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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
American Fiber Systems, Inc., )
)
Complainant, )
) File No. EB-04-MD-
003
v. )
)
Kansas City Power & Light Company, )
)
Respondent. )
ORDER
Adopted: April 6, 2004 Released: April 7,
2004
By the Deputy Chief, Market Disputes Resolution Division,
Enforcement Bureau:
1. On February 12, 2004, American Fiber Systems, Inc.
(``AFS'') filed a complaint1 against Kansas City Power and
Light Company (``KCPL'') pursuant to section 224 of the
Communications Act of 1934, as amended (``Act''),2 and
sections 1.1403 and 1.1404 of the Commission's rules.3 AFS
initiated the Complaint in response to a primary
jurisdiction referral by the United States District Court
for the District of Kansas.4
2. KCPL is an electric utility operating in, among
other places, the Kansas City, Missouri area, where AFS
seeks to attach to KCPL's poles for the purpose of offering
telecommunications services to the public. AFS's Complaint
seeks, inter alia, a determination by the Commission that
AFS is a telecommunications carrier entitled to pole
attachment rights, as well as an order requiring KCPL
promptly to engage in good faith negotiations with AFS for a
nondiscriminatory pole attachment agreement in accordance
with the Commission's rules.5
3. On March 8, 2004, the Enforcement Bureau granted
KCPL's request for extension of time, from March 12 to March
26, 2004, to file its Response to the Complaint. On March
26, 2004, KCPL filed a motion to stay this proceeding,
pending the parties' attempt to negotiate a pole attachment
agreement.6 Also on March 26, 2004, pursuant to settlement
discussions between the parties, KCPL provided AFS with a
draft of its standard form pole attachment agreement. On
March 29, 2004, the Enforcement Bureau denied the Stay
Motion, and ordered KCPL to file its Response as soon as
possible, but in no event later than Friday, April 2, 2004.7
4. KCPL did not file a Response. Instead, on April
1, 2004, the parties filed a Joint Motion for Consent Order
with a proposed Consent Order attached.8 The Joint Motion
characterizes the Consent Order as an ``efficient, fair and
reasonable means by which to resolve the parties' pending
dispute before the Commission, without further expenditure
of resources by either the parties or the Commission.''9
The Joint Motion further asserts that the Consent Order is
``fully consistent'' with the Act and with the Commission's
pole attachment rules and regulations.10
5. The proposed Consent Order consists of two
provisions. First, the Consent Order asks the Commission to
conclude that, based on the factual evidence presented in
the Complaint, AFS is operating as a ``telecommunications
carrier,'' as that term is used in the Act, and therefore is
entitled to attach to KCPL's poles.11 The parties
specifically cite the following evidence in support of this
conclusion:
a. AFS obtained a certificate from the
Kansas Corporation Commission (``KCC'')
authorizing AFS to ``transact the business of a
telephone public utility to provide local exchange
and exchange access services...'' The certificate
is currently in effect.
b. AFS obtained a certificate from the
Missouri Public Service Commission (``MPSC'')
authorizing AFS ``to provide intrastate
interexchange telecommunications services in the
State of Missouri...'' The certificate is
currently in effect.
c. AFS filed tariffs with the KCC and
the MPSC offering DS-1 and DS-3 service to any
customer requesting these services.
d. AFS has offered to multiple parties, among other
services, Ethernet Virtual Private Line Service
and Ethernet Internet Access Service, as more
fully described on AFS' website.
e. AFS has recently entered into contracts under
which Customers may purchase Ethernet Service,
Ethernet Virtual Private Line Service, Ethernet
Virtual Private LAN Service, and Ethernet Internet
Access Services, which services are more fully
described on AFS' website.
f. AFS has received Section 214 (47 U.S.C. Section
214) authority from the Commission.
g. AFS has a Price Guide for interstate
telecommunications services posted on its Internet
website.
h. Eight other utility companies have entered into
pole attachment agreements with AFS in accordance
with the Commission's pole attachment rules.12
6. Second, the Consent Order asks the Commission to
require KCPL to ``immediately engage in good faith
negotiations with AFS for a nondiscriminatory pole
attachment agreement in conformance with the applicable
Commission rules,'' and it states that ``both parties hav[e]
the intention of consummating the execution of such an
agreement by April 30, 2004.''13
7. We are satisfied that granting the Joint Motion
will serve the public interest by promoting the private
resolution of disputes and by eliminating the need for
further litigation and the expenditure of further time and
resources of the parties and this Commission.
8. Based upon the assertions contained in the
Complaint and supporting attachments, the fact that KCPL has
not filed a Response to the Complaint denying these
assertions, and the fact that AFS and KCPL together filed
the Joint Motion, we find that, for purposes of this
proceeding, AFS is a ``telecommunications carrier,'' as that
term is defined by section 3 of the Act,14 and therefore is
entitled to attach to KCPL's poles pursuant to section 224
of the Act15 and the Commission's rules regarding pole
attachments.16
9. Accordingly, IT IS ORDERED, pursuant to sections
4(i), 4(j), and 224 of the Act, as amended, 47 U.S.C. §§
154(i), 154(j), 224, and sections 1.1401-1.1418 of the
Commission's rules, 47 C.F.R. §§ 1.1401-1.1418, and the
authority delegated in sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. §§ 0.111, 0.311, that the
Joint Motion for Consent Order IS GRANTED.
10. IT IS FURTHER ORDERED, pursuant to sections 4(i),
4(j), and 224 of the Act, as amended, 47 U.S.C. §§ 154(i),
154(j), 224, and sections 1.1401-1.1418 of the Commission's
rules, 47 C.F.R. §§ 1.1401-1.1418, and the authority
delegated in sections 0.111 and 0.311 of the Commission's
rules, 47 C.F.R. §§ 0.111, 0.311, that AFS's Complaint
against KCPL IS DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Lisa B. Griffin
Deputy Chief, Market Disputes
Resolution Division
Enforcement Bureau
_________________________
1 Complaint, File No. EB-04-MD-003 (filed Feb. 12, 2004)
(``Complaint'').
2 47 U.S.C. § 224.
3 47 C.F.R. §§ 1.1403, 1.1404.
4 Memorandum Order, Kansas City Power & Light Co. v.
American Fiber Systems, Inc., Civil Action No. 03-2330-GTV
(D. Kan. Nov. 5, 2003).
5 Complaint at 15, ¶ 45.
6 Motion to Stay Proceedings and Motion for Leave to
File Motion for Stay, File No. EB-04-MD-003 (filed Mar. 26,
2004) (collectively, ``Stay Motion'').
7 See Letter Order, File No. EB-04-MD-003 (dated Mar.
30, 2004).
8 Joint Motion for Leave, Joint Motion for Consent Order
(collectively, ``Joint Motion''), and proposed Consent
Order (``Consent Order''), File No. EB-04-MD-003 (filed
Apr. 1, 2004).
9 Joint Motion at 1.
10 Joint Motion at 1 (citing 47 U.S.C. § 224, 47 C.F.R.
§§ 1.1401-1.1418).
11 Consent Order at 2-3.
12 Consent Order at 3-4.
13 Consent Order at 4.
14 47 U.S.C. § 153(44).
15 47 U.S.C. § 224.
16 47 C.F.R. §§ 1.1401-1.1418.