§  1.1405   Dismissal of pole attachment complaints for lack of jurisdiction.

   (a) The complaint shall be dismissed for lack of jurisdiction in any
   case where a suitable certificate has been filed by a State pursuant to
   paragraph (b) of this section. Such certificate shall be conclusive
   proof of lack of jurisdiction of this Commission. A complaint alleging
   a denial of access shall be dismissed for lack of jurisdiction in any
   case where the defendant or a State offers proof that the State is
   regulating such access matters. Such proof should include a citation to
   state laws and regulations governing access and establishing a
   procedure for resolving access complaints in a state forum. A complaint
   against a utility shall also be dismissed if the utility does not use
   or control poles, ducts, or conduits used or designated, in whole or in
   part, for wire communication or if the utility does not meet the
   criteria of § 1.1402(a).

   (b) It will be rebuttably presumed that the state is not regulating
   pole attachments if the Commission does not receive certification from
   a state that:

   (1) It regulates rates, terms and conditions for pole attachments;

   (2) In so regulating such rates, terms and conditions, the state has
   the authority to consider and does consider the interests of the
   consumers of the services offered via such attachments, as well as the
   interests of the consumers of the utility services; and

   (3) It has issued and made effective rules and regulations implementing
   the state's regulatory authority over pole attachments (including a
   specific methodology for such regulation which has been made publicly
   available in the state).

   (c) Upon receipt of such certification, the Commission shall give
   public notice. In addition, the Commission shall compile and publish
   from time to time, a listing of states which have provided
   certification.

   (d) Upon receipt of such certification, the Commission shall forward
   any pending case thereby affected to the state regulatory authority,
   shall so notify the parties involved and shall give public notice
   thereof.

   (e) Certification shall be by order of the state regulatory body or by
   a person having lawful delegated authority under provisions of state
   law to submit such certification. Said person shall provide in writing
   a statement that he or she has such authority and shall cite the law,
   regulation or other instrument conferring such authority.

   (f) Notwithstanding any such certification, jurisdiction will revert to
   this Commission with respect to any individual matter, unless the state
   takes final action on a complaint regarding such matter:

   (1) Within 180 days after the complaint is filed with the state, or

   (2) Within the applicable periods prescribed for such final action in
   such rules and regulations of the state, if the prescribed period does
   not extend beyond 360 days after the filing of such complaint.

   [ 83 FR 44839 , Sept. 4, 2018]