A National Broadband Plan for Our Future, 26620-26641 [2011-11137]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Rules and Regulations]
[Pages 26620-26641]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11137]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WC Docket No. 07-245, GN Docket No. 09-51; FCC 11-50]


A National Broadband Plan for Our Future

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission revises its pole attachment 
rules to promote competition and to reduce the potentially excessive 
costs of deploying telecommunications, cable, and broadband networks. 
The Commission also revises the telecommunications rate formula for 
pole attachments consistent with the statutory framework, reinterprets 
the Communications Act of 1934, as amended, to allow incumbent LECs to 
file complaints before the Commission if they believe a pole attachment 
rate, term, or condition is unjust and unreasonable, and confirms 
wireless providers are entitled to the same rate as other 
telecommunications carriers. In addition, the Commission resolves 
multiple petitions for reconsideration and addresses various points 
regarding the nondiscriminatory use of attachment techniques.

DATES: Effective June 8, 2011, except for Sec. Sec.  1.1420, 1.1422 and 
1.1424, which contain information collection requirements that have not 
been approved by the Office of Management and Budget. The Commission 
will publish a document in the Federal Register announcing the 
effective date for those sections.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. In addition to filing comments with the Office of 
the Secretary, a copy of any comments on the Paperwork Reduction Act 
information collection requirements contained herein should be 
submitted to Judith B. Herman, Federal Communications Commission, Room 
1-B441, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to PRA@fcc.gov.

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 at 202-418-0214.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Report and Order and Order on Reconsideration (Order), FCC 11-50, 
adopted and released on April 7, 2011. The full text of the Order is 
available for inspection and copying during regular business hours in 
the FCC Reference Center, 445 Twelfth Street, SW., Room CY-A257, 
Portals II, Washington, DC 20554, and may also be purchased from the 
Commission's copy contractor, BCPI, Inc., Portals II, 445 Twelfth 
Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact 
BCPI, Inc. via their Web site, https://www.bcpi.com, or call 1-800-378-
3160. This document is available in alternative formats (computer 
diskette, large print, audio record, and braille). Persons with 
disabilities who need documents in these formats may contact the FCC by 
e-mail: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

Synopsis of Report and Order and Order on Reconsideration

    1. In 1978, Congress added section 224 to the Communications Act of 
1934, as amended (Communications Act or Act) thereby directing the 
Commission to ensure that the rates, terms, and conditions for pole 
attachments by cable television systems are just and reasonable. 
Section 224 provides that the Commission will regulate pole attachments 
except where such matters are regulated by a state. Section 224 also 
withholds from the Commission jurisdiction to regulate attachments

[[Page 26621]]

where the utility is a railroad, cooperatively organized, or owned by a 
government entity.
    2. The Telecommunications Act of 1996 (1996 Act) expanded the 
definition of pole attachments to include attachments by providers of 
telecommunications service, and granted both cable systems and 
telecommunications carriers an affirmative right of nondiscriminatory 
access to any pole, duct, conduit, or right-of-way owned or controlled 
by a utility. However, the 1996 Act permits utilities to deny access 
where there is insufficient capacity and for reasons of safety, 
reliability or generally applicable engineering purposes. Besides 
establishing a right of access, the 1996 Act set forth section 224(e) 
-- a rate methodology for ``attachments used by telecommunications 
carriers to provide telecommunications services'' -- in addition to the 
existing methodology in section 224(d) for attachments ``used by a 
cable television system solely to provide cable service.''
    3. The Commission implemented the new section 224 access 
requirements in the Local Competition Order (47 FR 47283, Sept. 6, 
1996, FCC 96-333, rel. Aug. 8, 1996). At that time, the Commission 
concluded that it would determine the reasonableness of a particular 
condition of access on a case-by-case basis. Finding that no single set 
of rules could take into account all attachment issues, the Commission 
specifically declined to adopt the National Electrical Safety Code 
(NESC) in lieu of access rules. The Commission also recognized that 
utilities typically develop individual standards and incorporate them 
into pole attachment agreements, and that, in some cases, Federal, 
state, or local laws also impose relevant restrictions. The Local 
Competition Order acknowledged concerns that utilities might deny 
access unreasonably, but, rather than adopt a set of substantive 
engineering standards, the Commission decided that procedures for 
requiring utilities to justify the conditions they placed on access 
would best safeguard attachers' rights. The Commission did adopt five 
rules of general applicability and several broad policy guidelines in 
the Local Competition Order. The Commission also stated that it would 
monitor the effect of the case-specific approach, and would propose 
specific rules at a later date if conditions warranted.
    4. In the 1998 Implementation Order (63 FR 12013, Mar. 12, 1998, 
FCC 98-20, rel. Feb. 6, 1998), the Commission adopted rules 
implementing the 1996 Act's new pole attachment rate formula for 
telecommunications carriers. The Commission also concluded that cable 
television systems offering both cable and Internet access service 
should continue to pay the cable rate. The Commission further held that 
wireless carriers had a statutory right of nondiscriminatory access to 
poles. Although the latter two determinations were challenged, both 
were ultimately upheld by the Supreme Court. In particular, the Court 
held that section 224 gives the Commission broad authority to adopt 
just and reasonable rates. The Court also deferred to the Commission's 
conclusion that wireless carriers are entitled by section 224 to attach 
facilities to poles.
    5. On November 20, 2007, the Commission issued the Pole Attachment 
NPRM (73 FR 6879, Feb. 6, 2008, FCC 07-187, rel. Nov. 20, 2007) in 
recognition of the importance of pole attachments to the deployment of 
communications networks, in part in response to petitions for 
rulemaking from USTelecom and Fibertech Networks. USTelecom argued that 
incumbent LECs, as providers of telecommunications service, are 
entitled to just and reasonable pole attachment rates, terms, and 
conditions of attachment even though, under section 224, they are not 
included in the term ``telecommunications carriers'' and therefore have 
no statutory right of access. Fibertech petitioned the Commission to 
initiate a rulemaking to set access standards for pole attachments, 
including standards for timely performance of make-ready work, use of 
boxing and extension arms, and use of qualified third-party contract 
workers, among other concerns. The Pole Attachment NPRM sought comment 
on the concerns raised by USTelecom and Fibertech, as well as the 
application of the telecommunications rate to wireless pole attachments 
and other pole access concerns.
    6. The American Recovery and Reinvestment Act of 2009 included a 
requirement that the Commission develop a national broadband plan to 
ensure that every American has access to broadband capability. On March 
16, 2010, the National Broadband Plan was released, and identified 
access to rights-of-way--including access to poles--as having a 
significant impact on the deployment of broadband networks. 
Accordingly, the Plan included several recommendations regarding pole 
attachment access, enforcement, and pricing policies to further advance 
broadband deployment.
    7. On May 20, 2010, the Commission issued the Pole Attachment Order 
and FNPRM. In the 2010 Order (75 FR 45494, Aug. 3, 2010, FCC 10-84, 
rel. May 20, 2010), the Commission took initial steps to clarify the 
rules governing pole attachments and to streamline the pole attachment 
process. The Commission clarified the statutory right of communications 
providers to use the same space- and cost-saving techniques that pole 
owners use, such as placing attachments on both sides of a pole 
(boxing), and established that providers have a statutory right to 
timely access to poles. In the FNPRM (75 FR 41338, July 15, 2010, FCC 
10-84, rel. May 20, 2010), the Commission sought comment on a variety 
of measures to speed access to poles. The Commission proposed a 
comprehensive timeline for all wired pole attachment requests and 
sought comment on possible adjustments to that timeline. The Commission 
sought comment on whether to adopt a separate timeline for wireless 
attachments. The Commission proposed to permit attachers to use 
independent contractors to perform surveys and make-ready work if the 
pole owner missed its deadlines, subject to certain conditions. The 
Commission further proposed that utilities may deny access by 
contractors to work among the electric lines. In addition, the 
Commission proposed a staggered payment system for make-ready work; 
proposed requiring a schedule of make-ready charges; proposed requiring 
joint pole owners to designate a single managing utility; and sought 
comment on improving the collection and availability of data.
    8. The Commission also sought comment on whether current rules 
governing pole attachment complaints create appropriate incentives for 
parties to settle or resolve disputes informally, and whether 
appropriate remedies are available when parties pursue formal 
complaints. The FNPRM sought comment on ways to reduce the existing 
disparities in pole rental rates and proposed to address those 
disparities by reinterpreting the telecom rate formula and by 
considering the issues surrounding possible regulation of pole 
attachments by incumbent local exchange carriers (LECs).
    9. On September 2, 2010, various electric utilities and cable 
providers filed petitions seeking clarification or reconsideration of 
parts of the 2010 Order concerning the nondiscriminatory use of 
attachment techniques. The petitions ask the Commission to clarify, 
among other things, whether a utility must allow attachers to use the 
same attachment techniques that it uses for itself in the electric 
space, and whether a pole owner is free to impose new boxing and 
extension arm requirements going forward.

[[Page 26622]]

    10. The Commission has held workshops addressing pole attachment 
issues. On September 28, 2010 the Wireline Competition Bureau convened 
a workshop to ``learn from the experiences and insights of state 
regulators regarding the Commission's proposed pole attachment 
regulations.'' On February 9, 2011, the Commission held a Broadband 
Acceleration Conference that brought together leaders from Federal, 
state, and local governments; broadband providers; telecommunications 
carriers; tower companies; equipment suppliers; and utility companies 
to identify opportunities to reduce regulatory and other barriers to 
broadband build-out. At this conference, the Commission announced its 
Broadband Acceleration Initiative: an agenda for work inside the 
Commission, with our partners in Tribal, state, and local government, 
and with the private sector to reduce barriers to broadband deployment.

Improved Access to Utility Poles

    11. We take several steps to improve access to utility poles. Our 
rules are generally consistent with proposals in the FNPRM, but also 
reflect a close examination of the record developed in this proceeding. 
We adopt a four-stage timeline that provides a maximum of 148 days for 
attachers to access the communications space on utility poles. For 
wireless attachments above the communications space, we adopt a 
modified form of the timeline. The timeline begins to run after the 
requester submits a complete application. We also establish that a 
utility may stop the clock for emergencies pursuant to a ``good and 
sufficient cause'' standard. We adopt rules that allow attachers to use 
independent contractors pre-authorized by the utilities to complete 
survey and make-ready work in the communications space, subject to a 
number of protections and conditions, if the pole owner does not meet 
the prescribed timelines. In particular, electric utilities have 
ultimate decision-making authority regarding the contractor's work with 
respect to section 224(f)(2) denial-of-access issues.
    12. We allow a utility to limit on a per-state basis the size of a 
pole attachment request that is subject to the timeline, and allow 
extra time for large orders. Specifically, we apply the basic timeline 
to requests of up to 300 pole attachments per state or attachments to 
0.5 percent of the utility's in-state poles, whichever is less. For 
larger requests of up to 3,000 pole attachments per state or 5 percent 
of the utility's in-state poles, whichever is less, additional time is 
provided for survey and make-ready. Utilities may treat multiple in-
state requests from a single attacher during a 30-day period as one 
request. Our rules further provide that any denial of a request to 
attach must cite with specificity the particular safety, reliability, 
engineering, or other valid concern that is the basis for denial. We 
clarify that blanket prohibitions on pole top access are not permitted. 
And, as noted elsewhere in the Order, we encourage a high degree of 
pre-planning and coordination between attachers and pole owners, to 
begin as early in the process as possible.
    13. We decline to adopt several proposals set forth in the FNPRM or 
that commenters recommend, and explain those decisions. For example, we 
determine that the timeline will provide adequate incentives for joint 
owners of poles to coordinate, and thus do not require joint owners to 
name a single management entity. We also conclude that several 
subsections of section 224 provide the Commission with sufficient 
authority to adopt a timeline and other access rules.

A. Timeline for Section 224 Access.

    14. For most attachments, the total time from submission of the 
request through completion of make-ready should take between 105 and 
148 days, depending on how long the parties take to prepare and accept 
an estimate. Attachers may hire contractors authorized by the utility 
to complete make-ready either on the 133rd or 148th day, depending on 
whether an owner timely notifies the attacher that it intends to move 
existing facilities and conduct make-ready if existing attachers have 
failed to move their attachments. Although we establish this timeline 
as a maximum, we recognize that the necessary work can often proceed 
more rapidly, especially at the estimate and acceptance stages, or for 
relatively routine requests. It would not be reasonable behavior for a 
utility to take longer to fulfill any requests simply because a 
timeline with maximum timeframes is being adopted. Likewise, for large 
orders, we allow 15 more days for the survey and 45 more days to 
complete make-ready.
    15. Stage 1--Survey: 45 days. We require a utility to respond 
within 45 days of receipt of a complete application to attach 
facilities on the utility's poles--for both wireline and wireless 
attachments either in or above the communications space. This required 
response is specified in our current 45-day response rule, which 
provides that, where a utility denies an attachment request, it must 
provide a written explanation of its denial that is specific; include 
all supporting evidence and information; and explain how the evidence 
and information relate to reasons of lack of capacity, safety, 
reliability, or engineering standards. The 45-day period also accords 
with the ``survey'' period in some state models and a proposal in the 
record. Indeed, the FNPRM stated that ``[the 45-day response] 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.'' No commenter disagrees, and most utilities 
regularly meet this deadline. According to a Utilities Telecom Council 
survey of its members, utilities meet the 45-day requirement 81 percent 
of the time. More than half of the missed deadlines are caused by 
either the size of the project or errors in the application. Our new 
rules address both of these problems: under the rules we adopt today 
the timeline does not start until a completed application is submitted, 
and there is flexibility for larger orders. Thus, we expect that 
utilities acting diligently and in good faith will be able to conduct 
surveys within the prescribed 45-day period. Owners are given an 
additional 15 days for large orders.
    16. To constitute a ``request for access'' necessary to trigger the 
timeline, a requester must submit a complete application that provides 
the utility with the information necessary under its procedures to 
begin to survey the poles. We find that pole owners must timely notify 
attachers of errors in an application, and may not stop the clock to 
correct errors in an application once it is accepted as complete, as 
surveys that are not interrupted are more conducive to dependable 
timeframes. Furthermore, the timing of any such notification of 
deficiencies in an application must be reasonable. If the request 
involves attachment of facilities that are unfamiliar to the utility, 
engineering specifications must be established prior to submission of 
the application. If an application is submitted for which such 
engineering specifications have not been established, the pole owner 
must respond in a manner that is reasonable and timely under the 
circumstances, but in any event within 45 days. We leave the specific 
processes for establishing such engineering specifications to 
individual utilities, so long as they are reasonable and timely.
    17. Stages 2 and 3--Estimate and Acceptance: Where a request for 
access is not denied, a utility must present to a requesting entity an 
estimate of charges to perform all necessary make-

[[Page 26623]]

ready work within 14 days of providing its Stage 1 response--or within 
14 days after the requesting entity delivers its own survey to the pole 
owner, as it may do if the pole owner fails to meet the timeline's 
Stage 1 deadline. The requesting entity may consider the estimate for 
14 days after receiving it before the utility may withdraw the offer. 
Both offer and acceptance may be made sooner than the maximum 14 days. 
Estimates will not expire automatically after 14 days, but rather must 
be actively withdrawn by the utility. If an estimate is withdrawn by 
the utility, the prospective attacher must resubmit its application for 
attachment.
    18. Stage 4--Make-Ready: Upon receipt of payment from the attacher, 
we require a utility to notify immediately and in writing all known 
entities with existing attachments that may be affected by the planned 
make-ready. The notice shall: (1) Specify where and what make-ready 
will be performed; (2) set a date for completion of make-ready no later 
than 60 days after notification (or 105 days after notification in the 
case of larger orders) for attachments in the communications space, or 
no later than 90 days after notification (or 135 days after 
notification in the case of larger orders) for wireless attachments 
above the communications space; (3) state that any entity with an 
existing attachment may add to or modify the attachment before the date 
set for completion of make-ready; (4) state that the utility may assert 
its right to 15 additional days to complete make-ready and that, for 
attachment in the communications space, the requesting entity may 
complete the specified make-ready itself if make-ready is not completed 
by the date set by the utility (or, if the utility has asserted its 15-
day right of control, by the date 15 days after that completion date); 
and (5) state the name, telephone number, and e-mail address of a 
person to contact for more information about the make-ready procedure. 
Under normal circumstances, performance of make-ready will complete the 
elements of the timeline that precede actual attachment.
    19. For wireless attachments above the communications space on a 
pole, we include an extra 30 days for make-ready for two reasons. 
First, these attachments generally are located in, near or above the 
electric space, which can raise significant safety concerns. Second, 
the record reflects that, at present, there is less experience with 
application of state timelines to attachments at the pole top, and in 
those circumstances, it is appropriate to err on the side of caution. 
Also, we follow state models that allow additional days for make-ready 
for large orders within a single state.
    20. Completion by Owner: If make-ready is not completed by the date 
specified in the utility's notice to entities with existing 
attachments, a utility, prior to the expiration of the 60-day notice 
period (or 105-day notice period in the case of larger orders), may 
notify the requesting attacher in writing that it intends to assert its 
right to complete all remaining work within 15 days. In such cases, the 
utility will have an additional 15 days to complete make-ready. If 
make-ready remains unfinished at the end of the 15-day extension, the 
attacher may assume control of make-ready at that point (Day 148 of the 
timeline, or Day 193 in the case of larger orders). Thus, we permit a 
pole owner to assert its right to 15 days to complete make-ready in 
lieu of adopting an automatic fifth stage for ``multi-party 
coordination'' as proposed in the FNPRM. For attachments in the 
communications space, if the utility does not timely assert its right 
to 15 extra days to perform make-ready, control of the project 
transfers to the new attacher immediately at the end of the 60-day 
period (or 105-day period in the case of larger orders), and the 
attacher may use a contractor to complete make-ready.
    21. Scope of the Timeline. The timeline we adopted--which is 
modeled after the timeline that has been in use in Utah--applies to all 
requests by telecommunications carriers (including wireless) and cable 
operators for attachment in the communications space on a pole. The 
timeline begins when an application is complete, such that the utility 
has been provided with the information necessary under its procedures 
to begin to survey the requested pole(s), including developed 
engineering specifications for the particular equipment to be attached. 
A modified form of the timeline applies to wireless attachments by 
telecommunications carriers and cable operators that are made above the 
communications space. The timeline does not apply to section 224 ducts, 
conduits, or rights-of-way. We affirm that completion of an initial 
pole attachment agreement or ``master agreement'' is not a prerequisite 
to starting the clock on a completed application, which may have 
multiple attachment requests within it. Applications that are outside 
the scope of the timeline remain subject to the general requirement 
that the pole owner provide a specific written response within 45 days.
    22. Remedy: Utility-Approved Contractors. Requesters need a way to 
obtain access to poles if a utility does not meet the deadlines we 
impose. We adopt the proposal in the FNPRM and hold that, if a utility 
does not meet the deadline to complete a survey or make-ready 
established in the timeline, an attacher may hire contractors to 
complete the work in the communications space. We require each utility 
to make available a reasonably sufficient list of contractors that it 
authorizes to perform surveys or make-ready on its poles, and require 
that the attacher must use contractors from this list. We also seek to 
ensure that safety and network integrity are preserved at all costs. 
Thus, we require attachers that hire contractors to perform survey and 
make-ready work to provide a utility with an opportunity for a utility 
representative to accompany and consult with the attacher and its 
contractor prior to commencement of any make-ready work by the 
contractor. Consulting electric utilities are entitled to make final 
determinations in case of disputes over capacity, safety, reliability, 
and generally applicable engineering purposes.
    23. Limit on Order Size. Based on the record before us and 
successful state models, we adopt limits on the size of attachment 
requests that are subject to the timelines we adopt today. The limits 
on size of attachment requests apply both to attachments in the 
communications space and the longer timeline for wireless attachments 
above the communications space. Specifically, we apply the timeline to 
orders up to the lesser of 0.5 percent of the utility's total poles 
within a state or 300 poles within a state during any 30-day period. 
For larger orders--up to the lesser of 5 percent of a utility's total 
poles in a state or 3,000 poles within a state--we add 15 days to the 
timeline's survey period and 45 days to the timeline's make-ready 
period, for a total of 60 days. For in-state orders greater than 3,000 
poles, we require parties to negotiate in good faith regarding the 
timeframe for completing the job. An attacher always has the ability to 
submit requests of up to 3,000 poles in any 30-day period, so an 
attacher could start a 9,000 pole order within a single state through 
the timeline over three successive months.
    24. Stopping the Clock. Emergencies and certain events during the 
make-ready phase that are beyond a utility's control may legitimately 
interrupt pole attachment projects, and the FNPRM sought comment on how 
best to reconcile the timeline with this reality. We adopt a ``good and 
sufficient cause'' standard under which a utility may toll the timeline 
for no longer than necessary where conditions render it

[[Page 26624]]

infeasible to complete the make-ready work within the prescribed 
timeframe. A utility must exercise its judgment in invoking a clock 
stoppage in the context of its general duty to provide timely and 
nondiscriminatory access, and an attacher may challenge a utility's 
failure to either meet its deadline or surrender control of make-ready 
if a clock stoppage is not justified by good and sufficient cause.

B. Wireless

    25. Specificity of Denials. We clarify that, regardless of whether 
a utility has a master agreement with a wireless carrier, the 
specificity requirement of Sec.  1.1403(b) of the Commission's rules 
applies to all denials of requests for access. The Commission's rules 
require that, when a utility denies a request for access, it must state 
with specificity its reasons for doing so. Section 1.1403(b) of the 
Commission's rules requires that denials of access be confirmed in 
writing within 45 days of the request. The utility also ``shall be 
specific, shall include all relevant evidence and information 
supporting its denial, and shall explain how such evidence and 
information relate to a denial of access for reasons of lack of 
capacity, safety, reliability or engineering standards.'' In the FNPRM, 
the Commission proposed that, where a utility has no master agreement 
with a carrier for wireless attachments requested, the utility may 
satisfy the requirement to respond with a written explanation of its 
concerns with regard to capacity, safety, reliability, or engineering 
standards.
    26. Pole Tops. We clarify that section 224 allows wireless 
attachers to access the space above what has traditionally been 
referred to as ``communications space'' on a pole. On previous 
occasions, the Commission has declined to establish a presumption that 
this space may be reserved for utility use only, and has stated that 
the only recognized limits to access for antenna placement are those 
contained in the statute. Yet wireless attachers assert that pole top 
access is persistently challenged by pole owners, who often impose 
blanket prohibitions on attaching to some or all pole tops. Blanket 
prohibitions are not permitted under the Commission's rules. We reject 
the assertions of some utilities that our rule regarding pole tops will 
create a ``de facto presumption in favor of pole top attachments'' or 
otherwise ``restrict an electric utility's right to deny access for 
reasons of safety and reliability.'' Instead, we clarify that a 
wireless carrier's right to attach to pole tops is the same as it is to 
attach to any other part of a pole. Utilities may deny access ``where 
there is insufficient capacity, and for reasons of safety, reliability, 
and generally applicable engineering purposes.'' The record in this 
proceeding is replete with examples of various types of pole top 
attachments that have been successfully accommodated, both for wireless 
attachers and for the utilities themselves.

C. Use of Contractors for Attachment

    27. As proposed in the FNPRM, we resolve an ambiguity in the 
Commission's rules regarding the use of contractors to attach 
facilities ``in the proximity of electric lines'' after make-ready has 
been completed and attachment permits issued. Specifically, we clarify 
that ``proximity of electric lines'' in this context includes work that 
extends into the safety space that separates the communications space 
from the electric space, but does not include work among the power 
lines. While an attacher may use a contractor to attach a wireless 
antenna above the communications space and associated safety space, we 
find that an attacher may only use a contractor that has the proper 
qualifications and that the utility has approved to perform such work. 
Utilities are not required to keep a separate list of contractors for 
this purpose, but must be reasonable in approving or disapproving 
contractors. Accordingly, the standard for attachment by a contractor 
in the communications space remains that of the ``same qualifications'' 
as the utility, but any attachment in the electric space must be at the 
higher utility-approved standard.

D. Joint Ownership

    28. In the FNPRM, we proposed to require owners to consolidate 
authority in one managing utility when more than one utility owns a 
pole and to make the identity of this managing utility publicly 
available. We decline to adopt the proposed rules relating to joint 
ownership, but we clarify and emphasize that we expect joint owners to 
coordinate and cooperate with each other and with requesting attachers 
consistent with pole owners' duty to provide just and reasonable 
access.

E. Legal Authority

    29. We conclude that section 224 authorizes the Commission to 
promulgate the access rules we adopted, including the timeline and its 
self-effectuating remedy for failure to meet the timeline in the 
communications space. Through section 224(b)(1), Congress explicitly 
delegated authority to the Commission to ``regulate the rates, terms, 
and conditions for pole attachments,'' as well as to develop procedures 
necessary for resolving complaints arising under the Commission's 
substantive regulations, and to fashion appropriate remedies. In 
addition, section 224(b)(2) directs the Commission to make rules to 
carry out the provisions of this section. Congress also gave more 
specific substantive guidance for access to poles in section 224(f): 
``just and reasonable'' access must also be ``nondiscriminatory.''

Improving the Enforcement Process

    30. Revising Pole Attachment Dispute Resolution Procedures. In the 
FNPRM, we sought comment on whether the Commission should modify its 
existing procedural rules governing pole attachment complaints. Several 
commenters expressed the view that new procedures and processes are not 
needed or that existing procedures can be improved to address any 
problems. Similarly, there was little discussion of, or support for, 
the formation of specialized forums to address enforcement issues. A 
number of commenters, however, maintained that the Commission should do 
more to encourage parties to resolve their disputes themselves prior to 
filing a complaint with the Commission.
    31. We agree that parties ought to make every effort to settle 
their disputes informally before instituting formal processes at the 
Commission. Section 1.1404(k) of the Commission's rules requires a 
complainant to ``include a brief summary of all steps taken to resolve 
the problem before filing,'' and, if no such steps were taken, to 
``state the reason(s) why it believed such steps were fruitless.'' In 
our view, however, that rule does not adequately ensure that the 
parties will engage in serious efforts to resolve disputes prior to the 
initiation of litigation. We believe a requirement similar to that 
imposed by the California Public Utility Commission, requiring 
``executive-level'' discussions, should be incorporated into the 
Commission's rules. We therefore revise Commission rule Sec.   
1.1404(k) to require that there be ``executive-level discussions'' 
(i.e., discussions among individuals who have sufficient authority to 
make binding decisions on behalf of the company they represent), 
preferably face-to-face, prior to the filing of a complaint at the 
Commission. We will consider in any enforcement proceedings whether 
such coordination has taken place.
    32. In addition, a number of commenters expressed concern about the 
length of time it takes for the Commission to resolve pole attachment 
complaints. We believe that the new

[[Page 26625]]

processes adopted elsewhere in the Order will have the effect of 
expediting the pole access process. And, to the extent that access 
disputes remain a problem, we will make every effort to resolve them 
expeditiously. We do not believe that other substantial changes, such 
as new procedures or specialized forums, are justified at this time.
    33. Efficient Informal Dispute Resolution Process. The FNPRM sought 
comment on whether the Commission should attempt to encourage ``local 
dispute resolution,'' and several commenters endorsed the notion. We 
agree, and believe that it is desirable for parties to include dispute 
resolution procedures in their pole attachment agreements. Any refusal 
to enter into an agreement because it contains a dispute resolution 
provision would be considered unreasonable. We suggest that issues to 
be addressed specifically in a dispute resolution provision might 
include the requirement of executive-level settlement negotiations, and 
reliance on a forum other than the Commission (e.g., an arbitrator or 
expert panel) to resolve disputes. We also note that the Commission's 
pre-complaint mediation process has had marked success in helping 
parties resolve pole attachment disputes, and we encourage parties to 
utilize that process.
    34. This Order also concludes, as proposed in the FNPRM, that the 
portion of the Commission's rules Sec.  1.1404(m) that provides that 
potential attachers who are denied access to a pole, duct, or conduit 
must file a complaint ``within 30 days of such denial'' should be 
eliminated. We believe the 30-day rule no longer serves a useful 
purpose, and is actually counterproductive at times. Any concern about 
stale complaints is addressed by our modifications of the Commission's 
rules Sec.  1.1410, which state that remedies must be ``consistent with 
the applicable statute of limitations.'' We therefore eliminate the 
portion of the Commission's rules Sec.  1.1404(m) requiring that denial 
of access complaints be filed within 30 days.
    35. Remedies. The FNPRM proposed to amend Sec.  1.1410 of the 
Commission's pole attachment complaint rules to enumerate the remedies 
available to an attacher that proves a utility has unlawfully delayed 
or denied access to its poles, simply codifying the existing authority 
and practice, and we accordingly adopt the rule change as proposed. The 
FNPRM also proposed to amend the Commission's rules 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 and unreasonable. After reviewing voluminous and 
sharply divided comments on this question, we decline, at this time, to 
amend the Commission's rules Sec.  1.1410 to allow compensatory 
damages. Given all of the rules designed to improve and expedite pole 
access that we adopt herein, we anticipate that attachers will 
experience far fewer difficulties than they have to date.
    36. We also adopt the proposed modification of the Commission's 
rules Sec.  1.1410(c), which 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.'' We believe that this 
modification, which will allow monetary recovery in a pole attachment 
action to extend back as far as the applicable statute of limitations, 
will make injured attachers whole, and will be consistent with the way 
that claims for monetary recovery are generally treated under the law. 
It will also remove the perceived impediment to pre-complaint 
negotiations between the parties to resolve disputes about rates, terms 
and conditions of attachment. We reject the contention that the 
proposed rule change creates an incentive for attaching entities to 
attempt to maximize their monetary recovery by waiting until shortly 
before the statute of limitations has expired to bring a dispute over 
rates to the Commission.
    37. Unauthorized Attachments. In modifying our rules regarding 
penalties for unauthorized attachments, we acknowledge the wide range 
of opinions among commenters regarding the scope of the problem posed 
by unauthorized attachments. Although the record is insufficient for us 
to make specific findings regarding the scope and severity of non-
compliance, there appears to be a well-founded concern that the current 
unauthorized attachment regime (i.e., the Mile Hi case), which involves 
payment amounting to no more than back rent, provides little incentive 
for attachers to follow authorization processes, and that competitive 
pressure to bring services to market overwhelms any deterrent effect. 
That said, we take seriously the arguments by attachers that utilities 
may deem attachments to be unauthorized because of poor record keeping 
or changes in pole ownership, rather than because of the attacher's 
failure to follow proper protocol. Consequently, the policy we 
enunciate today applies on a prospective basis only--i.e., to new 
agreements, or amendments to existing agreements, executed after the 
effective date of this Order.
    38. To address the concerns implicated by unauthorized attachments, 
we explicitly abandon the Mile Hi limitation on penalties and instead 
create a safe harbor for more substantial penalties. Specifically, 
going forward, we will consider contract-based penalties for 
unauthorized attachments to be presumptively reasonable if they do not 
exceed those implemented by the Oregon PUC. Oregon has established a 
multifaceted system that contains, among others, the following 
provisions:
     An unauthorized attachment fee of $500 per pole for pole 
occupants without a contract (i.e., when there is no pole attachment 
agreement between the parties);
     An unauthorized attachment fee of five times the current 
annual rental fee per pole if the pole occupant does not have a permit 
and the violation is self-reported or discovered through a joint 
inspection, with an additional sanction of $100 per pole if the 
violation is found by the pole owner in an inspection in which the pole 
occupant has declined to participate.
     A requirement that the pole owner provide specific notice 
of a violation (including pole number and location) before seeking 
relief against a pole occupant.
     An opportunity for attachers to avoid sanctions by 
submitting plans of correction within 60 calendar days of receipt of 
notification of a violation or by correcting the violation and 
providing notice of the correction to the owner within 180 calendar 
days of receipt of notification of the violation.
     A mutual obligation of pole owners and pole occupants to 
correct immediately violations that pose imminent danger to life or 
property. If a party corrects another party's violation, the party 
responsible for the violation must reimburse the correcting party for 
the actual cost of corrections.
     The opportunity for resolution of factual disputes via 
settlement conferences before an alternative dispute resolution forum.
    39. In a case where an attacher makes unauthorized attachments to a 
pole at a time when the attacher has no pole attachment agreement with 
the utility, but later enters into such an agreement, we find that it 
would be reasonable for the utility to apply the unauthorized 
attachment provisions in that agreement to attachments that were made 
before the agreement was executed, as well as to any unauthorized 
attachments made following execution. If an attacher who has made 
unauthorized attachments without any contract with the utility refuses 
to enter into a pole attachment

[[Page 26626]]

agreement, the utility may seek other remedies including, for example, 
an action in state court for trespass.
    40. We do not adopt the Oregon system as Federal law, but rather 
continue to favor agreements negotiated between utilities and attaching 
entities. We simply conclude that we have examined Oregon's rules and 
find them to be reasonable, and that we would expect to find reasonable 
any unauthorized attachment provisions contained in agreements that do 
not exceed the Oregon penalties. As noted above, however, the Oregon 
sanctions are part of a larger system that also affords protections to 
attachers that operate in good faith. Consequently, we anticipate that, 
like the Oregon system, a reasonable pole attachment agreement also 
will contain provisions that provide notice to attachers, a fair 
opportunity to remedy violations, and a reasonable process for 
resolving factual disputes that may arise.
    41. The ``Sign and Sue'' Rule. Our review of the comments 
responding to the FNPRM's proposal to revise the Commission's long-
standing ``sign and sue'' rule, which allows an attacher to challenge 
the lawfulness of terms in an executed pole attachment agreement that 
the attacher claims it was coerced to accept in order to gain access to 
utility poles, persuades us that the Commission should not amend Sec.  
1.1404(d) of the Commission's rules to add a notice requirement to the 
``sign and sue'' rule. Such a requirement poses a significant risk of 
unduly delaying the negotiation process and adding unnecessary 
complexity to the adjudication of pole attachment disputes before the 
Commission. Moreover, we find that a number of the intended benefits of 
the proposed notice provision will be realized through the amendment to 
the Commission's rules Sec.  1.1404(k), requiring executive-level 
discussions between the parties.

Pole Rental Rates

    42. In the FNPRM, the Commission sought to limit the distortions 
present in the current pole rental rates ``to increase the availability 
of, and competition for, advanced services to anchor institutions and 
as middle-mile inputs to wireless services and other broadband 
services,'' some of which potentially could be classified as 
telecommunications services. Accordingly, the Commission sought comment 
on alternative approaches for reinterpreting the telecom rate formula 
within the existing statutory framework, including a specific 
Commission proposal based on elements proposed by TW Telecom (TWTC). 
This approach was consistent with the National Broadband Plan's 
recommendation to establish rates ``as low and close to uniform as 
possible'' based on evidence that the uncertainty regarding the 
applicable rate ``may be deterring broadband providers that pay lower 
pole rates from extending their networks or adding capabilities (such 
as high-capacity links to wireless towers).'' This uncertainty results 
from the risk that, by offering services that potentially could be 
classified as ``telecommunications services,'' a higher telecom rental 
rate might then be applied to the broadband provider's entire network.

A. The New Telecom Pole Rental Rate

    43. The Commission adopts a modified form of the FNPRM's proposal 
as the new telecom rate. The new telecom rate generally will recover 
the same portion of pole costs as the current cable rate, is fully 
compensatory, and is grounded in sound economic policies. Accordingly, 
the new rate will minimize the difference in rental rates paid for 
attachments that are used to provide voice, data, and video services, 
and thus will help remove market distortions that affect attachers' 
deployment decisions. Removing these barriers to telecommunications and 
cable deployment will enable consumers to benefit through increased 
competition, affordability, and availability of advanced communications 
services, including broadband.
    44. The Order reinterprets the telecommunications rate formula for 
pole attachments consistent with its authority and the existing 
statutory framework. The Commission identifies a range of possible 
rates consistent with section 224(e), from the current application of 
the telecom rate formula based on fully allocated costs at the upper 
end, to an alternative application of the telecom rate formula based on 
cost causation principles that results in a rate closer to incremental 
costs at the lower end. Within that range, Commission seeks to balance 
the goals of promoting broadband and other communications services with 
the historical role that pole rental rates have played in supporting 
the investment in pole infrastructure, and thus define the ambiguous 
statutory term ``cost of providing space'' on that basis.
    45. Upper-Bound Rate. To begin identifying the range of reasonable 
rates that could result from the telecom rate formula, we first 
identify the present telecom rate as a reasonable upper bound. The 
Commission's current telecom rate formula is based on a fully allocated 
cost methodology, which recovers costs that the pole owner incurs 
regardless of the presence of attachments. It includes a full range of 
costs, some of which do not directly relate to or vary with the 
presence of pole attachments.
    46. Lower-Bound Rate. As the Commission observed in the FNPRM, ``a 
rate that covers the pole owners' incremental cost associated with 
attachment would, in principle, provide a reasonable lower limit.'' 
However, the section 224(e) formulas allocate the relevant costs in 
such a way that simply defining ``cost'' as equal to incremental cost, 
as TWTC initially proposed, would result in pole rental rates below 
incremental cost.
    47. Thus, to identify a lower-bound rate that is consistent with 
this statutory framework--and enables costs to be allocated based on 
the prescribed cost-apportionment formulas--the Commission relies on 
the basic principles of cost causation that would underlie a marginal 
cost rate without defining ``cost'' as equivalent to marginal or 
incremental cost per se. Under cost causation principles, if a customer 
is causally responsible for the incurrence of a cost, then that 
customer--the cost causer--pays a rate that covers this cost. This is 
consistent with the Commission's existing approach in the make-ready 
context, where a pole owner recovers the entire associated capital 
costs through make-ready fees.
    48. For purposes of identifying a lower bound for the telecom pole 
rental rate, we exclude capital costs from the definition of ``cost of 
providing space.'' As an initial matter, we note that if capital costs 
arise from the make-ready process, existing rules are designed to 
require attachers to bear the entire amount of those costs. With 
respect to other capital costs, the record demonstrates that the 
attacher is not the ``cost causer'' of these costs. In the case here of 
applying cost-causation principles to identify the lower-bound telecom 
rate, the record includes findings by economists and analysts that 
capital costs are justifiably excluded from the lower-bound rate 
because the attachers cause none or no more than a de minimis amount of 
these costs, other than those that are recovered up front through the 
make-ready fees.
    49. By contrast, we continue to include certain operating 
expenses--namely maintenance and administrative expenses--in the 
definition of ``cost'' for purposes of the lower bound telecom rate 
formula. This is generally consistent with cost causation principles 
because it is likely that an attacher is causally responsible for some 
of the ongoing maintenance and administrative expenses relating to use

[[Page 26627]]

of the pole. Although the attacher might not be the cost causer with 
respect to all the operating costs that would be included in the lower 
bound telecom rate, Congress' intention was that the Commission not 
``embark upon a large-scale ratemaking proceeding in each case brought 
before it, or by general order'' to establish pole rental rates.
    50. Determining the New Just and Reasonable Telecom Rate. From 
within the range of possible interpretations of the term ``cost'' for 
purposes of section 224(e), the Commission adopts a particular 
definition of cost, and therefore a particular rate as the appropriate 
just and reasonable telecom rate. The definition of cost we select is 
based on a balancing of policy goals. We seek to ensure that the 
Commission's policies promote the availability of broadband services 
and efficient competition for those services. We also recognize, 
however, that pole rental rates historically have helped support the 
investment utilities make in their pole infrastructure, and acknowledge 
utilities' policy concerns about shifting that burden to utility 
ratepayers.
    51. We agree with commenters who explain that today, the telecom 
rate is sufficiently high that it hinders important statutory 
objectives. For example, commenters explain that reducing the telecom 
rate would improve the business case for providing advanced services, 
because it will reduce the expected incremental cash outflows of 
providing such services, thereby increasing the likelihood that the 
present value of the expected incremental cash inflows will exceed the 
present value of the expected incremental cash outflows. In addition to 
reducing barriers to the provision of new services, reducing the 
telecom rate can expand opportunities for communications network 
investment. We thus conclude that lowering the telecom rates will 
better enable providers to compete on a level playing field, will 
eliminate distortions in end-user choices between technologies, and 
lead to provider behavior being driven more by underlying economic 
costs than arbitrary price differentials. We also find persuasive the 
views of consumer advocates in this respect. Notably, ``NASUCA members 
are interested in keeping the costs of pole attachments down, so as to 
keep the costs of the[se] services * * * down. But NASUCA members also 
* * * are interested in ensuring that pole attachment rates 
appropriately compensate the owners of the poles, so that other 
services are not required to subsidize the attachments.'' Balancing 
these concerns, NASUCA recommends that the cable rate ``should be used 
for all pole attachments.''
    52. We also observe that pole owners have the opportunity to 
recover through make-ready fees all of the capital costs actually 
caused by third-party attachers. As a result, the pole owner need not 
bear any significant risk of unrecovered pole investment undertaken to 
accommodate a third-party attacher. Thus, permitting recovery of 100 
percent of apportioned, fully allocated costs through the pole rental 
rate seems unwarranted under the statute and could undermine 
furtherance of important statutory objectives.
    53. Although we do not permit utilities to recover 100 percent of 
apportioned, fully allocated costs through the new telecom rate, we 
find it appropriate to allow the pole owner to charge a monthly pole 
rental rate that reflects some contribution to capital costs, aside 
from those recovered through make-ready fees. For example, regulated 
pole attachment rates historically have included such a contribution, 
and we are concerned that adopting a telecom rate that no longer 
permits utilities to recover such capital costs would unduly burden 
their ratepayers. We are also mindful of the possible adverse impact of 
other pole attachment reforms. For one, our regulation of rates for 
attachments by incumbent LECs could reduce the amount of costs that 
utilities are able to recover from other sources. Moreover, in 
conjunction with the pole access reforms adopted in this Order, we are 
mindful of Congress' expectation that the priority afforded an 
attacher's access to poles would relate to its sharing in the costs of 
that infrastructure. We balance these considerations by adopting, in 
most cases, the following definition of ``cost'' for purposes of 
section 224(e): (a) In urban areas, 66 percent of the fully allocated 
costs used for purposes of the pre-existing telecom rate; and (b) in 
non-urban areas, 44 percent of the fully allocated costs used for 
purposes of the pre-existing telecom rate. Defining cost in terms of a 
percentage of the fully allocated costs previously used for purposes of 
the telecom rate is a readily administrable approach, and consistent 
with Congress' direction that the Commission's pole attachment rate 
regulations be ``simple and expeditious'' to implement. Further, the 
specific percentages we select provide a reduction in the telecom rate, 
and will, in general, approximate the cable rate, advancing the 
Commission's policies.
    54. We adopt a different definition of cost in non-urban areas--
namely, 44 percent of fully allocated costs--to address the fact that 
there typically are fewer attachers on poles in non-urban areas, as 
reflected by the Commission's presumptions. Given the operation of 
section 224(e), using the same definition of cost in both types of 
areas would increase the burden pole attachment rates pose for 
providers of broadband and other communications services in non-urban 
areas, as compared to urban areas. Such an outcome would be problematic 
given the increased challenges already faced in non-urban areas, where 
cost characteristics can be different and where the availability of, 
and competition for, broadband services tends to be less today than in 
urban areas. By defining cost in non-urban areas as 44 percent of the 
fully allocated costs we largely mitigate that concern, particularly 
under the Commission's presumptions.
    55. We observe that these definitions of cost, when applied 
pursuant to the cost apportionment formula in section 224(e), generally 
will recover a portion of the pole costs that is equal to the portion 
of costs recovered in the cable rate. We conclude that the pole owner 
will have appropriate incentives to invest in poles and provide 
attachments to third-party attachers, carrying forward under our new 
approach to the telecom rate. Moreover, this approach will 
significantly reduce the marketplace distortions and barriers to the 
availability of new broadband facilities and services that arose from 
disparate rates.
    56. The Commission's calculations show that the costs for urban and 
non-urban areas typically will be within the higher- and lower-bound 
range permissible under section 224(e), and in those circumstances, we 
adopt that definition of cost for establishing the just and reasonable 
telecom rate. However, if scenarios arise where the costs identified 
above would be lower than the 100 percent of administrative and 
operating expenses that serves as a lower bound for the zone of 
reasonableness, we adopt the higher definition of cost in those 
circumstances. In sum, the applicable cost for purposes of section 
224(e) will be the costs identified above or 100 percent of 
administrative and operating expenses, whichever is higher.
    57. We also reaffirm that wireless carriers are entitled to the 
benefits and protection of section 224, including the right to the 
telecom rate under section 224(e). Specifically, in the 1998 
Implementation Order, the Commission explained that it has authority 
under section 224(e)(1) to prescribe rules governing wireless 
attachments used by telecommunications carriers to provide

[[Page 26628]]

telecommunications services. The Commission also stated that Congress 
did not intend to distinguish between wired and wireless attachments 
and that there was no basis to limit the definition of 
telecommunications carriers under the statute only to wireline 
providers. The Commission noted that, despite the ``potential 
difficulties in applying the Commission's rules to wireless pole 
attachments, as opponents of attachment rights have argued,'' it did 
not see any need for separate rules. Instead, it explained that 
``[w]hen an attachment requires more than the presumptive one-foot of 
usable space on the pole,'' the presumption can be rebutted. 
Accordingly, wireless attachments are entitled to the telecom rate 
formula, and where parties are unable to reach agreement through good 
faith negotiations, they may bring a complaint before the Commission.
    58. We also address the role of the new telecom rate in the context 
of commingled services. Some cable operators express concern that pole 
owners will seek to impose rates higher than both the cable rate and 
the new telecom rate where cable operators or telecommunications 
carriers also provide services, such as VoIP, that have not been 
classified. We agree that this outcome would be contrary to our policy 
goals of reducing the disparity in pole rental rates among providers of 
competing services and of minimizing disputes. Consequently, we make 
clear that the use of pole attachments by providers of 
telecommunications services or cable operators to provide commingled 
services does not remove them from the pole attachment rate regulation 
framework under section 224. Rather, we will not consider rates for 
pole attachments by telecommunications carriers or cable operators 
providing commingled services to be ``just and reasonable'' if they 
exceed the new telecom rate. This action does not disturb prior 
Commission decisions addressing particular scenarios regarding 
commingled services.
    59. We believe that section 224(e) provides the Commission 
sufficient latitude to adopt our definition of costs underlying the new 
telecom rate. In particular, section 224(e)(2) and (3) describe how 
``[a] utility shall apportion the cost of providing space'' on a pole--
whether usable or unusable--but does not define the term ``cost.'' We 
therefore find the term ``the cost of providing space'' to be 
ambiguous.'' Our new telecom rate reflects a reasonable interpretation 
of the ambiguous statutory language, and we conclude that Congress gave 
the Commission authority to interpret section 224(e), including the 
ambiguous phrases ``cost of providing space * * * other than the usable 
space'' in section 224(e)(2) and ``cost of providing usable space'' in 
section 224(e)(3).
    60. We are not persuaded by electric utilities that argue section 
224(e) must be read in a manner that mandates use of a fully allocated 
cost methodology based on legislative history. Primarily, they cite to 
language in the legislative history of the House bill endorsing a fully 
allocated cost methodology and other discussions in the legislative 
history attempting to link the benefits attachers receive from pole 
attachments to pole rental rates. We are not persuaded that these 
arguments compel an interpretation of section 224(e) that is contrary 
to the Commission's approach.
    61. We also are not persuaded by claims of utilities that the new 
telecom rate will not enable them to recover their costs. The new 
telecom rate is compensatory and is designed so that utilities will not 
be cross-subsidizing attachers, as it ensures that utilities will 
recover more than the incremental cost of making attachments. The 
record provides no evidence indicating that there is any category or 
type of costs that are caused by the attacher that are not recovered 
through the new telecom rate.

B. Incumbent LEC Pole Attachments

    62. In the 2010 FNPRM, the Commission asked parties to refresh the 
record on the issues raised in the 2007 Pole Attachment NPRM ``both in 
light of the specific telecom rate proposals, as well as the factual 
findings of the National Broadband Plan.'' In addition, the Commission 
sought comment ``on the relationship between the pole rental rates paid 
by incumbent LECs and any other rights and responsibilities they have 
by virtue of their pole access agreements with utilities,'' such as 
joint use agreements, and whether any remedies otherwise were available 
to incumbent LECs absent the ability to file complaints with the 
Commission. The FNPRM also sought comment on proposals under which 
incumbent LECs' regulated rate would be an existing rate, whether the 
cable rate, the pre-existing telecom rate, or any new rate adopted in 
this proceeding, or an alternative rate, as well as how to balance the 
rate paid with the other terms and conditions in incumbent LECs' pole 
attachment agreements with other utilities.
    63. Based on the record in this proceeding, we find it appropriate 
to revisit our interpretation of section 224 with respect to rates, 
terms and conditions for pole attachments by incumbent LECs. We allow 
incumbent LECs to file complaints with the Commission challenging the 
rates, terms and conditions of pole attachment agreements with other 
utilities.
    64. Statutory Analysis. In implementing section 224, as amended by 
the 1996 Act, the Commission interpreted the exclusion of incumbent 
LECs from the term ``telecommunications carrier'' to mean that section 
224 does not apply to attachment rates paid by incumbent LECs. Although 
these decisions did not consider alternative interpretations of 
incumbent LECs' rights under section 224 in detail, the Commission's 
interpretation appears to have been based in part on incumbent LECs' 
status as pole owners and thus ``utilities'' under section 224, and in 
part on the view that ``Congress' intent'' was to ``promote competition 
by ensuring the availability of access to new telecommunications 
entrants.''
    65. We find it appropriate to change the Commission's prior 
interpretation of section 224(b) with respect to incumbent LECs given 
the evidence in the record regarding current market realities. Over 
time, aggregate incumbent LEC pole ownership has diminished relative to 
that of electric utilities. Thus, incumbent LECs often may not be in an 
equivalent bargaining position with electric utilities in pole 
attachment negotiations in some cases. Further, although we agree with 
the Commission's prior assessment that ``Congress' intent'' in section 
224--and the 1996 Act more broadly--was to ``promote competition,'' we 
believe this intent was not limited to entities that were ``new 
telecommunications entrants'' at the time of the 1996 Act.
    66. In reviewing the Commission's prior interpretation of section 
224, we note that even incumbent LECs acknowledge that they are 
excluded from the section 224 definition of ``telecommunications 
carrier,'' and generally concede that they thus have no statutory right 
to nondiscriminatory pole access under section 224(f)(1). That is, they 
agree that bec