FCC Web Documents citing 1.1409

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
  • to the public may be either a wholesale offering to other carriers or a retail offering to end users. discussion Salsgiver Telecom Has Established a Prima Facie Case That It Is a ``Telecommunications Carrier'' with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful. Therefore, Salsgiver Telecom bears an initial burden to establish a prima facie
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-4721A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-4721A1.pdf
  • area within one year after completion of make-ready work, or if Salsgiver ceases providing cable service in a franchise area. Finally, NPTC asserts that the franchise agreements ``may not properly be considered part of Salsgiver's evidence of its claim that it is a bona fide `cable television system,''' because the agreements were not filed with the Complaint. We disagree. Rule 1.1409 permits the Commission to request additional filings or information from the parties in pole attachment cases, and the staff made such a request here for the franchise agreements. NPTC was given an opportunity to respond, and was in no way unfairly prejudiced by the filing of this additional information. In sum, we find that Salsgiver has established a prima facie
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-472A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-472A1.pdf
  • telecommunications service over a requested attachment does not lose that status by offering non-telecommunications services over the same attachment. discussion DQE CNS Has Established a Prima Facie Case That It Is a ``Telecommunications Carrier'' with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful. Therefore, DQE CNS bears an initial burden to establish a prima facie
• http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-486A1.doc http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-07-486A1.pdf
  • may be either a wholesale offering to other carriers or a retail offering to end users. DISCUSSION Fibertech Has Established A Prima Facie Case That It Is A ``Telecommunications Carrier'' With A Right Of Access To NPTC's Poles Under Section 224(f)(1) Of The Act In a case such as this challenging a utility's denial of access to its poles, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the respondent utility has the burden of proving that its denial was lawful. Therefore, Fibertech bears an initial burden to establish a prima facie case
• 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
  • are pictures of alleged safety violations involving cable attachments and anecdotal incidents of service disruptions involving a wire identified as being a cable television wire. See July 24, 1998 letter. See In the Matter of Mile Hi Cable Partners, LP, et al. v. Public Service Company of Colorado, 14 FCC Rcd 3244 (1999) ("Second 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
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  • Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, 2 FCC Rcd 4387 (1987). See also, Implementation of Section 703(e) of the Telecommunications Act of 1996, 13 FCC Rcd 6777 (1998) and Amendment of Rules and Policies Governing Pole Attachments, FCC 00-116, 15 FCC Rcd 6453 (2000). 47 C.F.R. §1.1407(a). Id. 47 C.F.R. §1.1411. 47 C.F.R. §1.1409(a). See Amendment of Commission's Rules and Policies Governing Pole Attachments, CS Docket No. 97-98; Implementation of Section 703(e) of the Telecommunications Act of 1996, CS Docket No. 97-151, FCC 01-170 (released May 25, 2001). Alabama Cable Telecommunications Assoc., et al. v. Alabama Power Company, File No. PA 00-003, FCC 01-181 (released May 25, 2001). See Gulf Power v. FCC, 208
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  • 1.1401-1.1418, that Respondent's Motion for Extension of Time IS GRANTED TO THE EXTENT INDICATED HEREIN. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief Cable Services Bureau 47 U.S.C. §224. 47 C.F.R. §§1.1401-1.1418. 47 C.F.R. § 1.1407(a). 47 U.S.C. § 224(b)(1) and (2). 47 U.S.C. §224 (b) (1). 47 U.S.C. § 224(b)(1). 47 C.F.R. §1.1407(a). Id. 47 C.F.R. §1.1411. 47 C.F.R. §1.1409(a). 47 C.F.R. § 1.46(a). Federal Communications Commission DA 01-1339 Federal Communications Commission DA 01-1339 ¥ ¦ î ï ð ñ ð ñ „0ý „0ý „0ý „0ý „0ý „0ý „0ý „`ú „0ý
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  • v. Georgia Power Co., DA 01-1332, 16 FCC Rcd 11831 (2001). 47 U.S.C. §224 (b)(1). 47 U.S.C. § 224 (b) and (c). Georgia 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," 7 FCC Rcd 1498 (1992). 47 U.S.C. § 224 (b)(1). 47 C.F.R. §1.1409 (e)(1). Pub. L. No. 104-104, 110 Stat. 56 (1996). 47 U.S.C. § 153 (44). 47 U.S.C. § 153 (8); 47 U.S.C. § 602 (5). See Implementation of Section 703(e) of the Telecommunications Act of 1996, 13 FCC Rcd 6777 at ¶¶ 116-130 (1998). See 47 U.S.C. § 224 (d)(3) and 47 U.S.C. § 224 (e)(4); Implementation of Section 703 (e)
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  • 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 rules also provides that publicly available data may be relied upon by the Commission when insufficient data is available in the record upon which to base its determination. 13. BellSouth's reliance on Teleprompter v. Southern Bell, is misplaced. In that case, the Common Carrier Bureau accepted state-wide data in lieu of company-wide data but did not comment
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  • (2000), pet. for recon. denied in part, Amendment of Commission's Rules and Policies Governing Pole Attachments, CS Docket No. 97-98; Implementation of Section 703(e) of the Telecommunications Act of 1996, FCC 01-170, 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01-1326 (D.C. Cir., filed July 26, 2001). 47 C.F.R. §1.1409 (e) (1). Pub. L. No. 104-104, 110 Stat. 56 (1996). 47 U.S.C. § 153 (44). 47 U.S.C. § 153 (8); 47 U.S.C. § 602 (5). See Implementation of Section 703(e) of the Telecommunications Act of 1996, 13 FCC Rcd 6777 at ¶¶ 116-130 (1998). See 47 U.S.C. § 224 (d) (3) and 47 U.S.C. § 224 (e) (4); Implementation of
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  • Motion to Strike; Letter dated August 16, 2000 to Magalie Roman Salas, Secretary, FCC, from Brian M. Josef, counsel for Cable Operators, File No. PA 00-004 (filed Aug. 16, 2000). Because this Order disposes of the substantive issues raised in the Petition for Temporary Stay, we dismiss it and the filings relating to it as moot. See 47 C.F.R. § 1.1409(e)(1). Complaint, Exhibit 2 (Schedule of Parties, Poles and Communities); Supplement, Exhibit 2 (Schedule of Parties). Complaint at 4, ¶ 11. See Complaint, Exhibit 3 (Pole Attachment Agreements between Cox and Gulf Power ), Exhibit 4 (Pole Attachment Agreements between Comcast and Gulf Power), Exhibit 5 (Pole Attachment Agreements between Mediacom and Gulf Power); Supplement, Exhibit 5 (Pole Attachment Agreement). Complaint
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  • 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 their prior
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-2012A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-2012A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-2012A1.txt
  • 14, 2005 Released: July 15, 2005 By the Chief, Market Disputes Resolution Division: On December 13, 2003, AT&T Communications of the Midwest, Inc. and AT&T Communications of the Mountain States, Inc. (collectively ``AT&T''), filed with this Commission a formal complaint against Qwest Corporation (``Qwest'') asserting that Qwest violated section 224 of the Communications Act of 1934, as amended, and section 1.1409 of the Commission's rules by charging excessive conduit rental rates. On July 12, 2005, AT&T and Qwest filed a joint motion requesting that we dismiss the formal complaint in this proceeding with prejudice to dispose of all issues and controversies in the formal complaint. We grant the parties' Joint Motion to Dismiss Formal Complaint With Prejudice. We find that dismissal
• 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
  • this hearing will be governed by the rules of practice and procedure pertaining to the Commission's Hearing Proceedings, 47 C.F.R. §§ 1.201-1.364, subject to the ALJ's discretion to regulate the hearing. IT IS FURTHER ORDERED, that all discovery shall be conducted in accordance with 47 C.F.R. §§ 1.311-1.325, subject to the ALJ's discretion. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the Commission's rules, 47 C.F.R. § 1.1409(b), that the Complainants shall have the both the burden of establishing a prima facie case and the burden of proof with respect to Issues 1(a) through (c), 2(a) through (h), 3, 4(a) through (c), and 6 listed in paragraph 18 above. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the Commission's
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-06-494A1_Erratum.doc
  • this hearing will be governed by the rules of practice and procedure pertaining to the Commission's Hearing Proceedings, 47 C.F.R. §§ 1.201-1.364, subject to the ALJ's discretion to regulate the hearing. IT IS FURTHER ORDERED, that all discovery shall be conducted in accordance with 47 C.F.R. §§ 1.311-1.325, subject to the ALJ's discretion. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the Commission's rules, 47 C.F.R. § 1.1409(b), that the Complainants shall have the both the burden of establishing a prima facie case and the burden of proof with respect to Issues 1(a) through (c), 2(a) through (h), 3, 4(a) through (c), and 6 listed in paragraph 18 above. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the Commission's
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  • to the public may be either a wholesale offering to other carriers or a retail offering to end users. discussion Salsgiver Telecom Has Established a Prima Facie Case That It Is a ``Telecommunications Carrier'' with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful. Therefore, Salsgiver Telecom bears an initial burden to establish a prima facie
• 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
  • area within one year after completion of make-ready work, or if Salsgiver ceases providing cable service in a franchise area. Finally, NPTC asserts that the franchise agreements ``may not properly be considered part of Salsgiver's evidence of its claim that it is a bona fide `cable television system,''' because the agreements were not filed with the Complaint. We disagree. Rule 1.1409 permits the Commission to request additional filings or information from the parties in pole attachment cases, and the staff made such a request here for the franchise agreements. NPTC was given an opportunity to respond, and was in no way unfairly prejudiced by the filing of this additional information. In sum, we find that Salsgiver has established a prima facie
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-472A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-472A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-07-472A1.txt
  • telecommunications service over a requested attachment does not lose that status by offering non-telecommunications services over the same attachment. discussion DQE CNS Has Established a Prima Facie Case That It Is a ``Telecommunications Carrier'' with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful. Therefore, DQE CNS bears an initial burden to establish a prima facie
• 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
  • may be either a wholesale offering to other carriers or a retail offering to end users. DISCUSSION Fibertech Has Established A Prima Facie Case That It Is A ``Telecommunications Carrier'' With A Right Of Access To NPTC's Poles Under Section 224(f)(1) Of The Act In a case such as this challenging a utility's denial of access to its poles, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the respondent utility has the burden of proving that its denial was lawful. Therefore, Fibertech bears an initial burden to establish a prima facie case
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-1323A1.doc http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-1323A1.pdf http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-1323A1.txt
  • (voice), (202) 418-0432 (tty). . . For further information, please contact Wesley Platt at (202) 418-2821, Jonathan Reel at (202) 418-0637, or Marvin Sacks at (202) 418-2017. FCC See 75 FR 41338 (July 15, 2010). Due to a small typographical error, the Federal Register summary deviates from the text of the Further Notice regarding the rate formula proposed for rule 1.1409(e)(2)(ii). This typographical error in the Federal Register summary will be corrected by an Erratum in the Federal Register. Implementation of Section 224 of the Act; a National Broadband Plan for our Future, WC Docket No. 07-245, GN Docket No. 09-51, Order and Further Notice of Proposed Rulemaking (rel. May 20, 2010). See Electronic Filing of Documents in Rulemaking Proceedings, GC
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  • necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions.'' In an April 7, 2011, Report and Order and Order on Reconsideration, the Commission, among other things, adopted a new ``just and reasonable'' rate for pole attachments by telecommunications carriers (telecom rate formula). On May 25, 2011, Petitioners filed a motion for stay of revised section 1.1409(e) of the Commission's rules incorporating the new telecom rate formula. For the reasons discussed below, we deny the Stay Request. background On May 20, 2010, the Commission issued the Pole Attachment Order and Further Notice. Among other things, the Further Notice sought comment on ways to reduce the existing disparities in pole rental rates and proposed to address those disparities
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  • * * * (m) The term attaching entity includes cable system operators, telecommunications carriers, incumbent and other local exchange carriers, utilities, governmental entities and other entities with a physical attachment to the pole, duct, conduit or right of way. It does not include governmental entities with only seasonal attachments to the pole. * * * * * 3. Amend § 1.1409 to remove paragraph (e)(4) and revise paragraphs (e)(1), (e)(2), (e)(3) and the first sentence of paragraph (f) to read as follows: § 1.1409 Commission consideration of the complaint. * * * * * (e) * * * (1) The following formula shall apply to attachments to poles by cable operators providing cable services. This formula shall also apply to attachments
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  • 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01-1326 (D.C. Cir., filed July 26, 2001). Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, Memorandum Order and Opinion on Reconsideration, 4 FCC Rcd 468, 471 at ¶ 26 (1989). See 47 C.F.R. § 1.1409 (e)(1). Pub. L. No. 104-104, 110 Stat. 56 (1996). 47 U.S.C. § 224 (e). See 47 C.F.R. § 1.1409 (e)(1); 47 U.S.C. § 224 (d) (3). See 47 C.F.R. § 1.1409 (e)(2), (f). Id. at ¶ 53-56. 47 C.F.R. § 1.1409 (e). Bureau Order at ¶ 11. The Bureau rejected GPC's alternative because GPC calculated a rate of $53.35 per
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  • 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, with
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  • (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 phrases in the same
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  • violated Section 224 of the Communications Act (``Act'') [47 U.S.C. § 224] and the Commission's pole attachments rules (47 C.F.R. §§ 1.1401-1.1418) by terminating existing agreements with the Complainants, forcing them to execute new pole attachment agreements with higher pole attachment rates, and refusing to renegotiate new rates in good faith in accordance with the FCC Cable Formula. (47 C.F.R. §1.1409(e)(i).) Gulf Power unilaterally decided that an attachment rate based on the Cable Formula does not provide just compensation, and that an alternative methodology should be employed to arrive at an appropriate albeit much high rate. 3. On May 13, 2003, the Enforcement Bureau (``Bureau'') granted the complaint. Florida Cable Telecommunications Association, Inc.; Comcast Cablevision of Panama City, Inc.; Mediacom Southeast,
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  • the utility's response to the written request including all information given by the utility to support its denial of access. A complaint alleging improper 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. Section 1.1409(e) would be revised to read as follows: 1.1409 Commission consideration of the complaint. * * * * (e) * * * (2) Subject to paragraph (f) of this section the following formula shall apply to attachments to poles by any telecommunications carrier (to the extent such carrier is not party to a pole attachment agreement) or cable operator providing telecommunications
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  • a zone of reasonableness for rates bounded on the lower end by incremental costs and on the upper end by fully allocated costs. Pursuant to Section 224(b)(1), the Commission developed a cost methodology to determine the maximum allowable pole attachment rate under Section 224(d)(1). This methodology, known as the Cable Formula or Cable Rate, is codified at 47 C.F.R. § 1.1409(e)(1). In 1987, in FCC v. Florida Power Corporation, the Supreme Court rejected a Fifth Amendment takings challenge to the Pole Attachments Act. The Court held that the Act was not a per se taking because it did not, at that time, require utility companies to give cable operators access to space on utility poles. Consequently, the Cable Rate would not
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  • 1 is revised to read as follows: * * * Subpart J-Pole Attachment Complaint Procedures 1.1401 Purpose. 1.1402 Definitions. 1.1403 Duty to provide access; modifications; notice of removal, increase or modification; petition for temporary stay; and cable operator notice. 1.1404 Complaint. 1.1405 File numbers. 1.1406 Dismissal of complaints. 1.1407 Response and reply. 1.1408 Numbers of copies and form of pleadings. 1.1409 Commission consideration of the complaint. 1.1410 Remedies. 1.1411 Meetings and hearings. 1.1412 Enforcement. 1.1413 Forfeiture. 1.1414 State certification. 1.1415 Other orders. 1.1416 Imputation of rates; modification costs. 1.1417 Allocation of Unusable Space Costs. 1.1418 Use of presumptions in calculating the space factor. 1.1420 Timeline for access to utility poles. 1.1422 Contractors for survey and make-ready. 1.1424 Complaints by incumbent local
• http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-96-325A1.pdf
  • Sprint reply at 20. Comments of Public Service Company of New Mexico at 20-23; Ohio Consumers' Counsel reply at 6; PUCO Staff 3007 comments at 12. See Regulatory Flexibility Act, 5 U.S.C. §§ 601 et seq. 3008 Virginia Power comments at 14; American Electric Power comments at 40-42; Carolina Power and Light comments at 3009 5 (citing 47 C.F.R. § 1.1409(b)); see also SBC comments at 15-17. Virginia Power comments at 15 (citing 47 C.F.R. § 1.1404(f) and (g)). 3010 47 C.F.R. § 1.1409(d). 3011 AT&T comments at 19; GST comments at 6. 3012 See Regulatory Flexibility Act, 5 U.S.C. §§ 601, et seq. 3013 Joint Cable Commenters reply at 24. 3014 580 carrier fits within that exception. We therefore agree
• http://transition.fcc.gov/eb/Orders/2002/DA-02-1733A1.html
  • 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 rules43 also provides that publicly available data may be relied upon by the Commission when insufficient data is available in the record upon which to base its determination. 13. BellSouth's reliance on Teleprompter v. Southern Bell, 44 is misplaced. In that case, the Common Carrier Bureau accepted state-wide data in lieu of company-wide data but did not
• http://transition.fcc.gov/eb/Orders/2002/DA-02-3485A1.html
  • pet. for recon. denied in part, Amendment of Commission's Rules and Policies Governing Pole Attachments, CS Docket No. 97-98; Implementation of Section 703(e) of the Telecommunications Act of 1996, FCC 01-170, 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01-1326 (D.C. Cir., filed July 26, 2001). 9 47 C.F.R. 1.1409 (e) (1). 10 Pub. L. No. 104-104, 110 Stat. 56 (1996). 11 47 U.S.C. 153 (44). 12 47 U.S.C. 153 (8); 47 U.S.C. 602 (5). 13 See Implementation of Section 703(e) of the Telecommunications Act of 1996, 13 FCC Rcd 6777 at 116-130 (1998). 14 See 47 U.S.C. 224 (d) (3) and 47 U.S.C. 224 (e) (4); Implementation of Section
• http://transition.fcc.gov/eb/Orders/2002/FCC-02-270A1.html
  • 01-170, 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01-1326 (D.C. Cir., filed July 26, 2001). 7Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, Memorandum Order and Opinion on Reconsideration, 4 FCC Rcd 468, 471 at 26 (1989). 8 See 47 C.F.R. 1.1409 (e)(1). 9 Pub. L. No. 104-104, 110 Stat. 56 (1996). 10 47 U.S.C. 224 (e). 11 See 47 C.F.R. 1.1409 (e)(1); 47 U.S.C. 224 (d) (3). 12 See 47 C.F.R. 1.1409 (e)(2), (f). 13 Id. at 53-56. 14 47 C.F.R. 1.1409 (e). 15 Bureau Order at 11. The Bureau rejected GPC's alternative because GPC calculated a rate of $53.35 per
• http://transition.fcc.gov/eb/Orders/2003/DA-03-1555A1.html
  • Motion to Strike; Letter dated August 16, 2000 to Magalie Roman Salas, Secretary, FCC, from Brian M. Josef, counsel for Cable Operators, File No. PA 00-004 (filed Aug. 16, 2000). Because this Order disposes of the substantive issues raised in the Petition for Temporary Stay, we dismiss it and the filings relating to it as moot. 4 See 47 C.F.R. 1.1409(e)(1). 5 Complaint, Exhibit 2 (Schedule of Parties, Poles and Communities); Supplement, Exhibit 2 (Schedule of Parties). 6 Complaint at 4, 11. 7 See Complaint, Exhibit 3 (Pole Attachment Agreements between Cox and Gulf Power ), Exhibit 4 (Pole Attachment Agreements between Comcast and Gulf Power), Exhibit 5 (Pole Attachment Agreements between Mediacom and Gulf Power); Supplement, Exhibit 5 (Pole Attachment
• http://transition.fcc.gov/eb/Orders/2003/DA-03-2613A1.html
  • 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 their prior
• http://transition.fcc.gov/eb/Orders/2003/FCC-03-173A1.html
  • 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 full
• http://transition.fcc.gov/eb/Orders/2005/DA-05-2012A1.html
  • 2005 Released: July 15, 2005 By the Chief, Market Disputes Resolution Division: 1. On December 13, 2003, AT&T Communications of the Midwest, Inc. and AT&T Communications of the Mountain States, Inc. (collectively ``AT&T''), filed with this Commission a formal complaint1 against Qwest Corporation (``Qwest'') asserting that Qwest violated section 224 of the Communications Act of 1934, as amended,2 and section 1.1409 of the Commission's rules3 by charging excessive conduit rental rates. 2. On July 12, 2005, AT&T and Qwest filed a joint motion requesting that we dismiss the formal complaint in this proceeding with prejudice to dispose of all issues and controversies in the formal complaint.4 We grant the parties' Joint Motion to Dismiss Formal Complaint With Prejudice. We find that
• http://transition.fcc.gov/eb/Orders/2006/DA-06-494A1.html
  • will be governed by the rules of practice and procedure pertaining to the Commission's Hearing Proceedings, 47 C.F.R. SS 1.201-1.364, subject to the ALJ's discretion to regulate the hearing. 28. IT IS FURTHER ORDERED, that all discovery shall be conducted in accordance with 47 C.F.R. SS 1.311-1.325, subject to the ALJ's discretion. 29. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the Commission's rules, 47 C.F.R. S 1.1409(b), that the Complainants shall have the both the burden of establishing a prima facie case and the burden of proof with respect to Issues 1(a) through (c), 2(a) through (h), 3, 4(a) through (c), and 6 listed in paragraph 18 above. 30. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the
• http://transition.fcc.gov/eb/Orders/2007/DA-07-2150A1.html
  • may be either a wholesale offering to other carriers or a retail offering to end users. III. discussion A. Salsgiver Telecom Has Established a Prima Facie Case That It Is a "Telecommunications Carrier" with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act 9. In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful. Therefore, Salsgiver Telecom bears an initial burden to establish a prima facie
• http://transition.fcc.gov/eb/Orders/2007/DA-07-4721A1.html
  • within one year after completion of make-ready work, or if Salsgiver ceases providing cable service in a franchise area. 14. Finally, NPTC asserts that the franchise agreements "may not properly be considered part of Salsgiver's evidence of its claim that it is a bona fide `cable television system,'" because the agreements were not filed with the Complaint. We disagree. Rule 1.1409 permits the Commission to request additional filings or information from the parties in pole attachment cases, and the staff made such a request here for the franchise agreements. NPTC was given an opportunity to respond, and was in no way unfairly prejudiced by the filing of this additional information. 15. In sum, we find that Salsgiver has established a prima
• http://transition.fcc.gov/eb/Orders/2007/DA-07-472A1.html
  • a requested attachment does not lose that status by offering non-telecommunications services over the same attachment. III. discussion A. DQE CNS Has Established a Prima Facie Case That It Is a "Telecommunications Carrier" with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act 1. In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful. Therefore, DQE CNS bears an initial burden to establish a prima facie
• http://transition.fcc.gov/eb/Orders/2007/DA-07-486A1.html
  • a wholesale offering to other carriers or a retail offering to end users. III. DISCUSSION A. Fibertech Has Established A Prima Facie Case That It Is A "Telecommunications Carrier" With A Right Of Access To NPTC's Poles Under Section 224(f)(1) Of The Act 10. In a case such as this challenging a utility's denial of access to its poles, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the respondent utility has the burden of proving that its denial was lawful. Therefore, Fibertech bears an initial burden to establish a prima facie case
• http://www.fcc.gov/Bureaus/Cable/Orders/2000/da001250.doc
  • subject to safety and reliability conditions, and SHALL NEGOTIATE IN GOOD FAITH, the terms of such access. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau Communications Act of 1934, as amended, 47 U.S.C. § 224. 47 C.F.R. §§ 1.1401-1.1418. See Cavalier Telephone, LLC v. Virginia Electric and Power Company, 15 FCC Rcd 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.
• http://www.fcc.gov/Bureaus/Cable/Orders/2000/da002119.doc
  • applies to attachments made by both cable systems and telecommunications carriers providing telecommunications services until February 8, 2001, when a separate methodology becomes effective for telecommunications carriers. In order to calculate a reasonable pole attachment rate when the parties to a pole attachment agreement cannot negotiate a reasonable rate, we apply our formula using public data when available. . Section 1.1409(c) of the Commission's rules provides that a rate is just and reasonable if it does not exceed an amount determined by multiplying the percentage of the total usable space occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole. The methodology used to arrive at a
• http://www.fcc.gov/Bureaus/Cable/Orders/2000/fcc00116.doc
  • §§ 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. 159. IT
• http://www.fcc.gov/Bureaus/Common_Carrier/Orders/1996/fcc96325.pdf
  • Sprint reply at 20. Comments of Public Service Company of New Mexico at 20-23; Ohio Consumers' Counsel reply at 6; PUCO Staff 3007 comments at 12. See Regulatory Flexibility Act, 5 U.S.C. §§ 601 et seq. 3008 Virginia Power comments at 14; American Electric Power comments at 40-42; Carolina Power and Light comments at 3009 5 (citing 47 C.F.R. § 1.1409(b)); see also SBC comments at 15-17. Virginia Power comments at 15 (citing 47 C.F.R. § 1.1404(f) and (g)). 3010 47 C.F.R. § 1.1409(d). 3011 AT&T comments at 19; GST comments at 6. 3012 See Regulatory Flexibility Act, 5 U.S.C. §§ 601, et seq. 3013 Joint Cable Commenters reply at 24. 3014 580 carrier fits within that exception. We therefore agree
• http://www.fcc.gov/eb/Orders/2002/DA-02-1733A1.html
  • 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 rules43 also provides that publicly available data may be relied upon by the Commission when insufficient data is available in the record upon which to base its determination. 13. BellSouth's reliance on Teleprompter v. Southern Bell, 44 is misplaced. In that case, the Common Carrier Bureau accepted state-wide data in lieu of company-wide data but did not
• http://www.fcc.gov/eb/Orders/2002/DA-02-3485A1.html
  • pet. for recon. denied in part, Amendment of Commission's Rules and Policies Governing Pole Attachments, CS Docket No. 97-98; Implementation of Section 703(e) of the Telecommunications Act of 1996, FCC 01-170, 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01-1326 (D.C. Cir., filed July 26, 2001). 9 47 C.F.R. 1.1409 (e) (1). 10 Pub. L. No. 104-104, 110 Stat. 56 (1996). 11 47 U.S.C. 153 (44). 12 47 U.S.C. 153 (8); 47 U.S.C. 602 (5). 13 See Implementation of Section 703(e) of the Telecommunications Act of 1996, 13 FCC Rcd 6777 at 116-130 (1998). 14 See 47 U.S.C. 224 (d) (3) and 47 U.S.C. 224 (e) (4); Implementation of Section
• http://www.fcc.gov/eb/Orders/2002/FCC-02-270A1.html
  • 01-170, 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01-1326 (D.C. Cir., filed July 26, 2001). 7Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, Memorandum Order and Opinion on Reconsideration, 4 FCC Rcd 468, 471 at 26 (1989). 8 See 47 C.F.R. 1.1409 (e)(1). 9 Pub. L. No. 104-104, 110 Stat. 56 (1996). 10 47 U.S.C. 224 (e). 11 See 47 C.F.R. 1.1409 (e)(1); 47 U.S.C. 224 (d) (3). 12 See 47 C.F.R. 1.1409 (e)(2), (f). 13 Id. at 53-56. 14 47 C.F.R. 1.1409 (e). 15 Bureau Order at 11. The Bureau rejected GPC's alternative because GPC calculated a rate of $53.35 per
• http://www.fcc.gov/eb/Orders/2003/DA-03-1555A1.html
  • Motion to Strike; Letter dated August 16, 2000 to Magalie Roman Salas, Secretary, FCC, from Brian M. Josef, counsel for Cable Operators, File No. PA 00-004 (filed Aug. 16, 2000). Because this Order disposes of the substantive issues raised in the Petition for Temporary Stay, we dismiss it and the filings relating to it as moot. 4 See 47 C.F.R. 1.1409(e)(1). 5 Complaint, Exhibit 2 (Schedule of Parties, Poles and Communities); Supplement, Exhibit 2 (Schedule of Parties). 6 Complaint at 4, 11. 7 See Complaint, Exhibit 3 (Pole Attachment Agreements between Cox and Gulf Power ), Exhibit 4 (Pole Attachment Agreements between Comcast and Gulf Power), Exhibit 5 (Pole Attachment Agreements between Mediacom and Gulf Power); Supplement, Exhibit 5 (Pole Attachment
• http://www.fcc.gov/eb/Orders/2003/DA-03-2613A1.html
  • 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 their prior
• http://www.fcc.gov/eb/Orders/2003/FCC-03-173A1.html
  • 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 full
• http://www.fcc.gov/eb/Orders/2005/DA-05-2012A1.html
  • 2005 Released: July 15, 2005 By the Chief, Market Disputes Resolution Division: 1. On December 13, 2003, AT&T Communications of the Midwest, Inc. and AT&T Communications of the Mountain States, Inc. (collectively ``AT&T''), filed with this Commission a formal complaint1 against Qwest Corporation (``Qwest'') asserting that Qwest violated section 224 of the Communications Act of 1934, as amended,2 and section 1.1409 of the Commission's rules3 by charging excessive conduit rental rates. 2. On July 12, 2005, AT&T and Qwest filed a joint motion requesting that we dismiss the formal complaint in this proceeding with prejudice to dispose of all issues and controversies in the formal complaint.4 We grant the parties' Joint Motion to Dismiss Formal Complaint With Prejudice. We find that
• http://www.fcc.gov/eb/Orders/2006/DA-06-494A1.html
  • will be governed by the rules of practice and procedure pertaining to the Commission's Hearing Proceedings, 47 C.F.R. SS 1.201-1.364, subject to the ALJ's discretion to regulate the hearing. 28. IT IS FURTHER ORDERED, that all discovery shall be conducted in accordance with 47 C.F.R. SS 1.311-1.325, subject to the ALJ's discretion. 29. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the Commission's rules, 47 C.F.R. S 1.1409(b), that the Complainants shall have the both the burden of establishing a prima facie case and the burden of proof with respect to Issues 1(a) through (c), 2(a) through (h), 3, 4(a) through (c), and 6 listed in paragraph 18 above. 30. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the
• http://www.fcc.gov/eb/Orders/2007/DA-07-2150A1.html
  • may be either a wholesale offering to other carriers or a retail offering to end users. III. discussion A. Salsgiver Telecom Has Established a Prima Facie Case That It Is a "Telecommunications Carrier" with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act 9. In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful. Therefore, Salsgiver Telecom bears an initial burden to establish a prima facie
• http://www.fcc.gov/eb/Orders/2007/DA-07-4721A1.html
  • within one year after completion of make-ready work, or if Salsgiver ceases providing cable service in a franchise area. 14. Finally, NPTC asserts that the franchise agreements "may not properly be considered part of Salsgiver's evidence of its claim that it is a bona fide `cable television system,'" because the agreements were not filed with the Complaint. We disagree. Rule 1.1409 permits the Commission to request additional filings or information from the parties in pole attachment cases, and the staff made such a request here for the franchise agreements. NPTC was given an opportunity to respond, and was in no way unfairly prejudiced by the filing of this additional information. 15. In sum, we find that Salsgiver has established a prima
• http://www.fcc.gov/eb/Orders/2007/DA-07-472A1.html
  • a requested attachment does not lose that status by offering non-telecommunications services over the same attachment. III. discussion A. DQE CNS Has Established a Prima Facie Case That It Is a "Telecommunications Carrier" with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act 1. In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful. Therefore, DQE CNS bears an initial burden to establish a prima facie
• http://www.fcc.gov/eb/Orders/2007/DA-07-486A1.html
  • a wholesale offering to other carriers or a retail offering to end users. III. DISCUSSION A. Fibertech Has Established A Prima Facie Case That It Is A "Telecommunications Carrier" With A Right Of Access To NPTC's Poles Under Section 224(f)(1) Of The Act 10. In a case such as this challenging a utility's denial of access to its poles, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act. Once the complainant establishes a prima facie case, the respondent utility has the burden of proving that its denial was lawful. Therefore, Fibertech bears an initial burden to establish a prima facie case
• http://www.fcc.gov/ogc/documents/opinions/2000/98-6222.doc http://www.fcc.gov/ogc/documents/opinions/2000/98-6222.html
  • The rule set forth (1) the procedure for filing a complaint about rents or conditions of attachment, see id.; (2) factors to be considered by the administrative law judge in determining the lawfulness of the rent or conditions the utility sought, see id.; and (3) a formula for determining the maximum rent the utility could receive, see 47 C.F.R. § 1.1409. Under the formula, the maximum rent a utility could charge was the attacher's proportionate share of the bare costs of maintaining the pole and the ``carrying charges'' associated with the pole. After the FCC promulgated its rule, several cable television companies in Florida filed complaints with the FCC, contending that Florida Power Corporation was charging them unreasonable rents to attach.
• http://www.fcc.gov/ogc/documents/opinions/2002/00-14763.html
  • - unless, of course, the aggrieved party proves lost opportunity byshowing (1) full capacity and (2) a higher valued use. APCo never alleged thesefacts. Therefore, its challenges based on the Fifth Amendment and theAdministrative Procedure Act must fail, and its petition for review is denied. SO ORDERED. FOOTNOTES 1. The mathematical expression of the Commission's rules, found in 47 C.F.R. 1.1409(e)(1), is as follows: Maximum Rate = (Space Occupied by Attachment Total Usable Space) NetCost of Bare Pole Carrying Charge Rate 2. The rate for cable television attachments is prescribed in 47 U.S.C. 224(d), whichstates: "[A] rate is just and reasonable if it assures a utility of recovery of not less than theadditional costs of providing pole attachments, nor more than