FCC Web Documents citing 1.1404

as compiled by hallikainen.com/FccRules on 2012 07 01

• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-2150A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-2150A1.pdf
  • 227 . . . .'' In view of this plain statutory language, we conclude that Salsgiver Telecom's status as an intrastate carrier provides no basis for NPTC's assertion that Salsgiver Telecom is not a ``telecommunications carrier'' with pole access rights under section 224(f)(1) of the Act. Salsgiver Telecom's Complaint Should Not be Dismissed as Untimely NPTC contends that, under section 1.1404(m) of the Commission's pole attachment rules, Salsgiver Telecom was required to file the Complaint within 30 days after NPTC's Nov. 23, 2005 Letter denying Salsgiver Telecom's pole attachment request, i.e., by December 23, 2005. Because Salsgiver Telecom did not file the Complaint until February 6, 2006, approximately six weeks later, NPTC argues that the Complaint should be dismissed as untimely.
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-4721A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-4721A1.pdf
  • Expedited Action, File No. EB-06-MD-004 (filed Apr. 3, 2006) (``Opposition to Motion''), at 1-4; Response at 1-3. Complaint, Exh. 8 at section 9.2. Similarly, under section 224(f) of the Act, if Salsgiver does not use its attachments to provide cable service (or telecommunications service), it will lose its statutory right to pole access. Sur-Reply at 2 (citing 47 C.F.R. � 1.1404(e)). 47 C.F.R. � 1.1409. Note, however, that had Salsgiver attached the franchise agreements to its initial Complaint, the pleading cycle in this case could have been more streamlined. Indeed, had Salsgiver provided the agreements to NPTC sooner, the parties' negotiations may well have been more fruitful. We note that Salsgiver has not made a prima facie case as to other
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-486A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-486A1.pdf
  • and [Fibertech's] network''). Wireline Broadband Order, 20 FCC Rcd at 14910, � 103. Response at 13-14, �� 41-45. Letter Ruling dated July 6, 2005 from Alexander P. Starr, Chief, Market Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D. Sapir, Counsel for Complainant, and John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-012 at 2, (citing 47 C.F.R. � 1.1404(m) & (l)). See Letter Ruling dated November 15, 2005 from Barbara Esbin, Market Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D. Sapir, Counsel for Complainant, and Kenneth E. Hardman and John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-014 (directing both parties to provide additional briefing of certain legal issues; directing Fibertech to provide all tariff filings referenced
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-08-1046A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-08-1046A1.pdf
  • ) ) ORDER OF DISMISSAL Adopted: May 2, 2008 Released: May 2, 2008 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: introduction On December 21, 2007, NextG Networks of NY, Inc. (``NextG'') filed a Complaint against Public Service Electric & Gas Company (``PSE&G'') pursuant to section 224 of the Communications Act of 1934, as amended (the ``Act''), and section 1.1404 of the Commission's rules. The Complaint alleges that NextG is violating section 224(f) by refusing to allow NextG to attach wireless telecommunications devices to the tops of PSE&G's utility poles. On January 22, 2008, PSE&G filed a Response to the Complaint in which it asserted, inter alia, that the Commission should dismiss the Complaint for lack of jurisdiction pursuant to
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-08-2481A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-08-2481A1.pdf
  • ORDER OF DISMISSAL Adopted: November 13, 2008 Released: November 13, 2008 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: introduction On August 21, 2008, Armstrong Utilities, Inc. (``Armstrong'') filed a pole attachment complaint against United Telephone Company of Pennsylvania, d/b/a/ Embarq Pennsylvania (``Embarq'') pursuant to section 224 of the Communications Act of 1934, as amended (the ``Act''), and section 1.1404 of the Commission's rules. In lieu of responding to the Complaint, Embarq filed three successive consent motions for extensions of time to file a Response, which were all premised on Embarq's representation that the parties had reached an oral agreement to resolve their dispute, and needed additional time to document their agreement. Each of these motions for an extension of
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-08-2535A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-08-2535A1.pdf
  • Commission. Please contact J.D. Thomas if you have any questions. Thank you, Grace Kavadoy, SENIOR Paralegal HOGAN & HARTSON LLP Columbia Square, 555 Thirteenth Street, NW, Washington, DC 20004 direct +1.202.637.4863 | cell +1.202.321.3212 | fax +1.202.637.5910 gmkavadoy@hhlaw.com | http://www.hhlaw.com Amended Pole Attachment Access Complaint, File No. EB-08-MD-003 (filed May 12, 2008) (``Complaint''). 47 U.S.C. � 224. 47 C.F.R. �� 1.1404 -1.1418. See Letter from Lisa J. Saks, FCC, to J. D. Thomas, counsel to Fibertech, Shirley S. Fujimoto, counsel to Narragansett, and James Pachulski, counsel to Verizon, File No. EB-08-MD-003 (dated May 27, 2008); Letter from Lia B. Royle, FCC, to J. D. Thomas, Shirley S. Fujimoto, and James Pachulski, File No. EB-08-MD-003 (dated July 3, 2008); Letter from Lisa
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-09-1293A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-09-1293A1.pdf
  • ORDER OF DISMISSAL Adopted: June 8, 2009 Released: June 8, 2009 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: introduction On May 4, 2009, NextG Networks of Illinois, Inc. (``NextG'') filed a Complaint against RCN Telecom Services of Illinois, LLC (``RCN'') pursuant to sections 224 and 251 of the Communications Act of 1934, as amended (the ``Act''), and section 1.1404 of the Commission's rules. On May 20, 2009, following a telephone conference with counsel for the parties, Commission staff issued a Notice of Complaint instructing NextG to file an amended complaint in order cure certain deficiencies in the Complaint, and setting a schedule for subsequent pleadings in this matter. On May 22, 2009, NextG's counsel informed Commission staff and counsel
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-10-629A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-10-629A1.pdf
  • OF DISMISSAL Adopted: April 13, 2010 Released: April 13, 2010 By the Deputy Chief, Market Disputes Resolution Division, Enforcement Bureau: introduction On September 16, 2009, NextG Networks of Illinois, Inc. (``NextG'') filed a pole attachment complaint against RCN Telecom Services of Illinois, LLC (``RCN'') pursuant to section 224 of the Communications Act of 1934, as amended (the ``Act''), and section 1.1404 of the Commission's rules alleging that RCN unlawfully denied access to RCN's underground conduit, located in Illinois, for the purpose of placing NextG's telecommunications lines. In its response, RCN argued that the Illinois Commerce Commission (``ICC'') regulates pole attachments for telecommunications services and therefore has preempted this Commission's jurisdiction. On February 10, 2010, at the request of the Commission, the
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-00-1476A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-00-1476A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-00-1476A1.txt
  • Mile Hi Order"). 47 C.F.R. � 1.1409 (a). See letters dated April 1, 1999 to both parties from Patrick A. Boateng, Acting Chief, Financial Analysis and Compliance Division, Cable Services Bureau. See Complainant's "Response to Letter Inquiry" ("Complainant's Answers") and Respondent's "Answers of Public Service Company of Colorado to Questions of the Cable Services Bureau" ("Respondent's Answers"). 47 C.F.R. � 1.1404 (l). Complaint at � 25. 47 U.S.C. �224 (b) (1). 47 U.S.C. � 224(b)(1) and (2). Colorado has not certified that it regulates rates, terms and conditions of pole attachments. See Public Notice, "States That Have Certified That They Regulate Pole Attachments," DA 92-201, 7 FCC Rcd 1498 (1992). 47 U.S.C. � 224(b)(1). The Commission has developed a formula methodology
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-1242A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-1242A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-1242A1.txt
  • Great Scott Broadcasting may not conduct program tests before Be-More Broadcasting receives a license for a new FM station at Exmore, Virginia. (c) Nothing contained herein shall be construed to authorize a change in transmitter location or to avoid the necessity of filing an environmental assessment pursuant to Section 1.1307 of the Commission's Rules. 13. Pursuant to Commission Rule Sections 1.1404(1)(k) and (3)(m), any party seeking a change in community of license of a TV or FM allotment or an upgrade of an existing FM allotment, if the request is granted, must submit a rule making fee when filing its application to implement the change in community of license and/or upgrade. As a result of this proceeding, Great Scott Broadcasting, licensee
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2653A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2653A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2653A1.txt
  • a taking. FPC v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944); see also Permian Basin Area Rate Cases, 390 U.S. 747, 767. Response at �� 7-8, 17-19, 41 and Affidavit of J. Darryl Wilson at �� 3-4. See also Reply at 41-44. Response at �� 36-40 and Affidavit of J. Darryl Wilson at � 3. 47 C.F.R. � 1.1404 (k). See also Complaint at � 40 (other meetings with Respondent). Reply at 41-44 and Exhibit 4 (Affidavit of James Everett). See also, Texas Cable & Telecommun. Ass'n v. Entergy Services, Inc., 14 FCC Rcd 9138 at � 12 (1999) ("It is clear at this point that the parties are at an impasse, that Entergy is insisting on the attachment
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2712A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2712A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2712A1.txt
  • 2000 to Knology of Augusta from J. Daryll Wilson, Joint Use Coordinator, Georgia Power. See Alabama Cable Telecommunications Association, et al. v. Alabama Power Company, File No. PA 00-003, FCC 01-181, 16 FCC Rcd 12209 at �� 32-61 (2001), appeal pending sub nom. Alabama Power Company v. FCC, Case No. 00-14763-I (11th Cir., filed Sept. 13, 2000). 47 C.F.R. � 1.1404 (l) (1999). 47 C.F.R. � 1.1401, et seq. See Teleport v. Georgia Power Company, PA 00-005, DA 01-2653 (released November 14, 2001). Id. Federal Communications Commission DA 01-2712 Federal Communications Commission DA 01-2712 (R) � � � � � �� � �0� �0� �0� �0� �0� �0� �0� �`� �0� a
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2713A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2713A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2713A1.txt
  • (1978). Id. See letter dated October 11, 2000 to City of Sandersville from J. Daryll Wilson, Joint Use Coordinator, Georgia Power. Gulf Power, et al. v. FCC and USA, 208 F. 3d 1263 (11th Cir. 2000). Implementation of Section 703(e) of the Telecommunications Act of 1996, CS Docket No. 97-151, FCC 98-20, 13 FCC Rcd 6777 (1998). 47 C.F.R. � 1.1404 (l) (1999). 47 C.F.R. � 1.1401, et seq. See Teleport v. Georgia Power Company, PA 00-005, DA 01-2653 (released November 14, 2001). Id. Federal Communications Commission DA 01-2713 Federal Communications Commission DA 01-2713 � � � � � � �� �0� �0� �0� �0� �0� �0� �0� �`� �0� s �
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2714A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2714A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2714A1.txt
  • yet received legal notice from Respondent in accordance with its requirements for legal notice. See Alabama Cable Telecommunications Association, et al. v. Alabama Power Company, File No. PA 00-003, FCC 01-181, 16 FCC Rcd 12209 at �� 32-61 (2001), appeal pending sub nom. Alabama Power Company v. FCC, Case No. 00-14763-I (11th Cir., filed Sept. 13, 2000). 47 C.F.R. � 1.1404 (l) (1999). 47 C.F.R. � 1.1401, et seq. See Teleport v. Georgia Power Company, DA 01-XXXX (released November , 2001). Id. Federal Communications Commission DA 01-2714 Federal Communications Commission DA 01-2714 " � (R) � (R) � �� � �0� �0� �0� �0� �0� �0� �0� �`� �0� ^ �
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2744A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2744A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-2744A1.txt
  • Authority (STA) (47 C.F.R. � 78.33) Petitions for Special Relief (47 C.F.R. � 76.7) CARS Microwave Applications (47 C.F.R. �� 78.11-78.40) CARS Microwave Change/ Modifications (47 C.F.R. �� 78.11-78.40) CARS Microwave Renewals (47 C.F.R. � 78.29) CARS Microwave Transfers And Assignments (47 C.F.R. � 78.35) Cumulative Leakage Index Filing Waivers (47 C.F.R. � 76.611) Pole Attachment Complaints (47 C.F.R. � 1.1404) Adoption of a Mandatory FCC Registration Number, 16 FCC Rcd 16138 (2001). Multichannel video programming distributors include operators of cable systems, multichannel distribution systems (MDS), multichannel multipoint distribution systems (MMDS), direct broadcast satellites (DBS), private cable systems (PCO), and similar providers of multiple channels of video programming. 47 U.S.C. � 602(13). (...continued from previous page) (...continued) � � �����PNG >
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-647A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-647A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-01-647A1.txt
  • H. Johnson, Deputy Chief Cable Services Bureau 47 U.S.C. �224. 47 C.F.R. ��1.1401-1.1418. In the Matter of Cable Telecommunications Association of Maryland, Delaware and the District of Columbia, et. al, v. Baltimore Gas and Electric Company and Bell Atlantic-Maryland, Inc., File No. PA 00-001, DA 00-482, 15 FCC Rcd 4656 (2000). 47 C.F.R. � 1.1407 (a). Id. 47 C.F.R. � 1.1404 (l) (1999). See, for example, In the Matter of Mile Hi Cable Partners, et al. v. Public Service Company of Colorado, 14 FCC Rcd 3244 (1999) at � 12. BGE filed various complaints for breach of contract or unjust enrichment with courts in the State of Maryland. Most of those actions have been stayed pending a decision on this complaint.
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-1733A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-1733A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-1733A1.txt
  • notice of information in publicly available filings made by the parties, it is our practice "in the absence of supported carrying charges . . . to use the figure from publicly available information." 12. The methodology used to arrive at a pole attachment rate should be simple and based on publicly identifiable and verifiable data whenever it is available. Section 1.1404(g) of the Commission's rules describes the requirements for the submission of data. It states that data and information should be based upon historical or original cost methodology. Data should be derived from ARMIS, FERC 1, or other reports filed with state or federal regulatory agencies. Calculations made in connection with figures should also be submitted. Section 1.1409(a) of the Commission's
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-247A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-247A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-247A1.txt
  • permit (Form 301) specifying the new facility, Upon grant of the construction permit, program tests may be conducted in accordance with Section 73.1620; and Nothing contained herein shall be construed to authorize a change in transmitter location or to avoid the necessity of filing an environmental assessment pursuant to Section 1.1307 of the Commission's Rules. Pursuant to Commission Rule Sections 1.1404(1)(k) and (3)(m), any party seeking a change in community of license of a TV or FM allotment or an upgrade of an existing FM allotment, if the request is granted, must submit a rule making fee when filing its application to implement the change in community of license and/or upgrade. As a result of this proceeding, Apex Communications, licensee of
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-3485A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-3485A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-02-3485A1.txt
  • television system or provider of telecommunications service to a pole, duct, conduit, or right-of way owned or controlled by a utility.") Because we find RCN to be a cable television system, we do not address the issue raised by PECO concerning RCN's previous status as a certified open video system provider. 534 U.S. 327, 338-339 (2002). See 47 C.F.R. � 1.1404 (d) (requiring that a complaint be accompanied by a copy of any existing pole attachment agreement). See also S. Rep. No. 95-580, at 16 (1977), 1978 U.S.C.C.A.N. 109, 124 (anticipating Commission jurisdiction where the communications space is already occupied by the cable television system.) See e.g., Letter from Meredith J. Jones, Chief, Cable Services Bureau to Danny E. Adams, Esq.,
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-1555A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-1555A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-1555A1.txt
  • Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, Report and Order, 2 FCC Rcd 4387, 4397-98, �� 78-80 (1987) (``Hardware Order''), aff'd, Memorandum Opinion and Order, 4 FCC Rcd 468 (1989). Indeed, the Commission's rules expressly provide that a state association may bring a complaint on behalf of its cable operator members. 47 C.F.R. � 1.1404(a). When a state association is a lead complainant, the Commission allows similarly-situated aggrieved complainants to join in a complaint against a utility, because it promotes administrative efficiency. Hardware Order, 2 FCC Rcd at 4397-98, �� 78-80. It would be a waste of resources to require a similarly-situated cable operator to file a separate complaint simply because a utility delayed in
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-2613A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-2613A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-2613A1.txt
  • and designed to mask the utility's true motive - to promote its ``telecommunications affiliates' service offerings . . . [which] are among the most diverse and aggressive, if not the most, of any electric utility.'' DISCUSSION The Complaint Satisfies the Commission's Rules and Is Ripe for Review. Georgia Power argues that the Commission should dismiss the Complaint, pursuant to sections 1.1404 and 1.1409 of the Commission's rules, because the Cable Operators have not met their burden of establishing a prima facie case that the terms and conditions at issue are unjust and unreasonable. Although the Complaint's allegations arguably could have been more detailed, the pleading as a whole sufficiently identifies the factual basis of the allegations. Moreover, the Cable Operators attached
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-857A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-857A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-03-857A1.txt
  • such rates are just and reasonable. Omnipoint filed its Complaint pursuant to the Commission's pole attachment complaint rules. In its Complaint, Omnipoint requests the Commission to: a) admonish PECO that it is bound by section 224 of the Act and sections 1.1401 to 1.1416 of the Commission's rules; b) order PECO to provide information and supporting documentation required by section 1.1404(g) of the Commission's rules; c) require PECO to set a fair and reasonable pole attachment rate; d) order PECO to provide Omnipoint access to its poles, ducts, conduits, rights-of-way, and transmission towers on reasonable rates and terms; e) grant Omnipoint costs and attorneys fees; and f) grant such other relief as the Commission deems just, reasonable and proper. PECO responds
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-959A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-959A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-04-959A1.txt
  • ) Respondent. ) ORDER Adopted: April 6, 2004 Released: April 7, 2004 By the Deputy Chief, Market Disputes Resolution Division, Enforcement Bureau: 1. On February 12, 2004, American Fiber Systems, Inc. (``AFS'') filed a complaint against Kansas City Power and Light Company (``KCPL'') pursuant to section 224 of the Communications Act of 1934, as amended (``Act''), and sections 1.1403 and 1.1404 of the Commission's rules. AFS initiated the Complaint in response to a primary jurisdiction referral by the United States District Court for the District of Kansas. 2. KCPL is an electric utility operating in, among other places, the Kansas City, Missouri area, where AFS seeks to attach to KCPL's poles for the purpose of offering telecommunications services to the public.
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-440A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-440A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-440A1.txt
  • the Commission's rules, 47 C.F.R. �� 0.111, 0.311, that the parties shall participate in a status telephone call with Commission staff on Thursday, March 17, 2005 at 10:00 a.m. FEDERAL COMMUNICATIONS COMMISSION Lisa B. Griffin Deputy Chief, Market Disputes Resolution Division Enforcement Bureau Complaint, File No. EB-04-MD-013 (filed Dec. 3, 2004) (``Complaint''). 47 U.S.C. � 224. 47 C.F.R. �� 1.1403(a), 1.1404. Complaint at 7, � 12. Complaint at 7, � 13. Complaint at 7, � 15. Complaint at 1, � 2; 7, � 15. Complaint at 1-2, � 2. Complaint at 1-2, � 2. Complaint at 3-4, �� 5-6. Letter from Gardner F. Gillespie, counsel for Time Warner, and Jennifer Byrd, counsel for SBC Telecommunications, Inc., to Marlene H. Dortch, Secretary,
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-06-494A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-06-494A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-06-494A1.txt
  • where there are common issues of fact and law, and argues that such commonality is absent here. Complainants acknowledge that the facts in this proceeding ``are to some extent specific to each Complainant,'' but argue that there are ``many common areas of fact, experience, injury suffered, law and relief due that warrant prosecuting this matter in a single complaint.'' Section 1.1404(a) of the pole attachment rules, which governs joinder of complainants in a single proceeding, does not specify particular requirements for joinder. It simply states: ``Complainants may join together to file a joint complaint.'' Still, the rule would seem to contemplate joinder of claims by multiple attachers against a pole owner only in situations where each of the attachers' claims involve
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-06-494A1_Erratum.doc
  • where there are common issues of fact and law, and argues that such commonality is absent here. Complainants acknowledge that the facts in this proceeding ``are to some extent specific to each Complainant,'' but argue that there are ``many common areas of fact, experience, injury suffered, law and relief due that warrant prosecuting this matter in a single complaint.'' Section 1.1404(a) of the pole attachment rules, which governs joinder of complainants in a single proceeding, does not specify particular requirements for joinder. It simply states: ``Complainants may join together to file a joint complaint.'' Still, the rule would seem to contemplate joinder of claims by multiple attachers against a pole owner only in situations where each of the attachers' claims involve
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-2150A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-2150A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-2150A1.txt
  • 227 . . . .'' In view of this plain statutory language, we conclude that Salsgiver Telecom's status as an intrastate carrier provides no basis for NPTC's assertion that Salsgiver Telecom is not a ``telecommunications carrier'' with pole access rights under section 224(f)(1) of the Act. Salsgiver Telecom's Complaint Should Not be Dismissed as Untimely NPTC contends that, under section 1.1404(m) of the Commission's pole attachment rules, Salsgiver Telecom was required to file the Complaint within 30 days after NPTC's Nov. 23, 2005 Letter denying Salsgiver Telecom's pole attachment request, i.e., by December 23, 2005. Because Salsgiver Telecom did not file the Complaint until February 6, 2006, approximately six weeks later, NPTC argues that the Complaint should be dismissed as untimely.
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-4721A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-4721A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-4721A1.txt
  • Expedited Action, File No. EB-06-MD-004 (filed Apr. 3, 2006) (``Opposition to Motion''), at 1-4; Response at 1-3. Complaint, Exh. 8 at section 9.2. Similarly, under section 224(f) of the Act, if Salsgiver does not use its attachments to provide cable service (or telecommunications service), it will lose its statutory right to pole access. Sur-Reply at 2 (citing 47 C.F.R. � 1.1404(e)). 47 C.F.R. � 1.1409. Note, however, that had Salsgiver attached the franchise agreements to its initial Complaint, the pleading cycle in this case could have been more streamlined. Indeed, had Salsgiver provided the agreements to NPTC sooner, the parties' negotiations may well have been more fruitful. We note that Salsgiver has not made a prima facie case as to other
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-486A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-486A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-486A1.txt
  • and [Fibertech's] network''). Wireline Broadband Order, 20 FCC Rcd at 14910, � 103. Response at 13-14, �� 41-45. Letter Ruling dated July 6, 2005 from Alexander P. Starr, Chief, Market Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D. Sapir, Counsel for Complainant, and John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-012 at 2, (citing 47 C.F.R. � 1.1404(m) & (l)). See Letter Ruling dated November 15, 2005 from Barbara Esbin, Market Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D. Sapir, Counsel for Complainant, and Kenneth E. Hardman and John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-014 (directing both parties to provide additional briefing of certain legal issues; directing Fibertech to provide all tariff filings referenced
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-1046A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-1046A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-1046A1.txt
  • ) ) ORDER OF DISMISSAL Adopted: May 2, 2008 Released: May 2, 2008 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: introduction On December 21, 2007, NextG Networks of NY, Inc. (``NextG'') filed a Complaint against Public Service Electric & Gas Company (``PSE&G'') pursuant to section 224 of the Communications Act of 1934, as amended (the ``Act''), and section 1.1404 of the Commission's rules. The Complaint alleges that NextG is violating section 224(f) by refusing to allow NextG to attach wireless telecommunications devices to the tops of PSE&G's utility poles. On January 22, 2008, PSE&G filed a Response to the Complaint in which it asserted, inter alia, that the Commission should dismiss the Complaint for lack of jurisdiction pursuant to
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-2481A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-2481A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-2481A1.txt
  • ORDER OF DISMISSAL Adopted: November 13, 2008 Released: November 13, 2008 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: introduction On August 21, 2008, Armstrong Utilities, Inc. (``Armstrong'') filed a pole attachment complaint against United Telephone Company of Pennsylvania, d/b/a/ Embarq Pennsylvania (``Embarq'') pursuant to section 224 of the Communications Act of 1934, as amended (the ``Act''), and section 1.1404 of the Commission's rules. In lieu of responding to the Complaint, Embarq filed three successive consent motions for extensions of time to file a Response, which were all premised on Embarq's representation that the parties had reached an oral agreement to resolve their dispute, and needed additional time to document their agreement. Each of these motions for an extension of
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-2535A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-2535A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-08-2535A1.txt
  • Commission. Please contact J.D. Thomas if you have any questions. Thank you, Grace Kavadoy, SENIOR Paralegal HOGAN & HARTSON LLP Columbia Square, 555 Thirteenth Street, NW, Washington, DC 20004 direct +1.202.637.4863 | cell +1.202.321.3212 | fax +1.202.637.5910 gmkavadoy@hhlaw.com | http://www.hhlaw.com Amended Pole Attachment Access Complaint, File No. EB-08-MD-003 (filed May 12, 2008) (``Complaint''). 47 U.S.C. � 224. 47 C.F.R. �� 1.1404 -1.1418. See Letter from Lisa J. Saks, FCC, to J. D. Thomas, counsel to Fibertech, Shirley S. Fujimoto, counsel to Narragansett, and James Pachulski, counsel to Verizon, File No. EB-08-MD-003 (dated May 27, 2008); Letter from Lia B. Royle, FCC, to J. D. Thomas, Shirley S. Fujimoto, and James Pachulski, File No. EB-08-MD-003 (dated July 3, 2008); Letter from Lisa
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-1293A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-1293A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-1293A1.txt
  • ORDER OF DISMISSAL Adopted: June 8, 2009 Released: June 8, 2009 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: introduction On May 4, 2009, NextG Networks of Illinois, Inc. (``NextG'') filed a Complaint against RCN Telecom Services of Illinois, LLC (``RCN'') pursuant to sections 224 and 251 of the Communications Act of 1934, as amended (the ``Act''), and section 1.1404 of the Commission's rules. On May 20, 2009, following a telephone conference with counsel for the parties, Commission staff issued a Notice of Complaint instructing NextG to file an amended complaint in order cure certain deficiencies in the Complaint, and setting a schedule for subsequent pleadings in this matter. On May 22, 2009, NextG's counsel informed Commission staff and counsel
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-629A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-629A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-629A1.txt
  • OF DISMISSAL Adopted: April 13, 2010 Released: April 13, 2010 By the Deputy Chief, Market Disputes Resolution Division, Enforcement Bureau: introduction On September 16, 2009, NextG Networks of Illinois, Inc. (``NextG'') filed a pole attachment complaint against RCN Telecom Services of Illinois, LLC (``RCN'') pursuant to section 224 of the Communications Act of 1934, as amended (the ``Act''), and section 1.1404 of the Commission's rules alleging that RCN unlawfully denied access to RCN's underground conduit, located in Illinois, for the purpose of placing NextG's telecommunications lines. In its response, RCN argued that the Illinois Commerce Commission (``ICC'') regulates pole attachments for telecommunications services and therefore has preempted this Commission's jurisdiction. On February 10, 2010, at the request of the Commission, the
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-170A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-170A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-170A1.txt
  • change-out charges directly from cable systems. Report and Order, Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, CC Dkt. 86-212, 2 FCC Rcd 4387, 4388 n.3 (1987) ("Pole Attachment Order"), recon. denied, 4 FCC Rcd 468 (1989). 47 U.S.C. � 224(d)(1-2). 47 U.S.C. � 224(d)(1). 1977 Senate Report at 19-20. 47 C.F.R. � 1.1404. See: First Report and Order, Adoption of Rules for the Regulation of Cable Television Pole Attachments, CC Dkt. 78-144, 68 FCC 2d 1585 (1978) ("First Report and Order"); Second Report and Order, 72 FCC 2d 59 (1979) ("Second Report and Order"); Third Report and Order, 77 FCC 2d 187 (1980) ("Third Report and Order"), aff'd, Monongahela Power Co. v. FCC,
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-181A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-181A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-181A1.txt
  • the Matter of the Local Competition Provisions in the Telecommunications Act of 1996, Order on Reconsideration, FCC 99-266 (released October 26, 1999). Gulf Power v. United States, 187 F.3d 1324 (1999). Gulf Power v. FCC, 208 F.3d 1263 (2000), stayed pending Supreme Court review; petition for cert. granted January 22, 2001. Id. at 1272-73. 47 C.F.R. ��1.1401-1.1418. 47 C.F.R. � 1.1404 (e). 47 C.F.R. � 1.1404 (k). Id. Id. See also 18 C.F.R. Part 101 for a list and description of the FERC accounts. See S. Rep. No. 95-580, 95th Cong., 1st Sess. at 21 (1977) (stating that it was the desire of the drafters ``that the Commission institute a simple and expeditious CATV pole attachment program which will necessitate a
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-270A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-270A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-270A1.txt
  • attacher would be required to pay 2/3 of the cost of unusable space, whereas the electric utility would pay only 1/3. The inequity of this result is even more pronounced when one considers that the electric utility pole owner is using over seven times as much usable space on the pole. Telecom Order at � 78. See 47 C.F.R. � 1.1404 (j) (". . . the utility shall supply this information in response to the complaint.") Teleport also requested this information by letter to GPC at the same time that it filed its complaint. See Reply at Exhibit 3. See Response at Affidavit of Thomas G. Park. Telecom Order at � 79. See Bureau Order at � 11, citing the Consolidated
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-94A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-94A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-94A1.txt
  • Policies Governing the Attachment of Cable Television Hardware to Utility Poles, 2 FCC Rcd 4387 (1987). Id. �� 78-80. Id. Id. 47 C.F.R. � 1.1402. We also required complaints filed by associations to identify each member party and include a document from each identified member party certifying that the complaint is being filed on its behalf. See 47 C.F.R. � 1.1404 (a). Heritage Cablevision Associates of Dallas, LP, et al. v. Texas Utilities Electric Company, 7 FCC Rcd 4192 (1992) ("Heritage Cablevision"). The petition for reconsideration was filed against Heritage Cablevision Associates of Dallas, LP, et al. v. Texas Utilities Electric Company, 6 FCC Rcd 7099 (1991); affirmed sub nom. Texas Utilities Electric Company v. FCC, 997 F.2d 925 (D.C. Cir.
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-95A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-95A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-95A1.txt
  • of Section 703(e) of the Telecommunications Act of 1996, 13 FCC Rcd 6777, 6790 and n.90 (1998), rev'd in part on other grounds, 208 F.3d 1263 (11th Cir. 2000), cert. granted, FCC v. Gulf Power Co., 531 U.S. 1125 (2001); See also, Cavalier Telephone, LLC v. Virginia Electric and Power Company, 15 FCC Rcd 9563 (2000). See 47 C.F.R. � 1.1404 (d) (requiring that a complaint be accompanied by a copy of any existing pole attachment agreement). See also S. Rep. No. 95-580, at 16 (1977), 1978 U.S.C.C.A.N. 109, 124 (anticipating Commission jurisdiction where the communications space is already occupied by the cable television system.) Id. See also, Letter from Meredith J. Jones, Chief, Cable Services Bureau to Danny E. Adams,
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-173A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-173A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-173A1.txt
  • addition to the overlashing issues, TU Electric claims it wrongly was assigned the burden of proof on the reasonableness of the Agreement's disclosure and indemnification provisions. We discuss this contention infra, section III.D. See Adoption of Rules for the Regulation of Cable Television Pole Attachments, First Report and Order, 68 FCC2d 1585, 1598, � 40 (1978); 47 C.F.R. �� 1.407, 1.1404(j), 1.1409(a); cf. Implementation of the Telecommunications Act of 1996, Amendment of Rules Governing Procedures to Be Followed When Formal Complaints Are Filed Against Common Carriers, Report and Order, 12 FCC Rcd 22497, 22617, � 295 (1997) (subsequent history omitted) (it is ``incumbent upon a defendant . . . to respond fully to any prima facie showing made by a complainant,
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-292A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-292A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-292A1.txt
  • Georgia Power, Knology never engaged in good faith negotiations prior to filing the Complaint, because Knology did not present Georgia Power with the results of the Singleton Audit. We believe Knology satisfied its obligations under the Commission's rules. The pole attachment complaint rules apply ``when parties are unable to arrive at a negotiated agreement . . . .'' Thus, section 1.1404(k) of the rules requires the complaint to include: a brief summary of all steps taken to resolve the problem prior to filing. If no such steps were taken, the complaint shall state the reason(s) why it believed such steps were fruitless. In compliance with section 1.1404(k), the Complaint delineates Knology's efforts to negotiate with Georgia Power about the challenged make-ready
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-187A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-187A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-187A1.txt
  • rates, terms, and conditions; (2) amend our complaint procedures to permit incumbent LECs to use them when negotiations over rates, terms, and conditions fail; and (3) adopt the telecom rate as the default ``just and reasonable'' rate for incumbent LEC attachment to utility poles. See USTelecom Petition, RM-11293, at 18-21 (suggesting specific revisions to 47 C.F.R. � 1.1401 (``Purpose''), � 1.1404 (``Complaint''), and � 1.1409 (``Commission consideration of the complaint'')). 47 U.S.C. � 224(f)(1) (``A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it.'') (emphasis added). See USTelecom Petition, RM-11293, at 8-10. See USTelecom Petition, RM-11293, at 8-9 (``Where Congress chooses to use different
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-271A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-271A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-08-271A1.txt
  • duplicative of the USOA information in ARMIS Report 43-02. AT&T Cost Assignment Forbearance Order, 23 FCC Rcd at 7319-20, para. 31; ARMIS Forbearance Order, 23 FCC Rcd at 13663, para. 28. 47 U.S.C. � 224. Letter to Marlene H. Dortch, Secretary, FCC, from Daniel L. Brenner, NCTA, filed in WC Docket No. 07-204 (Sept. 25, 2008) (quoting 47 C.F.R. � 1.1404(g)(2)). See also, e.g., Amendment of Rules and Policies Governing Pole Attachments, CS Docket No. 97-98, Report and Order, 15 FCC Rcd 6453, 6529, Appendix C-1 (2000) (setting forth pole attachment formulas for local exchange carrier pole owners using ARMIS data). We note that, in the AT&T Cost Assignment Forbearance Order, the Commission found that the need for data in enforcement
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-56A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-56A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-56A1.txt
  • requires filings to be complete in numerous contexts in addition to section 271 petitions. See, e.g., Bell Atlantic-Delaware, Inc., et al. v. Global Naps, Inc., Memorandum Opinion and Order, File No. E-99-22, 15 FCC Rcd 12946, 12959, para. 24 (1999) (rejecting incomplete tariff and alluding to long-standing principle that tariffs must be complete when filed); see also 47 C.F.R. � 1.1404 (pole attachment complaint requirements); 47 C.F.R. � 1.721 (format and content of formal complaints). See, e.g., Verizon Comments at 31; AT&T Comments at 14-15 (both contrasting the 90 day limit for consideration of 271 application with the one year limit for consideration of forbearance petitions). Compare 47 U.S.C. � 271(d)(3) with � 160(c). See Verizon Comments at 29 (arguing that
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-84A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-84A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-10-84A1.txt
  • the company level before a formal complaint can be filed. Should we 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? The Pole Attachment Notice questioned whether rule 1.1404(m) has had the unintended consequence of discouraging informal resolution of disputes. For that reason, we sought comment on whether the rule should be amended or eliminated. We received no substantive comment concerning rule 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.'' Our
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11-50A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11-50A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-11-50A1.txt
  • that existing procedures can be improved to address any problems. 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. 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
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-96-325A1.pdf
  • Federal Communications Commission 96-325 47 U.S.C. � 253(b); section 254 sets forth specific provisions related to universal service. 2828 47 U.S.C. � 253(c). See Ameritech reply at 10. 2829 47 U.S.C. � 224(f)(1). As noted above, incumbent LECs are excluded from the definition of "telecommunications 2830 carrier" for purposes of section 224. 47 U.S.C. � 224(a)(5). See 47 C.F.R. � 1.1404. 2831 See supra, Sections IV.G. and V.G. for a discussion of the meaning of "nondiscriminatory." 2832 47 U.S.C. � 224(f)(1); see Ohio Consumers' Counsel comments at 5; California comments at 5; MCI comments at 21; 2833 Sprint comments at 16; ACSI comments at 6-7. 47 U.S.C. � 224(g). 2834 553 and safeguard the rights of consumers." In addition, section 253
• http://transition.fcc.gov/Bureaus/Mass_Media/Orders/1998/fcc98236.pdf http://transition.fcc.gov/Bureaus/Mass_Media/Orders/1998/fcc98236.txt http://transition.fcc.gov/Bureaus/Mass_Media/Orders/1998/fcc98236.wp
  • 379NAD/CAN Petition at 21. NAD/CAN compares this situation to the rules regarding pole attachments where parties are permitted to file directly with the Commission without first contacting the respondent, so long as the complaint contains an explanation for taking steps to resolve the problem prior to filing are believed to be "fruitless." NAD/CAN Petition at 21 citing 47 C.F.R. � 1.1404(i). 380COR Opposition 5. 51 distributors.370 A complaint must be filed with the video programming provider no later than the end of the calendar quarter following the calendar quarter in which the alleged violation occurred.371 A complaint must, at a minimum, state with specificity the Commission rule violated and should provide some information which supports the alleged rule violation.372 We require
• http://transition.fcc.gov/eb/Orders/2002/DA-02-1733A1.html
  • notice of information in publicly available filings made by the parties, it is our practice "in the absence of supported carrying charges . . . to use the figure from publicly available information."39 12. The methodology used to arrive at a pole attachment rate should be simple and based on publicly identifiable and verifiable data whenever it is available.40 Section 1.1404(g) of the Commission's rules describes the requirements for the submission of data.41 It states that data and information should be based upon historical or original cost methodology. Data should be derived from ARMIS, FERC 1,42 or other reports filed with state or federal regulatory agencies. Calculations made in connection with figures should also be submitted. Section 1.1409(a) of the Commission's
• http://transition.fcc.gov/eb/Orders/2002/DA-02-3485A1.html
  • system or provider of telecommunications service to a pole, duct, conduit, or right-of way owned or controlled by a utility.") Because we find RCN to be a cable television system, we do not address the issue raised by PECO concerning RCN's previous status as a certified open video system provider. 18 534 U.S. 327, 338-339 (2002). 19 See 47 C.F.R. 1.1404 (d) (requiring that a complaint be accompanied by a copy of any existing pole attachment agreement). See also S. Rep. No. 95-580, at 16 (1977), 1978 U.S.C.C.A.N. 109, 124 (anticipating Commission jurisdiction where the communications space is already occupied by the cable television system.) 20 See e.g., Letter from Meredith J. Jones, Chief, Cable Services Bureau to Danny E. Adams,
• http://transition.fcc.gov/eb/Orders/2002/FCC-02-270A1.html
  • attacher would be required to pay 2/3 of the cost of unusable space, whereas the electric utility would pay only 1/3. The inequity of this result is even more pronounced when one considers that the electric utility pole owner is using over seven times as much usable space on the pole. 34 Telecom Order at 78. 35 See 47 C.F.R. 1.1404 (j) (". . . the utility shall supply this information in response to the complaint.") Teleport also requested this information by letter to GPC at the same time that it filed its complaint. See Reply at Exhibit 3. 36 See Response at Affidavit of Thomas G. Park. 37 Telecom Order at 79. 38 See Bureau Order at 11, citing the
• http://transition.fcc.gov/eb/Orders/2003/DA-03-1555A1.html
  • Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, Report and Order, 2 FCC Rcd 4387, 4397-98, 78-80 (1987) (``Hardware Order''), aff'd, Memorandum Opinion and Order, 4 FCC Rcd 468 (1989). Indeed, the Commission's rules expressly provide that a state association may bring a complaint on behalf of its cable operator members. 47 C.F.R. 1.1404(a). When a state association is a lead complainant, the Commission allows similarly-situated aggrieved complainants to join in a complaint against a utility, because it promotes administrative efficiency. Hardware Order, 2 FCC Rcd at 4397-98, 78-80. It would be a waste of resources to require a similarly-situated cable operator to file a separate complaint simply because a utility delayed in providing
• http://transition.fcc.gov/eb/Orders/2003/DA-03-2613A1.html
  • mask the utility's true motive - to promote its ``telecommunications affiliates' service offerings . . . [which] are among the most diverse and aggressive, if not the most, of any electric utility.''23 II. DISCUSSION II.A. The Complaint Satisfies the Commission's Rules and Is Ripe for Review. 8. Georgia Power argues that the Commission should dismiss the Complaint, pursuant to sections 1.1404 and 1.1409 of the Commission's rules,24 because the Cable Operators have not met their burden of establishing a prima facie case that the terms and conditions at issue are unjust and unreasonable.25 Although the Complaint's allegations arguably could have been more detailed, the pleading as a whole sufficiently identifies the factual basis of the allegations.26 Moreover, the Cable Operators attached
• http://transition.fcc.gov/eb/Orders/2003/DA-03-857A1.html
  • rates are just and reasonable.7 3. Omnipoint filed its Complaint pursuant to the Commission's pole attachment complaint rules. In its Complaint, Omnipoint requests the Commission to: a) admonish PECO that it is bound by section 224 of the Act and sections 1.1401 to 1.1416 of the Commission's rules; b) order PECO to provide information and supporting documentation required by section 1.1404(g) of the Commission's rules; c) require PECO to set a fair and reasonable pole attachment rate; d) order PECO to provide Omnipoint access to its poles, ducts, conduits, rights-of-way, and transmission towers on reasonable rates and terms; e) grant Omnipoint costs and attorneys fees; and f) grant such other relief as the Commission deems just, reasonable and proper.8 4. PECO
• http://transition.fcc.gov/eb/Orders/2003/FCC-03-173A1.html
  • In addition to the overlashing issues, TU Electric claims it wrongly was assigned the burden of proof on the reasonableness of the Agreement's disclosure and indemnification provisions. We discuss this contention infra, section III.D. 61 See Adoption of Rules for the Regulation of Cable Television Pole Attachments, First Report and Order, 68 FCC2d 1585, 1598, 40 (1978); 47 C.F.R. 1.407, 1.1404(j), 1.1409(a); cf. Implementation of the Telecommunications Act of 1996, Amendment of Rules Governing Procedures to Be Followed When Formal Complaints Are Filed Against Common Carriers, Report and Order, 12 FCC Rcd 22497, 22617, 295 (1997) (subsequent history omitted) (it is ``incumbent upon a defendant . . . to respond fully to any prima facie showing made by a complainant, with
• http://transition.fcc.gov/eb/Orders/2003/FCC-03-292A1.html
  • Power, Knology never engaged in good faith negotiations prior to filing the Complaint, because Knology did not present Georgia Power with the results of the Singleton Audit.49 We believe Knology satisfied its obligations under the Commission's rules. 16. The pole attachment complaint rules apply ``when parties are unable to arrive at a negotiated agreement . . . .''50 Thus, section 1.1404(k) of the rules requires the complaint to include: a brief summary of all steps taken to resolve the problem prior to filing. If no such steps were taken, the complaint shall state the reason(s) why it believed such steps were fruitless.51 In compliance with section 1.1404(k), the Complaint delineates Knology's efforts to negotiate with Georgia Power about the challenged make-ready
• http://transition.fcc.gov/eb/Orders/2004/DA-04-959A1.html
  • ) Respondent. ) ORDER Adopted: April 6, 2004 Released: April 7, 2004 By the Deputy Chief, Market Disputes Resolution Division, Enforcement Bureau: 1. On February 12, 2004, American Fiber Systems, Inc. (``AFS'') filed a complaint1 against Kansas City Power and Light Company (``KCPL'') pursuant to section 224 of the Communications Act of 1934, as amended (``Act''),2 and sections 1.1403 and 1.1404 of the Commission's rules.3 AFS initiated the Complaint in response to a primary jurisdiction referral by the United States District Court for the District of Kansas.4 2. KCPL is an electric utility operating in, among other places, the Kansas City, Missouri area, where AFS seeks to attach to KCPL's poles for the purpose of offering telecommunications services to the public.
• http://transition.fcc.gov/eb/Orders/2005/DA-05-440A1.html
  • Commission's rules, 47 C.F.R. 0.111, 0.311, that the parties shall participate in a status telephone call with Commission staff on Thursday, March 17, 2005 at 10:00 a.m. FEDERAL COMMUNICATIONS COMMISSION Lisa B. Griffin Deputy Chief, Market Disputes Resolution Division Enforcement Bureau _________________________ 1 Complaint, File No. EB-04-MD-013 (filed Dec. 3, 2004) (``Complaint''). 2 47 U.S.C. 224. 3 47 C.F.R. 1.1403(a), 1.1404. 4 Complaint at 7, 12. 5 Complaint at 7, 13. 6 Complaint at 7, 15. 7 Complaint at 1, 2; 7, 15. 8 Complaint at 1-2, 2. 9 Complaint at 1-2, 2. 10 Complaint at 3-4, 5-6. 11 Letter from Gardner F. Gillespie, counsel for Time Warner, and Jennifer Byrd, counsel for SBC Telecommunications, Inc., to Marlene H. Dortch, Secretary,
• http://transition.fcc.gov/eb/Orders/2006/DA-06-494A1.html
  • there are common issues of fact and law, and argues that such commonality is absent here. Complainants acknowledge that the facts in this proceeding "are to some extent specific to each Complainant," but argue that there are "many common areas of fact, experience, injury suffered, law and relief due that warrant prosecuting this matter in a single complaint." 14. Section 1.1404(a) of the pole attachment rules, which governs joinder of complainants in a single proceeding, does not specify particular requirements for joinder. It simply states: "Complainants may join together to file a joint complaint." Still, the rule would seem to contemplate joinder of claims by multiple attachers against a pole owner only in situations where each of the attachers' claims involve
• http://transition.fcc.gov/eb/Orders/2007/DA-07-2150A1.html
  • . . ." In view of this plain statutory language, we conclude that Salsgiver Telecom's status as an intrastate carrier provides no basis for NPTC's assertion that Salsgiver Telecom is not a "telecommunications carrier" with pole access rights under section 224(f)(1) of the Act. A. Salsgiver Telecom's Complaint Should Not be Dismissed as Untimely 20. NPTC contends that, under section 1.1404(m) of the Commission's pole attachment rules, Salsgiver Telecom was required to file the Complaint within 30 days after NPTC's Nov. 23, 2005 Letter denying Salsgiver Telecom's pole attachment request, i.e., by December 23, 2005. Because Salsgiver Telecom did not file the Complaint until February 6, 2006, approximately six weeks later, NPTC argues that the Complaint should be dismissed as untimely.
• http://transition.fcc.gov/eb/Orders/2007/DA-07-4721A1.html
  • Expedited Action, File No. EB-06-MD-004 (filed Apr. 3, 2006) ("Opposition to Motion"), at 1-4; Response at 1-3. Complaint, Exh. 8 at section 9.2. Similarly, under section 224(f) of the Act, if Salsgiver does not use its attachments to provide cable service (or telecommunications service), it will lose its statutory right to pole access. Sur-Reply at 2 (citing 47 C.F.R. S: 1.1404(e)). 47 C.F.R. S: 1.1409. Note, however, that had Salsgiver attached the franchise agreements to its initial Complaint, the pleading cycle in this case could have been more streamlined. Indeed, had Salsgiver provided the agreements to NPTC sooner, the parties' negotiations may well have been more fruitful. We note that Salsgiver has not made a prima facie case as to other
• http://transition.fcc.gov/eb/Orders/2007/DA-07-486A1.html
  • and [Fibertech's] network"). Wireline Broadband Order, 20 FCC Rcd at 14910, P 103. Response at 13-14, PP 41-45. Letter Ruling dated July 6, 2005 from Alexander P. Starr, Chief, Market Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D. Sapir, Counsel for Complainant, and John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-012 at 2, (citing 47 C.F.R. S 1.1404(m) & (l)). See Letter Ruling dated November 15, 2005 from Barbara Esbin, Market Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D. Sapir, Counsel for Complainant, and Kenneth E. Hardman and John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-014 (directing both parties to provide additional briefing of certain legal issues; directing Fibertech to provide all tariff filings referenced
• http://transition.fcc.gov/eb/Orders/2008/DA-08-1046A1.html
  • ORDER OF DISMISSAL Adopted: May 2, 2008 Released: May 2, 2008 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: I. introduction 1. On December 21, 2007, NextG Networks of NY, Inc. ("NextG") filed a Complaint against Public Service Electric & Gas Company ("PSE&G") pursuant to section 224 of the Communications Act of 1934, as amended (the "Act"), and section 1.1404 of the Commission's rules. The Complaint alleges that NextG is violating section 224(f) by refusing to allow NextG to attach wireless telecommunications devices to the tops of PSE&G's utility poles. On January 22, 2008, PSE&G filed a Response to the Complaint in which it asserted, inter alia, that the Commission should dismiss the Complaint for lack of jurisdiction pursuant to
• http://transition.fcc.gov/eb/Orders/2008/DA-08-2481A1.html
  • DISMISSAL Adopted: November 13, 2008 Released: November 13, 2008 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: I. introduction 1. On August 21, 2008, Armstrong Utilities, Inc. ("Armstrong") filed a pole attachment complaint against United Telephone Company of Pennsylvania, d/b/a/ Embarq Pennsylvania ("Embarq") pursuant to section 224 of the Communications Act of 1934, as amended (the "Act"), and section 1.1404 of the Commission's rules. In lieu of responding to the Complaint, Embarq filed three successive consent motions for extensions of time to file a Response, which were all premised on Embarq's representation that the parties had reached an oral agreement to resolve their dispute, and needed additional time to document their agreement. Each of these motions for an extension of
• http://transition.fcc.gov/eb/Orders/2008/DA-08-2535A1.html
  • the Federal Communications Commission. Please contact J.D. Thomas if you have any questions. Thank you, Grace Kavadoy, SENIOR Paralegal HOGAN & HARTSON LLP Columbia Square, 555 Thirteenth Street, NW, Washington, DC 20004 direct +1.202.637.4863 cell +1.202.321.3212 fax +1.202.637.5910 gmkavadoy@hhlaw.com http://www.hhlaw.com Amended Pole Attachment Access Complaint, File No. EB-08-MD-003 (filed May 12, 2008) ("Complaint"). 47 U.S.C. S: 224. 47 C.F.R. S:S: 1.1404 -1.1418. See Letter from Lisa J. Saks, FCC, to J. D. Thomas, counsel to Fibertech, Shirley S. Fujimoto, counsel to Narragansett, and James Pachulski, counsel to Verizon, File No. EB-08-MD-003 (dated May 27, 2008); Letter from Lia B. Royle, FCC, to J. D. Thomas, Shirley S. Fujimoto, and James Pachulski, File No. EB-08-MD-003 (dated July 3, 2008); Letter from Lisa
• http://transition.fcc.gov/eb/Orders/2009/DA-09-1293A1.html
  • DISMISSAL Adopted: June 8, 2009 Released: June 8, 2009 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: I. introduction 1. On May 4, 2009, NextG Networks of Illinois, Inc. ("NextG") filed a Complaint against RCN Telecom Services of Illinois, LLC ("RCN") pursuant to sections 224 and 251 of the Communications Act of 1934, as amended (the "Act"), and section 1.1404 of the Commission's rules. 2. On May 20, 2009, following a telephone conference with counsel for the parties, Commission staff issued a Notice of Complaint instructing NextG to file an amended complaint in order cure certain deficiencies in the Complaint, and setting a schedule for subsequent pleadings in this matter. 3. On May 22, 2009, NextG's counsel informed Commission staff
• http://transition.fcc.gov/eb/Orders/2010/DA-10-629A1.html
  • Adopted: April 13, 2010 Released: April 13, 2010 By the Deputy Chief, Market Disputes Resolution Division, Enforcement Bureau: I. introduction 1. On September 16, 2009, NextG Networks of Illinois, Inc. ("NextG") filed a pole attachment complaint against RCN Telecom Services of Illinois, LLC ("RCN") pursuant to section 224 of the Communications Act of 1934, as amended (the "Act"), and section 1.1404 of the Commission's rules alleging that RCN unlawfully denied access to RCN's underground conduit, located in Illinois, for the purpose of placing NextG's telecommunications lines. In its response, RCN argued that the Illinois Commerce Commission ("ICC") regulates pole attachments for telecommunications services and therefore has preempted this Commission's jurisdiction. 2. On February 10, 2010, at the request of the Commission,
• http://transition.fcc.gov/eb/mdrd/Welcome.html
  • ducts, conduits and rights-of-way. The Commission has issued rules governing complaints alleging a violation of section 224 of the Communications Act. See 47 C.F.R. 1.1401 - 1.1408. Before filing a Section 224 complaint, a party should thoroughly review the procedural requirements in 47 C.F.R. 1.1401 - 1.1408. Recent Section 224 complaint orders may be found at [23]http://www.fcc.gov/eb/mdrd/224Items.html. State Certification: Section 1.1404(c) of the Commission's rules (47 C.F.R. 1.1404(c)) provides that complaints alleging that a rate, term, or condition for attachment is unjust or unreasonable must contain a statement that the State has not certified that it regulates the rates, terms and conditions for pole attachments. Twenty states and the District of Columbia have certified that they regulate pole attachments. See [24]States
• http://www.fcc.gov/Bureaus/Cable/Orders/2000/da001250.doc
  • 40 (2000). 47 C.F.R. � 1.1409 (a). See letters dated March 13, 2000 to both parties from Kathleen F. Costello, Acting Division Chief, Financial Analysis and Compliance Division, Cable Services Bureau See letter dated March 16, 2000 from Raymond A. Kowalski, counsel for Respondent, and letter date March 14, 2000, from J. D. Thomas, counsel for Complainant. 47 C.F.R. � 1.1404 (l). Complaint at � 207. 47 U.S.C. �224 (b) (1). 47 U.S.C. � 224(b)(1) and (2). Virginia has not certified that it regulates rates, terms and conditions of pole attachments. 47 U.S.C. � 224(b)(1). The Commission has developed a formula methodology to determine the maximum allowable pole attachment rate. See Adoption of Rules for the Regulation of Cable Television Pole
• http://www.fcc.gov/Bureaus/Cable/Orders/2000/da002078.doc
  • (released August 11, 2000). On August 11, 2000, the parties reached an agreement concerning the confidential treatment of information provided to the Complainant by the Respondent, and Complainant was provided with an unredacted copy of the Response. See letter dated August 22, 2000 to Kathleen F. Costello, Cable Services Bureau, from Raymond A. Kowalski, counsel for Respondent. 47 C.F.R. � 1.1404 (l) (1999). Complaint at � 20. 47 U.S.C. �224 (b) (1). 47 U.S.C. � 224(b)(1) and (2). Alabama has not certified that it regulates rates, terms and conditions of pole attachments. See Public Notice, "States That Have Certified That They Regulate Pole Attachments," DA 92-201, 7 FCC Rcd 1498 (1992). 47 U.S.C. � 224(b)(1). The Commission has developed a formula
• http://www.fcc.gov/Bureaus/Cable/Orders/2000/fcc00116.doc
  • 47 U.S.C. �� 151, 154(i), 224 and 303(r), the Commission's rules are hereby amended as set forth in Appendix A. 158. IT IS FURTHER ORDERED that Section 1.1402 of the Commission's rules, as amended in Appendix A hereto, will become effective 30 days after the date of publication of this Report and Order in the Federal Register, and that Sections 1.1404 and 1.1409 of the Commission's rules, as amended in Appendix A hereto, will become effective 140 days after the date of publication of this Report and Order in the Federal Register, unless the Commission publishes a notice before that date stating that the Office of Management and Budget ("OMB") has not approved the information collection requirements contained in the rules.
• http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1996/fcc96325.pdf
  • Federal Communications Commission 96-325 47 U.S.C. � 253(b); section 254 sets forth specific provisions related to universal service. 2828 47 U.S.C. � 253(c). See Ameritech reply at 10. 2829 47 U.S.C. � 224(f)(1). As noted above, incumbent LECs are excluded from the definition of "telecommunications 2830 carrier" for purposes of section 224. 47 U.S.C. � 224(a)(5). See 47 C.F.R. � 1.1404. 2831 See supra, Sections IV.G. and V.G. for a discussion of the meaning of "nondiscriminatory." 2832 47 U.S.C. � 224(f)(1); see Ohio Consumers' Counsel comments at 5; California comments at 5; MCI comments at 21; 2833 Sprint comments at 16; ACSI comments at 6-7. 47 U.S.C. � 224(g). 2834 553 and safeguard the rights of consumers." In addition, section 253
• http://www.fcc.gov/Bureaus/Mass_Media/Orders/1998/fcc98236.pdf http://www.fcc.gov/Bureaus/Mass_Media/Orders/1998/fcc98236.txt http://www.fcc.gov/Bureaus/Mass_Media/Orders/1998/fcc98236.wp
  • 379NAD/CAN Petition at 21. NAD/CAN compares this situation to the rules regarding pole attachments where parties are permitted to file directly with the Commission without first contacting the respondent, so long as the complaint contains an explanation for taking steps to resolve the problem prior to filing are believed to be "fruitless." NAD/CAN Petition at 21 citing 47 C.F.R. � 1.1404(i). 380COR Opposition 5. 51 distributors.370 A complaint must be filed with the video programming provider no later than the end of the calendar quarter following the calendar quarter in which the alleged violation occurred.371 A complaint must, at a minimum, state with specificity the Commission rule violated and should provide some information which supports the alleged rule violation.372 We require
• http://www.fcc.gov/eb/Orders/2002/DA-02-1733A1.html
  • notice of information in publicly available filings made by the parties, it is our practice "in the absence of supported carrying charges . . . to use the figure from publicly available information."39 12. The methodology used to arrive at a pole attachment rate should be simple and based on publicly identifiable and verifiable data whenever it is available.40 Section 1.1404(g) of the Commission's rules describes the requirements for the submission of data.41 It states that data and information should be based upon historical or original cost methodology. Data should be derived from ARMIS, FERC 1,42 or other reports filed with state or federal regulatory agencies. Calculations made in connection with figures should also be submitted. Section 1.1409(a) of the Commission's
• http://www.fcc.gov/eb/Orders/2002/DA-02-3485A1.html
  • system or provider of telecommunications service to a pole, duct, conduit, or right-of way owned or controlled by a utility.") Because we find RCN to be a cable television system, we do not address the issue raised by PECO concerning RCN's previous status as a certified open video system provider. 18 534 U.S. 327, 338-339 (2002). 19 See 47 C.F.R. 1.1404 (d) (requiring that a complaint be accompanied by a copy of any existing pole attachment agreement). See also S. Rep. No. 95-580, at 16 (1977), 1978 U.S.C.C.A.N. 109, 124 (anticipating Commission jurisdiction where the communications space is already occupied by the cable television system.) 20 See e.g., Letter from Meredith J. Jones, Chief, Cable Services Bureau to Danny E. Adams,
• http://www.fcc.gov/eb/Orders/2002/FCC-02-270A1.html
  • attacher would be required to pay 2/3 of the cost of unusable space, whereas the electric utility would pay only 1/3. The inequity of this result is even more pronounced when one considers that the electric utility pole owner is using over seven times as much usable space on the pole. 34 Telecom Order at 78. 35 See 47 C.F.R. 1.1404 (j) (". . . the utility shall supply this information in response to the complaint.") Teleport also requested this information by letter to GPC at the same time that it filed its complaint. See Reply at Exhibit 3. 36 See Response at Affidavit of Thomas G. Park. 37 Telecom Order at 79. 38 See Bureau Order at 11, citing the
• http://www.fcc.gov/eb/Orders/2003/DA-03-1555A1.html
  • Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, Report and Order, 2 FCC Rcd 4387, 4397-98, 78-80 (1987) (``Hardware Order''), aff'd, Memorandum Opinion and Order, 4 FCC Rcd 468 (1989). Indeed, the Commission's rules expressly provide that a state association may bring a complaint on behalf of its cable operator members. 47 C.F.R. 1.1404(a). When a state association is a lead complainant, the Commission allows similarly-situated aggrieved complainants to join in a complaint against a utility, because it promotes administrative efficiency. Hardware Order, 2 FCC Rcd at 4397-98, 78-80. It would be a waste of resources to require a similarly-situated cable operator to file a separate complaint simply because a utility delayed in providing
• http://www.fcc.gov/eb/Orders/2003/DA-03-2613A1.html
  • mask the utility's true motive - to promote its ``telecommunications affiliates' service offerings . . . [which] are among the most diverse and aggressive, if not the most, of any electric utility.''23 II. DISCUSSION II.A. The Complaint Satisfies the Commission's Rules and Is Ripe for Review. 8. Georgia Power argues that the Commission should dismiss the Complaint, pursuant to sections 1.1404 and 1.1409 of the Commission's rules,24 because the Cable Operators have not met their burden of establishing a prima facie case that the terms and conditions at issue are unjust and unreasonable.25 Although the Complaint's allegations arguably could have been more detailed, the pleading as a whole sufficiently identifies the factual basis of the allegations.26 Moreover, the Cable Operators attached
• http://www.fcc.gov/eb/Orders/2003/DA-03-857A1.html
  • rates are just and reasonable.7 3. Omnipoint filed its Complaint pursuant to the Commission's pole attachment complaint rules. In its Complaint, Omnipoint requests the Commission to: a) admonish PECO that it is bound by section 224 of the Act and sections 1.1401 to 1.1416 of the Commission's rules; b) order PECO to provide information and supporting documentation required by section 1.1404(g) of the Commission's rules; c) require PECO to set a fair and reasonable pole attachment rate; d) order PECO to provide Omnipoint access to its poles, ducts, conduits, rights-of-way, and transmission towers on reasonable rates and terms; e) grant Omnipoint costs and attorneys fees; and f) grant such other relief as the Commission deems just, reasonable and proper.8 4. PECO
• http://www.fcc.gov/eb/Orders/2003/FCC-03-173A1.html
  • In addition to the overlashing issues, TU Electric claims it wrongly was assigned the burden of proof on the reasonableness of the Agreement's disclosure and indemnification provisions. We discuss this contention infra, section III.D. 61 See Adoption of Rules for the Regulation of Cable Television Pole Attachments, First Report and Order, 68 FCC2d 1585, 1598, 40 (1978); 47 C.F.R. 1.407, 1.1404(j), 1.1409(a); cf. Implementation of the Telecommunications Act of 1996, Amendment of Rules Governing Procedures to Be Followed When Formal Complaints Are Filed Against Common Carriers, Report and Order, 12 FCC Rcd 22497, 22617, 295 (1997) (subsequent history omitted) (it is ``incumbent upon a defendant . . . to respond fully to any prima facie showing made by a complainant, with
• http://www.fcc.gov/eb/Orders/2003/FCC-03-292A1.html
  • Power, Knology never engaged in good faith negotiations prior to filing the Complaint, because Knology did not present Georgia Power with the results of the Singleton Audit.49 We believe Knology satisfied its obligations under the Commission's rules. 16. The pole attachment complaint rules apply ``when parties are unable to arrive at a negotiated agreement . . . .''50 Thus, section 1.1404(k) of the rules requires the complaint to include: a brief summary of all steps taken to resolve the problem prior to filing. If no such steps were taken, the complaint shall state the reason(s) why it believed such steps were fruitless.51 In compliance with section 1.1404(k), the Complaint delineates Knology's efforts to negotiate with Georgia Power about the challenged make-ready
• http://www.fcc.gov/eb/Orders/2004/DA-04-959A1.html
  • ) Respondent. ) ORDER Adopted: April 6, 2004 Released: April 7, 2004 By the Deputy Chief, Market Disputes Resolution Division, Enforcement Bureau: 1. On February 12, 2004, American Fiber Systems, Inc. (``AFS'') filed a complaint1 against Kansas City Power and Light Company (``KCPL'') pursuant to section 224 of the Communications Act of 1934, as amended (``Act''),2 and sections 1.1403 and 1.1404 of the Commission's rules.3 AFS initiated the Complaint in response to a primary jurisdiction referral by the United States District Court for the District of Kansas.4 2. KCPL is an electric utility operating in, among other places, the Kansas City, Missouri area, where AFS seeks to attach to KCPL's poles for the purpose of offering telecommunications services to the public.
• http://www.fcc.gov/eb/Orders/2005/DA-05-440A1.html
  • Commission's rules, 47 C.F.R. 0.111, 0.311, that the parties shall participate in a status telephone call with Commission staff on Thursday, March 17, 2005 at 10:00 a.m. FEDERAL COMMUNICATIONS COMMISSION Lisa B. Griffin Deputy Chief, Market Disputes Resolution Division Enforcement Bureau _________________________ 1 Complaint, File No. EB-04-MD-013 (filed Dec. 3, 2004) (``Complaint''). 2 47 U.S.C. 224. 3 47 C.F.R. 1.1403(a), 1.1404. 4 Complaint at 7, 12. 5 Complaint at 7, 13. 6 Complaint at 7, 15. 7 Complaint at 1, 2; 7, 15. 8 Complaint at 1-2, 2. 9 Complaint at 1-2, 2. 10 Complaint at 3-4, 5-6. 11 Letter from Gardner F. Gillespie, counsel for Time Warner, and Jennifer Byrd, counsel for SBC Telecommunications, Inc., to Marlene H. Dortch, Secretary,
• http://www.fcc.gov/eb/Orders/2006/DA-06-494A1.html
  • there are common issues of fact and law, and argues that such commonality is absent here. Complainants acknowledge that the facts in this proceeding "are to some extent specific to each Complainant," but argue that there are "many common areas of fact, experience, injury suffered, law and relief due that warrant prosecuting this matter in a single complaint." 14. Section 1.1404(a) of the pole attachment rules, which governs joinder of complainants in a single proceeding, does not specify particular requirements for joinder. It simply states: "Complainants may join together to file a joint complaint." Still, the rule would seem to contemplate joinder of claims by multiple attachers against a pole owner only in situations where each of the attachers' claims involve
• http://www.fcc.gov/eb/Orders/2007/DA-07-2150A1.html
  • . . ." In view of this plain statutory language, we conclude that Salsgiver Telecom's status as an intrastate carrier provides no basis for NPTC's assertion that Salsgiver Telecom is not a "telecommunications carrier" with pole access rights under section 224(f)(1) of the Act. A. Salsgiver Telecom's Complaint Should Not be Dismissed as Untimely 20. NPTC contends that, under section 1.1404(m) of the Commission's pole attachment rules, Salsgiver Telecom was required to file the Complaint within 30 days after NPTC's Nov. 23, 2005 Letter denying Salsgiver Telecom's pole attachment request, i.e., by December 23, 2005. Because Salsgiver Telecom did not file the Complaint until February 6, 2006, approximately six weeks later, NPTC argues that the Complaint should be dismissed as untimely.
• http://www.fcc.gov/eb/Orders/2007/DA-07-4721A1.html
  • Expedited Action, File No. EB-06-MD-004 (filed Apr. 3, 2006) ("Opposition to Motion"), at 1-4; Response at 1-3. Complaint, Exh. 8 at section 9.2. Similarly, under section 224(f) of the Act, if Salsgiver does not use its attachments to provide cable service (or telecommunications service), it will lose its statutory right to pole access. Sur-Reply at 2 (citing 47 C.F.R. S: 1.1404(e)). 47 C.F.R. S: 1.1409. Note, however, that had Salsgiver attached the franchise agreements to its initial Complaint, the pleading cycle in this case could have been more streamlined. Indeed, had Salsgiver provided the agreements to NPTC sooner, the parties' negotiations may well have been more fruitful. We note that Salsgiver has not made a prima facie case as to other
• http://www.fcc.gov/eb/Orders/2007/DA-07-486A1.html
  • and [Fibertech's] network"). Wireline Broadband Order, 20 FCC Rcd at 14910, P 103. Response at 13-14, PP 41-45. Letter Ruling dated July 6, 2005 from Alexander P. Starr, Chief, Market Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D. Sapir, Counsel for Complainant, and John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-012 at 2, (citing 47 C.F.R. S 1.1404(m) & (l)). See Letter Ruling dated November 15, 2005 from Barbara Esbin, Market Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D. Sapir, Counsel for Complainant, and Kenneth E. Hardman and John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-014 (directing both parties to provide additional briefing of certain legal issues; directing Fibertech to provide all tariff filings referenced
• http://www.fcc.gov/eb/Orders/2008/DA-08-1046A1.html
  • ORDER OF DISMISSAL Adopted: May 2, 2008 Released: May 2, 2008 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: I. introduction 1. On December 21, 2007, NextG Networks of NY, Inc. ("NextG") filed a Complaint against Public Service Electric & Gas Company ("PSE&G") pursuant to section 224 of the Communications Act of 1934, as amended (the "Act"), and section 1.1404 of the Commission's rules. The Complaint alleges that NextG is violating section 224(f) by refusing to allow NextG to attach wireless telecommunications devices to the tops of PSE&G's utility poles. On January 22, 2008, PSE&G filed a Response to the Complaint in which it asserted, inter alia, that the Commission should dismiss the Complaint for lack of jurisdiction pursuant to
• http://www.fcc.gov/eb/Orders/2008/DA-08-2481A1.html
  • DISMISSAL Adopted: November 13, 2008 Released: November 13, 2008 By the Chief, Market Disputes Resolution Division, Enforcement Bureau: I. introduction 1. On August 21, 2008, Armstrong Utilities, Inc. ("Armstrong") filed a pole attachment complaint against United Telephone Company of Pennsylvania, d/b/a/ Embarq Pennsylvania ("Embarq") pursuant to section 224 of the Communications Act of 1934, as amended (the "Act"), and section 1.1404 of the Commission's rules. In lieu of responding to the Complaint, Embarq filed three successive consent motions for extensions of time to file a Response, which were all premised on Embarq's representation that the parties had reached an oral agreement to resolve their dispute, and needed additional time to document their agreement. Each of these motions for an extension of
• http://www.fcc.gov/eb/Orders/2008/DA-08-2535A1.html
  • the Federal Communications Commission. Please contact J.D. Thomas if you have any questions. Thank you, Grace Kavadoy, SENIOR Paralegal HOGAN & HARTSON LLP Columbia Square, 555 Thirteenth Street, NW, Washington, DC 20004 direct +1.202.637.4863 cell +1.202.321.3212 fax +1.202.637.5910 gmkavadoy@hhlaw.com http://www.hhlaw.com Amended Pole Attachment Access Complaint, File No. EB-08-MD-003 (filed May 12, 2008) ("Complaint"). 47 U.S.C. S: 224. 47 C.F.R. S:S: 1.1404 -1.1418. See Letter from Lisa J. Saks, FCC, to J. D. Thomas, counsel to Fibertech, Shirley S. Fujimoto, counsel to Narragansett, and James Pachulski, counsel to Verizon, File No. EB-08-MD-003 (dated May 27, 2008); Letter from Lia B. Royle, FCC, to J. D. Thomas, Shirley S. Fujimoto, and James Pachulski, File No. EB-08-MD-003 (dated July 3, 2008); Letter from Lisa
• http://www.fcc.gov/eb/Orders/2010/DA-10-629A1.html
  • Adopted: April 13, 2010 Released: April 13, 2010 By the Deputy Chief, Market Disputes Resolution Division, Enforcement Bureau: I. introduction 1. On September 16, 2009, NextG Networks of Illinois, Inc. ("NextG") filed a pole attachment complaint against RCN Telecom Services of Illinois, LLC ("RCN") pursuant to section 224 of the Communications Act of 1934, as amended (the "Act"), and section 1.1404 of the Commission's rules alleging that RCN unlawfully denied access to RCN's underground conduit, located in Illinois, for the purpose of placing NextG's telecommunications lines. In its response, RCN argued that the Illinois Commerce Commission ("ICC") regulates pole attachments for telecommunications services and therefore has preempted this Commission's jurisdiction. 2. On February 10, 2010, at the request of the Commission,
• http://www.fcc.gov/eb/mdrd/Welcome.html
  • ducts, conduits and rights-of-way. The Commission has issued rules governing complaints alleging a violation of section 224 of the Communications Act. See 47 C.F.R. 1.1401 - 1.1408. Before filing a Section 224 complaint, a party should thoroughly review the procedural requirements in 47 C.F.R. 1.1401 - 1.1408. Recent Section 224 complaint orders may be found at [23]http://www.fcc.gov/eb/mdrd/224Items.html. State Certification: Section 1.1404(c) of the Commission's rules (47 C.F.R. 1.1404(c)) provides that complaints alleging that a rate, term, or condition for attachment is unjust or unreasonable must contain a statement that the State has not certified that it regulates the rates, terms and conditions for pole attachments. Twenty states and the District of Columbia have certified that they regulate pole attachments. See [24]States
• http://www.fcc.gov/ogc/documents/opinions/2000/98-6222.doc http://www.fcc.gov/ogc/documents/opinions/2000/98-6222.html
  • See id. at 6820-30. Until February 2001, the 1978 Act's maximum rent formula for cable providers applies to attachments by telecommunications service providers. After that, the maximum rent will equal the sum of the ``unusable'' and ``usable'' rate factors. In this amended rule, the FCC incorporated almost verbatim the complaint process articulated in its 1978 rule. See 47 C.F.R. �� 1.1404, 1.1409 (1999). If the parties cannot agree to the rent or other terms of an attachment (or if the utility denies access to its poles), the party contending that the rent or other terms are unjust and unreasonable may petition the Commission to settle the matter. That party bears the burden of establishing a prima facie case that the other