
of predictability and efficiency in calculating the 
appropriate rate. Fairness is preserved because the 
presumptions may be overcome through contrary 
evidence. We seek to maintain predictability, efficiency 
and fairness in determining the costs of unusable space 
on a pole. In the Notice, the Commission stated that a 
pole-by-pole inventory of the number of entities on each 
pole would be too costly. The Commission proposed 

KMC Telecom Comments at 7-8; MCI Comments at 6; NCTA Com- 
ments at 7; RCN Comments at 5; U S West Comments at 10. 

233 See, e.g., Colorado Springs Utilities Comments at 3; 
Duquesne Light Comments at 29; Edison Electric/UTC Comments 
at 13; GTE Comments at 7; NCTA Reply at 12; New York Cable 
Television Assn., Comments at 7-8; SBC Reply at 6; USTA Reply 
at 15. But see AT&T Comments at 5-6; Comcast, et al., Comments 
at 18; Sprint Reply at 2-6. 

234 See Section IV.A.2 above. 

120a 

that each utility develop, through the information it 
possesses, a presumptive average number of attachers 
on one of its poles. The Commission also proposed that 
telecommunications carriers be provided the methodol- 
ogy and information underlying a utility’s presumption. 
The Notice sought comment on this proposal and on 
whether any parameters should be established in 
developing the presumptive average. The Notice also 
sought comment on whether a utility should develop 
averages for areas that share similar characteristics 
relating to pole attachments and whether different 
presumptions should exist for urban, suburban, and 
rural areas. The Notice sought comment on the criteria 
to develop and evaluate any presumption. 

235 

75. The Commission asked whether, as an alterna- 
tive to pole-by-pole inventory by the facility owners, 
the Commission should determine the average number 
of attachments. The Commission inquired as to 
whether it should initiate a survey to develop a rebutta- 
ble presumption regarding the number of attachments. 
The Commission also sought comment on the difficul- 
ties of administering a survey, any additional data 
required, and parameters of accuracy and reliability 
required for fair rate determination. 

236 

76. Generally, commenters agree with the idea that 
a presumptive average number of attachers should be 
developed, but disagree on how this should be accom- 
plished. The utilities generally support developing 
their own average as the most efficient method. 

237 

235 Notice, 12 FCC Rcd at 11735, para. 26. 

236 Id. at 11735, para. 27. 

237 See American Electric, et al., Comments at 44; Ameritech 
Comments at 13; Edison Electric/UTC Comments at 24; Carolina 

121a 

Several attaching entities support the Commission’s 
development of the presumptive average and encour- 
age the establishment of a rebuttable presumption of at 
least three attachers. 

238 Comcast, et al., in particular, 
encourages a presumptive average of six attaching 
entities as supported by the Commission’s Fiber De- 
ployment Update End of Year 1996 (“Fiber Deploy- 
ment Update”). 

239 U S West indicates that having the 
Commission develop the presumptive average will 
serve efficiency, minimize complaints, and place the 
burden of rebuttal on the pole owner. 

240 

77. We believe that the most efficient and expedi- 
tious manner to calculate a presumptive number of 
attaching entities is for each utility to develop its own 
presumptive average number of attaching entities. 
Utilities not only possess this information but have 
familiarity and expertise to structure it properly. 
Based on the record, we think the alternative of the 
Commission undertaking a survey is too cumbersome 
and would not necessarily enhance accuracy. We do not 
believe that the Fiber Deployment Update is an appro- 
priate resource from which to develop the presumptive 
average. The Fiber Deployment Update presents data 
about fiber optic facilities and capacity built or used by 

Power, et al., Comments at 7; KMC Telecom Comments at 7; MCI 
Comments at 15; NCTA Comments at 20; New York State 
Investor Owned Electric Utilities Comments at 24; USTA Com- 
ments at 13. 

238 AT&T Comments at 14; Comcast, et al., Comments at 8-10. 

239 Jonathan Kraushaar, Fiber Deployment Update - End of 
Year 1996 released by the Common Carrier Bureau of the Federal 
Communications Commission on August 29, 1997 (“Fiber Deploy- 
ment Update”); see also Comcast, et al., Comments at 8-10. 

240 U S West Comments at 9 n.25. 

122a 

interexchange carriers, Bell operating companies, and 
other LECs and competitive access providers. These 
data are inadequate for the purposes of creating a 
presumptive average number of attaching entities 
because it does not include data pertaining to cable 
operators. Our decision providing that the utility will 
establish a presumptive number of attaching entities is 
also premised on the information developed reflecting 
where the service is being provided, instead of a broad 
national average. We think there will be a range of 
presumptive averages depending on rural, urban, or 
urbanized areas. To ensure that rates are appropri- 
ately representative, each utility shall determine a 
presumptive average for its rural, urban, and urbanized 
service areas as defined by the United States Census 
Bureau. 

78. We will require each utility to develop, through 
the information it possesses, a presumptive average 
number of attaching entities on its poles based on 
location (urban, rural, urbanized) and based upon our 
discussion herein regarding the counting of attaching 
entities for allocating the costs of unusable space. A 
utility shall, upon request, provide all attaching entities 
and all entities seeking access the methodology and 
information by which a utility’s presumption was 
determined. We expect a good faith effort by a utility 
in establishing its presumption and updating it when a 
change is necessitated. For example, when a new 
attaching entity has a substantial impact on the number 
of attaching entities, the utility’s presumptive average 
should be modified. This method should be consistent 
with present practice, as we understand most pole 
attachment agreements “provide for periodic field 
surveys, generally once every three to seven years, to 

123a 

determine which entities have attached what facilities 
to whose poles.” 

241 

79. Challenges to the presumptive average number 
of attaching entities by the telecommunications carrier 
or cable operator may be made in the same manner as 
challenges presently are undertaken. The challenging 
party will initially be required to identify and calculate 
the number of attachments on the poles and submit to 
the utility what it believes to be an appropriate 
average. Where the number of poles is large, and com- 
plete inspection impractical, a statistically sound survey 
should be submitted. The pole owner will be afforded 
an opportunity to justify the presumption. Where a 
presumption is successfully challenged, the resulting 
figure will be deemed to be the number of attaching 
entities. 

5. Allocating the Cost of Usable Space 

a. Background 

80. Section 224(e)(3) provides that a utility shall 
apportion the cost of providing usable space among all 
entities according to the percentage of usable space 
required for each entity. 

242 The Commission has de- 
fined usable space as the space on the utility pole above 
the minimum grade level 

243 that is usable for the attach- 
ment of wires, cable, and related equipment. 

244 In the 

241 ICG Communications at 37. 

242 47 U.S.C. § 224(e)(3). 

243 In this context, minimum grade level generally refers to 
ground level or elevation above which distances are measured for 
determining required clearances. 

244 47 C.F.R. § 1.402(c). 

124a 

245 the Commission con- 
sidered comment regarding the amount of usable space 
for various size poles in different service areas. The 
Commission subsequently adopted a rebuttable pre- 
sumption that a pole contains 13.5 feet of usable 
space. 

246 The usable space presumption has been con- 
tested in complaint proceedings before the Commis- 
sion. 

247 In 1986, the Commission revisited the usable 
space issue and upheld the presumption. 

248 In 1997, the 
Commission sought comment on the presumptive 
amount of usable space in the Pole Attachment Fee 
Notice. 

249 In the Notice, we sought comment on the 
usable space presumption to establish a full record for 
attachments made by telecommunications carriers 
under the 1996 Act. 

250 The Commission also proposed 
to modify the current methodology to reflect only the 
cost associated with usable space to arrive at a factor 
for apportioning the costs of usable space for tele- 
communications carriers under Section 224(e)(3). 

251 For 
allocating the costs of usable space to telecommuni- 

245 72 FCC 2d 59. 

246 Id. at 69; Third Report and Order, 77 FCC 2d at 191-193. 

247 See, e.g., Cable Information Services, Inc. v. Appalachian 
Power Co., 81 FCC 2d 383 (1980); Television Cable Service, Inc. v. 
Monongahela Power Co. v. FCC, 655 F.2d 1254 (D.C. Cir. 1981). 

248 Pole Attachment Order, 2 FCC Rcd 4387. 

249 Pole Attachment Fee Notice, 12 FCC Rcd at 7458-59, para. 

18. 

250 Notice, 12 FCC Rcd at 11733, para. 17. 

251 Id. at 11737, para. 33. 

Second Report and Order, 

125a 

cations carriers, the following basic formula was pro- 
posed: 

Unusable Space Occupied by Attachment 
Total Usable Space 

Space = Total Usable Space 
X Pole Height 

Factor 

Net Cost of 

Carrying 

X Bare Pole 
X Charge Rate 

81. In the Notice, the Commission sought comment 
on the amount of usable space occupied by tele- 
communications carriers and on whether the presump- 
tive one foot used for cable attachments should be 
applicable to telecommunications carriers generally. 

252 

Currently, each attaching entity is presumed to use a 
specific amount of space, and costs are allocated on the 
proportion of this space to the overall costs of the 
usable space. The 1977 Senate Report evidenced Con- 
gress’ intent that cable television providers be respon- 
sible for 12 inches of usable space on a pole, including 
actual space on a pole plus clearance space. 

253 In 1979, 
the Commission established the rebuttable presump- 
tion that a cable television attachment occupies one 
foot. 

254 The Commission subsequently refined its meth- 
odology for determining the amount of usable space and 
made the one foot presumption permanent. 

255 The 
Commission found this result to be consistent with the 
legislative history of Section 224, as expressed in the 
1977 Senate Report. 

256 

252 Id. at 11733, para. 19. 

253 1997 Senate Report at 20. 

254 Second Report and Order, 72 FCC 2d at 69-70. 

255 Id., see also Usable Space Order at para. 10. 

256 Usable Space Order at para. 10. 

126a 

82. Determining the presumptive amount of usable 
space attributable to each attacher directly impacts the 
allocation of costs. Section 224(d)(1), which predates the 
1996 Act, specifies that the maximum just and reason- 
able pole rate shall be determined by multiplying the 
percentage of the total usable space that is occupied by 
the pole attachment by the sum of the operating ex- 
penses and actual capital costs attributable to the entire 
pole. 

257 Each factor is individually determinable, and in 
some cases has been assigned a presumptive average 
value for purposes of resolving complaints in an 
expeditious manner. The current pole attachment rate 
methodology consists of a usable space factor that is the 
result of dividing the space occupied on the pole, or the 
presumptive one foot assigned to a cable attachment, 
by 13.5 feet or the total amount of usable space. 

258 

b. Discussion 

(1) Applying the 13.5 Foot Presumption 
and the One Foot Presumption to 
Telecommunications Carriers 

83. The law provides a method for the allocation of 
costs associated with the usable space. We believe that 
the information we received in this proceeding regard- 
ing calculation of usable space is more appropriately 
addressed in the Pole Attachment Fee Notice pro- 
ceeding and we will thus reserve our decision on the 

257 47 U.S.C. § 224(d)(1). 

258 See Notice, 12 FCC Rcd at 11736, para. 29. The current 
methodology is represented by the following formula: 

Maximum Space Occupied by Attachment 
Net Cost of Carrying 

Rate = Total Usable Space 
X Bare Pole Charge 

Rate 

127a 

total amount of usable space issue until the resolution of 
that proceeding. For the present time, the presumption 
that a pole contains 13.5 feet of usable space will remain 
applicable. We adopt our proposed methodology to 
apportion the cost of the usable space. We believe this 
formula most accurately determines the apportionment 
of the cost of usable space. As mandated by Congress, 
it incorporates the principle of apportioning the cost of 
such space according to the percentage of space 
required for each entity. 

84. The Commission’s one foot presumption has 
been in place since 1979. The Commission initially 
assigned the one foot presumption to cable television 
operators based on congressional intent, as expressed 
in the legislative history of Section 224, that cable 
television was to be assigned only one foot of space, the 
electric utilities’ use of safety space, and an analysis of 
replacement costs that utilities impose on cable televi- 
sion companies. 

259 The Commission concluded in the 
Usable Space Order that several years of experience in 
regulating pole attachments had not indicated that 
cable attachments occupy more space than the one foot 
of usable space as originally contemplated by Con- 
gress. 

260 Neither the 1996 Act’s amendments to Section 
224 nor the record in this proceeding suggest that a 
different presumption should be applicable to telecom- 
munications carriers. Circumstances that are unique or 
that clearly warrant a departure from the formula may 
be used to rebut the presumption. We affirm our 
practice of assigning a presumptive one foot of usable 
space and find that the presumptive one foot used for 

259 Usable Space Order at para. 10. 

260 Id. 

128a 

cable attachments should be applied to attachments by 
telecommunications carriers generally. We believe that 
the one foot presumption remains reasonable and con- 
tinues to provide an expeditious and equitable method 
for determining reasonable rates. 

85. Some utility pole owners and telecommuni- 
cations carriers suggest changes to the one foot pre- 
sumption and express other concerns. 

261 Some electric 
utilities have sought to alter the presumptive amount of 
usable space allocated when fiber optic cable is 
involved. For example, Duquesne Light and Ohio Edi- 
son contend that, in their service areas, tightly pulled 
fiber optics will be at the same height at the mid span of 
the pole as a cable television attachment above it that is 
hung with the normal required sag. 

262 They argue that 
this is in violation of the NESC code which requires 
parallel attachments to be separated by appropriate 
distances between the spans of the poles as well as on 

261 Adelphia, et al., Comments at 8; Duquesne Light Comments 
at 35-36; Ohio Edison at 33; New York State Investor Owned 
Electric Utilities Comments at 5 (one foot presumption found 
appropriate for span wire attachments occupying no more than one 
foot of space on the pole, but inappropriate for attachments 
occupying more than one foot of usable space); New York Cable 
Television Assn. Comments at 7 (parties with separately stranded 
attachments occupying their own (one foot) are responsible for 
their proportionate share of such space, but where facilities are 
affixed by additional strands, then the party should be responsible 
for two feet of usable space); RCN Comments at 7-8. 

262 See Duquense Light Comments at 35-36; Ohio Edison Com- 
ments at 33. But see AT&T Comments at 23 (if the fiber optic is 
properly deployed, the presumption should remain the same for 
fiber or any other type cable); Comcast, et al., Reply at 20 (such an 
approach is an attempt to tax and penalize third party fiber 
deployment). 

129a 

263 Duquesne Light and Ohio 
Edison further maintain that, because the tensioned 
fiber optic cable cannot be easily sagged except by 
cutting and rerunning the cable, the fiber optic cable 
must be relocated higher on the pole. 

264 They recom- 
mend that the Commission adopt a rebuttable presump- 
tion that fiber optic cable requires, and should be 
charged for, two feet of usable space to account for the 
communications companies’ practice of pulling fiber 
optic cables tightly. 

the poles themselves. 

265 

86. The impact of deploying fiber optic cable is de- 
pendent upon how the fiber is attached. The rebuttable 
nature of the one foot presumption offers an opportu- 
nity for the presentation of information in situations 
outside of the norm. The record does not contain 
sufficient information to base a decision on the impact 
of the practice of pulling fiber optics cable tightly, and 
therefore we will not presume that fiber optics require 
two feet of usable space. 

87. We disagree with ICG Communications’ position 
that the Commission’s one foot presumption is outdated 
and should be abandoned. 

266 ICG Communications 
maintains that most communications attachments 
should only be allocated six inches of usable space. 

267 

263 See Duquense Light Comments at 35-36; Ohio Edison 
Comments at 33. 

264 Id. 

265 Id. 

266 ICG Communications Comments at 39. 

267 Id. (maintaining that overlashed cable combinations below 
the safety space should be allocated nine inches of usable space); 
ICG Communications Reply at 22 (if the Commission makes six 
inches of usable space the basis for Section 224(e) rates, utilities 

130a 

ICG Communications notes that the NESC does not 
distinguish between cable used for cable operators and 
cable used for telecommunications carriers. 

268 Based on 
accepted engineering and governmentally-required 
standards, it advocates six inches of usable space for 
simple communications attachments below the safety 
space. 

269 ICG Communications notes that where com- 
munications lines have been installed in electric supply 
space, especially fiber optic cables, more than one foot 
of usable space is required and an allocation of 16 inches 
of usable space should be made. 

270 

88. Bell Atlantic contends that there is no factual 
support for ICG Communications’ claims. 

271 Bell 
Atlantic points to Bellcore’s Manual of Construction 
procedures as demonstrating that clearance at the pole 
between communications cables supported on different 
strands of suspension must be at least 12 inches. 

272 SBC 
maintains that ICG Communications’ proposals are 
based on improper assumptions, especially regarding 

may stop imposing unnecessary make-ready costs on attaching 
parties and instead increase their pole attachment revenues by 
permitting more attaching parties on each pole). 

268 Id. at 21. 

269 IGG Communications Comments at 40-43 (concluding that a 
utility should charge a telecommunications carrier for a foot of 
usable space only upon agreement of the carrier or by establishing 
that an applicable governmental requirement dictates a one foot 
clearance between communications lines and suggesting that 
utilities be permitted to seek different usable space allocations in 
their negotiation of pole attachment agreements). 

270 Id. 

271 Bell Atlantic Reply at 17. 

272 Id. (citing Bellcore, Blue Book - Manual of Construction 
Procedure, § 3.2 (Issue 2 1996)). 

131a 

273 SBC maintains that the one foot pre- 
sumption is still valid today. 

274 We agree that ICG 
Communications has not adequately supported its 
suggested allocation of six inches of space for most 
communications attachments or 16 inches for fiber optic 
cables. 

89. Adelphia, et al., express concern regarding the 
validity of assigning the cost of a vertical one-foot of 
pole space to cable systems and/or other telecommuni- 
cations providers without considering the horizontal 
uses of the pole by the pole owner. 

275 Adelphia, et al., 
also suggest that the particular side of the pole on 
which the attachment is located is of significance. 

overlashing. 

276 

RCN observes that the one foot presumption should not 
apply where extension arms or boxing 

277 is used by the 

278 RCN suggests 
that where extension arms are used, the communi- 
cations cable is located not on the pole itself, but farther 
out on the extension arm. RCN states that this will 
lead to a situation where an entity’s physical attach- 
ment may occupy as little as six inches of usable 
space. 

279 RCN claims that this configuration will still 
satisfy the 12-inch clearance required between 

273 SBC Reply at 26. 

274 Id.; see also Edison Electric/UTC Comments at 25-26, 
Reply at 25. 

275 Adelphia, et al., Comments at 8. 

276 Id. 

277 RCN describes boxing or “b-bolting” as a process by which 
an attachment is bolted through the back of a pole, opposite from 
an existing attachment. RCN Comments at 8. 

278 Id. at 7-8. But see Comcast, et al., Reply at 20. 

279 RCN Comments at 7-8. 

attaching entity to install its facilities. 

132a 

communications attachments, if the cable is positioned a 
certain distance along the extension. 

280 

90. Sufficient record has not been presented to 
change our presumption as a general matter, although 
parties are free to challenge the presumption on a case- 
by-case basis. In striking the proper balance, we must 
weigh any of the suggested modifications against the 
advantages of procedures and calculations remaining 
simple and expeditious. 

281 We agree with GTE that 
changing the usable space presumption would add 
another layer of complexity to the pole attachment rate 
formula. As GTE suggests, surveys of the actual space 
occupied by each attacher would be necessary. 

282 

91. We agree with those commenters who have 
found the presumptive one foot applicable. 

283 We fur- 
ther affirm our decision to continue using the current 
methodology, modified to reflect only costs associated 
with usable space. 

284 Commenters have not persuaded 

280 Id.; see also Bell Atlantic Reply at 18 n.43. 

281 See 72 FCC 2d at 69 (citing 1977 Senate Report at 21-22). 

282 GTE Reply at 15. 

283 Carolina Power, et al., Comments at 12-13; GTE Comments 
at 13, n.29; MCI Comments at 17 (fiber cable and coaxial cable 
share the same vertical separation requirements in the NESC, 
therefore there is no need to treat them differently for space 
allocation purposes); Ameritech Comments at 9 (there are no 
differences between cable system facility attachments and 
telecommunications attachments to warrant different 
presumptions in the formula for the space required for each); 
NCTA Comments at 13; Adelphia, et al., Comments at 7; U S West 
Comments at 5. 

284 Notice, 12 FCC Rcd at 11737, para. 33 & n.60 (referencing 
paras. 15-19 regarding comments sought involving the Com- 
mission’s usable space presumptions); see also Carolina Power, et 

133a 

us that the rationale originally used in assigning the one 
foot of space to cable television operators should not be 
equally applicable to telecommunications carriers gen- 
erally. We continue to see the need and basis for the 
one foot presumption due to the impracticality of devel- 
oping sufficient information applicable to all situa- 
tions. 

285 Where use of the one foot presumption would 
not encourage just and reasonable rates, any party may 
rebut the presumption. 

(2) Overlashing and Dark Fiber 

92. Consistent with our above discussion regarding 
overlashing, we find that the one foot presumption shall 
continue to apply where an attaching entity has over- 
lashed its own pole attachments. 

286 We also determine 
that facilities overlashed by third parties onto existing 
pole attachments are presumed to share the presump- 
tive one foot of usable space of the host attachment. 

287 

To the extent that the overlashing creates an additional 
burden on the pole, any concerns should be satisfied by 
compliance with generally accepted engineering prac- 
tices. We again note that we have deferred decision to 
the Pole Attachment Fee Notice proceeding on the 
issue of the effect any increased burden may have on 
the rate the utility pole owner may charge the host 
attacher. As stated above, we believe that that 

al., Comments at 15 (asserting that the current formula should be 
used to establish presumptively applicable maximum charges, pro- 
vided that the formula is further modified for purposes of Section 
224(e)); Ameritech Comments at 10; U S West Comments at 5. 

285 Notice, 12 FCC Rcd at 11733, para 19. 

286 See Section IV.A. 

287 See Ohio Edison/Union Electric Reply at 11-13; Edison 
Electric/UTC Comments at 25; USTA Comments at 7-8. 

134a 

proceeding is a more appropriate forum for resolution 
of this issue. 

288 As also stated above, we affirm our 
current presumptions for the time being. 

93. Some commenters have suggested that the third 
party overlasher should be responsible for some portion 
of the costs associated with overlashing and be respon- 
sible for paying a portion of the costs to the pole 
owner. 

289 Carolina Power, et al., argue that because the 
third party has a statutory right under Section 224(f ) to 
make a separate attachment of its own, overlashing 
should be left to negotiation. 

290 They maintain that the 
Commission should recognize that each overlashed wire 
equals a separate attachment for which the overlasher 
may be charged a just and reasonable rate. 

291 KMC 
Telecom asserts that the allocation of usable space 
should be one-half to the original attacher and the 
remaining one-half to the third party overlasher. 

292 

ICG Communications advocates the allocation of four 
and one-half inches of usable space to each party when 
one party overlashes another’s cable. 

293 MCI recom- 
mends sharing the presumptive one foot of space as- 
signed to cable operators’ and telecommunications 

288 See Section IV.A.1. above (Duquesne Light proposes that 
any presumptions include weight and wind load factors). 

289 See, e.g., Duquesne Light Comments at 28. But see USTA 
Comments at 8 and SBC Comments at 9-13 (maintaining that the 
Commission should not establish any requirements regarding third 
party overlashing and that an attacher allowing a third party to 
overlash is sublicensing or sharing space to be occupied by the 
facilities owned by the third party). 

290 Carolina Power, et al., Comments at 10. 

291 Id. at 11. 

292 KMC Telecom Reply at 7-8. 

293 ICG Communications Comments at 21-22. 

135a 

294 MCI 
argues that because overlashing expands usable space, 
there should be a presumptive number of two over- 
lashings per original attachment as an estimate of the 
number of overlashings. 

295 MCI asks the Commission to 
further presume that there will be four attachments: 
one for a cable operator; one for the ILEC; one for an 
independent competitive LEC; and one for a LEC 
affiliated with the incumbent electric company. 

296 It 
alleges that if there are four non-electric attachments, 
and two overlashings per original attachment, the same 

6.5 feet of space can presumptively accommodate 12 
attachments. 

297 Ohio Edison and Union Electric argue 
that there is no rational basis for adopting such an 
approach under Section 224(e)(3) because the utility 
pole owner is entitled to charge the attaching entity for 
one foot of usable space regardless of whether the 
original attachment is overlashed. 

carriers’ pole attachments with overlashers. 

298 

94. We disagree with these comments suggesting 
that the Commission must establish the rate and the 
allocation of cost between the third party overlasher 
and the host for the use of one foot of usable space. The 
benefit of third party overlashing as an expeditious 
means for providers, including new entrants, to gain 
access to poles would be undermined by such proce- 
dures. Unlike the pole owner, the host attaching party 
generally will not have market power vis-a-vis the 

294 MCI Comments at 6; MCI CS Docket No. 97-98 Comments 
at 13. 

295 Id. 

296 MCI Comments at 9. 

297 MCI Comments at 10, Table 1. 

298 Ohio Edison/Union Electric Reply at 14-15. 

136a 

overlasher since the overlasher has a statutory right to 
make an independent attachment. Accordingly, we con- 
clude that it is reasonable to allow the host attaching 
entity to negotiate the sharing of costs of usable space 
with third party overlashers. In such circumstances 
the host attaching entity will remain responsible to the 
pole owner for the use of the one foot of usable space 
but may collect a negotiated share from the third party 
overlasher. We have already addressed the counting of 
third party overlashers as a separate entity and 
established that if such third party provides cable or 
telecommunications service it will be required to pay its 
share of the costs of the unusable space. Further, we 
find that the record in this proceeding is not sufficient 
to embrace MCI’s proposal. While overlashing is 
frequent, we cannot determine from the record that it is 
as prevalent as MCI proposes. We are reluctant to 
conclude that its presumptions are generally applicable. 
No other party has advocated a similar proposal. More- 
over, we see no need to adopt MCI’s proposal given our 
determination that there is no need to regulate the 
sharing of costs between the host attaching entity and 
the overlashing entity. 

95. Regarding the leasing of dark fiber, to the extent 
that dark fiber is used to provide a telecommunications 
service within an existing attachment generally, the 
majority of commenters do not believe that such activ- 
ity constitutes a separate attachment under Section 
224. 

299 As stated above in Section IV.A.4.c., we agree. 

299 See, e.g., Edison Electric/UTC Reply at 26 (leasing of dark 
fiber has no impact on the amount of usable space); New York 
State Investor Owned Electric Utilities Comments at 10; NCTA 
Comments at 8 (rental of dark fiber is not an attachment). 

137a 

The one foot presumption is therefore only applicable to 
the host attacher. 

B. Application of Pole Attachment Formula to 

Telecommunications Carriers 

1. Background 

96. To implement the 1978 Pole Attachment Act, the 
Commission developed a methodology and implement- 
ing formula to determine a presumptive maximum pole 
attachment rate. 

300 The Commission regulates pole 
attachment rates by applying this formula (“Cable 
Formula” ) 

301 to disputes between cable operators and 
utilities. The Cable Formula is based on Section 
224(d)(1) that stipulates a rate is just and reasonable if 
it: 

. . . assures a utility the recovery of not less than 
the additional costs of providing pole attachments, 
nor more than an amount determined by multiplying 
the percentage of the total usable space, or the 
percentage of the total duct or conduit capacity, 
which is occupied by the pole attachment by the sum 

300 47 U.S.C. § 224(d)(1); 47 C.F.R. §1.1409(c); see Second 
Report and Order, 72 FCC 2d at 67-75, Teleprompter of Fairmont, 
Inc. v. Chesapeake and Potomac Telephone Co. of West Virginia, 
PA 79-0029, 79 FCC 2d 232 (1980); Continental Cablevision of New 
Hampshire, Inc. v. Concord Electric Co., Mimeo No. 5536 (Com. 
Car. Bur., July 3, 1985). Under the current methodology, cable op- 
erators providing only cable services pay a portion of both usable 
and unusable space on the pole. The cable cost of the usable space 
is directly assigned in proportion to the usable space on a pole. 
The cost of the unusable space is treated as an indirect cost and is 
assigned in the same manner as direct costs. 

301 47 U.S.C. §§ 224(b)(1), (d). 

138a 

of the operating expenses and actual capital costs of 
the utility attributable to the entire pole, duct, 
conduit, or right-of-way. 

302 

Currently, application of the Cable Formula results in 
a rate that is in the range between the incremental and 
fully allocated costs of providing pole attachment 
space. 

303 

97. Section 703(6) of the 1996 Act amended Section 
224 by adding a new subsection (d)(3). This amendment 
expanded the scope of Section 224 by applying the 
Cable Formula to telecommunications carriers in addi- 
tion to cable systems 

304 until a separate methodology is 
established for telecommunications carriers. 

305 We 
invited further comment on this issue in the Notice. 

306 

98. Congress directed the Commission to issue a 
new pole attachment formula under Section 224(e) 
relating to telecommunications carriers within two 

302 47 U.S.C. § 224(d)(1). 

303 In the pole attachment context, incremental costs are those 
costs that the utility would not have incurred “but for” the pole 
attachments in question. Fully allocated costs refer to the portion 
of operating expenses and capital costs that a utility incurs in 
owning and maintaining poles that are associated with the space 
occupied by pole attachments. 

304 47 U.S.C. § 224(a)(4). 

305 See 47 U.S.C. § 224(d)(3) (only to the extent that such 
carrier is not a party to a pole attachment agreement). 

306 Notice, 12 FCC Rcd at 11737, para. 33. In the Pole Attach- 
ment Fee Notice, the Commission inquired about certain technical 
changes proposed for the Cable Formula. 

Pole Attachment Fee 

Notice, 12 FCC Rcd 7449, generally. Certain changes, if adopted, 
may require technical corrections to the Cable Formula and new 
formula. We will examine these issues in the separate rulemaking. 

139a 

years of the effective date of the 1996 Act, to become 
effective five years after enactment. 

307 In the 1996 Act, 

Section 224(e)(1) provided: 
The Commission shall . . . prescribe regulations in 
accordance with this subsection to govern charges 
for pole attachments used by telecommunication 
carriers to provide telecommunications services, 
when the parties fail to resolve a dispute over such 
charges. Such regulations shall ensure that a utility 
charges just, reasonable, and nondiscriminatory 
rates for pole attachments. 

308 

99. In the Notice, the Commission proposed to mod- 
ify the Cable Formula to accommodate the two statu- 
tory components added by the 1996 Act 

309 and to deve- 
lop a maximum pole attachment rate for telecommuni- 
cations carriers. 

310 These components dictate separate 
calculations for the equal apportionment of unusable 
space 

311 and the allocation of a percentage of usable 
space. 

312 

100. In paragraphs 41 and 78 above, the Commission 
affirms its proposals to use certain formulas implement- 
ing Section 224(e)(2) and Section 224(e)(3) respectively. 
The formula for Section 224(e)(2) establishes the unus- 

307 47 U.S.C. § 224(e)(1). 

308 47 U.S.C. § 224(e)(1). 

309 See 47 U.S.C. § 224(e)(2), (e)(3). 

310 Notice, 12 FCC Rcd at 11737, para. 33. 

311 47 U.S.C. § 224(e)(2). 

312 47 U.S.C. § 224(e)(3). 

140a 

able space factors for telecommunications carriers, 

313 

premised on an equal apportionment of two-thirds of 
the costs of providing unusable space on the utility 
facility. 

314 The formula for Section 224(e)(3) establishes 
the usable space factors for cable operators and tele- 
communications carriers providing telecommunications 
services, 

315 premised on the percentage of usable space 
required for the attachment on the utility facility. 

316 

101. AT&T observes that there was almost unani- 
mous support from cable operators and telecommunica- 
tions carriers for the Commission’s proposed telecom- 
munications carrier pole attachment rate formula. 

317 

Several utility pole owners support the Commission’s 
use of its proposed modified formula, but advocate the 

313 For allocating the cost of unusable space to telecommuni- 
cations carriers, see discussion at paragraphs 43-44 above for the 
following basic formula: 

Unusable Space 
2 Usable Space 

Net Cost of Bar Pole 

Factor = 3 X Pole Height X Number of Attachers 

Carrying 
X Charge 

Rate 

314 See discussion on Unusable Space at Section IV above. 

315 For allocating the cost of usable space for telecommuni- 
cations carriers, see discussion at paragraphs 80-82 above for the 

following basic formula: 

Usable Space Occupied by Attachment 
Total Usable Space 

Space = Total Usable Space 
X Pole Height 

Net Cost of 
Carrying 

X Bare Pole X Charge 

Rate 

316 See discussion on Usable Space at Section IV above. 

317 See AT&T Reply at 15. 

141a 

318 American 
Electric, et al., advocate that when applied the formula 
should use forward-looking/replacement costs. 

319 At- 
taching entities urge the Commission to reject the pole 
owners’ call for replacement costs designed to maximize 
pole attachment rates. 

use of gross book instead of net book costs. 

320 

2. Discussion 

102. We agree with cable operators and telecom- 
munications carriers that the continued use of a clear 
formula for the Commission’s rate determination is an 
essential element when parties negotiate for pole 
attachment rates, terms and conditions. 

321 We think 
that a formula encompassing these statutory directives 
of how pole owners should be compensated adds cer- 
tainty and clarity to negotiations as well as assists the 
Commission when it addresses complaints. We con- 
clude that the addition of the unusable and usable space 
factors, developed to implement Sections 224(e)(2) and 
(e)(3), is consistent with a just, reasonable, and nondis- 
criminatory pole attachment rate for telecommuni- 
cations carriers. We affirm the following formula, to be 
used to determine the maximum just and reasonable 
pole attachment rate for telecommunications carriers, 
including cable operators providing telecommunications 

318 See, e.g., Bell Atlantic Comments at 4; Colorado Springs 
Utilities Comments at 4; SBC Comments at 29-30; USTA Com- 
ments at 10. 

319 See American Electric, et al., CS Docket No. 97-98 Com- 
ments at 42-45. 

320 See, e.g., ICG Communications Reply at 26-27, NCTA Reply 
at 6-8. 

321 See, e.g., USTA Reply at 2; But see GTE Reply at 4-5. 

142a 

services, effective February 8, 2001, encompassing the 
elements enumerated in the law: 

Maximum = Unusable Space Factor + Usable Space Factor 
Rate 

C. Application of Pole Attachment Formula to 

Conduits 

1. Background 

103. Conduit systems are structures that provide 
physical protection for cables and also allow new cables 
to be added inexpensively along a route, over a long 
period of time, without having to dig up the streets 
each time a new cable is placed. Conduit systems are 
usually multiple-duct structures with standardized duct 
diameters. The duct diameter is the principal factor for 
determining the maximum number of cables that can be 
placed in a duct. Conduit is included in the definition of 
pole attachments, 

322 therefore, the maximum rate for a 

323 in a conduit for telecommunications 
carriers must be established through separate alloca- 
tions relating to unusable space 

324 and usable space. 

pole attachment 

325 

In the Notice, the Commission sought comment on the 
differences between conduit owned and/or used by 
cable operators and telecommunications carriers and 
conduit owned and/or used by electric or other 

322 47 U.S.C. § 224(a)(4). 

323 47 U.S.C. § 224(e)(1). 

324 47 U.S.C. § 224(e)(2). 

325 47 U.S.C. § 224(e)(3). 

143a 

326 to determine if there are inherent differences 
in the safety aspects or limitations between the two 
which should affect the rate for these facilities as 
discussed below. 

327 The Commission sought comment 
on the distribution of usable and unusable space within 
the conduit or duct and how the determination for this 
space is made. 

328 Where conduit is shared, we sought 
information on the mechanism for establishing a just 
and reasonable rate. 

utilities 

329 

104. Section 224(e)(2) requires that two-thirds of the 
cost of the unusable space be apportioned equally 
among all attaching entities. 

330 In the Notice, the Com- 
mission proposed a methodology to apportion the costs 
of unusable space among attaching entities. 

331 The fol- 
lowing formula was proposed as the methodology to 
determine costs of unusable space in a conduit: 

Conduit Unusable 2 
Net Linear Cost of 

Space Factor 
= 3 X Unsable Conduit Space 

Number of Attachers 
Carrying 
X Charge Rate 

In the Notice, the Commission also sought comment on 
what portions of duct or conduit are “unusable” within 
the terms of the 1996 Act. 

332 The Commission proposed 

326 The issues regarding conduit systems were initially raised 
by the Commission in the Pole Attachment Fee Notice, 12 FCC 
Rcd 7449 at paras. 38-46. 

327 Notice, 12 FCC Rcd at 11739, para. 36. 

328 Id. 

329 Id. 

330 47 U.S.C. § 224(e)(2). 

331 Notice, 12 FCC Rcd at 11740, para. 40. 

332 Id. 

144a 

that a presumptive ratio of usable ducts to maintenance 
ducts be adopted to establish the amount of unusable 
space. 

333 

105. Section 224(e)(3) states that the cost of 
providing usable space shall be apportioned according 
to the percentage of usable space required for the 
entity using the conduit. 

334 Usable space is based on the 

335 and the diameter of the ducts 
contained in a conduit. 

336 In the Pole Attachment Fee 

number of ducts 

337 the Commission sought comment on a 
proposed conduit methodology for use in determining a 
pole attachment rate for conduit under Section 
224(d)(3). 

338 In the Notice, the Commission sought 
comment on a proposed half-duct methodology for use 
in a proposed formula to determine a conduit usable 
space factor. 

Notice, 

339 The proposed usable space formula 

333 Id. 

334 47 U.S.C. § 224(e)(3). 

335 NESC defines the term “duct” as a single enclosed raceway 
for conductors or cable. NESC at Section 32. 

336 Notice, 12 FCC Rcd at 11739, para. 38. 

337 Pole Attachment Fee Notice, 12 FCC Rcd 7449 at paras. 43- 

46. 

338 47 U.S.C. § 224(d)(3). 

339 Notice, 12 FCC Rcd at 11739, para. 38. 

145a 

under Section 224(e)(3) for pole attachments in conduits 
is as follows: 

Conduit 1 1 Duct 
Usable = 2 X Average Number of 
X 

Space Ducts, less Adjustments 
Factor for maintenance ducts 

Net Linear Cost of 
Carrying 

Usable Conduit X Charge 
Space Rate 

In the Notice, the Commission sought comment on the 
half-duct presumption’s applicability to determine us- 
able space and to allocate costs of providing usable 
space to the telecommunications carrier. 

340 The Com- 
mission also sought comment on how its proposed con- 
duit methodology impacts determining an appropriate 
ratio of usable to unusable space within a duct or 
conduit. 

341 

106. As with poles, defining what an attaching entity 
is and establishing how to calculate the number of 
attaching entities in conduit is critical. Consistent with 
the half-duct convention proposed in the Pole Attach- 
ment Fee Notice, 

342 the Commission stated that each 
entity using one half-duct should be counted as a sepa- 
rate attaching entity. 

343 The Commission sought com- 
ment on this method of counting attaching entities for 
the purpose of allocating the cost of the unusable space 
consistent with Section 224(e). 

344 The Commission also 

340 Id. at 11739-40, para. 39. 

341 Id. at 11740, para. 40. 

342 Pole Attachment Fee Notice, 12 FCC Rcd 7449 at para. 45. 

343 Notice, 12 FCC Rcd at 11740, para. 41. 

344 Id. 

146a 

sought comment on the use an attaching entity may 
make of its assigned space, including allowing others to 
use its dark fiber in the conduit. 

345 

2. Discussion 

a. Counting Attaching Entities for Pur- 
poses of Allocating Cost of Other than 
Usable Space 

107. For the purpose of allocating the cost of 
unusable space, ICG Communications states that each 
party that actually installs one or more wires in a duct 
or duct bank should be counted as a single attaching 
entity, regardless of the number of cables installed or 
the amount of duct space occupied. 

346 Section 224(e)(2) 
states that the costs of unusable space shall be allocated 
“. . . under an equal apportionment of such costs 
among all attaching entities.” 

347 We agree that each 
party that actually installs one or more wires in a duct 
or duct bank should be counted as a single attaching 
entity, regardless of the number of cables installed or 
the amount of duct space occupied. The statutory 
preference for clarity is preeminent and we perceive no 
generally applicable method that does not involve 
complexity and confusion other than counting each 
entity within the conduit system as a separate 
attaching entity. 

b. Unusable Space in a Conduit System 

345 Id. 

346 See ICG Communications Comments at 55; see also Edison 
Electric/UTC Comments at 29. But see Ameritech Comments at 

15. 

347 47 U.S.C. § 224(e)(2). 

147a 

108. Carolina Power, et al., assert that the only 
usable space is the duct itself, because the surrounding 
structure and supportive infrastructure of the duct is 
the unusable space. 

348 To allocate the cost of the 
unusable space, they argue that two-thirds of the costs 
involved in constructing a conduit system should be 
apportioned among attaching entities. 

349 These utility 
conduit owners reason that the structure surrounding a 
conduit system exists to make other parts of the system 
usable in the same way that unusable portions of a pole 
exist to make other parts of the pole usable. 

350 

109. USTA argues that although unusable conduit 
space differs from unusable pole space in the way it is 
created, it is possible to allocate the costs of unusable 
space. 

351 According to USTA, space in a conduit is 
unusable because it either is reserved for maintenance 
or has deteriorated. 

352 The record demonstrates that in 
some conduit systems not all of the ducts are used; one 
duct may simply be unoccupied or another may be 
reserved for maintenance. 

353 We conclude that if a 
maintenance duct is reserved for the benefit of all 
conduit occupants, such reservation renders that duct 

348 Carolina Power, et al., Comments at 16; see also American 
Electric, et al., Comments at 53. 

349 These costs typically include obtaining permits, excavating 
rock, shoring trench sides and treating subsurfaces. Carolina 
Power, et al., Reply at 6. 

350 Carolina Power, et al., Comments at 16; see also American 
Electric, et al., Comments at 53. 

351 See USTA Comments at 4-5. 

352 USTA Comments at 4-5. 

353 See, e.g., Bell Atlantic Comments at 8; GTE Comments at 
14; Carolina Power, et al., Reply at 6; Edison Electric/UTC Reply 
at 28. 

148a 

unusable and the costs of that space should be allocated 
to those who benefit from it. To the degree space in a 
conduit is reserved for a maintenance or emergency 
circumstances, but not generally used, it should be con- 
sidered unusable space and its costs allocated appropri- 
ately as entities using the conduit benefit by the space. 

110. Commenters representive of all industries sug- 
gest that no unusable space exists in a conduit sys- 
tem. 

354 We disagree. There appear to be two aspects to 
the unusable space within conduit systems. First, there 
is that space involved in the construction of the system, 
without which there would be no usable space. 

355 

Second, there is that space within the system which 
may be unusable after the system is constructed. We 
agree with Carolina Power, et al., that the costs for the 
construction of the system, which allow the creation of 
the usable space, should be part of the unusable space 
allocated among attaching entities. 

356 We also agree 

with USTA 
357 to the extent that maintenance ducts 

354 Ameritech Comments at 14; AT&T Comments at 16 (even 
ducts reserved for maintenance and/or emergency purposes are 
used at times and therefore serve an ongoing purpose); Bell Atlan- 
tic Comments at 8; Comcast, et al., Comments at 22-23; Edison 
Electric/UTC Comments at 29. But see Carolina Power, et al., 
Comments at 16; ICG Communications Comments at 53-54; USTA 
Comments at 4-5. 

355 This space would include the level down to which one must 
go in order to lay the system, much like one must go up on a pole to 
reach the usable space there. The costs associated with creating 
this portion of space may generally include trenching, excavation, 
supporting structures, concrete, and backfilling. 

356 Carolina Power, et al., Reply at 6-10. 

357 USTA Comments at 4-5. 

149a 

reserved for the benefit and use of all attaching entities 
should be considered unusable. 

358 

111. With regard to space in a conduit that is dete- 
riorated, the record is less clear. If a duct has dete- 
riorated beyond usability, USTA believes it should be 
counted in the unusable space category and therefore 
included in allocation of costs for unusable space to 
attachers. 

359 We disagree. We are reluctant to require 
that the costs of space that can not be used by, and 
provide no benefit to, an existing attaching entity 
should be allocated beyond the utility conduit owner. In 
contrast, unusable space on a pole is largely attributed 
to safety and engineering concerns, adherence to which 
benefits the pole owner and attaching entities. Space in 
a conduit that has deteriorated serves no benefit to the 
existing rate-paying attaching entities. Deteriorated 
duct creates space that has been rendered unused by 
the utility. If such space could, with reasonable effort 

358 As we explained in the Pole Attachment Fee Notice at para 
45: 

[i]f a utility reserves one duct for maintenance, and if the at- 
tacher has the right to utilize that reserved space in the event 
of a cable break or benefits in any way from the reservation of 
that space, that reserved duct would be considered unusable 
space. In that event, it is necessary to include an ‘adjustment 
for reserved ducts’ element in the formula to reduce the aver- 
age number of ducts in the denominator of the occupied space 
component of the formula. The adjustment for reserved ducts 
element would be the number of reserved ducts that all 
attachers have the right to use in the event of a cable break or 
that they otherwise receive benefit from in any other way. If 
the attacher has no right to use that space or receives no 
benefit from that duct, we propose that the denominator 
should not be reduced. 

359 See USTA Comments at 4-5. 

150a 

and expense, be made available, the space is usable and 
not unusable. 

c. Half-Duct Presumption for Determining 
Usable Conduit Space 

112. Certain telecommunications carriers support 
the proposed half-duct methodology for determining a 
conduit rate for usable space. 

360 Bell Atlantic and GTE 
agree with the simplicity and efficiency of our proposed 
formula, while SBC supports its applicability to tele- 
communications carriers as well as cable operators 
because it is based on “actual figures and presumptions 
that attempt to approximate actual figures.” 

361 GTE 
estimates that the average conduit consists of four 
ducts. GTE further indicates that consideration of the 
variations in duct diameter “. . . would unduly com- 
plicate the formula with even more non-public data, 
resulting in additional pole attachment disputes.” 

362 

SBC states that the half-duct methodology will adjust 
easily to telecommunications carriers that may use 
copper facilities that occupy an entire duct. 

363 

113. Other telecommunications carriers and some 
cable operators oppose the use of the half-duct meth- 
odology asserting that it creates too large a presump- 
tion of usable space, resulting in rates that could result 
in an unreasonably high pole attachment rate. 

364 Sprint, 

360 Bell Atlantic Comments at 8; GTE Comments at 14; KMC 
Telecom Comments at 8; SBC Comments at 30. 

361 SBC Comments at 31 (emphasis in original). 

362 GTE Comments at 14. 

363 SBC Comments at 30-31. 

364 AT&T Comments at 22, Reply at 18-19 & 25; ICG Com- 
munications Comments at 55, Reply at 21, 24-25; NCTA Comments 

151a 

on the other hand, opposes the methodology, indicating 
that due to the likelihood of damaging existing cables, it 
does not allow another cable through a duct where 
there are no inner-ducts.365 Sprint states that once an 
attacher uses an empty duct, 100% of the space has 
been effectively used.366 

114. Electric utilities oppose the half-duct methodol- 
ogy, stating that electric and communications cable 
cannot share the same duct due to practical and safety 
concerns as evidenced by the NESC.367 Generally, the 
electric utilities state that safety considerations compel 
differences between electric utility and other conduit 
systems.368 American Electric, et al., indicate that 
underground conduit is often used by the electric utili- 
ties solely to hold conductors that carry high voltage 
electric current.369 Further, they state that the differ- 
ence between electric utility conduit systems and other 
conduit systems makes it impossible to develop a 
uniform conduit formula that is equally applicable to 

at 25; NCTA CS Docket 97-98 Comments at 39; TCI CS Docket 97- 
98 Comments at 16; Time Warner Cable CS Docket 97-98 Com- 
ments at 28. 

365 The term “inner-duct” generally refers to small diameter 
pipe or tubing placed inside conventional duct to allow the installa- 
tion of multiple wires or cables. 

366 Sprint Comments in CS Docket 97-98 at 11. 

367 See American Electric, et al., Comments at 54; Duquesne 
Light Comments at 49-52; Ohio Edison Comments at 47-49; Union 
Electric Comments at 41-46 (citing NESC Rule 341(A)(6) which 
states: Supply, control and communication cables shall not be in- 
stalled in the same duct unless the cables are maintained or 
operated by the same utility). 

368 American Electric, et al., Comments at 55; Dayton Power 
Comments at 3; Edison Electric/UTC Reply at 26. 

369 American Electric, et al., Comments at 55-57. 

152a 

370 NCTA 
replies that utilities have not demonstrated that shar- 
ing of conduits between telecommunications carriers 
and electric utilities poses significant safety risks.371 
Some electric utilities claim that they do not have the 
information necessary to apply the formula and that the 
methodology is inappropriate for the pricing of access 
to electric utility conduit. 

372 Specifically, the electric 
utilities claim that they cannot “readily determine the 
number of feet of conduit or the number of ducts 
deployed or available in their system.” 

electric and telephone utility conduit systems. 

373 

115. We adopt our proposed rebuttable presumption 
that a cable or telecommunications attacher occupies a 
half-duct of space in order to determine a reasonable 
conduit attachment rate. We note that the NESC rule 
relied on by the electric utilities does not prohibit the 
sharing of space between electric and communications. 
Rather, the rule conditions the sharing of such space on 
the maintenance and operation being performed by the 
utility. 

374 We continue to believe that the half-duct 
methodology is the “simplest and most reasonable ap- 
proximation of the actual space occupied by an 
attacher.” 

375 This method, patterned after the one used 
by the Massachusetts Department of Public Utilities 

370 American Electric, et al., Comments at 55. 

371 NCTA Reply at 23. 

372 American Electric, et al., Comments at 52-53; Edison 
Electric/UTC Comments at 28. 

373 American Electric, et al., Comments in CS Docket 97-98 at 

83. 

374 NESC Rule 341(A)(6) states that: “Supply, control, and 
communication cables shall not be installed in the same duct unless 
the cables are maintained or operated by the same utility.” 

375 Pole Attachment Fee Notice, 12 FCC Rcd 7449 at para. 46. 

153a 

376 allows for determining the cost per foot of 
one duct and then dividing by two instead of actually 
measuring the duct space occupied. The MDPU finds, 
and we agree, that this method is reasonable because an 
attacher’s use of a duct does not preclude the use of the 
other half of the duct so the attacher should not have to 
pay for the entire duct. In situations where the formula 
is inappropriate because it has been demonstrated that 
there are more than two users in the conduit or that 
one particular attachment occupies the entire duct, so 
as to preclude another from using the duct, our half- 
duct presumption can be rebutted. If a new entity is 
installing an attachment in a previously unoccupied 
duct, we believe that such entity should be encouraged 
to place inner-duct prior to placing its wires in the duct. 

d. Conduit Pole Attachment Formula 

116. We believe that a formula encompassing statu- 
tory directives of how utilities should be compensated 
for the use of conduit adds certainty and clarity to 
negotiations as well as assists the Commission when it 
addresses complaints. We conclude that the addition of 
the conduit unusable and conduit usable space factors, 
developed to implement Section 224(e)(2) 

377 and Section 

376 See Greater Media, Inc. v. New England Telephone and 
Telegraph, Massachusetts D.P.U. 91-218 (1992). 

377 For allocating the cost of unusable space in a conduit for 
telecommunications carriers, see discussion at para. 104 above for 
the following basic formula: 

Conduit Unusable 2 
Net Linear Cost of 

(“MDPU”), 

Carrying 

Space Factor 
= 3 X Unusable Conduit Space X Charge Rate 

Number of Attachers 

154a 

378 is consistent with a just, reasonable, and 
nondiscriminatory pole attachment rate for telecommu- 
nications carriers in conduit. 

379 We adopt the following 
formula to be used to determine the maximum just and 
reasonable pole attachment rate for telecommuni- 
cations carriers in a conduit system, effective February 
8, 2001, encompasses the elements enumerated in the 
law: 

Maximum Conduit Conduit Conduit 
Rate Per Net Linear 
= Unusable Space 

224(e)(3), 

+ Usable Space 
Foot Factor Factor 

D. Rights-of-Way 

1. Background 

117. The amended Section 224(a)(4) of the Com- 
munication Act defines “pole attachment” to include 
“. . . right-of-way owned or controlled by a utility.” 
The Commission has previously determined that the 
access and reasonable rate provisions of Section 224 
apply where a cable operator or telecommunications 
carrier seeks to install facilities in a right-of-way but 
does not intend to make a physical attachment to any 

378 For allocating the cost of usable space in a conduit for 
telecommunications carriers, see discussion at para. 105 above for 
the following basic formula: 

Conduit = 1 
1 Duct 

Usable 2 X Average Number of X 

Space Ducts, less Adjustments 

Factor for maintenance ducts 

Net Linear Cost of 
Carrying 

Usable Conduit X Charge 
Space Rate 

379 47 U.S.C. § 224(e)(1). 

155a 

380 For example, a utility must 
provide a requesting cable operator or telecommuni- 
cations carrier with “non-discriminatory access” to any 
right-of-way owned or controlled by the utility. 

381 An 
electric utility may deny a cable television system or 
any telecommunications carrier access to its poles, 
ducts, conduits and rights-of-way, on a non-discrimina- 
tory basis, where there is “insufficient capacity and for 
reasons of safety, reliability and generally applicable 
engineering purposes.” 

pole, duct or conduit. 

382 

118. The Commission’s proceedings and cases gener- 
ally have addressed issues involving physical attach- 
ments to poles, ducts, or conduits. The Notice sought 
information about the frequency at which rights-of-way 
rate disputes might arise and the range of circum- 
stances that would be involved. 

383 We also asked 
whether we should adopt a methodology and/or formula 
to determine a just and reasonable rate, or whether 
rights-of-way complaints should be addressed on a case- 
by-case basis. 

384 If a methodology were recommended, 
the Commission requested comment on the elements, 
including any presumptions, that could be used to 
calculate the costs relating to usable and unusable space 
in a right-of-way. 

380 Local Competition Order, 11 FCC Rcd at 16058-107, paras. 
1119-1240; 47 U.S.C. § 224(a)(4); see also AT&T Comments at 18. 

381 47 U.S.C. § 224(f )(1). 

382 47 U.S.C. § 224(f )(2). These considerations were addressed 
as access issues in the Local Competition Order. 11 FCC Rcd at 
16058-107, paras. 1119-1240. 

383 Notice, 12 FCC Rcd at 11740, para. 42. 

384 Id. at 11740, para. 43. 

156a 

119. Generally, cable and telecommunications car- 
riers urge the Commission to establish a set of guiding 
principles against which rights-of-way pole attachment 
complaints would be reviewed to minimize the number 
of disputes to be resolved through the complaint 
process. 

385 Attaching entity interests assert that, with- 
out some form of established methodology or formula, 
the parties to a pole attachment agreement would be 
without instruction and the attaching entity would be 
at the mercy of the right-of-way owner. 

386 

2. Discussion 

120. The record indicates there have been few in- 
stances of attachment to a right-of-way that did not 
include attachment to a pole, duct or conduit. 

387 Com- 
ments of cable operators, telecommunications carriers 
and utility pole owners confirm that there are too many 
different types of rights-of-way, with different kinds of 
restrictions placed on the various kinds of rights-of- 
way, to develop a methodology that would assist a 
utility and potential attacher in their efforts to arrive at 
just and reasonable compensation for the attachment. 

388 

Such restrictions may also vary by state and local laws 

385 See AT&T Comments at 17-18, Reply at 20; Bell Atlantic 
Reply at 27; MCI Reply at 24-25; NCTA Comments at 27-28; But 
see Winstar Comments at 11-12. 

386 See MCI Reply at 24-25; Winstar Reply at 6-7. 

387 See, e.g., American Electric, et al. Comments at 65; 
Ameritech Comments at 15-16; Carolina Power, et al., Comments 
at 16; GTE Comments at 14-15; USTA Comments at 14-15; U S 
West Comments at 10. 

388 See, e.g., American Electric, et al., Comments at 60; 
Ameritech Comments at 15; Carolina Power, et al., Comments at 
16-17. 

157a 

of real property, eminent domain, utility, easements, 
and from underlying property owner to property 
owner. 

389 

121. This Order, like the statute and the Local Com- 
petition Order, sets forth guiding principles to be used 
in determining what constitutes just, reasonable and 
nondiscriminatory rates for pole attachments in rights- 
of-way. The information submitted in this proceeding is 
not sufficient to enable us to adopt detailed standards 
that would govern all right-of-way situations. We thus 
believe it prudent for the Commission to gain experi- 
ence through case-by-case adjudication to determine 
whether additional “guiding principles” or presump- 
tions are necessary or appropriate. 

390 Therefore, we 
will address complaints about just, reasonable, and non- 
discriminatory pole attachments to a utility’s right-of- 
way on a case-by-case basis. 

V. COST ELEMENTS OF THE FORMULA FOR POLES 
AND CONDUIT 

122. Section 224 ensures a utility pole owner just and 
reasonable compensation for pole attachments made by 

389 See, e.g., American Electric, et al., Comments at 60; Carolina 
Power, et al., Comments at 16-17. 

390 Other rights-of-way issues were raised in the comments but 
are outside the scope of this rulemaking are the subject of petitions 
of reconsideration, or involve litigation relating to the access 
provisions of Section 224. See Gulf Power Co. et al. v. United 
States, C.A. No. 3:96 CV 381 (N.D. Fla.) Until such time as the 
Commission resolves the petitions for reconsideration, or a court 
issues a decision addressing Section 224’s access provisions, the 
Commission’s decisions continue to provide appropriate guidance 
to both utility pole owners and attaching entities for the purpose of 
negotiating pole attachments. 

158a 

telecommunications carriers. 

391 When Congress in 1978 
directed the Commission to regulate rates for pole 
attachments used for the provision of cable service, 
Congress established a zone of reasonableness for such 
rates, bounded on the lower end by incremental costs 

392 

393 In the 
pole attachment context, incremental costs are those 
costs that the utility would not have incurred “but for” 
the pole attachments in question. 

394 Fully allocated 
costs refer to the portion of operating expenses and 
capital costs that a utility incurs in owning and main- 
taining poles that are associated with the space 
occupied by pole attachments. 

395 The Commission has 
noted that, in arriving at an appropriate rate between 
these two boundaries, it is important to ensure that the 
attaching entity is not charged twice for the same costs, 
once as up-front “make-ready” costs and again for the 
same costs if they are placed in the corresponding pole 
line capital account that is used to determine the 
recurring attachment rate. 

123. In regulating pole attachment rates, the Com- 
mission implemented a cost methodology premised on 
historical or embedded costs. 

396 These are costs that a 
firm has incurred in the past for providing a good or 
service and are recorded for accounting purposes as 
past operating expenses and depreciation. Many 

391 47 U.S.C §§ 224(b), (d)(1), (e)(1). 

392 1977 Senate Report at 19; see also Second Report and Order, 
72 FCC 2d at 4. 

393 See 47 U.S.C. § 224(d)(1); see also 1977 Senate Report at 19. 

394 1977 Senate Report at 19; see also 72 FCC 2d at 62. 

395 1977 Senate Report at 19-20. 

396 72 FCC 2d at 66, para. 15 

and on the upper end by fully allocated costs. 

159a 

parties in this proceeding, as well as in the Pole 
Attachment Fee Notice proceeding, 

397 advocate exten- 
sion of historical costs, while a number of parties 
advocate that the Commission adopt a forward-looking 
economic cost-pricing (“FLEC”) methodology for pole 
attachments. 

398 Forward-looking cost methodologies 
seek to consider the costs that an entity would incur if 
it were to construct facilities now to provide the good or 
service at issue. 

124. We did not raise the issue of forward looking 
costs in the Notice in this proceeding. While we do not 
prejudge the arguments raised by the commenters, we 
decline to address at this time proposals to shift to a 
forward looking cost methodology. Accordingly, we will 
continue the use of historical costs in our pole attach- 
ment rate methodology, specifically as it is applied to 
telecommunications carriers and cable operators 
providing telecommunications services. 

VI. IMPLEMENTATION AND EFFECTIVE DATE OF 
RULES 

125. Section 224(e)(4) states that: 

[t]he regulations under paragraph (1) shall become 
effective 5 years after the date of enactment of the 
Telecommunications Act of 1996. Any increase in 
the rates for pole attachments that result from the 

397 NCTA CS Docket No. 97-98 Comments at 3, Reply at 12-19; 
USTA CS Docket No. 97-98 Reply at 5-6; U S West Comments at 

2. 

398 See American Electric, et al., Comments at 11-18, CS Doc- 
ket No. 97-98 Comments at 14-95; Edison Electric/UTC Comments 
at 8, Reply at 6-7. 

160a 

adoption of the regulations required by this 
subsection shall be phased in equal annual incre- 
ments over a period of 5 years beginning on the 
effective date of such regulations. 

399 

Because the 1996 Act was enacted on February 8, 1996, 
Section 224(e)(4) requires the Commission to implement 
the telecommunications carrier rate methodology be- 
ginning February 8, 2001. 

126. The Commission proposed that the amount of 
any rate increase should be phased in at the beginning 
of the five years, with one-fifth of the total rate increase 
added each year. The Notice sought comment on our 
proposed five-year phase-in of the telecommunications 
carrier rate. It also sought comment on any other 
proposals that would equitably phase in the telecom- 
munications carrier rate within the five years allotted 
by Section 224(e)(4). 

400 

127. Commenters request that the Commission 
clarify its phase-in requirement by specifying when the 
first phase-in increase is to begin or when the first 
annual increment should go into effect. USTA notes an 
ambiguity regarding the Commission’s proposal that 
the increment be added to the rate in each of the 
subsequent five years. 

401 USTA’s concern is that the 
Commission’s proposal gives the impression that the 
phase in would not occur until after the first full year 
Section 224(e)(4) applies, or February 8, 2002. MCI 
requests that the Commission clarify that the five-year 
phase-in pertains to any rate increase resulting from 

399 47 U.S.C. § 224(e)(4). 

400 Notice, 12 FCC Rcd at 11741, para. 44. 

401 USTA Comments at 15. 

161a 

the absorption of unusable costs by telecommunications 
carriers. It asks that the Commission affirm that 
Congress intended only rate increases to be phased in 
and not rate changes or reductions. 

402 New York State 
Investor Owned Electric Utilities offer a plan to imple- 
ment the phase-in whereby the billing rate would be 
calculated by applying 1/5, 2/5, 3/5, and 4/5 of the 
difference between the current Section 224(d)(3) rate 
and the new Section 224(e) rate calculated each year 
and adding that amount to the incremental Section 
224(d)(3) rate. 

403 

128. SBC further recommends that the Commission 
provide explicit procedures for this phase-in in order to 
avoid disputes over interpretation of Section 224(e)(4)’s 
requirement. 

404 It recommends that the amount of the 
increase be calculated based on the data available in the 
previous year, the year 2000, and that the amount of 
the increase not be recalculated during the five year 
phase-in. SBC requests that a full share be added in 
2001, even though the carrier rate is not effective until 
February 8, 2001, and that after the fifth year, for the 
year 2006, rates be calculated in accordance with the 
carrier formula, including any changes in data through 
the end of the five year period. 

129. We conclude that the statutory language is 
explicit in requiring that any increase in the rates for 
pole attachments shall be phased-in in equal annual 
increments over five years beginning on the effective 

402 MCI Comments at 23. 

403 New York State Investor Owned Electric Utilities Com- 
ments at 27. 

404 SBC Comments at 35-36. 

162a 

405 We clarify that the language 
“beginning on the effective date of such regulations” 
refers to February 8, 2001, or five years after the enact- 
ment of the 1996 Act. We find New York State Inves- 
tor Owned Electric Utilities’ plan to implement the 
phase-in consistent with the Commission’s requirement 
that the increases be phased-in in equal increments 
over five years, with the goal to have the entire amount 
of the increase implemented within five years of 
February 8, 2001. 

date of such regulations. 

406 

130. We affirm that the five-year phase-in is to apply 
to rate increases only and that the amount of the 
increase or the difference between the Section 224(d) 
rate and the 224(e) rate shall be applied annually until 
the full amount of the increase is absorbed within five 
years of February 8, 2001. 

407 Rate reductions are not 
subject to the phase-in and are to be implemented 
immediately. 

405 See Carolina Power, et al., Comments at 17; GTE Comments 
at 15; and Edison Electric/UTC Comments at 31. 

406 For example, if a telecommunications provider pays a Sec- 
tion 224(d)(3) rate on February 7, 2001 of $5.00 per pole and appli- 
cation of the new formula pursuant to Section 224(e) produces a 
rate of $7.00 per pole, the difference or increase of $2.00 per pole 
would be applied in five annual increments of $0.40 (or 20%) until 
the full amount of the increase is reached in the year 2005. The 
rate per pole for each year should be as follows: 

Beginning February 8, 2001 
$5.40 

Beginning February 8, 2002 
$5.80 

Beginning February 8, 2003 
$6.20 

Beginning February 8, 2004 
$6.60 

Beginning February 8, 2005 
$7.00 

407 See Conf. Rpt. at 99. 

163a 

VII. FINAL REGULATORY FLEXIBILITY ACT 
ANALYSIS 

131. As required by the Regulatory Flexibility Act 
(“RFA”), 

408 an Initial Regulatory Flexibility Analysis 
(“IRFA”) was incorporated in the Notice. 

409 The Com- 
mission sought written public comment on the propos- 
als in the Notice including comment on the IRFA. The 
comments received are discussed below. This present 
Final Regulatory Flexibility Analysis (“FRFA”) con- 
forms to the RFA. 

410 

1. Need for, and Objectives of, the Order 

132. Section 703 of the 1996 Act requires the Com- 
mission to prescribe regulations to govern the charges 
for pole attachments used by telecommunications car- 
riers to provide telecommunications services. The 
objectives of the rules adopted herein are, consistent 
with the 1996 Act, to promote competition and the 
expansion of telecommunications services and to reduce 
barriers to entry into the telecommunications market 
by ensuring that charges for pole attachments are just, 
reasonable and nondiscriminatory. 

408 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 et. seq., has 
been amended by the Contract With America Advancement Act of 
1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (“CWAAA”). Title 
II of the CWAAA is the Small Business Regulatory Enforcement 
Fairness Act of 1996 (“SBREFA”). 

409 Notice of Proposed Rulemaking, CS Docket No. 97-151, 12 
FCC Rcd 11725, 11741-51, paras. 45-74 (1997). 

410 See 5 U.S.C. § 604. 

164a 

2. Summary of Significant Issues Raised by 
Public Comments In Response to the IRFA 

133. No comments submitted in response to the 
Notice were specifically identified by the commenters 
as being in response to the IRFA contained in the 
Notice. Small Cable Business Association (“SCBA”) 
filed comments in response to the IRFA contained in 
the Pole Attachment Fee Notice, and, to the extent 
they are relevant to the issues in this proceeding, we 
incorporate them herein by reference. SCBA claims in 
its IRFA comments that, because of the statutory 
exclusion of cooperatives from the definition of utility, 
Section 224 does not minimize market entry barriers for 
small cable operators. 

411 According to SCBA, the IRFA 
in the Pole Attachment Fee Notice fails to consider this 
issue. 

412 

3. Description and Estimate of the Number of 
Small Entities To Which Rules Will Apply 

134. The RFA generally defines a “small entity” as 
having the same meaning as the terms “small business,” 
“small organization,” and “small governmental juris- 
diction.” 

413 In addition, the term “small business” has 
the same meaning as the term small business concern 
under the Small Business Act. 

414 A “small business 

411 SCBA IRFA Comments in CS Docket No. 97-98 at 2. 

412 Id. 

413 5 U.S.C. § 601(6). 

414 5 U.S.C. § 601(3) (incorporating by reference the definitions 
of “small business concern” in 15 U.S.C. § 632). Pursuant to 5 
U.S.C. § 601(3), the statutory definition of a small business applies 
“unless an agency, after consultation with the Office of Advocacy 
of the Small Business Administration and after opportunity for 

165a 

concern” is one that: (1) is independently owned and 
operated; (2) is not dominant in its field of operation; 
and (3) satisfies any additional criteria established by 
the Small Business Administration (“SBA”). 

415 For 
many of the entities described below, the SBA has de- 
fined small business categories through Standard 
Industrial Classification (“SIC”) codes. 

a. Utilities 

135. Many of the decisions and rules adopted herein 
may have a significant effect on a substantial number of 
utility companies. Section 224 defines a “utility” as 
“any person who is a local exchange carrier or an elec- 
tric, gas, water, steam, or other public utility, and who 
owns or controls poles, ducts, conduits, or rights-of-way 
used, in whole or in part, for any wire communications. 
Such term does not include any railroad, any person 
who is cooperatively organized, or any person owned by 
the Federal Government or any State.” The SBA has 
provided the Commission with a list of utility firms 
which may be effected by this rulemaking. Based upon 
the SBA’s list, the Commission concludes that all of the 
following types of utility firms may be affected by the 
Commission’s implementation of Section 224. 

public comment, establishes one or more ‘definitions’ of such term 
which are appropriate to the activities of the agency and publishes 
such definitions in the Federal Register.” 

415 Small Business Act, 15 U.S.C. § 632. 

166a 

(1) Electric Utilities (SIC 4911, 4931 & 
4939) 

136. Electric Services (SIC 4911). The SBA has 
developed a definition for small electric utility firms. 

416 

The Census Bureau reports that a total of 1379 electric 
utilities were in operation for at least one year at the 
end of 1992. According to SBA, a small electric utility is 
an entity whose gross revenues did not exceed five 
million dollars in 1992. 

417 The Census Bureau reports 
that 447 of the 1379 firms listed had total revenues 
below five million dollars. 

418 

137. Electric and Other Services Combined (SIC 
4931). The SBA has classified this entity as a utility 
whose business is less than 95% electric in combination 
with some other type of service. 

419 The Census Bureau 
reports that a total of 135 such firms were in operation 
for at least one year at the end of 1992. The SBA’s 
definition of a small electric and other services com- 
bined utility is a firm whose gross revenues did not ex- 
ceed five million dollars in 1992. 

420 The Census Bureau 
reported that 45 of the 135 firms listed had total reve- 
nues below five million dollars. 

421 

416 Executive Office of the President, Office of Management 
and Budget, Standard Industrial Classification Manual (1987). 

417 13 C.F.R. § 121.201. 

418 U.S. Department of Commerce, Bureau of the Census, 1992 
Economic Census Industry and Enterprise Receipts Size Report, 
Table 2D (Bureau of Census data under contract to the Office of 
Advocacy of the SBA). 

419 See supra note 416. 

420 13 C.F.R. § 121.201. 

421 See supra note 418. 

167a 

138. Combination Utilities, Not Elsewhere Classi- 
fied (SIC 4939). The SBA defines this utility as provid- 
ing a combination of electric, gas, and other services 
which are not otherwise classified. 

422 The Census 
Bureau reports that a total of 79 such utilities were in 
operation for at least one year at the end of 1992. 
According to SBA’s definition, a small combination 
utility is a firm whose gross revenues did not exceed 
five million dollars in 1992. 

423 The Census Bureau 
reported that 63 of the 79 firms listed had total reve- 
nues below five million dollars. 

424 

(2) Gas Production and Distribution 
(SIC 4922, 4923, 4924, 4925 & 4932) 

139. Natural Gas Transmission (SIC 4922). The 
SBA’s definition of a natural gas transmitter is an 
entity that is engaged in the transmission and storage 
of natural gas. 

425 The Census Bureau reports that a 
total of 144 such firms were in operation for at least one 
year at the end of 1992. According to SBA’s definition, a 
small natural gas transmitter is an entity whose gross 
revenues did not exceed five million dollars in 1992. 

426 

The Census Bureau reported that 70 of the 144 firms 
listed had total revenues below five million dollars.427 

140. Natural Gas Transmission and Distribution 
(SIC 4923). The SBA has classified this entity as a 
utility that transmits and distributes natural gas for 

422 See supra note 416. 

423 13 C.F.R. § 121.201. 

424 See supra note 418. 

425 See supra note 416. 

426 13 C.F.R. § 121.201. 

427 See supra note 418. 

168a 

428 The Census Bureau reports that a total of 126 
such entities were in operation for at least one year at 
the end of 1992. The SBA’s definition of a small natural 
gas transmitter and distributer is a firm whose gross 
revenues did not exceed five million dollars. 

429 The 
Census Bureau reported that 43 of the 126 firms listed 
had total revenues below five million dollars. 

sale. 

430 

141. Natural Gas Distribution (SIC 4924). The SBA 
defines a natural gas distributor as an entity that 
distributes natural gas for sale. 

431 The Census Bureau 
reports that a total of 478 such firms were in operation 
for at least one year at the end of 1992. According to 
the SBA, a small natural gas distributor is an entity 
whose gross revenues did not exceed five million dollars 
in 1992. 

432 The Census Bureau reported that 267 of the 
478 firms listed had total revenues below five million 
dollars. 

433 

142. Mixed, Manufactured, or Liquefied Petroleum 
Gas Production and/or Distribution (SIC 4925). The 
SBA has classified this entity as a utility that engages 
in the manufacturing and/or distribution of the sale of 
gas. These mixtures may include natural gas. 

434 The 
Census Bureau reports that a total of 43 such firms 
were in operation for at least one year at the end of 
1992. The SBA’s definition of a small mixed, 

428 See supra note 416. 

429 13 C.F.R. § 121.201. 

430 See supra note 418. 

431 See supra note 416. 

432 13 C.F.R. § 121.201. 

433 See supra note 418. 

434 See supra note 416. 

169a 

manufactured or liquefied petroleum gas producer or 
distributor is a firm whose gross revenues did not ex- 
ceed five million dollars in 1992. 

435 The Census Bureau 
reported that 31 of the 43 firms listed had total reve- 
nues below five million dollars. 

436 

143. Gas and Other Services Combined (SIC 4932). 
The SBA has classified this entity as a gas company 
whose business is less than 95% gas, in combination 
with other services. 

437 The Census Bureau reports that 
a total of 43 such firms were in operation for at least 
one year at the end of 1992. According to the SBA, a 
small gas and other services combined utility is a firm 
whose gross revenues did not exceed five million dollars 
in 1992. 

438 The Census Bureau reported that 24 of the 
43 firms listed had total revenues below five million 
dollars. 

439 

(3) Water Supply (SIC 4941) 

144. The SBA defines a water utility as a firm who 
distributes and sells water for domestic, commercial 
and industrial use. 

440 The Census Bureau reports that a 
total of 3,169 water utilities were in operation for at 
least one year at the end of 1992. According to SBA’s 
definition, a small water utility is a firm whose gross 
revenues did not exceed five million dollars in 1992. 

441 

The Census Bureau reported that 3065 of the 3169 

435 13 C.F.R. § 121.201. 

436 See supra note 418. 

437 See supra note 416. 

438 13 C.F.R. § 121.201. 

439 See supra note 418. 

440 See supra note 416. 

441 13 C.F.R. § 121.201. 

170a 

firms listed had total revenues below five million 
dollars. 

442 

(4) Sanitary Systems (SIC 4952, 4953 
& 4959) 

145. Sewerage Systems (SIC 4952). The SBA de- 
fines a sewage firm as a utility whose business is the 
collection and disposal of waste using sewage sys- 
tems. 

443 The Census Bureau reports that a total of 410 
such firms were in operation for at least one year at the 
end of 1992. According to SBA’s definition, a small 
sewerage system is a firm whose gross revenues did 
not exceed five million dollars. 

444 The Census Bureau 
reported that 369 of the 410 firms listed had total reve- 
nues below five million dollars. 

445 

146. Refuse Systems (SIC 4953). The SBA defines a 
firm in the business of refuse as an establishment 
whose business is the collection and disposal of refuse 
“by processing or destruction or in the operation of 
incinerators, waste treatment plants, landfills, or other 
sites for disposal of such materials.” 

446 The Census 
Bureau reports that a total of 2287 such firms were in 
operation for at least one year at the end of 1992. 
According to SBA’s definition, a small refuse system is 
a firm whose gross revenues did not exceed six million 
dollars. 

447 The Census Bureau reported that 1908 of the 

442 See supra note 418. 

443 See supra note 416. 

444 13 C.F.R. § 121.201. 

445 See supra note 418. 

446 See supra note 416. 

447 13 C.F.R. § 121.201. 

171a 

2287 firms listed had total revenues below six million 
dollars. 

448 

147. Sanitary Services, Not Elsewhere Classified 
(SIC 4959). The SBA defines these firms as engaged in 
sanitary services. 

449 The Census Bureau reports that a 
total of 1214 such firms were in operation for at least 
one year at the end of 1992. According to SBA’s defini- 
tion, a small sanitary service firms gross revenues did 
not exceed five million dollars. 

450 The Census Bureau 
reported that 1173 of the 1214 firms listed had total 
revenues below five million dollars. 

451 

(5) Steam and Air Conditioning 

Supply (SIC 4961) 

148. The SBA defines a steam and air conditioning 
supply utility as a firm who produces and/or sells steam 
and heated or cooled air. 

452 The Census Bureau reports 
that a total of 55 such firms were in operation for at 
least one year at the end of 1992. According to SBA’s 
definition, a steam and air conditioning supply utility is 
a firm whose gross revenues did not exceed nine million 
dollars. 

453 The Census Bureau reported that 30 of the 
55 firms listed had total revenues below nine million 
dollars. 

454 

448 See supra note 418. 

449 See supra note 416. 

450 13 C.F.R. § 121.201. 

451 See supra note 418. 

452 See supra note 416. 

453 13 C.F.R. § 121.201. 

454 See supra note 418. 

172a 

(6) Irrigation Systems (SIC 4971) 

149. The SBA defines irrigation systems as firms 
who operate water supply systems for the purpose of 
irrigation. 

455 The Census Bureau reports that a total of 
297 firms were in operation for at least one year at the 
end of 1992. According to SBA’s definition, a small 
irrigation service is a firm whose gross revenues did 
not exceed five million dollars. 

456 The Census Bureau 
reported that 286 of the 297 firms listed had total 
revenues below five million dollars. 

457 

b. Telephone Companies (SIC 4813) 

150. Many of the decisions and rules adopted herein 
may have a significant effect on a substantial number of 
small telephone companies. The SBA has defined a 
small business for SIC code 4813 (Telephone Com- 
munications, except Radiotelephone) to be a small 
entity when it has no more than 1500 employees. 

458 The 
Census Bureau reports that, at the end of 1992, there 
were 3497 firms engaged in providing telephone ser- 
vices, as defined therein, for at least one year. 

459 This 
number contains a variety of different categories of car- 
riers, including local exchange carriers (“LECs”), inter- 
exchange carriers (“IXCs”), competitive access pro- 
viders (“CAPs”), cellular carriers, mobile service 

455 See supra note 416. 

456 13 C.F.R. § 121.201. 

457 See supra note 418. 

458 13 C.F.R. § 121.201. 

459 United States Department of Commerce, Bureau of the 
Census, 1992 Census of Transportation, Communications, and 
Utilities: Establishment and Firm Size, at Firm Size 1-123 (1995) 
(“1992 Census”). 

173a 

carriers, operator service providers, pay telephone 
operators, personal communications service (“PCS”) 
providers, covered SMR providers and resellers. Some 
of those 3497 telephone service firms may not qualify as 
small entities or small incumbent LECs because they 
are not “independently owned and operated.” 

460 We 
therefore conclude that fewer than 3497 telephone 
service firms are small entity telephone service firms or 
small incumbent LECs that may be affected by this 
Order. Below, we estimate the potential number of 
small entity telephone service firms or small incumbent 
LEC’s that may be affected by the rules adopted herein 
in this service category. 

(1) Wireline Carriers and Service 

Providers 

151. The SBA has developed a definition of small 
entities for telephone communications companies other 
than radiotelephone (wireless) companies. The Census 
Bureau reports that, there were 2321 such telephone 
companies in operation for at least one year at the end 
of 1992. 

461 According to SBA’s definition, a small busi- 
ness telephone company other than a radiotelephone 
company is one employing no more than 1500 persons. 

462 

Of the 2321 non-radiotelephone companies listed by the 
Census Bureau, 2295 were reported to have fewer than 
1000 employees. Thus, at least 2295 non-radiotelephone 
companies that might qualify as small entities or small 
incumbent LECs, or small entities based on these 
employment statistics. Although some of these carriers 

460 15 U.S.C. § 632(a)(1). 

461 1992 Census, supra at Firm size 1-123. 

462 13 C.F.R. § 121.201. 

174a 

are likely not independently owned and operated, we 
are unable at this time to estimate with greater pre- 
cision the number of wireline carriers and service pro- 
viders that would qualify as small business concerns 
under SBA’s definition. Consequently, we estimate 
that there are fewer than 2295 small entity telephone 
communications companies other than radiotelephone 
companies that may be affected by the decisions or 
rules adopted in this Order. 

(2) Local Exchange Carriers 

152. Neither the Commission nor SBA has devel- 
oped a definition of small providers of local exchange 
services. The closest applicable definition under SBA 
rules is for telephone communications companies other 
than radiotelephone (wireless) companies (SIC 4813). 

463 

The most reliable source of information regarding the 
number of LECs nationwide appears to be the data that 
the Commission publishes annually in its Telecommuni- 
cations Industry Revenue report, regarding the Tele- 
communications Relay Service (“TRS”). According to 
“TRS Worksheet” data released in November 1997, 
there are 1371 companies reporting that they catego- 
rize themselves as LECs. 

464 Although some of these 
carriers are likely not independently owned and 
operated, or have more than 1500 employees, we are 
unable at this time to estimate with greater precision 
the number of LECs that would qualify as small busi- 
ness concerns under SBA’s definition. Consequently, 

463 Id. 

464 Federal Communications Commission, Telecommunications 
Industry Revenue: TRS Fund Worksheet Data, Figure 2 
(Number of Carriers Paying Into the TRS Fund by Type of 
Carrier) (Nov. 1997) (“TRS Worksheet” data). 

175a 

we estimate that there are fewer than 1371 small in- 
cumbent LECs that may be affected by the rules 
adopted herein. 

(3) Interexchange Carriers 

153. Neither the Commission nor SBA has devel- 
oped a definition of small entities specifically applicable 
to providers of interexchange services. The closest 
applicable definition under SBA rules is for telephone 
communications companies other than radiotelephone 
(wireless) companies (SIC 4813). The most reliable 
source of information regarding the number of IXCs 
nationwide of which we are aware appears to be the 
data that we collect annually in connection with TRS. 
According to our most recent data, 143 companies 
reported that they were engaged in the provision of 
interexchange services. 

465 Although some of these 
carriers are likely not independently owned and 
operated, or have more than 1500 employees, we are 
unable at this time to estimate with greater precision 
the number of IXCs that would qualify as small busi- 
ness concerns under SBA’s definition. Consequently, 
we estimate that there are fewer than 143 small entity 
IXCs that may be affected by the decisions and rules 
adopted in this Order. 

(4) Competitive Access Providers 

154. Neither the Commission nor SBA has devel- 
oped a definition of small entities specifically applicable 
to providers of competitive access services. The closest 
applicable definition under SBA rules is for telephone 
communications companies other than radiotelephone 

465 TRS Worksheet. 

176a 

(wireless) companies (SIC 4813). The most reliable 
source of information regarding the number of CAPs 
nationwide of which we are aware appears to be the 
data that we collect annually in connection with the 
TRS Worksheet. According to our most recent data, 
109 companies reported that they were engaged in the 
provision of competitive access services. 

466 Although 
some of these carriers are likely not independently 
owned and operated, or have more than 1500 em- 
ployees, we are unable at this time to estimate with 
greater precision the number of CAPs that would 
qualify as small business concerns under SBA’s defini- 
tion. Consequently, we estimate that there are fewer 
than 109 small entity CAPs that may be affected by the 
decisions and rules adopted herein. 

(5) Cellular Service Carriers 

155. Neither the Commission nor SBA has devel- 
oped a definition of small entities specifically applicable 
to providers of cellular services. The closest applicable 
definition under SBA rules is for telephone communi- 
cations companies other than radiotelephone (wireless) 
companies (SIC 4812). The most reliable source of 
information regarding the number of cellular service 
carriers nationwide of which we are aware appears to 
be the data that we collect annually in connection with 
the TRS Worksheet. The TRS Worksheet places 
cellular licensees and Personal Communications Service 
(“PCS”) licensees in one group. According to the most 
recent data, there are 804 carriers reporting that they 
categorize themselves as either PCS or cellular 

466 Id. This TRS Worksheet category also includes Competitive 
Local Exchange Carriers (“CLECs”). 

177a 

467 Although it seems certain that some of 
these carriers are not independently owned and oper- 
ated, or have more than 1500 employees, we are unable 
at this time to estimate with greater precision the 
number of cellular service carriers that would qualify as 
small business concerns under SBA’s definition. Con- 
sequently, we estimate that there are fewer than 804 
small entity cellular service carriers that may be 
affected by the decisions and rules adopted in this 
Order. 

(6) Mobile Service Carriers 

156. Neither the Commission nor SBA has devel- 
oped a definition of small entities specifically applicable 
to mobile service carriers, such as paging companies. 
The closest applicable definition under SBA rules is for 
telephone communications companies other than radio- 
telephone (wireless) companies (SIC 4813). The most 
reliable source of information regarding the number of 
mobile service carriers nationwide of which we are 
aware appears to be the data that we collect annually in 
connection with the TRS Worksheet. According to our 
most recent data, 172 companies reported that they 
were engaged in the provision of mobile services. 

carriers. 

468 

Although it seems certain that some of these carriers 
are not independently owned and operated, or have 
more than 1500 employees, we are unable at this time 
to estimate with greater precision the number of mobile 
service carriers that would qualify under SBA’s defini- 
tion. Consequently, we estimate that there are fewer 
than 172 small entity mobile service carriers that may 

467 Id. 

468 Id. 

178a 

be affected by the decisions and rules adopted in this 
Order. 

(7) Broadband Personal Communica- 
tions Services (“PCS”) Licensees 

157. The broadband PCS spectrum is divided into six 
frequency blocks designated A through F, and the 
Commission has held auctions for each block. The 
Commission has defined “small entity” 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 classification for “very small 
business” was added and is defined as an entity that, to- 
gether with their affiliates, has average gross revenues 
of not more than $15 million for the preceding three 
calendar years. 

469 These regulations defining “small 
entity” in the context of broadband PCS auctions has 
been approved by the SBA. 

470 No small businesses 
within the SBA-approved definition bid successfully for 
licenses in Blocks A and B. There were 90 winning 
bidders that qualified as small entities in the Block C 
auction. A total of 93 small and very small business 
bidders won approximately 40% of the 1479 licenses for 
Blocks D, E, and F. 

471 However, licenses for blocks C 

469 See Report and Order (Amendment of Parts 20 and 24 of the 
Commission’s Rules—Broadband PCS Competitive Bidding and 
the Commercial Mobile Radio Service Spectrum Cap), WT Docket 
No. 96-59, FCC 96-278 (1996) at para. 60, 61 FR 33859 (July 1, 
1996). 

470 See Fifth Report and Order (Implementation of Section 
309(j) of the Communications Act—Competitive Bidding), PP 
Docket No. 93-253, 9 FCC Rcd 5532, 5581-84 (1994). 

471 FCC News, Broadband PCS, D, E and F Block Auction 
Closes, No. 71744 (released January 14, 1997). 

179a 

through F have not been awarded fully, therefore there 
are few, if any, small businesses currently providing 
PCS services. Based on this information, we conclude 
that the number of broadband PCS licensees will 
include the 90 winning C Block bidders and the 93 
qualifying bidders in the D, E, and F blocks, for a total 
of 183 small PCS providers as defined by the SBA and 
the Commission’s auction rules. We note that the TRS 
Worksheet data track PCS licensees in the reporting 
category “Cellular or Personal Communications Service 
Carrier.” As noted supra in the paragraph regarding 
cellular carriers, according to the most recent data, 
there are 804 carriers reporting that they place them- 
selves in this category. 

(8) Specialized Mobile Radio (“SMR”) 

Licensees 

158. Pursuant to 47 C.F.R. §§ 90.814(b)(1) and 

90.912(b)(1), the Commission has defined small entity in 
auctions for geographic area 800 MHz and 900 MHz 
SMR licenses as a firm that had average annual gross 
revenues of less than $15 million in the three previous 
calendar years. This definition of a small entity in the 
context of 800 MHz and 900 MHz SMR has been 
approved by the SBA. 

472 The rules adopted in this 

472 See Second Order on Reconsideration and Seventh Report 
and Order (Amendment of Parts 2 and 90 of the Commission’s 
Rules to Provide for the Use of 200 Channels Outside the Desig- 
nated Filing Areas in the 896-901 MHz and the 935-940 MHz Bands 
Allotted to the Specialized Mobile Radio Pool), PR Docket No. 89- 
583, 11 FCC Rcd 2639, 2693-702 (1995); First Report and Order, 
Eighth Report and Order, and Second Further Notice of Proposed 
Rulemaking (Amendment of Part 90 of the Commission’s Rules to 
Facilitate Future Development of SMR Systems in the 800 MHz 
Frequency Band), PR Docket No. 93-144, 11 FCC Rcd 1463 (1995). 

180a 

Order may apply to SMR providers in the 800 MHz and 
900 MHz bands that either hold geographic area 
licenses or have obtained extended implementation 
authorizations. We do not know how many firms 
provide 800 MHz or 900 MHz geographic area SMR 
service pursuant to extended implementation authori- 
zations, nor how many of these providers have annual 
revenues of less than $15 million. We assume, for 
purposes of this FRFA, that all of the extended imple- 
mentation authorizations may be held by small entities 
which may be affected by the decisions and rules 
adopted in this Order. We note that the TRS Work- 
sheet data track SMR licensees in the reporting cate- 
gory “Paging and Other Mobile Carriers.” According to 
the most recent data, there are 172 carriers, including 
SMR carriers, reporting that they place themselves in 
this category. 

159. The Commission recently held auctions for 
geographic area licenses in the 900 MHz SMR band. 
There were 60 winning bidders that qualified as small 
entities in the 900 MHz auction. Based on this infor- 
mation, we conclude that the number of 900 MHz 
geographic area SMR licensees affected by the rules 
adopted in this Order includes these 60 small entities. 
The Commission also recently held auctions for the 525 
licenses for the upper 200 channels in the 800 MHz 
SMR band. There were 10 winning bidders that quali- 
fied as small entities in that auction. Based on this 
information, we conclude that the number of geographic 
area SMR licensees that may be affected by the rules 
adopted in this Order also includes these 10 small 
entities. However, the Commission has not yet deter- 
mined how many licenses will be awarded for the lower 
230 channels in the 800 MHz geographic area SMR 

181a 

auction. There is no basis, moreover, on which to 
estimate how many small entities will win these 
licenses. Given that nearly all radiotelephone compa- 
nies have fewer than 1000 employees and that no 
reliable estimate of the number of prospective 800 MHz 
licensees for the lower 230 channels can be made, we 
assume, for purposes of this FRFA, that all of the 
licenses may be awarded to small entities that may be 
affected by the decisions and rules adopted in this 
Order. 

(9) Resellers 

160. Neither the Commission nor SBA has devel- 
oped a definition of small entities specifically applicable 
to resellers. The closest applicable definition under 
SBA rules is for all telephone communications com- 
panies (SIC 4812 and 4813). The most reliable source of 
information regarding the number of resellers nation- 
wide of which we are aware appears to be the data that 
we collect annually in connection with the TRS Work- 
sheet. According to our most recent data, 339 com- 
panies reported that they were engaged in the resale of 
telephone services. 

473 Although it seems certain that 
some of these carriers are not independently owned and 
operated, or have more than 1500 employees, we are 
unable at this time to estimate with greater precision 
the number of resellers that would qualify as small 
business concerns under SBA’s definition. Conse- 
quently, we estimate that there are fewer than 339 
small entity resellers that may be affected by the 
decisions and rules adopted in this Order. 

473 TRS Worksheet. 

182a 

c. Wireless (Radiotelephone) Carriers (SIC 
4812) 

161. Although wireless carriers have not historically 
affixed their equipment to utility poles, pursuant to the 
terms of the 1996 Act, such entities are entitled to do so 
with rates consistent with the Commission’s rules 
discussed herein. SBA has developed a definition of 
small entities for radiotelephone (wireless) companies. 
The Census Bureau reports that there were 1176 such 
companies in operation for at least one year at the end 
of 1992. 

474 According to SBA’s definition, a small 
business radiotelephone company is one employing no 
more than 1500 persons. 

475 The Census Bureau also 
reported that 1164 of those radiotelephone companies 
had fewer than 1000 employees. Thus, even if all of the 
remaining 12 companies had more than 1500 employees, 
there would still be 1164 radiotelephone companies that 
might qualify as small entities if they are independently 
owned and operated. Although some of these carriers 
are likely not independently owned and operated, we 
are unable at this time to estimate with greater pre- 
cision the number of radiotelephone carriers and ser- 
vice providers that would qualify as small business 
concerns under SBA’s definition. Consequently, we 
estimate that there are fewer than 1164 small entity 
radiotelephone companies that may be affected by the 
rules adopted herein. 

d. Cable System Operators (SIC 4841) 

162. The SBA has developed a definition of small en- 
tities for cable and other pay television services, which 

474 See 1992 Census supra at note 460. 

475 13 C.F.R. § 121.201. 

183a 

includes all such companies generating less than $11 
million in revenue annually. 

476 This definition includes 
cable systems operators, closed circuit television ser- 
vices, direct broadcast satellite services, multipoint 
distribution systems, satellite master antenna systems 
and subscription television services. According to the 
Census Bureau, there were 1423 such cable and other 
pay television services generating less than $11 million 
in revenue. 

477 

163. The Commission has developed its own defini- 
tion of a small cable system operator for the purposes of 
rate regulation. Under the Commission’s rules, a “small 
cable company,” is one serving fewer than 400,000 
subscribers nationwide. 

478 Based on our most recent 
information, we estimate that there were 1439 cable 
systems that qualified as small cable system operators 
at the end of 1995. 

479 Since then, some of those com- 
panies may have grown to serve over 400,000 subscrib- 
ers, and others may have been involved in transactions 
that caused them to be combined with other cable 
systems. Consequently, we estimate that there are 
fewer than 1439 small entity cable system operators 
that may be affected by the decisions and rules adopted 
in this Order. 

476 13 C.F.R. § 121.201. 

477 See supra note 416. 

478 47 C.F.R. § 76.901(e). The Commission developed this defi- 
nition based on its determinations that a small cable system 
operator is one with annual revenues of $100 million or less. Sixth 
Report and Order and Eleventh Order on Reconsideration (Imple- 
mentation of Sections of the 1992 Cable Act: Rate Regulation), 10 
FCC Rcd 7393. 

479 Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 
1996 (based on figures for Dec. 30, 1995). 

184a 

164. The Communications Act also contains a defini- 
tion of a small cable system operator, which is “a cable 
operator that, directly or through an affiliate, serves in 
the aggregate fewer than one percent of all subscribers 
in the United States and is not affiliated with any entity 
or entities whose gross annual revenues in the aggre- 
gate exceed $250,000,000.” 

480 The Commission has de- 
termined that there are 61,700,000 subscribers in the 
United States. Therefore, we found that an operator 
serving fewer than 617,000 subscribers shall be deemed 
a small operator, if its annual revenues, when combined 
with the total annual revenues of all of its affiliates, do 
not exceed $250 million in the aggregate. 

481 Based on 
available data, we find that the number of cable sys- 
tems serving 617,000 subscribers or less totals 1450. 
Although it seems certain that some of these cable 
system operators are affiliated with entities whose 
gross annual revenues exceed $250,000,000, we are 
unable at this time to estimate with greater precision 
the number of cable system operators that would 
qualify as small cable systems under the definition in 
the Communications Act. 

e. Municipalities 

165. The term “small governmental jurisdiction” is 
defined as “governments of . . . districts, with a 
population of less than 50,000.” 

482 There are 85,006 
governmental entities in the United States. 

483 This 

480 47 U.S.C. § 543(m)(2). 

481 47 C.F.R. § 76.1403(b). 

482 5 U.S.C. § 601(5). 

483 United States Dept. of Commerce, Bureau of the Census, 
1992 Census of Governments. 

185a 

number includes such entities as states, counties, cities, 
utility districts and school districts. We note that 
Section 224 specifically excludes any utility which is 
cooperatively organized, or any person owned by the 
Federal Government or any State. For this reason, we 
believe that Section 224 will have minimal if any affect 
upon small municipalities. Further, there are 18 states 
and the District of Columbia that regulate pole attach- 
ments pursuant to Section 224(c)(1). Of the 85,006 
governmental entities, 38,978 are counties, cities and 
towns. The remainder are primarily utility districts, 
school districts, and states. Of the 38,978 counties, cities 
and towns, 37,566 or 96%, have populations of fewer 
than 50,000. 

D. Description of Projected Reporting, Recordkeep- 
ing, and Other Compliance Requirements 

166. The rules adopted in this Order will require a 
change in certain recordkeeping requirements. A utility 
pole owner will now have to maintain specific records 
relating to the number of attachers for purposes of 
determining and updating its presumptive average 
number of attachers for computing the unusable space 
calculation for the telecommunications carrier rate 
formula. The utility pole owner may also require the 
services of an accountant to determine the new 
telecommunications rate. In addition, our rules adopted 
herein will require cable operators to notify the pole 
owner(s) if and when the cable operator begins pro- 
viding telecommunications services. We sought com- 
ment in the Notice on whether small entities may be 
required to hire additional staff and expend additional 
time and money to comply with the proposals set forth 
in the Notice. In addition, we sought comment as to 

186a 

whether there will be a disproportionate burden placed 
on small entities in complying with the proposals set 
forth in this Order. 

167. We did not receive any comments asserting that 
small entities will be required to hire additional staff 
and expend additional time and money to determine the 
appropriate rate for telecommunications carriers under 
our new rules. SCBA was the only commenter to claim 
that there will be a disproportionate burden placed on 
small entities. SCBA claims that small cable systems 
will be particularly hurt by the statutory exemption of 
cooperatives from the definition of utility because small 
cable systems often operate in rural areas and therefore 
necessarily attach their plant to rural telephone and 
electric cooperatives. 

484 We note that SBCA does not 
appear to be claiming that our rules will disproportion- 
ately burden small cable systems, but that where our 
rules do not apply, small cable system operators will be 
disproportionately harmed. Because the exemption for 
cooperatives was set forth by Congress clearly in 
Section 224(a)(1), the Commission is unable to address 
SBCA’s concerns in this regard. We conclude that our 
rules will not disproportionately burden small entities. 

E. Steps Taken to Minimize Significant Economic 

Impact on Small Entities, and Significant Alter- 
natives Considered 

168. The 1996 Act requires the Commission to adopt 
a telecommunications carrier methodology within two 
years of the enactment of the 1996 Act. 

485 We sought 
comment in the Notice on various alternative ways of 

484 SBCA IRFA Comments in CS Docket No. 97-98 at 2. 

485 See Section VI above. 

187a 

implementing the statutory requirements and any 
other potential impact of these proposals on small busi- 
ness entities. We sought comment on the implementa- 
tion of a methodology to ensure just, reasonable and 
nondiscriminatory pole attachment and conduit rates 
for telecommunications carriers. We also sought com- 
ment on how to develop a rights-of-way rate methodol- 
ogy for telecommunications carriers. 

169. In accordance with the RFA, the Commission 
has endeavored to minimize significant impact on small 
entities. With regard to our pole attachments com- 
plaint process, we rejected a proposal that we establish 
an amount in controversy as a minimum threshold for 
filing a complaint because, among other things, it might 
preclude small entities from obtaining relief from 
unjust, unreasonable or discriminatory pole attachment 
rates.486 We also rejected as too burdensome the 
suggestion that cable operators be required to certify 
annually as to whether they are providing telecom- 
munications services.487 To minimize the burden on 
utility pole owners, including those that qualify as small 
entities, and to promote certainty and efficiency in de- 
termining the pole attachment rate for telecommuni- 
cations carriers, we have maintained our formula pre- 
sumptions, including our one-foot presumption of usable 
space.488 We also determined that, as an alternative to 
requiring utility pole owners to conduct potentially 
expensive pole-by-pole inventories for the number of 
attachers on each pole, we would require pole owners to 
develop, through information it possesses, a pre- 

486 See Section III.B above. 

487 See Section IV.A.2 above. 

488 See Sections IV.A.1 and IV.A.5 above. 

188a 

sumptive average number of attachers, based on loca- 
tion (i.e., urban, rural and urbanized). 

489 

170. Report to Congress: The Commission will send 
a copy of the Order, including this FRFA, in a report to 
be sent to Congress pursuant to the Small Business 
Regulatory Enforcement Fairness Act of 1996, see 5 
U.S.C. § 801(a)(1)(A). A copy of the Order and this 
FRFA (or summary thereof ) will also be published in 
the Federal Register, see 5 U.S.C. § 604(b), and will be 
sent to the Chief Counsel for Advocacy of the Small 
Business Administration. 

VIII. PAPERWORK REDUCTION ACT OF 1995 
ANALYSIS 

171. The requirements adopted in this Order have 
been analyzed with respect to the Paperwork Reduc- 
tion Act of 1995 (the “1995 Act”) and found to impose 
modified information collection requirements on the 
public. The Commission, as part of its continuing effort 
to reduce paperwork burdens, invites the general pub- 
lic to take this opportunity to comment on the infor- 
mation collection requirements contained in this Order, 
as required by the 1995 Act. Public comments are due 
60 days from date of publication of this Order in 
the Federal Register. Comments should address: 
(1) whether the proposed collection of information is 
necessary for the proper performance of the functions 
of the Commission, including whether the information 
shall have practical utility; (2) the accuracy of the Com- 
mission’s burden estimates; (3) ways to enhance the 
quality, utility, and clarity of the information collected; 
and (4) ways to minimize the burden of the collection of 

489 See Section IV.A.4.d. above. 

189a 

information on the respondents, including the use of 
automated collection techniques or other forms of 
information technology. 

172. As stated above, written comments by the 
public on the modified information collection require- 
ments are due 60 days from date of publication of this 
Order in the Federal Register. Comments on the infor- 
mation collections contained herein should be submitted 
to Judy Boley, Federal Communications Commission, 
Room 234, 1919 M Street, NW, Washington, DC 20554, 
or via the Internet to jboley@fcc.gov. For additional 
information on the information collection requirements, 
contact Judy Boley at 202-418-0214 or via the Internet 
at the above address. 

IX. ORDERING CLAUSES 

173. IT IS ORDERED that, pursuant to Sections 1, 
4(i) and 224 of the Communications Act of 1934, as 
amended, 47 U.S.C. §§ 151, 154(i) and 224, the Com- 
mission’s rules are hereby amended as set forth in 
Appendix A. 

174. IT IS FURTHER ORDERED that Section 1.1402 
of the Commission’s rules, as amended in Appendix A 
hereto, will become effective 30 days after the date of 
publication of this Report and Order in the Federal 
Register, and that Sections 1.1403, 1.1404, 1.1409, 

1.1417 and 1.1418 of the Commission’s rules, as 
amended in Appendix A hereto, will become effective 
140 days after the date of publication of this Report and 
Order in the Federal Register, unless the Commission 
publishes a notice before that date stating that the 
Office of Management and Budget (“OMB”) has not 

190a 

approved the information collection requirements 
contained in the rules. 

175. IT IS FURTHER ORDERED that the Commis- 
sion’s Office of Public Affairs, Reference Operations 
Division, SHALL SEND a copy of this Report and 
Order, including the Final Regulatory Flexibility 
Analyses, to the Chief Counsel for Advocacy of the 
Small Business Administration. 

FEDERAL COMMUNICATIONS COMMISSION 

Magalie Roman Salas 
Secretary 

191a 

APPENDIX A 

Revised Rules 

Part 1 of title 47 of the Code of Federal Regulations is 
amended as follows: 

PART 1—PRACTICE AND PROCEDURE 

1. The authority citation for Part 1 continues to read 
as follows: 

AUTHORITY: 47 U.S.C. 151, 154, 303, and 309(j) unless 
otherwise noted. 

2. Section 1.1402 is amended by revising paragraph 
(c) and by adding new paragraphs (i), (j), (k), (l) and (m) 
to read as follows: 

Sec. 1.1402 Definitions. 

* * * * * 

(c) With respect to poles, the term usable space 
means the space on a utility pole above the minimum 
grade level which can be used for the attachment of 
wires, cables, and associated equipment. With respect 
to conduit, the term usable space means space within a 
conduit system which is available, or which could, with 
reasonable effort and expense, be made available, for 
the purpose of installing wires, cable and associated 
equipment for telecommunications services. 

* * * * * 

(i) The term conduit means a pipe placed in the 
ground in which cables and/or wires may be installed. 

192a 

(j ) 
The term conduit system means structures that 

provide physical protection for cable and/or wires that 
allow new cables to be added along a route. 

(k) The term duct means a single enclosed raceway 
for conductors, cable and/or wire. 

(l) With respect to poles, the term unusable space 
means the space on a utility pole below the usable 
space, including the amount required to set the depth of 
the pole. With respect to conduit, the term unusable 
space means space involved in the construction of a 
conduit system, without which there would be no usable 
space, and maintenance ducts reserved for the benefit 
of all conduit users. 

(m) The term attaching entity includes cable 
operators, telecommunications carriers, incumbent local 
exchange carriers, utilities and governmental entities 
providing cable or telecommunications services. 

3. Section 1.1403 is amended by retitling the section 
and by adding new paragraph (e) to read as follows: 

Sec. 1.1403 Duty to provide access; modifications; 
notice of removal, increase or modifica- 
tion; petition for temporary stay; and 
cable operator notice. 

* * * * * 

(e) Cable operators must notify pole owners upon 
offering telecommunications services. 

4. Section 1.1404 is amended to add a new subsection 
(g)(12) and new paragraphs (h), (i), and (j) to read as 
follows, and to redesignate old paragraphs (g)(12), (h), 

193a 

(i), (j) and (k) as (g)(13), (k), (l), (m) and (n), respec- 
tively: 

Sec. 1.1404 Complaint. 

* * * * * 

(g) * * * * * 

(12) The average amount of unusable space per pole 
for those poles used for pole attachments (a 24 foot 
presumption may be used in lieu of actual measure- 
ment, but the presumption may be rebutted); and 

* * * * * 

(h) With respect to attachments within a duct or 
conduit system, where it is claimed that either a rate is 
unjust or unreasonable, or a term or condition is unjust 
or unreasonable and examination of such term or 
condition requires review of the associated rate, the 
complaint shall provide data and information in support 
of said claim. The data and information shall include, 
where applicable, equivalent information as specified in 
paragraph (g) of this section. 

(i) With respect to rights-of-way, where it is 
claimed that either a rate is unjust or unreasonable, or 
a term or condition is unjust or unreasonable and 
examination of such term or condition requires review 
of the associated rate, the complaint shall provide data 
and information in support of said claim. The data and 
information shall include, where applicable, equivalent 
information as specified in paragraph (g) of this section. 

(j ) 
If any of the information and data required in 

paragraphs (g), (h) and (i) of this section is not provided 

194a 

to the cable television operator or telecommunications 
carrier by the utility upon reasonable request, the cable 
television operator or telecommunications carrier shall 
include a statement indicating the steps taken to obtain 
the information from the utility, including the dates of 
all requests. No complaint filed by a cable television 
operator or telecommunications carrier shall be dis- 
missed where the utility has failed to provide the infor- 
mation required under paragraphs (g), (h) or (i) of this 
section, as applicable, after such reasonable request. A 
utility must supply a cable television operator or tele- 
communications carrier the information required in 
paragraph (g), (h) or (i) of this section, as applicable, 
along with the supporting pages from its FERC Form 1, 
FCC Form M, or other report to a regulatory body, 
within 30 days of the request by the cable television 
operator or telecommunications carrier. The cable tele- 
vision operator or telecommunications carrier, in turn, 
shall submit these pages with its complaint. If the 
utility did not supply these pages to the cable television 
operator or telecommunications carrier in response to 
the information request, the utility shall supply this 
information in its response to the complaint. 

5. Section 1.1409 is amended by revising paragraph 
(e) and adding a new paragraph (f) to read as follows: 

Sec. 1.1409 Commission consideration of the com- 
plaint. 

* * * * * 

(e) When parties fail to resolve a dispute regarding 
charges for pole attachments and the Commission’s 
complaint procedures under Section 1.1404 are invoked, 

195a 

the Commission will apply the following formulas for 
determining a maximum just and reasonable rate: 

(1) The following formula shall apply to attachments 
by cable operators providing cable services. This for- 
mula shall also apply to attachments by any tele- 
communications carrier (to the extent such carrier is 
not a party to a pole attachment agreement) or cable 
operator providing telecommunications services until 
February 8, 2001: 

Maximum Rate = Space Occupied by Attachment X Net Cost of 

Total Usable Space 
Bare Pole 

X Carrying 

Charge Rate 

(2) Subject to subsection (f ) the following formula 
shall apply to pole attachments on a pole by any tele- 
communications carrier (to the extent such carrier is 
not a party to a pole attachment agreement) or cable 
operator providing telecommunications services be- 
ginning on February 8, 2001: 

Maximum Pole Rate 
= Unusable Space Factor + Usable 

Space 

Factor 

For purposes of this formula, the unusable space factor, 
as defined under Section 1.1417(b), and the usable space 
factor, as defined under Section 1.1418(b), shall apply 
per pole. 

196a 

(3) Subject to subsection (f ) the following formula 
shall apply to pole attachments within a conduit system 
beginning on February 8, 2001: 

Maximum Conduit Conduit 

Conduit Rate 
= Unusable Space Factor + Usable Space Factor 

For purposes of this formula, the conduit unusable 
space factor, as defined under Section 1.1417(c), and the 
conduit usable space factor, as defined under Section 

1.1418(c), shall apply to each linear foot occupied. 

(f ) 
Subsections (e)(2) and (e)(3) of this section shall 

become effective February 8, 2001 (i.e., five years after 
the effective date of the Telecommunications Act of 
1996). Any increase in the rates for pole attachments 
that result from the adoption of such regulations shall 
be phased in over a period of five years beginning on 
the effective date of such regulations in equal annual 
increments. The five-year phase-in is to apply to rate 
increases only. Rate reductions are to be implemented 
immediately. The determination of any rate increase 
shall be based on data currently available at the time of 
the calculation of the rate increase. 

6. Section 1.1417 is added to read as follows: 

Sec. 1.1417 
Allocation of Unusable Space Costs. 

(a) A utility shall apportion the cost of providing 
unusable space on a pole, duct, conduit, or right-of-way 
so that such apportionment equals two-thirds of the 
costs of providing unusable space that would be 
allocated to such entity under an equal apportionment 
of such costs among all entities. 

197a 

(b) With respect to poles, the following formula shall 
be used to establish the allocation of unusable space 
costs on a pole for telecommunications carriers and 
cable operators providing telecommunications services: 

Pole Unusable 
= 2 X Unusable Space X 

Net Cost of Bare Pole 

Space Factor 3 Pole Height 
Number of Attachers 

X Carrying 

Charge Rate 

All attaching entities shall be counted as separate 
attaching entities for purposes of apportioning the costs 
of unusable space. 

(c) With respect to conduit, the following formula 
shall be used to establish the allocation of unusable 
space costs for telecommunications carriers and cable 
operators providing telecommunications services within 
a conduit: 

Conduit Unusable = 2 X Net Linear Cost of 
X Carrying 

Space Factor 
3 Unusable Conduit Space Charge Rate 

Number of Attachers 

All attaching entities with lines occupying any portion 
of a conduit system shall be counted as separate 
attaching entities for purposes of apportioning the costs 
of unusable space. 

(d) Each utility shall establish a presumptive aver- 
age number of attachers for each of its rural, urban, and 
urbanized service areas (as defined by the Bureau of 
Census of the Department of Commerce). 

(1) Each utility shall, upon request, provide all 
attaching entities and all entities seeking access the 
methodology and information upon which the utilities 
presumptive average number of attachers is based. 

198a 

(2) Each utility is required to exercise good faith 
in establishing and updating its presumptive average 
number of attachers. 

(3) The presumptive average number of attachers 
may be challenged by an attaching entity by submitting 
information demonstrating why the utility’s presump- 
tive average is incorrect. The attaching entity should 
also submit what it believes should be the presumptive 
average and the methodology used. Where a complete 
inspection is impractical, a statistically sound survey 
may be submitted. 

(4) Upon successful challenge of the existing pre- 
sumptive average number of attachers, the resulting 
data determined shall be used by the utility as the 
presumptive number of attachers within the rate 
formula. 

7. Section 1.1418 is added to read as follows: 

Sec. 1.1418 
Allocation of Usable Space Costs. 

(a) A utility shall apportion the amount of usable 
space among all entities according to the percentage of 
usable space required by each entity. 

(b) With respect to poles, the following formula shall 
be used to establish the allocation of usable space costs 
on a pole for telecommunications carriers and cable 
operators providing telecommunications services: 

Pole Usable = Space Occupied X Total Usable Space 
X 

Space Factor by Attachment 
Pole Height 

Total Usable Space 

Net Cost of X Carrying 

Bare Pole Charge Rage 

199a 

The presumptive 13.5 feet of usable space may be used 
in lieu of the actual measurement of the total amount of 
usable space. The presumptive 37.5 feet of pole height 
may be used in lieu of the actual measurement of each 
pole. The presumptive one foot of space occupied by 
attachment is applicable to both cable operators and 
telecommunications carriers. 

(c) With respect to conduit, the following formula 
shall be used to establish the allocation of usable space 
costs within a conduit system: 

Conduit = 1 
1 Duct 

Usable 2 X Average Number of X 

Space Ducts less Adjustments 

Factor for maintenance ducts 

Linear Cost of 
Carrying 

Usable Conduit X Charge 
Space Rate 

With respect to conduit, an attacher is presumed to 
occupy one half-duct of usable space. 

200a 

APPENDIX B 

List of Commenters 

Note: If no abbreviation appears in parentheses fol- 
lowing the full name of the party, the full name 
is used in this Order. 

Comments in CS Docket No. 97-151 

Adelphia Communications Corp., Arizona Cable Tele- 
communications Association, Pennsylvania Cable & 
Telecommunications Association and Suburban 
Cable TV Co. Inc. (Adelphia, et al.) 

American Electric Power Service Corporation, Com- 
monwealth Edison Company, Duke Energy Cor- 
poration and Florida Power and Light Company 
(American Electric, et al.) 

Ameritech 

AT&T Corp. (AT&T) 

Bell Atlantic 

Cable Television & Telecommunications Association of 

New York, Inc. (New York Cable Television Assn.) 

Carolina Power & Light Company, Delmarva Power & 

Light Company, Atlantic City Electric Company, 
Entergy Services, Florida Power Corporation, 
Pacific Gas and Electric Company, Potomac Electric 
Power Company, Public Service Company of 
Colorado, Southern Company, Georgia Power, 
Alabama Power, Gulf Power, Mississippi Power, 
Savannah Electric, Tampa Electric Company and 

201a 

Virginia Power, including North Carolina Power 
(Carolina Power, et al.) 

City of Colorado Springs on behalf of Colorado Springs 

Utilities (Colorado Springs Utilities) 

Comcast Corporation, Charter Communications, 

Marcus Cable Operating Co., L.P., Rifkin & Associ- 
ates, Greater Media, Inc., Texas Cable & Telecom- 
munications Association, Cable Telecommunications 
Association of Maryland, Delaware and District of 
Columbia and Mid-America Cable TV Association 
(Comcast, et al.) 

Consolidated Edison Company of New York, Inc., 

Central Hudson Gas & Electric Corporation, Long 
Island Lighting Company, New York State Electric 
& Gas Corporation, Niagara Mohawk Power 
Corporation, Orange and Rockland Utilities, Inc., 
and Rochester Gas and Electric Corporation (New 
York State Investor Owned Electric Utilities) 

Dayton Power and Light Company (Dayton Power) 

Duquesne Light Company (Duquesne Light) 

Edison Electric Institute and UTC, the Telecom- 
munications Association (Edison Electric/UTC) 

GTE Service Corporation (GTE) 

ICG Communications, Inc. (ICG Communications) 

KMC Telecom Inc. (KMC Telecom) 

MCI Telecommunications Corporation (MCI) 

National Cable Television Association (NCTA) 

202a 

Ohio Edison Company (Ohio Edison) 

Omnipoint Communications Inc. (Omnipoint) 

RCN Telecom Services, Inc. (RCN) 

SBC Communications Inc. (SBC) 

Sprint Local Telephone Companies (Sprint) 

Summit Communications, Inc. (Summit) 

Teligent, L.L.C. (Teligent) 

Texas Utilities Electric Company (Texas Utilities) 

Union Electric Company (Union Electric) 

United States Telephone Association (USTA) 

U S West, Inc. (U S West) 

Winstar Communications, Inc. (Winstar) 

Reply Comments in CS Docket No. 97-151 

Adelphia Communications Corp., Arizona Cable Tele- 
communications Association, Pennsylvania Cable & 
Telecommunications Association and Suburban 
Cable TV Co. Inc. (Adelphia, et al.) 

American Electric Power Service Corporation, Com- 
monwealth Edison Company, Duke Energy 
Corporation and Florida Power and Light Company 
(American Electric, et al.) 

Ameritech 

AT&T Corp. (AT&T) 

203a 

Bell Atlantic 

BellSouth Corporation (BellSouth) 

Carolina Power & Light Company, Delmarva Power & 

Light Company, Atlantic City Electric Company, 
Entergy Services, Florida Power Corporation, 
Pacific Gas and Electric Company, Potomac Electric 
Power Company, Public Service Company of 
Colorado, Southern Company, Georgia Power, 
Alabama Power, Gulf Power, Mississippi Power, 
Savannah Electric, Tampa Electric Company and 
Virginia Power, including North Carolina Power 
(Carolina Power, et al.) 

Champlain Valley Telecom Inc., Waitsfield-Fayston 

Telephone Co., Inc., and Waitsfield Cable Tele- 
vision, a Division of Waitsfield-Fayston Telephone 
Co., Inc. (Champlain Valley Telecom, et al.) 

Comcast Cable Communications, Inc., Charter Com- 
munications, Marcus Cable Operating Co., L.P., 
Rifkin & Associates, Greater Media, Inc., Texas 
Cable & Telecommunications Association, Cable 
Telecommunications Association of Maryland, 
Delaware and District of Columbia and Mid- 
America Cable TV Association (Comcast, et al.) 

Edison Electric Institute and UTC, the Telecom- 
munications Association (Edison Electric/UTC) 

GTE Service Corporation (GTE) 

ICG Communications, Inc. (ICG Communications) 

KMC Telecom Inc. (KMC Telecom) 

204a 

MCI Telecommunications Corporation (MCI) 

National Cable Television Association (NCTA) 

Ohio Edison Company and Union Electric Company 
(Ohio Edison/Union Electric) 

Omnipoint Communications Inc. (Omnipoint) 

SBC Communications Inc. (SBC) 

Small Cable Business Association (SCBA) 

Sprint Local Telephone Companies (Sprint) 

Teligent, L.L.C. (Teligent) 

Texas Utilities Electric Company (Texas Utilities) 

United States Telephone Association (USTA) 

U S West, Inc. (U S West) 

Winstar Communications, Inc. (Winstar) 

205a 

APPENDIX E 

STATUTORY PROVISION 

Section 224 of Title 47, United States Code (1994 & 
Supp. IV 1998), provides: 

§ 224. Pole attachments 

(a) Definitions 

As used in this section: 

(1) The term “utility” means any person who is a 
local exchange carrier or an electric, gas, water, steam, 
or other public utility, and who owns or controls poles, 
ducts, conduits, or rights-of-way used, in whole or in 
part, for any wire communications. Such term does not 
include any railroad, any person who is cooperatively 
organized, or any person owned by the Federal Govern- 
ment or any State. 

(2) The term “Federal Government” means the Gov- 
ernment of the United States or any agency or instru- 
mentality thereof. 

(3) The term “State” means any State, territory, or 
possession of the United States, the District of Colum- 
bia, or any political subdivision, agency, or instrumen- 
tality thereof. 

(4) The term “pole attachment” means any attach- 
ment 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. 

(5) For purposes of this section, the term “telecom- 
munications carrier” (as defined in section 153 of this 

206a 

title) does not include any incumbent local exchange 
carrier as defined in section 251(h) of this title. 

(b) Authority of Commission to regulate rates, terms, 
and conditions; enforcement powers; promulga- 
tion of regulations 

(1) Subject to the provisions of subsection (c) of this 
section, the Commission shall regulate the rates, terms, 
and conditions for pole attachments to provide that 
such rates, terms, and conditions are just and reas- 
onable, and shall adopt procedures necessary and 
appropriate to hear and resolve complaints concerning 
such rates, terms, and conditions. For purposes of 
enforcing any determinations resulting from complaint 
procedures established pursuant to this subsection, the 
Commission shall take such action as it deems appropri- 
ate and necessary, including issuing cease and desist 
orders, as authorized by section 312(b) of this title. 

(2) The Commission shall prescribe by rule regula- 
tions to carry out the provisions of this section. 

(c) State regulatory authority over rates, terms, and 

conditions; preemption; certification; circum- 
stances constituting State regulation 

(1) Nothing in this section shall be construed to 
apply to, or to give the Commission jurisdiction with 
respect to rates, terms, and conditions, or access to 
poles, ducts, conduits, and rights-of-way as provided in 
subsection (f ) of this section, for pole attachments in 
any case where such matters are regulated by a State. 

207a 

(2) Each State which regulates the rates, terms, and 
conditions for pole attachments shall certify to the 
Commission that— 

(A) it regulates such rates, terms, and con- 
ditions; and 

(B) in so regulating such rates, terms, and 
conditions, the State has the authority to consider 
and does consider the interests of the subscribers of 
the services offered via such attachments, as well as 
the interests of the consumers of the utility services. 

(3) For purposes of this subsection, a State shall not 
be considered to regulate the rates, terms, and con- 
ditions for pole attachments— 

(A) unless the State has issued and made effec- 
tive rules and regulations implementing the State’s 
regulatory authority over pole attachments; and 

(B) with respect to any individual matter, 
unless the State takes final action on a complaint 
regarding such matter— 

(i) within 180 days after the complaint is 
filled with the State, or 

(ii) within the applicable period prescribed 
for such final action in such rules and regulations 
of the State, if the prescribed period does not 
extend beyond 360 days after the filing of such 
complaint. 

208a 

(d) Determination of just and reasonable rates; 
“usable space” defined 

(1) For purposes of subsection (b) of this section, a 
rate is just and reasonable if it assures a utility the 
recovery of not less than the additional costs of provid- 
ing pole attachments, nor more than an amount deter- 
mined by multiplying the percentage of the total usable 
space, or the percentage of the total duct or conduit 
capacity, which is occupied by the pole attachment by 
the sum of the operating expenses and actual capital 
costs of the utility attributable to the entire pole, duct, 
conduit, or right-of-way. 

(2) As used in this subsection, the term “usable 
space” means the space above the minimum grade level 
which can be used for the attachment of wires, cables, 
and associated equipment. 

(3) This subsection shall apply to the rate for any 
pole attachment used by a cable television system 
solely to provide cable service. Until the effective date 
of the regulations required under subsection (e) of this 
section, this subsection shall also apply to the rate for 
any pole attachment used by a cable system or any 
telecommunications carrier (to the extent such carrier 
is not a party to a pole attachment agreement) to 
provide any telecommunications service. 

(e) Regulations governing charges; apportionment of 
costs of providing space 

(1) The Commission shall, no later than 2 years after 
February 8, 1996, prescribe regulations in accordance 
with this subsection to govern the charges for pole 
attachments used by telecommunications carriers to 

209a 

provide telecommunications services, when the parties 
fail to resolve a dispute over such charges. Such regu- 
lations shall ensure that a utility charges just, reason- 
able, and nondiscriminatory rates for pole attachments. 

(2) A utility shall apportion the cost of providing 
space on a pole, duct, conduit, or right-of-way other 
than the usable space among entities so that such 
apportionment equals two-thirds of the costs of provid- 
ing space other than the usable space that would be 
allocated to such entity under an equal apportionment 
of such costs among all attaching entities. 

(3) A utility shall apportion the cost of providing 
usable space among all entities according to the per- 
centage of usable space required for each entity. 

(4) The regulations required under paragraph (1) 
shall become effective 5 years after February 8, 1996. 
Any increase in the rates for pole attachments that 
result from the adoption of the regulations required by 
this subsection shall be phased in equal annual incre- 
ments over a period of 5 years beginning on the 
effective date of such regulations. 

(f ) 
Nondiscriminatory access 

(1) A utility shall provide a cable television system 
or any telecommunications carrier with non-discrimina- 
tory access to any pole, duct, conduit, or right-of-way 
owned or controlled by it. 

(2) Notwithstanding paragraph (1), a utility provid- 
ing electric service may deny a cable television system 
or any telecommunications carrier access to its poles, 
ducts, conduits, or rights-of-way, on a non-discrimina- 

210a 

tory1 basis where there is insufficient capacity and for 
reasons of safety, reliability and generally applicable 
engineering purposes. 

(g) Imputation to costs of pole attachment rate 

A utility that engages in the provision of tele- 
communications services or cable services shall impute 
to its costs of providing such services (and charge any 
affiliate, subsidiary, or associate company engaged in 
the provision of such services) an equal amount to the 
pole attachment rate for which such company would be 
liable under this section. 

(h) Modification or alteration of pole, duct, conduit, 
or right-of-way 

Whenever the owner of a pole, duct, conduit, or right- 
of-way intends to modify or alter such pole, duct, 
conduit, or right-of-way, the owner shall provide 
written notification of such action to any entity that has 
obtained an attachment to such conduit or right-of-way 
so that such entity may have a reasonable opportunity 
to add to or modify its existing attachment. Any entity 
that adds to or modifies its existing attachment after 
receiving such notification shall bear a proportionate 
share of the costs incurred by the owner in making such 
pole, duct, conduit, or right-of-way accessible. 

(i) Costs of rearranging or replacing attachment 

An entity that obtains an attachment to a pole, 
conduit, or right-of-way shall not be required to bear 
any of the costs of rearranging or replacing its attach- 

1 So in original. Probably should be “nondiscriminatory”. 

211a 

ment, if such rearrangement or replacement is required 
as a result of an additional attachment or the modifi- 
cation of an existing attachment sought by any other 
entity (including the owner of such pole, duct, conduit, 
or right-of-way).