§ 1.1404   Complaint.

   Link to an amendment published at  83 FR 44838 , September 4, 2018.

   Link to an amendment published at  83 FR 44839 , September 4, 2018.

   (a) The complaint shall contain the name, address, telephone number,
   and email address of the complainant; name, address, telephone number,
   and email address of the respondent; and a verification (in accordance
   with the requirements of § 1.52), signed by the complainant or officer
   thereof if complainant is a corporation, showing complainant's direct
   interest in the matter complained of. Counsel for the complainant may
   sign the complaint. Complainants may join together to file a joint
   complaint. Complaints filed by associations shall specifically identify
   each utility, cable television system operator, or telecommunications
   carrier who is a party to the complaint and shall be accompanied by a
   document from each identified member certifying that the complaint is
   being filed on its behalf.

   (b) The complaint shall be accompanied by a certification of service on
   the named respondent, and each of the Federal, State, and local
   governmental agencies that regulate any aspect of the services provided
   by the complainant or respondent.

   (c) In a case where it is claimed that a rate, term, or condition is
   unjust or unreasonable, the complaint shall contain a statement that
   the State has not certified to the Commission that it regulates the
   rates, terms and conditions for pole attachments. The complaint shall
   include a statement that the utility is not owned by any railroad, any
   person who is cooperatively organized or any person owned by the
   Federal Government or any State.

   (d) The complaint shall be accompanied by a copy of the pole attachment
   agreement, if any, between the cable system operator or
   telecommunications carrier and the utility. If there is no present pole
   attachment agreement, the complaint shall contain:

   (1) A statement that the utility uses or controls poles, ducts, or
   conduits used or designated, in whole or in part, for wire
   communication; and

   (2) A statement that the cable television system operator or
   telecommunications carrier currently has attachments on the poles,
   ducts, conduits, or rights-of-way.

   (e) The complaint shall state with specificity the pole attachment
   rate, term or condition which is claimed to be unjust or unreasonable.

   (f) In any case, where it is claimed that a term or condition is unjust
   or unreasonable, the claim shall specify all information and argument
   relied upon to justify said claim.

   (g) For attachments to poles, where it is claimed that either a rate is
   unjust or unreasonable, or a term or condition is unjust or
   unreasonable and examination of such term or condition requires review
   of the associated rate, the complaint shall provide data and
   information in support of said claim.

   (1) The data and information shall include, where applicable:

   (i) The gross investment by the utility for pole lines;

   (ii) The investment in crossarms and other items which do not reflect
   the cost of owning and maintaining poles, if available;

   (iii) The depreciation reserve from the gross pole line investment;

   (iv) The depreciation reserve from the investment in crossarms and
   other items which do not reflect the cost of owning and maintaining
   poles, if available;

   (v) The total number of poles:

   (A) Owned; and

   (B) Controlled or used by the utility. If any of these poles are
   jointly owned, the complaint shall specify the number of such jointly
   owned poles and the percentage of each joint pole or the number of
   equivalent poles owned by the subject utility;

   (vi) The total number of poles which are the subject of the complaint;

   (vii) The number of poles included in paragraph (g)(1)(vi) of this
   section that are controlled or used by the utility through lease
   between the utility and other owner(s), and the annual amounts paid by
   the utility for such rental;

   (viii) The number of poles included in paragraph (g)(1)(vi) of this
   section that are owned by the utility and that are leased to other
   users by the utility, and the annual amounts paid to the utility for
   such rental;

   (ix) The annual carrying charges attributable to the cost of owning a
   pole. The utility shall submit these charges separately for each of the
   following categories: Depreciation, rate of return, taxes, maintenance,
   and administrative. These charges may be expressed as a percentage of
   the net pole investment. With its pleading, the utility shall file a
   copy of the latest decision of the state regulatory body or state court
   that determines the treatment of accumulated deferred taxes if it is at
   issue in the proceeding and shall note the section that specifically
   determines the treatment and amount of accumulated deferred taxes.

   (x) The rate of return authorized for the utility for intrastate
   service. With its pleading, the utility shall file a copy of the latest
   decision of the state regulatory body or state court which establishes
   this authorized rate of return if the rate of return is at issue in the
   proceeding and shall note the section which specifically establishes
   this authorized rate and whether the decision is subject to further
   proceedings before the state regulatory body or a court. In the absence
   of a state authorized rate of return, the rate of return set by the
   Commission for local exchange carriers shall be used as a default rate
   of return;

   (xi) The average amount of usable space per pole for those poles used
   for pole attachments (13.5 feet may be in lieu of actual measurement,
   but may be rebutted);

   (xii) The average amount of unusable space per pole for those poles
   used for pole attachments (a 24 foot presumption may be used in lieu of
   actual measurement, but the presumption may be rebutted); and

   (xiii) Reimbursements received from CATV operators and
   telecommunications carriers for non-recurring costs.

   (2) Data and information should be based upon historical or original
   cost methodology, insofar as possible. Data should be derived from
   ARMIS, FERC 1, or other reports filed with state or federal regulatory
   agencies (identify source). Calculations made in connection with these
   figures should be provided to the complainant. The complainant shall
   also specify any other information and argument relied upon to attempt
   to establish that a rate, term, or condition is not just and
   reasonable.

   (h) With respect to attachments within a duct or conduit system, where
   it is claimed that either a rate is unjust or unreasonable, or a term
   or condition is unjust or unreasonable and examination of such term or
   condition requires review of the associated rate, the complaint shall
   provide data and information in support of said claim.

   (1) The data and information shall include, where applicable:

   (i) The gross investment by the utility for conduit;

   (ii) The accumulated depreciation from the gross conduit investment;

   (iii) The system duct length or system conduit length and the method
   used to determine it;

   (iv) The length of the conduit subject to the complaint;

   (v) The number of ducts in the conduit subject to the complaint;

   (vi) The number of inner-ducts in the duct occupied, if any. If there
   are no inner-ducts, the attachment is presumed to occupy one-half duct.

   (vii) The annual carrying charges attributable to the cost of owning
   conduit. These charges may be expressed as a percentage of the net
   linear cost of a conduit. With its pleading, the utility shall file a
   copy of the latest decision of the state regulatory body or state court
   which determines the treatment of accumulated deferred taxes if it is
   at issue in the proceeding and shall note the section which
   specifically determines the treatment and amount of accumulated
   deferred taxes.

   (viii) The rate of return authorized for the utility for intrastate
   service. With its pleading, the utility shall file a copy of the latest
   decision of the state regulatory body or state court which establishes
   this authorized rate of return if the rate of return is at issue in the
   proceeding and shall note the section which specifically establishes
   this authorized rate and whether the decision is subject to further
   proceedings before the state regulatory body or a court. In the absence
   of a state authorized rate of return, the rate of return set by the
   Commission for local exchange carriers shall be used as a default rate
   of return; and

   (ix) Reimbursements received by utilities from CATV operators and
   telecommunications carriers for non-recurring costs.

   (2) Data and information should be based upon historical or original
   cost methodology, insofar as possible. Data should be derived from
   ARMIS, FERC 1, or other reports filed with state or federal regulatory
   agencies (identify source). Calculations made in connection with these
   figures should be provided to the complainant. The complainant shall
   also specify any other information and argument relied upon to attempt
   to establish that a rate, term, or condition is not just and
   reasonable.

   (i) With respect to rights-of-way, where it is claimed that either a
   rate is unjust or unreasonable, or a term or condition is unjust or
   unreasonable and examination of such term or condition requires review
   of the associated rate, the complaint shall provide data and
   information in support of said claim. The data and information shall
   include, where applicable, equivalent information as specified in
   paragraph (g) of this section.

   (j) If any of the information and data required in paragraphs (g), (h)
   and (i) of this section is not provided to the cable television
   operator or telecommunications carrier by the utility upon reasonable
   request, the cable television operator or telecommunications carrier
   shall include a statement indicating the steps taken to obtain the
   information from the utility, including the dates of all requests. No
   complaint filed by a cable television operator or telecommunications
   carrier shall be dismissed where the utility has failed to provide the
   information required under paragraphs (g), (h) or (i) of this section,
   as applicable, after such reasonable request. A utility must supply a
   cable television operator or telecommunications carrier the information
   required in paragraph (g), (h) or (i) of this section, as applicable,
   along with the supporting pages from its ARMIS, FERC Form 1, or other
   report to a regulatory body, within 30 days of the request by the cable
   television operator or telecommunications carrier. The cable television
   operator or telecommunications carrier, in turn, shall submit these
   pages with its complaint. If the utility did not supply these pages to
   the cable television operator or telecommunications carrier in response
   to the information request, the utility shall supply this information
   in its response to the complaint.

   (k) The complaint shall include a certification that the complainant
   has, in good faith, engaged or attempted to engage in executive-level
   discussions with the respondent to resolve the pole attachment dispute.
   Executive-level discussions are discussions among representatives of
   the parties who have sufficient authority to make binding decisions on
   behalf of the company they represent regarding the subject matter of
   the discussions. Such certification shall include a statement that,
   prior to the filing of the complaint, the complainant mailed a
   certified letter to the respondent outlining the allegations that form
   the basis of the complaint it anticipated filing with the Commission,
   inviting a response within a reasonable period of time, and offering to
   hold executive-level discussions regarding the dispute. A refusal by a
   respondent to engage in the discussions contemplated by this rule shall
   constitute an unreasonable practice under section 224 of the Act.

   (l) Factual allegations shall be supported by affidavit of a person or
   persons with actual knowledge of the facts, and exhibits shall be
   verified by the person who prepares them.

   (m) In a case where a cable television system operator or
   telecommunications carrier as defined in 47 U.S.C. 224(a)(5) claims
   that it has been denied access to a pole, duct, conduit or right-of-way
   despite a request made pursuant to section 47 U.S.C. 224(f), the
   complaint shall include the data and information necessary to support
   the claim, including:

   (1) The reasons given for the denial of access to the utility's poles,
   ducts, conduits, or rights-of-way;

   (2) The basis for the complainant's claim that the denial of access is
   unlawful;

   (3) The remedy sought by the complainant;

   (4) A copy of the written request to the utility for access to its
   poles, ducts, conduits, or rights-of-way; and

   (5) A copy of the utility's response to the written request including
   all information given by the utility to support its denial of access. A
   complaint alleging unlawful denial of access will not be dismissed if
   the complainant is unable to obtain a utility's written response, or if
   the utility denies the complainant any other information needed to
   establish a prima facie case.

   [ 43 FR 36094 , Aug. 15, 1978, as amended at  44 FR 31649 , June 1, 1979;
    45 FR 17014 , Mar. 17, 1980;  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;  65 FR 34820 , May 31, 2000;  76 FR 26638 , May
   9, 2011;  79 FR 73847 , Dec. 12, 2014]

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