[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Rules and Regulations]
[Pages 43023-43025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20901]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[CS Docket No. 96-166; FCC 96-327]


Implementation of Section 703 of the Communications Act of 1996

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: By adopting this Order, the Commission implements the self-
effectuating additions and revisions made by Section 703 of the 
Telecommunications Act of 1996 to Section 224 of the Communications Act 
of 1934, as amended. The pole attachment provisions of Section 224 of 
the Communications Act of 1934, as amended, initially only applied to 
cable television system operators. However, Section 703 of the 
Telecommunications Act of 1996 expanded the scope of the pole 
attachment provisions under Section 224 to include telecommunications 
carriers as well as cable television system operators.

DATES: Effective August 20, 1996. Written comments by the public on the 
information collections contained herein are due October 21, 1996.

ADDRESSES: Comments on the information collections contained herein 
should be submitted to Dorothy Conway, Federal Communications 
Commission, Room 234, 1919 M Street, N.W., Washington, DC 20554, or via 
the Internet to [email protected], and to Timothy Fain, OMB Desk Officer, 
10236 NEOB, 725--17th Street, N.W., Washington, DC 20503 or via the 
Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Michael T. McMenamin, Cable Services 
Bureau, (202) 418-7200. For additional information concerning the 
information collections contained in this Order contact Dorothy Conway 
at 202-418-0217, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Order, CS Docket No. 96-166, adopted August 2, 1996 and released August 
6, 1996. The full text of this decision is available for inspection and 
copying during normal business hours in the FCC Reference Center (Room 
239), 1919 M Street, NW, Washington, D.C. 20554, and may be purchased 
from the Commission's copy contractor, International Transcription 
Service, (202) 857-3800, 1919 M Street, NW, Washington, D.C. 20554.

Synopsis of the Order

    Section 703 of the 1996 Act added and amended several provisions of 
Section 224 of the Communications Act of 1934, as amended (``Section 
224''). Specifically, Section 703 amended Sections 224 (a)(1), (a)(4), 
(c)(1) and (c)(2)(B), and added new Sections 224 (a)(5), (d)(3), (e), 
(f), (g), (h) and (i). Many of these additions and revisions to 
existing federal statutory provisions are self-effectuating. This Order 
conforms our rules to meet these new statutory requirements. We are 
revising these rules without providing prior public notice and an 
opportunity for comment because the rule modifications do not involve 
discretionary action on the part of the Commission but rather, simply 
conform our rules to the applicable provisions of the 1996 Act. We find 
that notice and comment procedures are unnecessary, and that this 
action falls

[[Page 43024]]

within the ``good cause'' exception of the Administrative Procedure 
Act. Sections 224(e) is not self-effectuating. We will seek notice and 
comment regarding implementation of Section 224(e) in a separate 
proceeding consistent with the two-year period specified by Section 
224(e). In addition, the Commission has sought notice and comment 
regarding the implementation of Sections 224 (f) and (h) in a separate 
proceeding.1
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    \1\ The Commission has issued a Notice of Proposed Rulemaking, 
Implementation of the Local Competition Provisions in the 
Telecommunications Act of 1996, FCC 96-182, 61 FR 18311, par. 220-
225 (April 25, 1996), to implement the Interconnection provisions of 
Section 251.
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Paperwork Reduction Act

    This Order contains either proposed or modified information 
collections. The Commission has requested Office of Management and 
Budget (``OMB'') approval, under the emergency processing provisions of 
the Paperwork Reduction Act of 1995, of the information contained in 
this rulemaking. Approval is requested to be effective no later than 
the date that the summary of the Order appears in the Federal Register. 
The OMB control number for information collections contained in this 
rulemaking is 3060-0392. The Commission, as part of its continuing 
effort to reduce paperwork burdens and to obtain regular OMB approval 
of the information collections, invites the general public to comment 
on the information collections contained in this Order, as required by 
the Paperwork Reduction Act of 1995. Public and agency comments are due 
October 21, 1996. Comments should address: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the Commission, including whether the information 
shall have practical utility; (b) the accuracy of the Commission's 
burden estimates; (c) ways to enhance the quality, utility, and clarity 
of the information collected; and (d) ways to minimize the burden of 
the collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    OMB Approval Number: 3060-0392.
    Title: 47 CFR 1.1401 through 1.1416 Pole Attachment Procedures.
    Type of Review: Revision of existing collection.
    Respondents: Businesses or other for-profit entities.
    Number of Respondents: 83.
    Estimated Time Per Response: 1-25 hours.
    Total Annual Burden: 449 hours. Notices: 36 sets of notices  x  2 
hours each = 72 hours. Petitions for Stay: 10 Petitions  x  8 hours 
each = 80 hours. Complaints, responses and replies: 10 complaint cases 
(20 parties). 50% of parties will use in-house legal assistance with an 
average burden of 25 hours per case. 10 parties  x  25 hours = 250 
hours. 50% of parties will use outside legal counsel with an average 
burden of 4 hours to coordinate information with outside legal counsel. 
10 parties  x  4 hours = 40 hours. State certifications: 7 
certifications  x  1 hour = 7 hours.
    Total Annual Cost to Respondents: $41,100. Notices: 36 sets of 
notices  x  $100 each for postage and stationery = $3,600. Complaints, 
responses and replies: 50% of parties will use outside legal counsel 
paid at $150 per hour. 10 parties  x  25 hours per case  x  $150 per 
hour = $37,500.
    Needs and Uses: Initial pole attachment provisions were mandated by 
Congress pursuant to Section 224 of the Communications Act of 1934. 
Among other things, Section 224 initially mandated the following: The 
Commission was required to establish rules to ensure that the rates, 
terms and conditions under which cable television system operators 
attach their hardware to utility poles are just and reasonable. 
Utilities shall provide a cable television system operator no less than 
60 days written notice prior to (1) removal of facilities or 
termination of any service to those facilities, such removal or 
termination arising out of a rate, term or condition of a cable 
television pole attachment agreement, or (2) any increase in pole 
attachment rates. The Commission was required to establish a Petition 
for Stay process for the action contained in the notice. The Commission 
was required to establish a complaint resolution process regarding pole 
attachments. The Commission was required to establish a certification 
process for states to use to make notice of their authority to regulate 
the rates, terms and conditions for pole attachments. The provisions in 
Section 224 were initially only applicable to cable television system 
operators. However, Section 703 of the Telecommunications Act of 1996 
amends Section 224 to expand the scope of the pole attachment 
provisions to include telecommunications carriers as well as cable 
television system operators. The Commission's rules for pole attachment 
provisions are contained in 47 CFR 1.1401 through 1.1416.
    Accordingly, It is ordered that pursuant to Section 703 of the 
Telecommunications Act of 1996 (Section 224 of the Communications Act 
of 1934, as amended, 47 U.S.C. 224), and to Sections 4(i) and 303(r) of 
the Communications Act of 1934 as amended, 47 U.S.C. 154(i), 303(r), 
Subpart J of Part 1 of the Commission's Rules is amended as set forth 
below. The rule changes will become effective August 20, 1996.

List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers, Investigations, Lawyers, Penalties, Reporting and 
recordkeeping requirements, Telecommunications.

    Federal Communications Commission.
William F. Caton,
Acting Secretary.

Rules Changes

    Part 1 of Title 47 of the Code of Federal Regulations is amended as 
follows:

PART 1--PRACTICE AND PROCEDURE

    1. The authority citation for Part 1 continues to read as follows:

    Authority: 47 U.S.C. 151, 154, 303 and 309(j) unless otherwise 
noted.

Subpart J--Pole Attachment Complaint Procedures

    2. Section 1.1401 is revised to read as follows:


Sec. 1.1401  Purpose.

    The rules and regulations contained in this subpart J provide 
complaint and enforcement procedures to ensure that the rates, terms 
and conditions for pole attachments of cable television systems and 
telecommunications carriers are just and reasonable.
    3. Section 1.1402 is amended by revising paragraphs (a), (b), (d), 
(e), and (f) and adding a new paragraph (h) to read as follows:


Sec. 1.1402  Definitions.

    (a) The term utility means any person that is a local exchange 
carrier or an electric, gas, water, steam, or other public utility, and 
who owns or controls poles, ducts, conduits, or rights-of-way used, in 
whole or in part, for any wire communications. Such term does not 
include any railroad, any person that is cooperatively organized, or 
any person owned by the Federal Government or any State.
    (b) The term pole attachment means any attachment by a cable 
television system or provider of telecommunications service to a pole,

[[Page 43025]]

duct, conduit, or right-of-way owned or controlled by a utility.
* * * * *
    (d) The term complaint means a filing by a cable television system 
operator, a cable television system association, a utility, an 
association of utilities, a telecommunications carrier, or an 
association of telecommunications carriers alleging that a rate, term, 
or condition for a pole attachment is not just and reasonable.
    (e) The term complainant means a cable television system operator, 
a cable television system association, a utility, an association of 
utilities, a telecommunications carrier, or an association of 
telecommunications carriers who files a complaint.
    (f) The term respondent means a cable television system operator, a 
utility, or a telecommunications carrier against whom a complaint is 
filed.
* * * * *
    (h) For purposes of this subpart, the term telecommunications 
carrier means any provider of telecommunications services, except that 
the term does not include aggregators of telecommunications services 
(as defined in 47 U.S.C. 226) or incumbent local exchange carriers (as 
defined in 47 U.S.C. 251(h)).
    4. Section 1.1403 is revised to read as follows:


Sec. 1.1403  Notice of removal and petition for temporary stay.

    (a) A utility shall provide a cable television system operator or 
telecommunications carrier no less than 60 days written notice prior 
to:
    (1) Removal of facilities or termination of any service to those 
facilities, such removal or termination arising out of a rate, term, or 
condition of the cable television system operator's or 
telecommunications carrier's pole attachment agreement; or
    (2) Any increase in pole attachment rates.
    (b) A cable television system operator or telecommunications 
carrier may file a ``Petition for Temporary Stay'' of the action 
contained in a notice received pursuant to paragraph (a) of this 
section within 15 days of receipt of such notice. Such submission shall 
not be considered unless it includes, in concise terms, the relief 
sought, the reasons for such relief, including a showing of irreparable 
harm and likely cessation of cable television service or 
telecommunication service, a copy of the notice, and certification of 
service as required by Sec. 1.1404(b). The named respondent may file an 
answer within 7 days of the date the Petition for Temporary Stay was 
filed. No further filings under this section will be considered unless 
requested or authorized by the Commission and no extensions of time 
will be granted unless justified pursuant to Sec. 1.46.
    5. Section 1.1404 is amended by revising paragraphs (a), (d) 
introductory text and (d) (2) to read as follows:


Sec. 1.1404  Complaint.

    (a) The complaint shall contain the name and address of the 
complainant, name and address of the respondent, and shall contain a 
verification (in the form in Sec. 1.721(b)), signed by the complainant 
or officer thereof if complainant is a corporation, showing 
complainant's direct interest in the matter complained of. Counsel for 
the complainant may sign the complaint. Complainants may join together 
to file a joint complaint. Complaints filed by associations shall 
specifically identify each utility, cable television system operator, 
or telecommunications carrier who is a party to the complaint and shall 
be accompanied by a document from each identified member certifying 
that the complaint is being filed on its behalf.
* * * * *
    (d) The complaint shall be accompanied by a copy of the pole 
attachment agreement, if any, between the cable system operator or 
telecommunications carrier and the utility. If there is no present pole 
attachment agreement, the complaint shall contain:
* * * * *
    (2) A statement that the cable television system operator or 
telecommunications carrier currently has attachments on the poles, 
ducts, conduits, or rights-of-way.
* * * * *
    6. Section 1.1409 is amended by adding a new paragraph (e) to read 
as follows:


Sec. 1.1409  Commission consideration of the complaint.

* * * * *
    (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.
    7. A new Section 1.1416 is added to subpart J to read as follows:


Sec. 1.1416  Access provisions for telecommunication carriers and cable 
systems.

    (a) A utility that engages in the provision of telecommunications 
services or cable services shall impute to its costs of providing such 
services (and charge any affiliate, subsidiary, or associate company 
engaged in the provision of such services) an equal amount to the pole 
attachment rate for which such company would be liable under this 
section.
    (b) An entity that obtains an attachment to a pole, conduit, or 
right-of-way shall not be required to bear any of the costs of 
rearranging or replacing its attachment, if such rearrangement or 
replacement is required as a result of an additional attachment or the 
modification of an existing attachment sought by any other entity 
(including the owner of such pole, duct, conduit, or right-of-way).

[FR Doc. 96-20901 Filed 8-19-96; 8:45 am]
BILLING CODE 6712-01-U