Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, 41338-41363 [2010-17048]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 135 (Thursday, July 15, 2010)]
[Proposed Rules]
[Pages 41338-41363]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17048]



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Part IV





Federal Communications Commission





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47 CFR Part 1



Implementation of Section 224 of the Act; A National Broadband Plan for 
Our Future; Proposed Rule

Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / 
Proposed Rules

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WC Docket No. 07-245, GN Docket No. 09-51; FCC 10-84]


Implementation of Section 224 of the Act; A National Broadband 
Plan for Our Future

AGENCY: Federal Communications Commission.

ACTION: Proposed rules.

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SUMMARY: In this Further Notice of Proposed Rulemaking (FNPRM), the 
Commission proposes rules to expedite access by telecommunications 
carriers and cable operators to utility poles. Proposed measures 
include adoption of a specific timeline for poles survey and make-ready 
work, use of outside contractors, and improving the availability of 
data. The FNPRM also proposes to improve the pole attachments 
enforcement process, and proposes ways to make attachment rates as low 
and uniform as possible consistent with section 224 of the 
Communications Act. These steps should lower both the cost of gaining 
access to utility poles and pole attachment rates. These actions are 
intended to remove impediments to the deployment of facilities and to 
increase delivery of broadband services.

DATES: Comments are due on or before August 16, 2010 and reply comments 
are due on or before September 13, 2010. Written comments on the 
Paperwork Reduction Act proposed information collection requirements 
must be submitted by the public, Office of Management and Budget (OMB), 
and other interested parties on or before September 13, 2010.

ADDRESSES: You may submit comments, identified by WC Docket No. 07-245; 
GN Docket No. 09-51, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.
    In addition to filing comments with the Secretary, a copy of any 
comments on the Paperwork Reduction Act information collection 
requirements contained herein should be submitted to the Federal 
Communications Commission via e-mail to PRA@fcc.gov and to Nicholas A. 
Fraser, Office of Management and Budget, via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167.

FOR FURTHER INFORMATION CONTACT: Jonathan Reel, Wireline Competition 
Bureau, Competition Policy Division, 202-418-1580. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, send an e-mail to 
PRA@fcc.gov or contact Judith-B.Herman@fcc.gov.

SUPPLEMENTARY INFORMATION: Pursuant to sections 1.415 and 1.419 of the 
Commission's rules, 47 CFR 1.415, 1.419, interested parties may file 
comments on or before August 16, 2010 and reply comments on or before 
September 13, 2010. Comments may be filed using: (1) The Commission's 
Electronic Comment Filing System (ECFS), (2) the Federal Government's 
eRulemaking Portal, or (3) by filing paper copies. See Electronic 
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: https://www.regulations.gov.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
    Filings and comments are also available for public inspection and 
copying during regular business hours at the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 
20554. They may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, 
SW., Room CY-B402, Washington, DC 20554, telephone: (202) 488-5300, 
fax: (202) 488-5563, or via e-mail https://www.bcpiweb.com.
    This document contains proposed information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the Paperwork 
Reduction Act of 1995, Public Law 104-13. Public and agency comments 
are due September 13, 2010.
    Comments should address: (a) 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; (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 the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment 
on how we might further reduce the information collection burden for 
small business concerns with fewer than 25 employees.
    OMB Control Number: 3060-XXXX.
    Title: Pole attachment Access Requirements.

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    Form Number: N/A.
    Type of Review: New collection.
    Respondents: Business or other for-profit.
    Number of Respondents and Responses: 2,961 respondents; 20,427 
responses.
    Estimated Time per Response: 6-300 hours.
    Frequency of Response: On occasion and annual reporting and 
recordkeeping requirements and third party disclosure requirement.
    Obligation to Respond: Mandatory.
    Total Annual Burden: 965,202 hours.
    Total Annual Cost: No cost.
    Privacy Act Impact Assessment: No impacts.
    Nature and Extent of Confidentiality: No need for confidentiality.
    Needs and Uses: Delivery of telecommunications, information, and 
video services depends on the ability of wireline and wireless 
providers of these services to attach their facilities (e.g., cable and 
fiber) to existing utility infrastructure. The Commission proposes a 
comprehensive regulatory scheme to ensure that the terms and conditions 
of attachment are just and reasonable under section 224 of the 
Communications Act. These proposals largely formalize existing 
practices, such as contract negotiations, applications to attach, 
surveys and engineering analyses, coordinated repositioning of existing 
attachments. But the proposals also impose some new paperwork 
requirements, including web postings of information, and letters of 
notification among the affected parties. Both existing practices and 
new proposals are incorporated in the paperwork burden estimates. Most 
of these responsibilities fall on the pole-owning utility, but some 
paperwork is required of prospective attaching entities. Normal course-
of-business practices, including preparation, review, and payment of 
invoices, are not included.
    Below is a synopsis of the Commission's Further Notice of Proposed 
Rulemaking in WC Docket No. 07-245, GN Docket No. 09-51, adopted May 
20, 2010, and released May 20, 2010.

Synopsis of Further Notice of Proposed Rulemaking

    1. In this FNPRM, the Commission seeks comment on how to improve 
access to essential infrastructure, and expedite the build-out of 
affordable broadband services as well as telecommunications and cable 
services. The Commission proposes a specific timeline for all wired 
pole attachment requests (including fiber or other wired attachments by 
wireless carriers), and seeks comment on the timeline and exceptions or 
refinements, as well as the development of a timeline for the 
attachment of wireless facilities. The Commission also proposes rules 
allowing the use of contract workers in certain circumstances, and 
proposes reforming its access dispute-resolution process consistent 
with the aims of the National Broadband Plan. The Commission seeks to 
establish rental rates for pole attachments that are as low and close 
to uniform as possible, consistent with section 224 of the Act, and the 
Commission seeks comment on proposals to accomplish this goal.

A. Expediting Access to Utility Poles

    2. A Comprehensive Timeline for Section 224 Access. The Commission 
proposes a comprehensive timeline for the make-ready process, as 
recommended in the National Broadband Plan. The Commission begins the 
process of establishing a Federal timeline that covers each step of the 
pole attachment process, from application to issuance of the final 
permit. The Commission believes that the Federal timeline should be 
comprehensive and applicable to all forms of communications 
attachments. The Commission proposes that it should adopt a timeline 
covering the process of certifying wireless equipment for attachment. 
The record before the Commission includes many examples of delay in 
make-ready work in states without make-ready timelines, in contrast to 
evidence of more expedited deployment in those states that have adopted 
timelines. Section 224 imposes a responsibility on utilities to provide 
just and reasonable access to any pole, duct, conduit, or right-of-way 
owned or controlled by it, in addition to preserving their ability to 
deliver their traditional services. The Commission is skeptical of the 
`zero-sum' view that some commenters seem to take with respect to the 
resources devoted to pole attachments and regular maintenance. To the 
extent utilities or other commenters assert that they are unable to 
satisfy these requirements, commenters are asked to provide further 
detail. Are utilities unable to hire enough workers to perform timely 
surveys and make-ready, and to ramp up their operations to meet demand? 
Inasmuch as they are unable to perform pole attachments as needed 
without impeding their provision of electric service, why is this so? 
Are these issues really a claim of insufficient cost recovery, rather 
than inability to provide make-ready work in a timely fashion?
    3. A Proposed Five-Stage Timeline for Wired Pole Attachment. The 
Commission proposes adopting a specific five-stage timeline to govern 
the pole attachment process for wired attachments consisting of the 
following five stages: (1) Survey; (2) estimate; (3) attacher 
acceptance; (4) performance; and, if needed, (5) multiparty 
coordination. Depending how long the applicant reviews the estimate, 
and whether the existing attachers complete their work in a timely 
manner, make-ready should be complete within a 105 to 149 day window 
after the utility receives a complete application for access. The 
Commission does not propose at this time to apply this timeline to 
make-ready for wireless equipment or pole replacement.
    4. Stage 1--Survey: 45 Days. As current rules dictate, a request 
for access continues to trigger a 45 day period for the utility to 
respond. The Commission proposes that, as the first stage of the 
timeline, the Commission should retain existing Commission rule Sec.  
1.1403(b). A ``request for access'' is a complete application that 
provides the utility with the information necessary to begin to survey 
the poles. The current rule gives utilities 45 days to provide a 
written explanation of evidence and information for denying the request 
for reasons of lack of capacity, safety, reliability or engineering 
standards. The rule is functionally identical to a requirement for a 
survey and engineering analysis when applied to wired facilities, and 
is generally understood by utilities as such. The rule remains 
applicable to wireless facilities, but could apply in a somewhat 
different manner. A 45-day survey limit accords with the time allowed 
for surveys in New York, Connecticut, and the Coalition Proposal, as 
well as the current rule.
    5. The Commission proposes that all requests for attachment be 
included in the timeframe for the survey stage, even where the request 
ultimately indicates a lack of capacity. Any right the owner has to 
refuse to install a new pole, and other questions about timing, 
however, do not affect the applicant's right to know whether the owner 
considers pole replacement necessary. The Commission seeks comment on 
whether to clarify what constitutes a sufficient request to trigger the 
timeline. Utilities state that application errors cause them to miss 
deadlines, and New York has adopted specific rules governing the 
application process. The Commission asks whether it should adopt 
similar regulations, or leave the details of the application process in 
the hands of individual parties. The Commission also

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seeks comment on whether timing should be adjusted when an application 
that appears complete includes errors that delay the survey. Should 
significant errors justify stopping the clock? Should it matter whether 
the errors reflect lack of due care by the applicant, or lack of 
information that the utility could have provided?
    6. Stage 2--Estimate: 14 Days. The Commission proposes that, as the 
second stage in the pole access timeline, a utility must tender an 
estimate of its charges to perform any make-ready work within 14 days 
after completing the survey. Both the New York timeline and the 
Coalition Proposal include a similar deadline, and the Commission 
proposes that such a timeframe is reasonable. Although utilities 
commonly provide an estimate with the survey and engineering analysis, 
an estimate of charges is not clearly required under the current 45-day 
response rule. The Commission proposes a deadline for estimates that is 
separate from the survey in order to permit a utility to separate the 
engineering analysis from its estimation of charges, and to permit the 
attacher time to examine and consider the engineering assessment before 
it reviews an invoice.
    7. Stage 3--Acceptance: 14 Days. The Commission proposes that, as 
the third stage in the timeline, the applicant should have 14 days to 
accept the tendered estimate, consistent with New York's practice. The 
Commission considers it unreasonable to require a utility to commit 
indefinitely to its make-ready proposal and estimate of charges, and 
believes that imposing this time limit on prospective attachers will 
provide additional certainty. Limiting review also meets the intention 
that the timeline should be comprehensive, and address each phase of 
the process. The applicant may accept the estimate sooner, and need not 
wait 14 days before accepting or rejecting it.
    8. Stage 4--Performance: 45 Days. The Commission proposes that, as 
the fourth stage in the timeline, payment by the applicant should 
trigger a 45-day period for the completion of make-ready work, 
consistent with the approach in New York and Connecticut. Given the 
experience in New York and Connecticut, the Commission finds 45 days to 
be a reasonable time period for the actual performance of make-ready 
work. To implement this approach, the Commission proposes that, when it 
receives payment, a utility must notify immediately all entities whose 
existing attachments may be affected by the project. The Commission 
further proposes that notification must include a reminder that those 
attachers have 45 days to move, rearrange, or remove any facilities as 
needed to perform the make-ready work and that, if they fail to do so, 
the utility or its agents, or the new attacher, using authorized 
contractors, may move or remove any facilities that impede performance. 
Moreover, the Commission proposes that the obligation to complete make-
ready work in this timeframe extend not only to the utility, but also 
to existing attachers. Utilities contend that existing attachers cause 
delays and have little incentive to cooperate, especially if the 
applicant will be a competitor, and this constrains their ability to 
provide timely pole access to new attachers. The Commission seeks 
comment with regard to this assertion, as well as the incentive and 
ability of other attachers on a pole to discriminate against a new 
attacher. The Commission invites comment on alternative or additional 
policies that could ensure the cooperation needed as part of the make-
ready process. By contrast, the Commission notes that the Coalition 
Proposal would not adopt a specific number of days for completion of 
relevant make-ready work, instead proposing to perform such work ``in a 
manner that does not discriminate in favor of the utility's own needs 
or customer work.'' The Commission seeks comment on what metrics and 
data would be needed to evaluate compliance with such an approach, and 
how it would be reported or otherwise made available. The Commission 
also seeks comment on the balance reflected in the Coalition Proposal 
in this regard between attachers' interests in timely, predictable pole 
access and pole owners' interests in ensuring safety, reliability, and 
sound engineering.
    9. Stage 5--Multiparty Coordination: 30 Days. The Commission 
proposes that the fifth stage of the timeline--if needed--will provide 
time for any coordination and make-ready work required in the event 
that some existing attachers fail to move their facilities as directed 
by the utility. The Commission notes that incumbent LECs typically 
occupy more space on a pole than other communications attachers and, 
due to their location on a pole, often must be the first to move their 
communications attachments as part of the make-ready process. And while 
current Commission rules provide that attachments by a cable operator 
or non-incumbent LEC telecommunications carrier may not be moved by the 
utility until 60 days have passed, that rule does not govern 
attachments by incumbent LECs. Thus, after 45 days, the utility or its 
agent may move incumbent LEC attachments as needed and, after 60 days, 
may act independently of other existing attachers to finish the 
project.
    10. Consequently, it is reasonable to allow extra time for the 
utility or its agent to complete the make-ready with a free hand. Given 
that the utility will have surveyed the poles and coordinated 
rearrangement, and, after 60 days, may act independently of other 
existing attachers, the Commission considers 30 days after the 45th day 
a reasonable extension of time to undertake any coordination or 
planning required to finish the project. The Commission seeks comment 
on this proposal. In addition to defining a default timeline, the 
Commission recognizes the need to define certain exceptions or 
limitations in appropriate circumstances.
    11. Adjustments to the Timeline for the Number of Pole Attachment 
Requests. In addition, the Commission recognizes the potential need to 
address utilities' concerns about possible operational or logistical 
challenges or the need to respond to factors outside their control. 
Thus, the Commission seeks comment on any necessary adjustments or 
exclusions from the timeline proposed above.
    12. Size of Request. The Commission seeks comment on whether 
requests for access to a particularly large number of poles should be 
excepted from the timeline, or subject to an alternative timeline. 
Requests for access vary widely, and the Commission seeks comment on 
how best to incorporate the size or complexity of requests into the 
rules. Utah and Vermont adjust the duration of the survey and 
performance deadlines for both the size of the job and size of the 
utility. Utah divides requests for attachment into four categories: (1) 
Up to 20 poles; (2) 21 to 300 poles, or up to .5 percent of the owner's 
poles in Utah; (3) 300 to 3,000 poles, or 5 percent of the owner's 
poles in Utah, up to 3,000 poles; and (4) requests that exceed 3,000 
poles or 5 percent of the owner's poles in Utah, which are negotiated 
individually. At each step, the lower outcome of the absolute number or 
percentage test applies. Vermont staggers the timeline solely according 
to the percentage of the owner's poles where attachment is requested, 
which it divides at .5 percent, 3 percent, and 5 percent; any request 
that exceeds 5% of the owner's poles must be negotiated individually. 
Similarly, New York requires applicants to give advance notice of 
``significant'' attachment requests.
    13. Comment is sought on the merits and effectiveness of the 
states' timeline adjustments or notice requirements as

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modifications to the proposed Federal timeline described above. Utah 
and Vermont's approach has the virtue of calibrating the timeline to 
fit both the size of the request and the size of the utility, but 
implementation depends upon access to data that may not currently be 
readily available for utilities nationally. Should utilities below a 
certain size have the option of sorting attachment requests into 
categories determined by a percentage of the utility's in-State poles, 
and adjusting the timeline accordingly? If so, how should the 
Commission define a large, medium, and small request, and what 
timeframe would be appropriate for each level? Should small utilities 
negotiate all timelines individually? Alternatively, should the 
timeline apply to small utilities for requests up to a certain size, 
with any larger requests subject to individual negotiation?
    14. Providing access on a rolling basis, or capping the number of 
attachments in a given time period, might provide an alternative 
approach to modifying the proposed timeline to accommodate larger jobs. 
The Coalition Proposal would limit any individual request to 250 poles, 
with pole access requests limited to 600 attachments in any one month. 
Utah considers a request to attach to more than 300 poles a large 
request, and counts all requests from any particular prospective 
attacher within a calendar month as one application. Regarding surveys, 
UTC reports that, on average, approximately 19 percent of all requests 
take longer than 45 days to process and, of that number, the reason for 
30 percent of missed deadlines was the size of the project. Comment is 
sought regarding whether, and if so, how, the reasonable size of a 
request would fit the timeline that the Commission proposes. The 
Commission also asks whether that size should be adjusted for small 
utilities, and, if so, what thresholds are appropriate.
    15. Just as some requests might prove too large for the timeline to 
accommodate, some attachers might seek faster action on smaller 
requests. Connecticut accelerates the deadline when an applicant 
requests access to four or fewer attachments. Utah distinguishes access 
requests for 20 poles or less. Should the Commission adopt an 
alternative timeline for small requests, and, if so, how many poles 
should count as a small request and what deadlines should apply? 
Commenters should consider whether some deadlines may be easier to 
scale back than others, and address the concern that a utility that can 
act quickly alone may not be able to induce other attachers to act 
quickly in concert. Section 224 requires that the utility give existing 
attachers a ``reasonable opportunity'' to modify their attachments. 
What notice would be appropriate in the context of particular small 
jobs?
    16. Stopping the Clock. The Commission acknowledges that 
circumstances beyond a utility's control may require prioritization, or 
otherwise warrant interrupting the timeline. In New York, 
``circumstances beyond the owner's control, other than resource 
problems, will excuse meeting the timetable. Non-payment of charges 
will also stop the clock for meeting timetables.'' In Vermont, the 
clock stops for extraordinary circumstances or reasons beyond the pole 
owner's control. Comment is sought with regard to stopping and 
restarting the clock. Are guidelines necessary or helpful? What type of 
communication or notice between parties is expected? If so, what 
potential disputes would guidelines resolve, and should guidelines be 
specific or general? The Commission would expect the utility to return 
to the timeline as soon as circumstances permit, which will generally 
be the same point that the utility resumes normal operation, and to 
keep all interested parties reasonably informed.
    17. Wireless Attachment Timeline Issues. The Commission also 
solicits comment on developing timelines for section 224 access other 
than wired pole attachments. First, the Commission seeks comment on 
whether the wired pole attachment timeline is appropriate for wireless 
equipment. Utilities assert that wireless attachment presents different 
safety, reliability, and engineering concerns because wireless 
equipment varies widely; is often placed in or near the electric lines; 
and requires a power source. The current rule requiring a response to 
pole access requests within 45 days applies in full to utilities that 
receive requests by wireless carriers, however. Where a utility has no 
master agreement with a carrier for wireless attachments requested, 
such as pole top attachments, the utility may satisfy the requirement 
to respond with a written explanation of its concerns with regard to 
capacity, safety, reliability, or engineering standards. The Commission 
seeks comment on whether it should require that the response be 
sufficiently detailed to serve as a basis for negotiating a master 
agreement, which would dictate a timely process for future attachments.
    18. The Commission seeks comment on considerations that would 
affect a timeline tailored to suit requests for attachment of wireless 
equipment after a utility and the carrier have reached a master 
agreement. Attachment of wireless equipment may complicate engineering 
analyses, but may also avoid the multiparty notice and coordination 
issues that characterize rearrangement of wired facilities. Also, 
wireless carriers using a distributed antenna system (DAS) attach to 
relatively few poles compared to cable operators and wireline carriers 
that attach to every pole that their network passes. Should a timeline 
for requests for wireless equipment reflect these circumstances, and if 
so how? The Commission particularly asks utilities that have permitted 
wireless equipment to be installed on their poles to report their 
experience, and to describe their typical timeframes for meeting 
wireless attachment requests. The goal is to bring regularity and 
predictability to attachment of wireless facilities while acknowledging 
that the attachment of wireless telecommunications equipment in or near 
the electric space may raise different safety, reliability, and 
engineering concerns.
    19. Other Section 224 Timeline Issues. Section 224 provides that, 
when an owner intends to modify a pole, the owner shall provide both 
written notification to ``any entity that has obtained an attachment'' 
and a ``reasonable opportunity to add to or modify its existing 
attachment.'' The record suggests that modification may be required 
during make-ready when, for example, a pole that has been grandfathered 
to a prior standard must be brought into compliance with current 
standards when a new attachment is added. Similarly, a utility may have 
been unaware of a safety violation until make-ready is performed. Does 
the proposed timeline provide adequate time for utilities to implement 
this obligation? The definition of ``pole attachment'' in section 
224(a)(4) includes attachments to a pole, duct, conduit, or right-of-
way. The record compiled in this proceeding almost exclusively 
addresses issues of attachments to poles. Beyond timeline issues for 
access to poles, comment is sought on whether to implement this 
timeline for access to section 224 ducts, conduits, and rights-of-way 
owned or controlled by a utility. Has delayed access to infrastructure 
other than poles impeded the deployment of broadband or other services? 
If so, should the proposed pole attachment timeline set forth above be 
applied to requests for access to other infrastructure, or are 
modifications or other considerations needed?
    20. Use of Outside Contractors. Attachers frequently seek the 
ability to

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use independent contractors to deploy their facilities when the utility 
fails to perform survey and make-ready work in a timely manner. The 
National Broadband Plan recommends rules that allow attachers to use 
independent, utility-approved and certified contractors to perform 
engineering assessments and communications make-ready work, as well as 
independent surveys. In defining how and when attachers may employ 
contractors in response to that recommendation, the Commission first 
delineates between: (a) Survey and make-ready work; and (b) the actual 
attachment of facilities. As a general matter, the Commission believes 
it is appropriate to allow greater utility control over the former by 
permitting utilities to require the use of pre-approved contractors for 
this work, but continuing a less restrictive approach, originally 
established in 1996, for the latter. The Commission also distinguishes 
between electric utilities and incumbent LECs regarding the level of 
control that each may exercise over an attacher's use of independent 
contractors.
    21. Basic Right to Use Contractors. The Local Competition Order 
established a general principle that attachers may rely upon 
independent contractors; that order did not differentiate between two 
different types of work: (a) Surveys and make-ready; and (b) post-make-
ready attachment of lines. As a result, there have been ongoing 
disagreements regarding the ability of attachers to use contractors to 
perform survey and make-ready work under existing law. As discussed 
below, addressing these issues in greater detail here the Commission 
proposes to clarify and revise this approach in several respects in the 
context of surveys and make-ready to reflect utilities' concerns 
regarding safety, reliability, and sound engineering. The Commission 
also finds differing approaches warranted for incumbent LEC pole owners 
as compared to other pole owners.
    22. In particular, with respect to surveys and communications make-
ready work, the Commission proposes that: Attachers may use contractors 
to perform surveys and make-ready work if a utility has failed to 
perform its obligations within the timeline, or as otherwise agreed to 
by the utility. As discussed above, the Commission proposes a pole 
access timeline based in significant part on the approach taken in New 
York. Within that regulatory framework, the New York Commission gives 
utilities the option of using their own workers to do the requested 
work, or to hire outside contractors themselves, or to allow attachers 
to hire approved outside contractors. Under the proposed approach, 
utilities likewise would be entitled to rely on their own personnel 
unless they are unable to complete work within the timeline. If the 
utility decides to deploy its workforce on other projects or otherwise 
is unable to meet a deadline, the prospective attacher would be free to 
use contractors that are approved and certified by the utility. Comment 
is sought on this general approach, including the relative benefits of 
preserving greater control for utilities as compared to potential time- 
or cost-savings that attachers might obtain if they have appropriate 
contractors available and ready to do make-ready work.
    23. With respect to actual attachment of facilities to poles, the 
Commission proposes to retain the existing rules. The make-ready 
process is designed to address the utilities' safety, reliability and 
engineering concerns prior to a new attachment. So when that process is 
complete and facilities are ready to be attached, the utility's 
concerns are less pressing, and an attacher's interest in rolling out 
properly permitted facilities is proportionately larger. Therefore, for 
the post-make-ready attachment of facilities, the Commission retains 
the existing standard of ``same qualifications, in terms of training, 
as the utilities' own workers,'' and continues to deny utilities the 
right to predesignate or co-direct an attacher's chosen contractor. The 
Commission seeks comment on this proposal, as well as other 
alternatives.
    24. Approval and certification of contract workers. With respect to 
electric utilities and other non-incumbent LEC pole owners, the 
Commission proposes that: To perform surveys or make-ready work 
attachers may use contractors that a utility has approved and certified 
for purposes of performing such work. This is consistent with the 
approach of the New York Commission--cited approvingly by some 
attachers--which entitles applicants for attachment to hire contractors 
from a utility-approved list if the utility cannot or will not meet 
survey and make-ready deadlines. A number of utilities express concern 
that the safety and reliability of their poles may be jeopardized by 
independent contractors. Crucial judgments about safety, capacity, and 
engineering are made during surveys and make-ready, and the Commission 
finds the utilities' concerns reasonable. Permitting such utilities to 
decide which contractors it will approve and certify for surveys and 
make-ready addresses the need that utilities maintain control over 
safety and engineering standards, although the Commission seeks comment 
on alternative approaches, as well.
    25. Although the Commission proposes to allow electric utilities 
and other non-incumbent LEC pole owners to pre-approve the contractors 
they will permit to perform surveys and make-ready, their discretion 
should not be unbounded, and the Commission proposes the following 
requirements. First, the Commission proposes to require such utilities 
to post or otherwise share with attachers a list of approved- and 
certified contractors, including any contractors that the utility 
itself uses. Second, the Commission proposes to require each such 
utility to post or otherwise share with attachers the standards it uses 
to evaluate contractors for approval and certification and require the 
nondiscriminatory application of those standards. Under the proposal, 
these utilities may design their requirements as they see fit, by, for 
example, setting training standards, approving training manuals, or 
otherwise clarifying their requirements.
    26. These requirements are minimally burdensome and are sufficient 
to prevent a utility from artificially limiting the list of approved 
contractors. The Commission is unpersuaded by contentions from certain 
utilities that the decisions on outside contractors will lead to 
resource diversion of non-employee ``resources,'' undercutting their 
ability to deliver traditional services. Nothing in this proposal 
affects a utility's control of its employees. The Commission is aware 
of the need to balance the work of infrastructure personnel, but also 
mindful that section 224 imposes obligations on utilities that may 
require accommodations and adjustments. The Commission seeks further 
comment on the staffing issues, especially regarding the utilities' 
rights to the time and attention of contractors. The Commission invites 
comment concerning whether the proposed requirements are necessary, 
appropriate, and sufficient for their purpose.
    27. The Commission seeks comment on this proposal, including 
whether it strikes the right balance of rights and burdens of attachers 
and utilities, and any implementation issues the Commission should 
address. For example, if no list is provided, or if one is not 
available when the application is filed, should the existing ``same 
qualifications'' standard apply by default? The Commission also seeks 
comment on whether any additional criteria are warranted. For example, 
should this list contain a minimum number of contractors to ensure 
ready

[[Page 41343]]

availability of contractors if make-ready work is needed? Should the 
list automatically include any contractors previously used by the 
utility for its own purposes? Should there be a presumption that 
contractors that are approved and certified by a utility (or multiple 
utilities) other than the pole owner be acceptable for make-ready work?
    28. With respect to incumbent LECs, the Commission proposes that: 
to perform surveys or make-ready work attachers may use any contractor 
that has the ``same qualifications, in terms of training, as the 
utilities own workers.'' As discussed above, in the Local Competition 
Order, the Commission reasoned that ``[a]llowing a utility to dictate 
that only specific employees or contractors be used would impede the 
access that Congress sought to bestow on telecommunications providers 
and cable operators * * *.'' These risks are heightened in the context 
of incumbent LEC utility poles, where the new attacher typically will 
be a competitor of the incumbent LEC. Thus, the balancing of safety 
concerns and protection for attachers differs from the context of 
electric utility-owned poles, and leads us to propose an approach that 
grants greater flexibility to attachers.
    29. Direction and Supervision of Outside Contractors. The 
Commission proposes that, for surveys and make-ready work, utilities 
and prospective attachers may jointly direct and supervise contractors. 
As with approval and certification of contract workers, the Commission 
proposes a differing approach for incumbent LEC pole owners and other 
pole owners. And in the context of actual attachment of facilities to 
poles, the Commission does not propose any affirmative right for 
utilities to jointly direct and supervise contractors.
    30. For electric utilities and other non-incumbent LEC pole owners, 
the Commission proposes that: attachers performing surveys and make-
ready work using contractors shall invite representatives of the 
utility to accompany the contract workers, and should mutually agree 
regarding the amount of notice to the utility. The Commission further 
proposes that, whenever possible, both parties' engineers should seek 
to find mutually satisfactory solutions to conflicting opinions, but 
when differences are irreconcilable, the pole owners' representative 
may exercise final authority to make all judgments that relate directly 
to insufficient capacity or safety, reliability, and sound engineering, 
subject to any otherwise-applicable dispute resolution process. The 
Commission sees no conflict between the use of contractors as outlined 
above and the electric utilities' safety and engineering concerns. Nor 
does the Commission see a conflict with the attachers' desire to use 
independent contractors. Use of contractors is an appropriate tool to 
facilitate timely deployment of facilities only when it does not 
circumvent or diminish the electric utilities' vital role in 
maintaining the safety, reliability, and sound engineering of the pole 
infrastructure.
    31. In the case of incumbent LEC-owned poles: attachers performing 
surveys and make-ready work using contractors shall invite a 
representative of the incumbent LEC to accompany and observe the 
contractor, but the incumbent LEC shall not have final decision-making 
power. In the majority of cases, electric power companies and other 
non-incumbent LECs are typically disinterested parties with only the 
best interest of the infrastructure at heart; incumbent LECs may make 
no such claim. In contrast to the vast majority of electric utilities 
or similar pole owners, as discussed above, incumbent LECs are usually 
in direct competition with at least one of the new attacher's services, 
and the incumbent LEC may have strong incentives to frustrate and delay 
attachment. To allow an incumbent LEC a veto over contractors would 
provide them with an undue ability to act on that incentive. The 
Commission seeks comment on whether incumbent LECs have other legal 
responsibilities or obligations under joint use agreements that could 
counsel in favor of a different approach.
    32. Working Among the Electrical Lines. The Commission further 
proposes that all utilities may deny access by contractors to work 
among the electric lines, except where the contractor has special 
communications-equipment related training or skills that the utility 
cannot duplicate. In so doing, the Commission clarifies that 
``proximity of electric lines'' extends into the safety space between 
the communications and electrical wires but, not among the lines 
themselves. The Commission concluded in the Local Competition Order 
that ``[a] utility may require that individuals who will work in the 
proximity of electric lines have the same qualifications, in terms of 
training, as the utility's own workers, but the party seeking access 
will be able to use any individual workers who meet these criteria.'' 
Safety, reliability, and engineering concerns are strongest regarding 
work among energized power lines, and the National Broadband Plan calls 
for the use of independent contractors to perform ``engineering 
assessments and communications make-ready work.'' In any event, the 
word ``proximity'' is ambiguous, and could mean either ``up to the 
electric lines'' or ``among the electric lines.'' The former is the 
more reasonable choice and the Commission believes it is appropriate to 
remove this ambiguity from the rules. Thus, the Commission proposes 
that, generally, attachers and their contractors may be limited to the 
communications space and safety space below the electric space on a 
pole. However, utilities must permit contract personnel with 
specialized communications-equipment training or skills that the 
utility cannot duplicate to work among the power lines, such as work 
with wireless antennae equipment. Because of the heightened safety 
considerations, any such work shall be performed in concert with the 
utility's workforce and when the utility deems it safe.
Other Options To Expedite Pole Access
    33. Payment for Make-ready Work. In addition to adopting a formal 
pole access timeline, the Commission seeks to correctly align the 
incentives to perform make-ready work on schedule. Accordingly, the 
Commission proposes to adopt the Utah rule that applicants pay for 
make-ready work in stages, and may withhold a portion of the payment 
until the work is complete. In Utah, applicants trigger initiation of 
performance by paying one half the estimated cost; pay one quarter of 
the estimated cost midway through performance; and pay the remainder 
upon completion. What schedule of payment is normal in comparable 
circumstances in other commercial contexts? Alternatively, should the 
Commission adopt a general rule permitting payment for make-ready work 
in stages, and leave the details of the specific payment schedule to 
negotiation?
    34. Schedule of Charges. The Commission proposes that utilities 
shall make available to attaching entities a schedule of common make-
ready charges. The National Broadband Plan recommended that the 
Commission ``[e]stablish a schedule of charges for the most common 
categories of work (such as engineering assessments and pole 
construction)'' as an additional way to lower the cost and increase the 
speed of the pole attachment process. Such a schedule could provide 
transparency to attachers seeking to deploy their networks and could 
fortify the ``just and reasonable'' access standard for pole 
attachments. The Commission seeks comment generally on the benefits and 
any limitations associated with

[[Page 41344]]

requiring utilities to prepare such a schedule. Further, the Commission 
asks whether and how schedules of common make-ready charges are used 
and implemented by utilities today. The Commission also seeks comment 
on any comparable State requirements. For example, the Commission notes 
that the New York Commission's rules require that make-ready charges be 
in each pole owner's operating agreement, be posted on its Web site, 
with supporting documentation available to attachers on request, and 
can only be changed annually with notice. The Commission also asks if 
there are other mechanisms currently in use, such as standardized 
contract terms, that provide the necessary information and transparency 
to the make-ready process, without additional government mandate. 
Finally, the Commission seeks comment on whether particular make-ready 
jobs and charges are the most common, and thus would most easily be 
applied to a generalized schedule of charges.
    35. Administering Pole Attachments. The Commission seeks comment on 
ways to simplify the relationship between prospective attachers and 
utilities when there is joint ownership. The record suggests that, when 
a pole is jointly owned, a prospective attacher may sometimes be 
required to obtain permission to attach from both owners. Consolidating 
administrative authority in one managing utility would simplify a 
prospective attacher's request for access, and clarify which utility 
will interact with the requesting entity and existing attachers during 
the make-ready process. The Commission therefore proposes that, when 
more than one utility owns a pole, the owners must determine which of 
them is the managing utility for any jointly-owned pole. Also, 
requesting entities need only deal with the managing utility, and not 
both utilities. The Commission also proposes that both utilities should 
make publicly available the identity of the managing utility for any 
given pole, and the Commission seeks comments on these proposals. The 
Commission invites comment on whether the proposed regulations are 
sufficient to clarify joint owners' rights and responsibilities with 
regard to the right of access. In addition, the Commission seeks 
comment on joint use agreements, and whether they may inhibit the 
managing owner from administering the entire pole. If the joint user is 
an incumbent LEC, how should the Commission address concerns that it 
might not be inclined to devote its resources to providing access for a 
competitor? Do joint use agreements sometimes give that user a degree 
of ``control'' over access to the pole to the point that the user may 
have a specific duty to provide access under section 224?
    36. The Commission also seeks comment regarding the managing 
utility's responsibility to administer the pole during the make-ready 
process. In particular, under section 224, an existing attacher may not 
be required to bear any of the costs of rearranging its attachment to 
make room for a new attacher. As a practical matter, only the utility 
has privity with both the requesting entity and the existing attachers, 
and it appears reasonable for the utility to manage the transfer of 
funds. The Commission is reluctant, however, to entrust this 
responsibility to the managing utility without standards or guidance. 
Therefore, it proposes to require the utility to collect from existing 
attachers statements of any costs that are attributable to 
rearrangement; to bill the new attacher for these costs, plus any 
expenses the utility incurs in its role as clearinghouse, and to 
disburse compensatory payment to the existing attachers. The Commission 
seeks comment on this proposal, and any alternatives for managing this 
process. The Commission also asks whether utilities require any further 
clarification of their role in managing the pole during the make-ready 
process. For example, should the managing utility schedule the sequence 
for attaching entities to move their facilities during make-ready?
    37. Attachment Techniques. In the Order, the Commission clarified 
that the Act requires a utility to allow cable operators and 
telecommunications carriers to use the same pole attachment techniques 
that the utility itself uses or allows. Some commenters state, however, 
that even if a utility has employed such practices in the past, it 
should be able to prohibit boxing and bracketing for both itself and 
other attachers going forward. If a utility changes its practices over 
time to exclude attachment techniques such as boxing, to what extent 
would the nondiscrimination standard in the statute automatically 
address this, or are rules necessary? The Commission also seeks comment 
on how standards should apply when a pole is jointly used or owned, and 
on whether utilities' decisions regarding the use of boxing and 
bracketing should be made publicly available.
    38. Improving the Availability of Data. The Commission seeks 
comment on how to improve the collection and availability of 
information regarding the location and availability of poles, ducts, 
conduits, and rights-of-way. As the National Broadband Plan points out, 
there are hundreds of entities that own and use this infrastructure, 
and accurate information about it is important for the efficient and 
timely deployment of advanced and competitive communications networks. 
Initially, the Commission asks what data would be beneficial to 
maintain, such as the ownership of, location of, and attachments on a 
pole. Should the Commission collect these data itself, or might 
industry, including third-party entities, be better suited for the 
task? If the latter, what is the appropriate role for the Commission 
regarding the establishment of common standards and oversight? Could or 
should this information, if collected and maintained by separate 
entities, be aggregated into a national database?
    39. To gain perspective on the scope of this task, the Commission 
seeks comment on the number of poles for which data would need to be 
gathered, how long it would take to inventory them, and the cost of 
such an inventory. The Commission also asks what existing methods 
utilities currently use, such as the National Joint Utilities 
Notification System (NJUNS) or Alden Systems' Joint Use services. How 
can the Commission ensure participation by all relevant parties, 
including timely updates of information? For example, is it reasonable 
for a utility to require all attachers to actively use or populate a 
system it uses, such as NJUNS, to inventory pole attachments, perhaps 
as a term of the master agreement? How can the Commission ensure that 
the costs are shared equitably by pole owners and other users of the 
data? The Commission also seeks comment on the challenges to creating 
and maintaining such a database, including security issues, access for 
prospective attachers, and the potential burden to small utilities, as 
well as on any additional benefits such data would have for maintaining 
safe and reliable infrastructure.
    40. The Commission also expects that the timeline and related rules 
proposed above will help expedite pole access, and proposes that it 
monitor whether those rules, if adopted, achieve the intended results. 
The Commission seeks comment on the most appropriate method for it to 
use in this regard. Would the other possible improvements to the 
collection and availability discussed above provide a source of such 
information? If not, should the Commission otherwise collect such 
information, either formally, or through a periodic Public Notice or 
Notice of Inquiry? Similarly, is there other

[[Page 41345]]

information that the Commission should collect to monitor the 
effectiveness of any other pole access, enforcement, or pricing rules 
it might adopt?

B. Improving the Enforcement Process

    41. Revising Pole Attachment Dispute Resolution Procedures. In 
response to the Pole Attachment Notice, the Commission received several 
comments suggesting that the Commission modify its procedures for 
resolving pole attachment complaints. In addition, the National 
Broadband Plan included recommendations that the Commission implement 
institutional changes, such as the creation of specialized forums and 
processes for attachment disputes, and adopt process changes to 
expedite dispute resolution.
    42. The Commission asks whether it should modify its existing 
procedural rules governing pole attachment complaints. Should the 
Commission adopt additional rules or procedures to address specific 
issues that arise with wireline or wireless attachments? Do any of the 
Commission's other procedural rules, such as the rules governing formal 
complaints under section 208 of the Act, or the rules governing 
complaints related to cable service, provide a suitable model in 
developing new procedural rules for pole attachment complaints? What 
other issues concerning dispute resolution processes should the 
Commission consider?
    43. If the Commission were to establish specialized forums to 
handle pole attachment disputes, what form and structure should these 
forums take? Under what legal authority could the Commission authorize 
the formation of such forums? How would the forums be formed, managed, 
and funded? How should forum participants be selected? What specific 
expertise should staff of these forums have? What role should the 
Commission or Commission staff play with regard to the forums? What 
specific role should such forums play in the resolution of pole 
attachment disputes? Should the forums engage in mediation or other 
alternative dispute resolution mechanisms? Should the use of the forums 
for dispute resolution be mandatory or voluntary? Should these 
specialized forums issue decisions in specific cases? How could the 
decisions of the forums be challenged, and pursuant to what standard? 
Should such decisions be appealable to the Commission? What kinds of 
rules or procedures should govern the work of the specialized forums? 
How would the forum participants avoid conflicts of interest when 
engaging in dispute resolution processes with industry participants? Do 
the Transition Administrator procedures established in the 800 MHz 
Report and Order provide a suitable model in developing these forums? 
The Commission invites comment.
    44. Efficient Informal Dispute Resolution Process. In the Pole 
Attachment Notice, the Commission noted that the Commission has 
encouraged parties to participate in staff-supervised, informal dispute 
resolution processes and that these processes have been successful in 
resolving pole attachment matters. If parties are able informally to 
agree to a resolution of their problems, they can avoid the time and 
expense attendant to formal litigation. Some attachment disputes may be 
more quickly or cost-effectively resolved by the companies involved 
themselves or through other local dispute resolution processes outside 
the Commission's auspices. The Commission seeks comment on whether the 
Commission should attempt to encourage this type of local dispute 
resolution with a set of ``best practices,'' or in other ways. If the 
Commission were to develop a set of best practices, what would the 
likely impact be on the process compared with how disputes are resolved 
today? Should the best practices or local processes apply to all 
attachment disputes, safety and engineering issues only, or have some 
other scope? The New York Commission, for instance, requires some 
resolution at the company level before a formal complaint can be filed. 
Should the Commission encourage similar efforts, suggest that parties 
seek mediation or arbitration before filing a complaint, or are there 
other processes that parties have found helpful and can recommend? Are 
there other ways that the Commission should encourage this type of 
dispute resolution?
    45. The Pole Attachment Notice questioned whether Sec.  1.1404(m) 
has had the unintended consequence of discouraging informal resolution 
of disputes. For that reason, the Commission sought comment on whether 
the rule should be amended or eliminated. The Commission received no 
substantive comment concerning Sec.  1.1404(m), which provides that 
potential attachers who are denied access to a pole, duct, or conduit 
must file a complaint ``within 30 days of such denial.'' The experience 
of handling pole attachment complaints, however, leads us to believe 
that the rule hinders informal resolution of disputes. Specifically, 
the existence of the rule deters attachers from pursuing pre-complaint 
mediation and has prompted the premature filing of complaints. Indeed, 
several complainants have indicated to Commission staff that, although 
they would be interested in mediation, they felt they had no choice but 
to file a complaint first, because of Sec.  1.1404(m). Thus, the 
Commission believes the rule unnecessarily pushes some parties into 
formal litigation at a stage when informal resolution still is 
possible. Accordingly, the Commission proposes that the 30-day 
requirement in Sec.  1.1404(m) be eliminated.
    46. Remedies. Under section 224 of the Act, the Commission is 
charged with a duty to ``regulate the rates, terms, and conditions for 
pole attachments'' and to ``adopt procedures necessary and appropriate 
to hear and resolve complaints concerning such rates, terms, and 
conditions.'' The Commission has broad authority to ``enforc[e] any 
determinations resulting from complaint procedures'' and to ``take such 
action as it deems appropriate and necessary, including issuing cease 
and desist orders * * *.'' In furtherance of these statutory duties, 
the Commission has adopted procedural rules governing complaints 
alleging both unreasonable rates, terms, and conditions for pole 
attachment, and the unlawful denial of pole access.
    47. Section 1.1410 of the pole attachment rules lists the remedies 
available in a complaint proceeding where the Commission determines 
that a challenged rate, term, or condition is not just and reasonable. 
In such cases, the Commission may terminate the unjust and unreasonable 
rate, term, or condition, or substitute a just and reasonable rate, 
term, or condition established by the Commission. Moreover, Sec.  
1.1410(c) also permits a monetary award in the form of a ``refund, or 
payment,'' which will ``normally be the difference between the amount 
paid under the unjust and/or unreasonable rate, term, or condition and 
the amount that would have been paid under the rate, term, or condition 
established by the Commission from the date that the complaint, as 
acceptable, was filed, plus interest.'' Although the Commission 
occasionally has departed from the notion that the filing of a pole 
attachment complaint marks the beginning of a refund period, it usually 
has used the complaint filing date as the starting point for 
determining refunds.
    48. The Commission's rules do not expressly set forth the remedies 
available where the Commission determines that a utility has wrongfully 
denied or delayed access to poles in violation of section 224(f) of the 
Act. In addition, the rules do not provide for an award of compensatory 
damages in cases where either an unlawful denial or

[[Page 41346]]

delay of access is established, or a rate, term, or condition is found 
to be unjust or unreasonable. The Commission proposes that Sec.  1.1410 
of the Commission's pole attachment complaint rules be amended to 
enumerate the remedies available to an attacher that proves a utility 
has unlawfully delayed or denied access to its poles. The Commission 
proposes that the rule specify that one remedy available for an 
unlawful denial or delay of access is a Commission order directing that 
access be granted within a specified time frame, and/or under specific 
rates, terms, and conditions. Because the Commission already has 
authority to issue such orders, and has done so in the past, this rule 
change would simply codify existing precedent.
    49. The Commission further proposes amending Sec.  1.1410 to 
specify that compensatory damages may be awarded where an unlawful 
denial or delay of access is established, or a rate, term, or condition 
is found to be unjust or unreasonable. Because the current rule 
provides no monetary remedy for a delay or denial of access, utilities 
have little disincentive to refrain from conduct that obstructs or 
delays access. Under the current rule, the only consequence a utility 
engaging in such conduct is likely to face in a complaint proceeding is 
a Commission order requiring the utility to provide the access it was 
obligated to grant in the first place. Currently, a utility that 
competes with the attacher may calculate that the cost of defending an 
access complaint before the Commission, even if it receives an adverse 
ruling, may be justified by the advantage the pole owner has gained by 
delaying a rival's build-out plans. Allowing an award of compensatory 
damages for unlawful delays or denials of access would provide an 
important disincentive to pole owners to obstruct access. It would also 
give the Commission the ability to ensure that the attacher is ``made 
whole'' for the delay it has suffered.
    50. Should Sec.  1.1410 be amended to provide for an award of 
compensatory damages where a rate, term, or condition is found to be 
unjust or unreasonable? Under the current rule, the only monetary 
remedy specified in such cases is a refund. Although the refund remedy 
may adequately compensate an attacher who has been charged excessive 
rental rates or make-ready fees, it does not compensate the attacher 
for unreasonable terms and conditions of attachment that do not involve 
payments to the pole owner. For example, a pole owner that unlawfully 
bars an attacher from using the boxing technique on poles may increase 
the charges an attacher must pay third parties to attach its facilities 
to poles. Just compensation in such a case would not involve a refund 
by the pole owner, but might require it to reimburse the attacher for 
costs the attacher would not have incurred but for the owner's 
unreasonable ban on boxing.
    51. Finally, as noted above, Sec.  1.1410(c) also permits a 
monetary award in the form of a ``refund, or payment,'' measured ``from 
the date that the complaint, as acceptable, was filed, plus interest.'' 
The Commission adopted Sec.  1.1410(c) in 1978 to ``avoid abuse and 
encourage early filing when rates are considered objectionable by the 
CATV operator.'' But the experience in handling pole attachment 
complaints leads us to believe that Sec.  1.1410(c) fails to make 
injured attachers whole. Generally speaking, a plaintiff is entitled to 
recompense going back as far as the applicable statute of limitations 
allows. There does