Sec. 1.1409  Commission consideration of the complaint.

    (a) In its consideration of the complaint, response, and reply, the 
Commission may take notice of any information contained in publicly 
available filings made by the parties and may accept, subject to 
rebuttal, studies that have been conducted. The Commission may also 
request that one or more of the parties make additional filings or 
provide additional information. Where one of the parties has failed to 
provide information required to be provided by these rules or requested 
by the Commission, or where costs, values or amounts are disputed, the 
Commission may estimate such costs, values or amounts it considers 
reasonable, or may decide adversely to a party who has failed to supply 
requested information which is readily available to it, or both.
    (b) The complainant shall have the burden of establishing a prima 
facie case that the rate, term, or condition is not just and reasonable 
or that the denial of access violates 47 U.S.C. Sec. 224(f). If, 
however, a utility argues that the proposed rate is lower than its 
incremental costs, the utility has the burden of establishing that such 
rate is below the statutory minimum just and reasonable rate. In a case 
involving a denial of access, the utility shall have the burden of 
proving that the denial was lawful, once a prima facie case is 
established by the complainant.
    (c) The Commission shall determine whether the rate, term or 
condition complained of is just and reasonable. For the purposes of this 
paragraph, a rate is just and reasonable if it assures a utility the 
recovery of not less than the additional costs of providing pole 
attachments, nor more than an amount determined by multiplying the 
percentage of the total usable space, or the percentage of the total 
duct or conduit capacity, which is occupied by the pole attachment by 
the sum of the operating expenses and actual capital costs of the 
utility attributable to the entire pole, duct, conduit, or right-of-way.
    (d) The Commission shall deny the complaint if it determines that 
the complainant has not established a prima facie case, or that the 
rate, term

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or condition is just and reasonable, or that the denial of access was 
lawful.
    (e) Section 1.1404 shall apply to the rate for any pole attachment 
used by a cable system operator solely to provide cable service. Until 
47 U.S.C. 224(e) is implemented, Sec. 1.1404 shall also apply to the 
rate for any pole attachment used by a cable system or any 
telecommunications carrier (to the extent such carrier is not a party to 
a pole attachment agreement) to provide any telecommunications service.
[ 43 FR 36094 , Aug. 15, 1978, as amended at  52 FR 31770 , Aug. 24, 1987; 
 61 FR 43025 , Aug. 20, 1996;  61 FR 45619 , Aug. 29, 1996]