§ 1.1409   Commission consideration of the complaint.

   (a) In its consideration of the complaint, response, and reply, the
   Commission may take notice of any information contained in publicly
   available filings made by the parties and may accept, subject to
   rebuttal, studies that have been conducted. The Commission may also
   request that one or more of the parties make additional filings or
   provide additional information. Where one of the parties has failed to
   provide information required to be provided by these rules or requested
   by the Commission, or where costs, values or amounts are disputed, the
   Commission may estimate such costs, values or amounts it considers
   reasonable, or may decide adversely to a party who has failed to supply
   requested information which is readily available to it, or both.

   (b) The complainant shall have the burden of establishing a prima facie
   case that the rate, term, or condition is not just and reasonable or
   that the denial of access violates 47 U.S.C. § 224(f). If, however, a
   utility argues that the proposed rate is lower than its incremental
   costs, the utility has the burden of establishing that such rate is
   below the statutory minimum just and reasonable rate. In a case
   involving a denial of access, the utility shall have the burden of
   proving that the denial was lawful, once a prima facie case is
   established by the complainant.

   (c) The Commission shall determine whether the rate, term or condition
   complained of is just and reasonable. For the purposes of this
   paragraph, a rate is just and reasonable if it assures a utility the
   recovery of not less than the additional costs of providing pole
   attachments, nor more than an amount determined by multiplying the
   percentage of the total usable space, or the percentage of the total
   duct or conduit capacity, which is occupied by the pole attachment by
   the sum of the operating expenses and actual capital costs of the
   utility attributable to the entire pole, duct, conduit, or
   right-of-way.

   (d) The Commission shall deny the complaint if it determines that the
   complainant has not established a prima facie case, or that the rate,
   term or condition is just and reasonable, or that the denial of access
   was lawful.

   (e) When parties fail to resolve a dispute regarding charges for pole
   attachments and the Commission's complaint procedures under Section
   1.1404 are invoked, the Commission will apply the following formulas
   for determining a maximum just and reasonable rate:

   (1) The following formula shall apply to attachments to poles by cable
   operators providing cable services. This formula shall also apply to
   attachments to poles by any telecommunications carrier (to the extent
   such carrier is not a party to a pole attachment agreement) or cable
   operator providing telecommunications services until February 8, 2001:
   eCFR graphic er29jn01.011.gif

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   eCFR graphic er29jn01.012.gif

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   (2) With respect to attachments to poles by any telecommunications
   carrier or cable operator providing telecommunications services, the
   maximum just and reasonable rate shall be the higher of the rate
   yielded by paragraphs (e)(2)(i) or (e)(2)(ii) of this section.

   (i) The following formula applies to the extent that it yields a rate
   higher than that yielded by the applicable formula in paragraph
   1.1409(e)(2)(ii) of this section:

   Rate = Space Factor × Cost

   Where Cost

   in Service Areas where the number of Attaching Entities is 5 = 0.66 ×
   (Net Cost of a Bare Pole x Carrying Charge Rate)

   in Service Areas where the number of Attaching Entities is 4 = 0.56 ×
   (Net Cost of a Bare Pole x Carrying Charge Rate)

   in Service Areas where the number of Attaching Entities is 3 = 0.44 ×
   (Net Cost of a Bare Pole x Carrying Charge Rate)

   in Service Areas where the number of Attaching Entities is 2 = 0.31 ×
   (Net Cost of a Bare Pole x Carrying Charge Rate)

   in Service Areas where the number of Attaching Entities is not a whole
   number = N × (Net Cost of a Bare Pole × Carrying Charge Rate), where N
   is interpolated from the cost allocator associated with the nearest
   whole numbers above and below the number of Attaching Entities.
   eCFR graphic er03fe16.000.gif

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   (ii) The following formula applies to the extent that it yields a rate
   higher than that yielded by the applicable formula in paragraph
   1.1409(e)(2)(i) of this section:
   eCFR graphic er09my11.025.gif

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   (3) The following formula shall apply to attachments to conduit by
   cable operators and telecommunications carriers:
   eCFR graphic er29jn01.014.gif

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   simplified as:
   eCFR graphic er29jn01.015.gif

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   If no inner-duct is installed the fraction, “1 Duct divided by the No.
   of Inner-Ducts” is presumed to be 1⁄2 .

   (f) Paragraph (e)(2) of this section shall become effective February 8,
   2001 (i.e., five years after the effective date of the
   Telecommunications Act of 1996). Any increase in the rates for pole
   attachments that results from the adoption of such regulations shall be
   phased in over a period of five years beginning on the effective date
   of such regulations in equal annual increments. The five-year phase-in
   is to apply to rate increases only. Rate reductions are to be
   implemented immediately. The determination of any rate increase shall
   be based on data currently available at the time of the calculation of
   the rate increase.

   [ 43 FR 36094 , Aug. 15, 1978, as amended at  52 FR 31770 , Aug. 24, 1987;
    61 FR 43025 , Aug. 20, 1996;  61 FR 45619 , Aug. 29, 1996;  63 FR 12025 ,
   Mar. 12, 1998;  65 FR 31282 , May 17, 2000;  66 FR 34580 , June 29, 2001;
    76 FR 26639 , May 9, 2011;  81 FR 5618 , Feb. 3, 2016;  81 FR 7999 , Feb.
   17, 2016]

   Effective Date Note: At  82 FR 20840 , May 4, 2017, § 1.1409(g) was added.
   This paragraph contains information collection and recordkeeping
   requirements and will not become effective until approval has been
   given by the Office of Management and Budget.

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