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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                 )
                                )
Omnipoint Corporation,           )
Complainant                      )    File No. PA 97-002
                                )
v.                               )
                                )
PECO Energy Company,             )
Respondent                       )
                                )


                  MEMORANDUM OPINION AND ORDER

   Adopted:  March 24, 2003             Released:  March 25, 2003

By the Chief, Enforcement Bureau:

     1.   In this Order we grant in part a complaint that 
Omnipoint Corporation (``Omnipoint'') filed against PECO Energy 
Company (``PECO''), pursuant to Section 224 of the 
Communications Act of 1934, as amended (``Pole Attachment 
Act'')1 and Subpart J of Part 1 of the Commission's rules.2   
Omnipoint's Complaint concerns access to PECO's facilities for 
the placement of Omnipoint's wireless Personal Communications 
Service (``PCS'') base stations, antennas and equipment.3  
Omnipoint requests that the Commission order PECO to comply with 
the Pole Attachment Act and the Commission's rules, provide 
Omnipoint with access to its facilities at just and reasonable 
rates, and provide Omnipoint with the information and 
documentation to support its attachment rate.4  We grant 
Omnipoint's Complaint in part and order PECO to comply with the 
Pole Attachment Act and the Commission's pole attachment rules, 
to the extent that Omnipoint continues to seek access to PECO's 
facilities.  

     2.   Pursuant to the Pole Attachment Act, the Commission has 
general authority to regulate the rates, terms, and conditions 
for attachments 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, except where such 
matters are regulated by a State.5  The Commission has adopted 
procedures to hear and resolve complaints concerning such rates, 
terms, and conditions,6 and has developed a formula methodology 
to determine maximum allowable pole attachment rates to ensure 
that such rates are just and reasonable.7            

     3.   Omnipoint filed its Complaint pursuant to the 
Commission's pole attachment complaint rules.  In its Complaint, 
Omnipoint requests the Commission to: a) admonish PECO that it 
is bound by section 224 of the Act and sections 1.1401 to 1.1416 
of the Commission's rules; b) order PECO to provide information 
and supporting documentation required by section 1.1404(g) of 
the Commission's rules; c) require PECO to set a fair and 
reasonable pole attachment rate; d) order PECO to provide 
Omnipoint access to its poles, ducts, conduits, rights-of-way, 
and transmission towers on reasonable rates and terms; e) grant 
Omnipoint costs and attorneys fees; and f) grant such other 
relief as the Commission deems just, reasonable and proper.8    

     4.   PECO responds to Omnipoint's Complaint with three 
jurisdictional and ripeness arguments, each of which we reject.  
First, we deny PECO's motion to dismiss the Complaint.9  PECO 
argues that we must dismiss the Complaint because Omnipoint is 
not actually attached to any of PECO's poles and the Complaint 
raises only hypothetical questions.10  We disagree and deny the 
motion.  A complainant need not have gained access in order to 
file a valid complaint.  A complaint alleging denial of access, 
in this case due to an allegedly excessive attachment rate, is 
valid and ripe for review under the Pole Attachment Act and the 
Commission's rules.11 

     5.   Second, PECO argues that the case is not ripe for 
review because Omnipoint did not make PECO a counteroffer to 
PECO's proposed per site charge of $2,100.00 and, therefore, did 
not attempt to engage in meaningful negotiations.12   In order 
to conduct fruitful negotiations, an attaching party must have 
the information necessary to calculate a just and reasonable 
rate in accordance with the Pole Attachment Act.13  PECO failed 
to provide Omnipoint with the necessary information to support 
PECO's proposed $2,100.00 rate.  This failure provided an 
adequate basis for Omnipoint's filing the Complaint.  We 
therefore disagree with PECO that the Commission's consideration 
of the limited request for relief in the Complaint is premature.    

     6.   Finally, PECO argues that the Commission does not have 
jurisdiction in this matter because Omnipoint seeks to attach 
wireless equipment.14  We disagree.  As the Supreme Court 
concluded last year in NCTA v. Gulf Power Co.,15 the Commission 
has jurisdiction over wireless telecommunications service 
attachments.  This jurisdictional issue was the subject of 
extensive litigation elsewhere during the pendency of this case.  
The Supreme Court's recent resolution of this issue removes a 
final obstacle to resolving Omnipoint's limited request for 
relief.16  

     7.   Having rejected PECO's principal defenses to 
Omnipoint's Complaint, we grant Omnipoint's request in large 
part.17  Specifically, we order PECO to comply with the Pole 
Attachment Act and the Commission's pole attachment rules.  To 
the extent that Omnipoint continues to seek access to PECO's 
facilities, once Omnipoint identifies to PECO the sites it 
wishes to use and the type of equipment to be installed and 
requests access, PECO shall provide Omnipoint with historical 
cost data related to the specific facilities to which Omnipoint 
seeks attachment, in accordance with section 1.1404 of the 
Commission's rules.18  The parties shall then negotiate a just 
and reasonable attachment rate based upon the cost data supplied 
by PECO.19  In sum, PECO is obligated to provide Omnipoint 
access to its facilities at just and reasonable rates in 
accordance with the Pole Attachment Act and the Commission's 
rules.20  

     8.   Finally, we deny Omnipoint's request for attorney's 
fees and costs.  The Commission has stated that it does not have 
the authority to award attorney's fees or costs in pole 
attachment complaint proceedings.21  

     9.   Accordingly, IT IS ORDERED, pursuant to Sections 0.111 
and 1.1401-1.1418 of the Commission's rules, 47 C.F.R. §§ 0.111 
and §§ 1.1401-1.1418, that the relief requested in the Complaint 
IS GRANTED TO THE EXTENT INDICATED HEREIN.

     10.  IT IS FURTHER ORDERED, pursuant to Sections 0.111 and 
1.1401-1.1418 of the Commission's Rules, 47 C.F.R. §§ 0.111 and 
1.1401-1.1418, that, to the extent that Omnipoint continues to 
seek access to PECO's facilities, Omnipoint and PECO SHALL 
NEGOTIATE IN GOOD FAITH maximum just and reasonable rates for 
pole attachments in accordance with 47 U.S.C. § 224 and the 
Commission's rules.

     11.  IT IS FURTHER ORDERED, pursuant to Sections 0.111 and 
1.1401- 1.1418 of the Commission's rules, 47 C.F.R. §§ 0.111 and 
1.1401- 1.1418, that Omnipoint's request for attorney's fees and 
costs is DENIED.   

                              FEDERAL COMMUNICATIONS COMMISSION 



                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

1    47 U.S.C. § 224.
2    47 C.F.R. §§ 1.1401-1.1418.
3    Complaint  of Omnipoint  Corporation,  File  No.  PA  97-002 
(filed April 1, 1997) (``Complaint'') at 3.
4    Effective March 25, 2002, the Commission transferred 
responsibility for resolving pole attachment complaints from the 
former Cable Services Bureau to the Enforcement Bureau.  See 
Establishment of the Media Bureau, the Wireline Competition 
Bureau and the Consumer and Governmental Affairs Bureau, 
Reorganization of the International Bureau and Other 
Organizational Changes, 17 FCC Rcd 4672 (2002).
5    47 U.S.C. § 224 (b) and (c).  Pennsylvania has not certified 
that it regulates rates, terms and conditions of pole 
attachments.  See Public Notice, ``States That Have Certified 
That They Regulate Pole Attachments,'' 7 FCC Rcd 1498 (1992).
6    47 U.S.C. § 224 (b) (1).  
7    See Adoption of Rules for the Regulation of Cable Television 
Pole Attachments, First Report and Order, 68 F.C.C. 2d 1585 
(1978); Second Report and Order, 72 F.C.C. 2d 59 (1979); 
Memorandum Opinion and Order, 77 F.C.C. 2d 187 (1980), aff'd, 
Monongahela Power Co. v. FCC, 655 F.2d 1254 (D.C. Cir. 1985) (per 
curiam); and Amendment of Rules and Policies Governing the 
Attachment of Cable Television Hardware to Utility Poles, Report 
and Order, 2 FCC Rcd 4387 (1987).  See also, Implementation of 
Section 703(e) of the Telecommunications Act of 1996, Report and 
Order, 13 FCC Rcd 6777 (1998) and Amendment of Rules and Policies 
Governing Pole Attachments, Report and Order, 15 FCC Rcd 6453 
(2000), pet. for recon. denied in part, Amendment of Commission's 
Rules and Policies Governing Pole Attachments, CS Docket No. 97-
98; Implementation of Section 703(e) of the Telecommunications 
Act of 1996, Consolidated Partial Order on Reconsideration, 16 
FCC Rcd 12103 (2001), pet. for review denied sub nom. Southern 
Company Services, Inc. et al. v. FCC, 313 F.3d 574 (D.C. Cir. 
2002).
8         Complaint at 6-7.
9    PECO's Motion to Dismiss, File No. PA 97-002 (filed 
September 18, 1998).
10   Id. at 2-5.
11   See 47 USC § 224 (f) and 47 CFR § 1.1404 (m).
12   Response of PECO Energy, File No. PA 97-002 (filed May 1, 
1997) (``Response'') at 5-6.
13   See 47 CFR § 1.1404 (j).
14   Response at 6-15.
15   534 U.S. 327, 338-339 (2002).
16   We also deny American Electric Power Service Company, 
Commonwealth Edison Company, Duke Power Company, and Florida 
Power and Light Company's (collectively ``utilities'') motion to 
intervene in this proceeding.  Motion of American Electric Power 
Service Company, Commonwealth Edison Company, Duke Power Company, 
and Florida Power and Light Company to Intervene, File No. PA 97-
002 (filed June 18, 1997).  The utilities allege only a general 
interest in the potential precedent involved in a complaint 
proceeding, which is not a sufficient basis for intervention.  
See, e.g., Texas Cable and Telecommunications Association v. GTE 
Southwest Inc., 17 FCC Rcd 6261, 6265 (2002) (``. . . the mere 
precedential effect of the agency's rationale in later 
adjudications does not give rise to a legally cognizable injury 
and it does not create standing to intervene'').  In any event, 
the utilities request intervention simply to argue that the 
Commission does not have jurisdiction under the Pole Attachment 
Act to regulate wireless attachments, an argument we have already 
rejected above.  
17   PECO also argues that it is required under State law to 
provide all PCS attachers with nondiscriminatory rates, and 
because it offered Omnipoint the same rate that it charged all 
other PCS providers, the requirements of the Pole Attachment Act 
are satisfied.  Response at 15-17.  We disagree.  The mere fact 
that PECO seeks to charge all PCS attachers the same rate does 
not satisfy the requirement of the Pole Attachment Act that the 
rate be just and reasonable.  
18   We note that PECO argues that attachments to its 
transmission facilities are not covered by the Pole Attachment 
Act.  We agree with PECO, but only to the extent that the 
transmission facilities are interstate and not part of a local 
distribution system.  See Southern Company v. FCC, 293 F.3d 1338, 
1345 (11th Cir. 2002).
19   See 47 U.S.C. § 224 (d) (3) (e) (4); Implementation of 
Section 703 (e) of the Telecommunications Act of 1996, 13 FCC Rcd 
6777 at ¶ 102 (1998).  We reject PECO's argument that it need not 
provide historical cost data.  See Alabama Cable 
Telecommunications Association, et al. v. Alabama Power Company, 
16 FCC Rcd 12209 at ¶¶ 32-61 (2001) (stating that the 
Commission's pole attachment formulas provide just compensation), 
affirmed Alabama Power Company v. FCC, 311 F.3d 1357 (11th Cir. 
2002), rehearing and rehearing en banc denied, Alabama Power Co. 
v. FCC, --- F.3d ---- (11th Cir. Jan 08, 2003), mandate stayed 
pending filing of petition for cert.
20   Thus, we do not decide in this order whether PECO's 1997 
proposed rate is just and reasonable.  First, Omnipoint's 
Complaint did not specifically request such a ruling.  Second, we 
do not know whether PECO would seek to maintain such a rate 
today.  We note, however, that the Commission has stated that the 
pole attachment formula presumptions may be modified or adjusted 
in order to address unique attachments associated with wireless 
systems.  See Implementation of Section 703(e) of the 
Telecommunications Act of 1996, 13 FCC Rcd 6777 at ¶ 42 (1998).
21   See, e.g., Multimedia Cablevision Inc. v. Southwestern Bell 
Tel. Co., Memorandum Opinion and Order, 11 FCC Rcd 11202 at ¶ 16 
(1996).