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This Order conforms our rules to meet these new   statutory requirements. We are revising these rules without providing prior public notice and an   opportunity for comment because the rule modifications do not involve discretionary action on   [the part of the Commission but rather, simply conform our rules to the applicable provisions of   -the 1996 Act. We find that notice and comment procedures are unnecessary, and that this action  Xx-  Lfalls within the "good cause" exception of the Administrative Procedure Act.CxXq yO -ԍ 5 U.S.C.  553(b)(B).C Sections 224(e)   [is not selfeffectuating. We will seek notice and comment regarding implementation of Section  XJ-  224(e) in a separate proceeding consistent with the twoyear period specified by Section 224(e).   In addition, the Commission has sought notice and comment regarding the implementation of  X -Sections 224(f) and (h) in a separate proceeding.r\ q {O-  ԍ The Commission has issued a Notice of Proposed Rulemaking, Implementation of the Local Competition  {O-  Provisions in the Telecommunications Act of 1996, FCC 96182 par. 220225 (April 19, 1996), to implement the  yOI-Interconnection provisions of Section 251. r  X - II. BACKGROUND A. Section 224  3. Congress enacted Section 224 in 1978 to address obstacles that cable operators   encountered as they sought to expand, such as being denied access to poles, ducts, conduits or  Xd-  .rightsofway owned or controlled by utilities.xd q yO!-ԍ Pub. Law No. 95234,  6, 92 Stat. 33, 35 (codified at 47 U.S.C.  224).x Section 224(b)(1) sought to ensure that rates,   terms, and conditions governing pole attachments for cable operators were just and reasonable,   and granted the Commission authority to implement such standards and to adopt procedures  X-  necessary to hear and to resolve complaints concerning such rates, terms, and conditions.l Xq yOl-  Zԍ 47 U.S.C.  224(b)(1). Pursuant to Sections 224(c)(2) and (c)(3), however, the Commission does not have   ,jurisdiction over rates, terms and conditions in states who have certified with the Commission that they have issued and made effective rules and regulations over pole attachments. l To   foster competition in telecommunications services, the 1996 Act amendments seek to ensure that   "telecommunications carriers" have access to poles, ducts, conduits and rightsofway owned or controlled by utility companies on a basis similar to cable operators.   X-B.` ` Legislative History  14. In enacting Section 224 in 1978, Congress directed the Commission to institute an   expeditious program for determining just and reasonable pole attachment rates that would   >necessitate a minimum of staff, paperwork and procedures consistent with fair and efficient"P ,N(N(ZZ"  X-  yregulation. q {Oy-ԍ S. Rep. No. 580, 95th Cong., 1st Sess. 19 (1977)(1977 Senate Report). Congress determined then that the rates should permit a utility to recover its fully   allocated costs, as defined by Section 224(d)(1). Congress stated that although there may be   some difficulty in determining certain components of a utility's operating expenses and actual   capital costs, special accounting measures or studies should not be necessary because the majority   =of cost and expenses attributable to utility pole plant were already established and reported to  X-  jvarious regulatory bodies and therefore the information was already a matter of public record.d Zq {O-ԍ Id. at 1920.#x6X@`7X@#d  Xv-  Congress did not expect the Commission to reexamine the reasonableness of the cost   methodologies that various regulatory agencies had sanctioned; it recognized that the Commission  XH-would have to "make its best estimate" of some of the less readily identifiable costs.a Hq {O -ԍ Id. at 20.#x6X@`7X@#a   5. To meet the just and reasonable standard, a pole attachment rate must fall between the   statutory minimum of Section 224(d)(1) incremental costs and the Section's statutory  X -  {maximum fully allocated costs. ~q {O-ԍ Alabama Power Co. v. FCC, 773 F.2d 362, 364 (D.C. Cir. 1985)(Alabama Power). In the Senate Report of 1977, Congress indicated that   incremental costs might include preconstruction survey costs, engineering costs, and makeready  X -  Kand changeout costs incurred in preparing for cable attachments.% q {O-  ԍ See Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility  {OI-  YPoles, CC Docket No. 86212, 2 FCC Rcd 4387, 4388 (1987)("Pole Attachment Order"), recon. denied, 4 FCC Rcd  {O-  468 (1989); 1977 Senate Report at 19. The term "makeready" generally refers to the modification of poles or lines  {O-  Jor the installation of guys and anchors to accommodate additional facilities. See 1977 Senate Report at 19. A pole  {O-  ichangeout is the replacement of a pole to accommodate additional users. Pole Attachment Order, 2 FCC Rcd at 4405, n. 3.% Congress indicated that pole   attachment rates based on incremental costs should be low, because utilities generally recover the  X-  makeready or changeout charges directly from cable operators.I q {O-ԍ 1977 Senate Report at 19.I  Under Section 224(d)(1), fully   allocated costs refer to the portion of operating expenses and capital costs that a utility incurs in  Xb-owning and maintaining poles that are associated with the space occupied by pole attachments.=b$q {O7 -ԍ Id. at 1920.=   X4- @6. The 1996 Act expanded the scope of Section 224 to telecommunications carriers.4q yO#-  ԍ Under Section 3(44) of the Communications Act of 1934, as amended by the 1996 Act, "[T]he term   i`telecommunication carrier' means any provider of telecommunications services, except that such term does not   include aggregators of telecommunications services (as defined in section 226). A telecommunication carrier shall   Jbe treated as a common carrier under this Act only to the extent that it is engaged in providing telecommunications   services... . " Under Section 3(46) of the Communications Act of 1934, as amended by the 1996 Act, "[T]he term   `telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such"',N(N('" classes of users as to be effectively available directly to the public, regardless of the facilities used."  "4X,N(N(ZZf"   Among other things, the 1996 Act made the existing maximum just and reasonable pole   attachment rate formulas temporarily applicable to telecommunications carriers and cable  X-  zoperators providing telecommunications services."Xq {O-  ,ԍ 47 U.S.C.  224(a)(4) as amended by the 1996 Act,  703. Under Section 3(43) of the Communications Act   of 1934, as amended by the 1996 Act, "[T]he term `telecommunications' means the transmission, between or among   Kpoints 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."  The 1996 Act also created a distinction   \between pole attachments used by cable operators solely to provide cable service and pole   attachments used by cable operators or by any telecommunication carrier to provide any  X-  ktelecommunications service.qBq {O -ԍ 47 U.S.C.  224(d)(3) as added by 1996 Act,  703 q The Act prescribed a new methodology for determining pole  Xv-  attachment rates for the latter group.nvq {O-ԍ 47 U.S.C.  224(e)(1) as added by 1996 Act,  703.n The new formulas will require that, in addition to paying   [their share of a pole's usable space, these telecommunications service providers also must pay   ktheir share of the fully allocated costs associated with the unusable space of the pole, duct,  X1-  zconduit, or rightofway.h1f q {OH-ԍ 47 U.S.C.  224(e)(2) as added by 1996 Act,  703.h In order to implement these new formulas, Congress directed the   Commission to issue new pole attachment formulas within two years of the effective date of the  X -  1996 Act.h q {O-ԍ 47 U.S.C.  224(e)(1) as added by 1996 Act,  703.h We will propose these new rules and seek comment in a subsequent Notice. In this  X -  Order, we amend our rules to reflect the selfeffectuating provisions of Sections 224(a)(1), (a)(4)   jand (c)(2)(B), and new Sections 224(a)(5), (d)(3), (g), and (i) pursuant to Section 703 of the 1996  X -Act.h q {O-ԍ 47 U.S.C.  224 as amended by the 1996 Act,  703.h We will amend our rules pertaining to Section 224(c)(1) in a separate proceeding. q yO-  hԍ Section 224(c)(1) allows States to preempt Commission jurisdiction with respect to "... access to poles, ducts,   conduits, and rightsofway as provided in subsection (f), for pole attachments in any case where such matters are   regulated by a State." The 1996 Act's amendments to Section 224(c)(1) and Section 224(f), pertain to access and  {O-  Jwill be addressed in the forthcoming Interconnection Order, Implementation of the Local Competition Provisions in  {O-the Telecommunications Act of 1996, FCC 96182.   X- vIII. DISCUSSION  Xd-A.` ` Reflecting Amendments and Additions to Section 224 under the 1996 Act  X6-` ` 1. Revisions to Section 224 v",N(N(ZZ)"Ԍ 17. Section 224, as amended by the 1996 Act, now defines "pole attachment" as "any   xattachment by a cable television system or provider of telecommunications service to a pole, duct,  X-  conduit, or rightofway owned or controlled by a utility."pq {OK-ԍ 47 U.S.C.  224(a)(4) as amended by the 1996 Act,  703. p The statute also redefines "utility"   Mto mean any person that is a local exchange carrier or an electric, gas, water, steam, or other   ypublic utility, and that owns or controls poles, ducts, conduits, or rightsofway used, in whole  X-  or in part, for wire communications.nZq {O-ԍ 47 U.S.C.  224(a)(1) as amended by the 1996 Act,  703.n The term "utility" does not include any railroad,  Xv-  Ncooperative, or federal or stateowned entity.tvq {O -ԍ 47 U.S.C.  224(a)(1) as amended by the 1996 Act,  703.t Additionally, the 1996 Act excludes any   incumbent local exchange carrier as defined in Section 251(h) of the 1996 Act from the definition  XH-  of a "telecommunications carrier."H~q {Ow-  ԍ 47 U.S.C.  224(a)(5) as added by the 1996 Act,  703. The term "telecommunications carrier" is defined  {OA-supra at n. 17. The 1996 Act states that the Commission's authority under   Section 224 does not extend to "access to poles, ducts, conduits, and rights of way" that a state  X -  regulates.v q {O-ԍ 47 U.S.C.  224(c)(1) as amended by the 1996 Act,  703. v Furthermore, in describing state certifications that regulate pole attachments, the 1996   KAct strikes the phrase "cable television services" and in its place inserts "the services offered via  X -such attachments."s l q {O -ԍ 47 U.S.C.  224(c)(2)(B) as amended by the 1996 Act,  703. s  8. Accordingly, in Appendix A hereto, we amend our rules to incorporate the above selfeffectuating language found in section 703(1), (2), (3) and (5) of the 1996 Act.  Xy-` ` 2. Additions to Section 224  59. Section 703(6) of the 1996 Act creates a new Section 224(d)(3) of the   Communications Act which expands the scope of Section 224 by applying the maximum just and   reasonable pole attachment rate formulas to telecommunications carriers in addition to cable  X-operators.  q yO -  ԍ In a separate proceeding, within the twoyear period specified under Section 224(e), we will propose a   formula for telecommunication carriers to provide telecommunication services. Thereafter, our original formula   Kunder Section 224 for cable service providers will only be applicable to pole attachments used by cable operators solely to provide cable services.  The provision reads as follows: XX` ` (d)(3) This subsection shall apply to the rate for any pole ` XX` ` attachment used by a cable system solely to provide cable (#` XX` ` service. Until the effective date of the regulations required (#` ",N(N(ZZ"ԌXX` ` under subsection (e), this subsection shall also apply to the (#` XX` ` rate for any pole attachment used by a cable system or any (#` XX` ` telecommunications carrier (to the extent such carrier is not (#` XX` ` a party to a pole attachment agreement) to provide any (#` XX` ` telecommunications service.(#`   Accordingly, as set forth in Appendix A, we add a new subsection to our rules regarding the   =Commission's expanded authority to regulate the pole attachment rates of telecommunications service providers, which incorporates the provisions of Section 703(6) of the 1996 Act.  "10. Section 703 of the 1996 Act creates a new Section 224(g) of the Communications   Act, which provides for the imputation of costs in the provision of pole attachments. The provision reads as follows: XX` ` (g) A utility that engages in the provision of telecommunications ` XX` ` services or cable services shall impute to its costs of providing ` XX` ` such services (and charge any affiliate, subsidiary, or associate ` XX` ` company engaged in the provision of such services) an equal ` XX` ` amount to the pole attachment rate for which such company `  XK-XX` ` would be liable under this section.  `   Accordingly, as set forth in Appendix A, we add a new section to our rules regarding the   Zimputation of pole attachment costs, which incorporates the provisions of Section 703 of the 1996 Act.  l11. Section 703 of the 1996 Act creates a new Section 224(i) of the Communications Act,   iwhich provides for the allocation of costs for rearrangement and replacement of pole attachments. The provision reads as follows: XX` ` (i) An entity that obtains an attachment to a pole, conduit, or ` XX` ` rightofway shall not be required to bear any of the costs of ` XX` ` rearranging or replacing its attachment, if such rearrangement ` XX` ` or replacement is required as a result of an additional attachment ` XX` ` or the modification of an existing attachment sought by any other ` XX` ` entity (including the owner of such pole, duct, conduit, or `  X-X X` ` rightofway). `   Accordingly, as set forth in Appendix A, we add a new section to our rules regarding the costs   of rearrangement and replacement of existing pole attachments because of the addition or   [modification of pole attachments, which incorporates the provisions of Section 703 of the 1996 Act.  @12. As previously noted, Section 703 of the 1996 Act amended several provisions of   Section 224. In order to clarify our existing rules, we will conform our rules to fit these new"#',N(N(ZZ%"   jdefinitions. Accordingly, as set forth in Appendix A, we amend Sections 1.1401; 1.1402(a), (b),   (d), (e), and (f); 1.1403 (a) and (b); and 1.1404 (a) and (d), which incorporate the selfeffectuating language found in Section 703 of the 1996 Act.  X-  X-IV. E FFECTIVE DATE  Xv- "13. The statutory requirements reflected in the final rules adopted in the Order were   effective February 8, 1996, the date of enactment of the 1996 Act. We find good cause for   jmaking these rule changes effective upon publication in the Federal Register because the rules  X3-  /merely conform our rules to selfimplementing statutory language from the 1996 Act. See 5 U.S.C.  553(d).  X - V. INITIAL PAPERWORK REDUCTION ACT OF 1995 ANALYSIS  P14. This Order contains either proposed or modified information collections. The   Commission has requested Office of Management and Budget ("OMB") approval, under the  X-  emergency processing provisions of the Paperwork Reduction Act of 1995,8 q yO -ԍ 5 CFR 1320.138 of the information   Kcontained in this rulemaking. Approval is requested to be effective no later than the date that the   summary of the Order appears in the Federal Register. The OMB control number for information   ycollection contained in this rulemaking is 30600392. The Commission, as part of its continuing   >effort to reduce paperwork burdens and to obtain regular OMB approval of the information   collections, invites the general public and OMB to comment on the information collections   contained in this Order, as required by the Paperwork Reduction Act of 1995. Public and agency   ?comments are due 60 days from date of publication of this Order in the Federal Register.   [Comments should address: (a) whether the proposed collection of information is necessary for   Lthe proper performance of the functions of the Commission, including whether the information   =shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to   enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize   ythe burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.  X;- VI.PROCEDURAL PROVISIONS  n15. Written comments by the public on the proposed and/or modified information   collections are due on or before 30 days after publication of the Order in the Federal Register.   LWritten comments must be submitted by the Office of Management and Budget (OMB) on the   =proposed and/or modified information collections on or before 60 days after publication of the   .Order in the Federal Register. In addition to filing comments with the Secretary, a copy of any   >comments on the information collections contained herein should be submitted to Dorothy   Conway, Federal Communications Commission, Room 234, 1919 M Street, N.W., Washington,   =D.C. 20054, or via the Internet to dconway@fcc.gov, and to Timothy Fain, OMB Desk Officer,"l$X ,N(N(ZZF#"   }10236 NEOB, 72517th Street, N.W., Washington, D.C. 20503 or via the Internet to fain_t@al.eop.gov.  X-  X- VII. ORDERING CLAUSES  16. Accordingly, IT IS ORDERED that pursuant to Section 703 of the   Telecommunications Act of 1996, (Section 224 of the Communications Act of 1934, as amended,   47 U.S.C.  224), and to Sections 4(i) and 303(r) of the Communications Act of 1934 as   amended, 47 U.S.C.  154(i), 303(r) Subpart J of Part 1 of the Commission's Rules is amended   Mas set forth in Appendix A. The rule changes will become effective upon publication in the Federal Register.  X - m17. For additional information regarding this Order, contact Michael T. McMenamin, Financial Analysis and Compliance Division, Cable Services Bureau (202) 4187200. ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,William F. Caton  XM-` `  hh,Acting Secretary "M ,N(N(ZZ"  X-]@ APPENDIX A ă Title 47, Part 1 of the Code of Federal Regulations is amended to read as follows:  X- 1. The authority citation for Part 1 continues to read as follows:  Xv- Authority: 47 U.S.C. 151, 154, 303 and 309(j) unless otherwise noted. 2. Subpart J is revised to read as follows:  X - Subpart J Pole Attachment Complaint Procedures  X -  1.1401 Purpose.  1.1402 Definitions.  1.1403 Notice of removal and petition for temporary stay.  1.1404 Complaint.  1.1405 File Numbers.  1.1406 Dismissal of complaints.  1.1407 Response and reply.  1.1408 Number of copies and form of pleadings.  1.1409 Commission consideration of the complaint.  1.1410 Remedies.  1.1411 Meetings and hearings.  1.1412 Enforcement.  1.1413 Forfeiture.  1.1414 State certification.  1.1415 Other orders.  1.1416 Access provisions for telecommunications carriers and cable systems. * * * * *  X7-3. Section 1.1401 is amended to read as follows :  X - Section 1.1401 Purpose. hh,  The rules and regulations contained in Subpart J of this part provide complaint and   =enforcement procedures to ensure that the rates, terms and conditions for pole attachments of cable television systems and telecommunications carriers are just and reasonable. * * * * *  4. Section 1.1402 is amended by revising paragraphs (a), (b), (d), (e), and (f) to read  X:&-as follows and by adding new paragraph (h): "#' ,N(N(ZZ%"Ԍ X- Section 1.1402 Definitions.  X- 0(a) The term utility means any person that is a local exchange carrier or an electric, gas,   xwater, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rightsof  way used, in whole or in part, for any wire communications. Such term does not include any   railroad, any person that is cooperatively organized, or any person owned by the Federal Government or any State.  XJ- @(b) The term pole attachment means any attachment by a cable television system or   provider of telecommunications service to a pole, duct, conduit, or rightofway owned or controlled by a utility. * * * * *  X -l U  X -(d) The term complaint means a filing by a cable television system operator, a cable television system association, a utility, an association of utilities, a telecommunications carrier, or an association of telecommunications carriers alleging that a rate, term, or condition for a pole attachment is not just and reasonable. l  XQ-lU(e) The term complainant means a cable television system operator, a cable television system association, a utility, an association of utilities, a telecommunications carrier, or an association of telecommunications carriers who files a complaint. l  X-lU(f) The term respondent means a cable television system operator, a utility, or a telecommunications carrier against whom a complaint is filed. * * * * *  X-(h) For purposes of this Subpart, the term telecommunications carrier means any provider of telecommunications services, except that the term does not include aggregators of telecommunications services (as defined in 47 U.S.C. 226) or incumbent local exchange carriers (as defined in 47 U.S.C. 251(h)). * * * * *  X-5. Section 1.1403 is amended by revising paragraph (a) and (b) to read as follows : Đl  X!-lU Section 1.1403 Notice of removal and petition for temporary stay. l lU(a) A utility shall provide a cable television system operator or telecommunications carrier no less than 60 days written notice prior to (1) removal of facilities or termination of any service to those facilities, such removal or termination arising out of a rate, term, or condition of the cable television system operator's or telecommunications carrier's pole attachment agreement, or (2) any increase in pole attachment rates."/' ,N(N(ZZ%"ԌlԙU(b) A cable television system operator or telecommunications carrier may file a "Petition for Temporary Stay" of the action contained in a notice received pursuant to paragraph (a) of this section within 15 days of receipt of such notice. Such submission shall not be considered unless it includes, in concise terms, the relief sought, the reasons for such relief, including a showing of irreparable harm and likely cessation of cable television service or telecommunication service, a copy of the notice, and certification of service as required by  1.1404(b) of this subpart. The named respondent may file an answer within 7 days of the date the Petition for Temporary Stay was filed. No further filings under this section will be considered unless requested or authorized by the Commission and no extensions of time will be granted unless justified pursuant to  1.46. * * * * *   X - 6. Section 1.1404 is amended by revising paragraph (a), (d) and (d) (2) to read as  X -follows :  X-Section 1.1404 Complaint. lU(a) The complaint shall contain the name and address of the complainant, name and address of the respondent, and shall contain a verification (in the form in  1.721(b)), signed by the complainant or officer thereof if complainant is a corporation, showing complainant's direct interest in the matter complained of. Counsel for the complainant may sign the complaint. Complainants may join together to file a joint complaint. Complaints filed by associations shall specifically identify each utility, cable television system operator, or telecommunications carrier who is a party to the complaint and shall be accompanied by a document from each identified member certifying that the complaint is being filed on its behalf. lU * * * * * (d) The complaint shall be accompanied by a copy of the pole attachment agreement, if any, between the cable system operator or telecommunications carrier and the utility. If there is no present pole attachment agreement, the complaint shall contain: * * * (d)(2) A statement that the cable television system operator or telecommunications carrier currently has attachments on the poles, ducts, conduits, or rightsofway. * * * * * 7. Section 1.1409 is amended by adding paragraph (e) to read as follows: "#' ,N(N(ZZ%"Ԍ X-  1.1409 Commission consideration of the complaint. (e) Section 1.1404 of this subpart shall apply to the rate for any pole attachment used by a cable system operator solely to provide cable service. Until the effective date of the regulations required under 47 U.S.C.  224(e), Section 1.1404 of this subpart 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. * * * * *lU  X - 8. A new Section 1.1416 is added to read as follows:  X -  1.1416 Access Provisions for Telecommunication Carriers and Cable Systems. (a) 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. (b) An entity that obtains an attachment to a pole, conduit, or rightofway shall not be required to bear any of the costs of rearranging or replacing its attachment, if such rearrangement or replacement is required as a result of an additional attachment or the modification of an existing attachment sought by any other entity (including the owner of such pole, duct, conduit, or rightofway).