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Pole Attachment Complaints
Jurisdiction.
Pursuant to Section 224 of the Communications Act, the Commission is
authorized to regulate the rates, terms and conditions imposed by utilities
on cable television systems or providers of telecommunications service that
have attachments to the utilities' poles, ducts, conduits and rights-of-way,
to assure that such rates, terms and conditions are just and reasonable, and
to make certain that access to the utilities' poles, ducts, conduits and
rights-of-way is provided in a nondiscriminatory manner.
The rules and regulations contained in sections 1.1401-1.1408 of the
Commission's rules provide complaint and enforcement procedures to ensure
that telecommunications carriers and cable system operators have
nondiscriminatory access to utility poles, ducts, conduits, and that
rights-of way on rates, terms and conditions are just and reasonable. See
47 C.F.R. ยงยง 1.1401-1.1408.
We strongly encourage parties to contact MDRD
staff prior to filing a formal complaint to describe the issues raised in
the dispute and to discuss the efficacy of pre-complaint mediation before
Commission staff, as described below.
Mediation.
Parties are strongly encouraged to attempt to settle or narrow their dispute
before filing a pole attachment complaint. To assist parties in this
effort, MDRD emphasizes mediation of pole attachment disputes, preferably
prior to the actual filing of a complaint. We recommend that you contact
Division staff at (202) 418-7330 prior to filing a complaint to inform us of
the impending proceeding, and for information regarding MDRD's mediation
program. Mediations allow the parties to focus on a solution to their
dispute, and not waste resources in costly and time-consuming litigation.
The Division has had great success with its mediation efforts; many cases
that would have been formal complaints have been resolved informally without
further litigation with the help of MDRD staff. Please contact the Division
for additional details.
State Certification.
The Commission has no jurisdiction over pole attachments in states that
certify to the Commission that they regulate pole attachments, unless the
state fails to act on a pole attachment complaint for 180 days or complete
action on the complaint for 360 days. Eighteen states and the District of
Columbia have certified that they regulate pole attachments. See
Corrected List of
States That Have Certified That They Regulate Pole Attachments,
Public Notice, DA 08-653, WC Docket No. 07-245.
Pursuant to section 1.1404(c) of the
Commission's rules, parties to a pole attachment complaint proceeding before
the Commission are required to advise us of the current status of the
relevant state's certification.
Pole Attachment Rates.
Many pole attachment complaints allege that the
annual rates charged for attachments are not just and reasonable. As
directed by Congress, the Commission has devised formulas for calculating
the maximum lawful rate that can be charged for attachments. Rates for
cable television system attachments are governed by a different formula than
telecommunications attachments.
The Commission applies the following formula to determine the maximum
allowable annual pole attachment rate for cable television systems that do
not also provide telecommunications services:
where Space Occupied is presumed
to be one foot, Usable Space is presumed to be 13.5 feet and Pole Height is
presumed to be 37.5 feet
The Commission applies the following formula to determine the maximum
allowable rate for pole attachments that provide telecommunications
services:
where Space Occupied is presumed
to be one foot, Unusable Space is presumed to be 24 feet and Pole Height is
presumed to be 37.5 feet
The Commission applies the following formula to determine the maximum
allowable conduit rate for cable television systems and providers of
telecommunications:
where number of ducts is presumed to be two.
Simplified as:
where number of ducts is presumed to be two.
Applying the Formulas. Telephone utilities report annual financial
information that is used in the formulas on the Commission's ARMIS reports.
See 47 C.F.R. Part 32.
For instance, the ARMIS 43-02 USOA Report consists
of three series of tables containing an income statement, balance sheet, and
general corporate data. ARMIS data is available on the Commission's
Internet web site at
http://www.fcc.gov/wcb/armis.
Electric utilities report annual financial information on the FERC Form 1.
See 18 C.F.R. Part 101. The Federal Energy Regulatory Commission (``FERC'')
is an independent regulatory commission within the Department of Energy that
regulates certain aspects of electric and other utilities. The FERC Form 1
reports are available for public viewing on the Internet at
http://rimsweb2.ferc.fed.us/form1viewer/
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Recent Orders Addressing Pole Attachment Complaints:
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11-27-2007
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Salsgiver Communications, Inc. v. North Pittsburgh Telephone Company
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(M.O.&O.)
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06-12-2007
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Comcast of Arkansas, Inc. v. Entergy Arkansas, Inc.
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(ORDER OF DISMISSAL)
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05-24-2007
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Salsgiver Telecom, Inc. v. North Pittsburgh Telephone Company
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(M.O.&O.)
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05-07-2007
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Charter Communications, Inc. v. Alabama Power Company
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(ORDER OF DISMISSAL)
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02-23-2007
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Fiber Technologies Networks, L.L.C., v. North Pittsburgh Telephone Company
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(M.O.&O.)
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02-02-2007
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DQE Communications Network Services, LLC v. North Pittsburgh Telephone Company
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(M.O.&O.)
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11-15-2006
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Fiber Technologies Networks, Inc. v. Verizon New England and Narragansett Electric Company
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(ORDER OF DISMISSAL)
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03-06-2006
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Arkansas Cable Telecommunications Association; Comcast Of Arkansas, Inc.; Buford Communications I, L.P. d/b/a Alliance Communications Network; WEHCO Video, Inc.; and TCA Cable Partners d/b/a Cox Communications v. Entergy Arkansas, Inc.
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(ERRATUM)
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03-02-2006
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Arkansas Cable Telecommunications Association; Comcast Of Arkansas, Inc.; Buford Communications I, L.P. d/b/a Alliance Communications Network; WEHCO Video, Inc.; and TCA Cable Partners d/b/a Cox Communications v. Entergy Arkansas, Inc.
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(HEARING
DESIGNATION
ORDER)
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01-09-2006
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Texas and Kansas City Cable Partners, L.P., d/b/a Time Warner Cable v. CenterPoint Energy Houston Electric, LLC
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(M.O.&O.)
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01-09-2006
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Texas and Kansas City Cable Partners, L.P., d/b/a Time Warner Cable v. CenterPoint Energy Houston Electric, LLC
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(M.O.&O.)
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01-09-2006
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CenterPoint Energy Houston Electric, LLC v. Texas and Kansas City Cable Partners, L.P., d/b/a Time Warner Cable
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(M.O.&O.)
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02-17-2005
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Texas and Kansas City Cable Partners, L.P., d/b/a Time Warner Cable v. Southwestern Bell Telephone Company
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(M.O.&O.)
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02-09-2005
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Knology, Inc. v. Georgia Power Company
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(ORDER)
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04-07-2004
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American Fiber Systems, Inc. v. Kansas City Power & Light Company
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(ORDER)
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03-15-2004
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Fiber Technologies Networks, L.L.C. v. Duquesne Light Company
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(ORDER)
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03-10-2004
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Armstrong Utilities, Inc. v. PECO Energy Company
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(ORDER)
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02-05-2004
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RCN Telecom Services of Philadelphia, Inc. v. Peco Energy Company and Infrasource Incorporated, f/k/a Exelon Infrastructure Services, Inc.
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(ORDER)
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12-05-2003
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Cable Telecommunication Association of Maryland, Delaware & the District of Columbia, et al. v. Baltimore Gas and Electric Company and Bell Atlantic-Maryland, Inc.
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(ORDER)
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12-05-2003
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Baltimore Gas And Electric Company v. Cable Telecommunications Association of Maryland, Delaware & the District of Columbia; Adelphia Prestige Cablevision LLC; Millennium Digital Media; and Comcast Cable Communications, Inc.
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(ORDER)
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11-20-2003
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Knology, Inc. v. Georgia Power Company
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(M.O.&O.)
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11-07-2003
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RCN Telecom Services of Philadelphia, Inc. v. Peco Energy Company and Infrasource Incorporated, f/k/a Exelon Infrastructure Services, Inc.
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(ORDER)
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11-05-2003
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Virginia Cable Telecommunications Association v. Virginia Electric & Power Company, d/b/a Dominion Virginia Power and Domnion North Carolina Power
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(ORDER)
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11-05-2003
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Virginia Cable Telecommunications Association v. Virginia Electric & Power Company, d/b/a Dominion Virginia Power and Domnion North Carolina Power
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(ORDER)
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10-29-2003
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The Cable Television Association of Georgia, et al. v. Georgia Power Company
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(ORDER
DENYING
RECONSIDERATION)
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10-22-2003
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RCN Telecom Services of Philadelphia, Inc. v. Peco Energy Company, and Infrasource Incorporated, f/k/a Exelon Infrastructure Services, Inc.
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(ORDER)
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08-08-2003
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The Cable Television Association of Georgia, et al. v. Georgia Power Company
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(ORDER)
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07-28-2003
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Marcus Cable Associates, LP v. Texas Utilities Electric Company
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(ORDER
ON REVIEW)
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07-23-2003
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Comcast Cablevision of Georgia/South Carolina, Inc.; US Cable of Costal-Texas, L.P. v. Savannah Electric & Power Company
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(ORDER)
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05-27-2003
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Fiber Technologies Networks, L.L.C. v. Duquesne Light Company
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(ORDER)
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05-15-2003
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Fiber Technologies Networks, L.L.C. v. Verizon New England, Inc. d/b/a Verizon Rhode Island
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(ORDER)
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05-13-2003
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Florida Cable Telecommunications Association, Inc.; Comcast Cablevision of Panama City, Inc.; Mediacom Southeast, L.L.C.; and Cox Communications Gulf Coast, L.L.C. v. Gulf Power Company
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(M.O.&O.)
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03-25-2003
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Omnipoint Corporation v. PECO Energy Company
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(M.O.&O.)
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10-31-2002
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City of Dublin, Georgia v. Georgia Power Company
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(ORDER)
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10-31-2002
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Cable Television Association of Georgia, et al. v. BellSouth Telecommunications, Inc.
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(ORDER)
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10-08-2002
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Knology, Inc. v. Georgia Power Company
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(ORDER)
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10-08-2002
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Teleport Communications Atlanta, Inc. v. Georgia Power Company
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(ORDER
ON REVIEW)
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08-12-2002
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Adelphia Business Solutions of Pennsylvania, Inc. v. Duquesne Light Company
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(ORDER)
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08-08-2002
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New England Cable Television Association, et al. v. The Narragansett Electric Company
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(ORDER)
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08-08-2002
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New England Cable Television Association, et al. v. Granite State Electric Company
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(ORDER)
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08-08-2002
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Nevada State Cable Television Association v. Nevada Bell
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(ORDER ON
RECONSIDERATION)
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07-19-2002
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Cable Television Association of Georgia, et al. v. BellSouth Telecommunications, Inc.
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(ORDER)
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Pole Attachment Resources:
Legislation and Legislative History
For 1978, see Communications Act Amendment of 1978, Pub. L. No.
95-234, 92 Stat. 33 (February 21, 1978) and S. Rep. No. 95-580, 1978
U.S.C.C.A.N. 109. For the 1996 amendments, see Telecommunications Act of
1996, Pub. L. No. 104-104, 110 Stat. 56, 149-151 (February 8, 1996) and H.R. Conf. Rep. No. 104-458, 1996 U.S.C.C.A.N. 124.
Commission Rulemaking Orders
Amendment of Commission's Rules and Policies Governing Pole Attachments,
In the Matter of Implementation of Section 703(e) of The Telecommunications
Act of 1996, Consolidated Partial Order on Reconsideration, CS Docket Nos. 97-98, 97-151, FCC 01-170, 16 FCC Rcd 12103 (2001).
Amendment of Rules and Policies Governing Pole Attachments, Report and Order, CS Docket No. 97-98, FCC 00-116, 15 FCC Rcd 6453 (2000).
Implementation of Section 703(e) of the Telecommunications Act of
1996, Report and Order, CS Docket No. 97-151, FCC 98-20, 13 FCC Rcd 6777
(1998), aff'd in part, rev'd in part, Gulf Power v. FCC, 208 F.3d
1263 (11th Cir. 2000), reversed & remanded, NCTA v. Gulf Power Co., 534 U.S. 327, 122 S. Ct. 782, (2002).
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, First Report and Order, CC Docket No.
96-98, FCC 96-235, 11 FCC Rcd 15499 (1996), aff'd, Order on
Reconsideration of Pole Attachment Access, FCC 99-266, 14 FCC Rcd 18049
(1999), rev'd in part, Southern Company v. FCC, 11th Cir. No. 99-15160 (rel. June 13, 2002).
Implementation of Section 703 of the Telecommunications Act of 1996, Report and Order, CS Docket No. 96-166, FCC 96-327, 11 FCC Rcd 9541 (1996).
Amendment of Rules and Policies Governing the Attachment of Cable
Television Hardware to Utility Poles, Report and Order, CC Docket No. 86-212, FCC 87-209, 2 FCC Rcd 4387 (1987); aff'd, Memorandum Opinion and Order on Reconsideration, FCC 88-421, 4 FCC Rcd 468 (1989).
Adoption of Rules for the Regulation of Cable Television Pole
Attachments, Memorandum Opinion and Order, CC Docket No. 78-144, FCC 80-90, 77 FCC 2d 187 (1980).
Adoption of Rules for the Regulation of Cable Television Pole
Attachments, Memorandum Opinion and Second Report and Order, CC Docket No. 78-144, FCC 79-308, 72 FCC 2d 59 (1979).
Adoption of Rules for the Regulation of Cable Television Pole
Attachments, First Report and Order, CC Docket No. 78-144, FCC 78-594, 68 FCC 2d 1585 (1978).
Supreme Court Decisions
National Cable & Telecommunications Association, Inc. v. Gulf Power
Co., 534 U.S. 327 (2002).
FCC v. Florida Power Corporation, 480 U.S. 245 (1987).
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