[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Rules and Regulations]
[Pages 26620-26641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11137]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[WC Docket No. 07-245, GN Docket No. 09-51; FCC 11-50]


A National Broadband Plan for Our Future

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission revises its pole attachment 
rules to promote competition and to reduce the potentially excessive 
costs of deploying telecommunications, cable, and broadband networks. 
The Commission also revises the telecommunications rate formula for 
pole attachments consistent with the statutory framework, reinterprets 
the Communications Act of 1934, as amended, to allow incumbent LECs to 
file complaints before the Commission if they believe a pole attachment 
rate, term, or condition is unjust and unreasonable, and confirms 
wireless providers are entitled to the same rate as other 
telecommunications carriers. In addition, the Commission resolves 
multiple petitions for reconsideration and addresses various points 
regarding the nondiscriminatory use of attachment techniques.

DATES: Effective June 8, 2011, except for Sec. Sec.  1.1420, 1.1422 and 
1.1424, which contain information collection requirements that have not 
been approved by the Office of Management and Budget. The Commission 
will publish a document in the Federal Register announcing the 
effective date for those sections.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. In addition to filing comments with the Office of 
the Secretary, a copy of any comments on the Paperwork Reduction Act 
information collection requirements contained herein should be 
submitted to Judith B. Herman, Federal Communications Commission, Room 
1-B441, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to [email protected].

FOR FURTHER INFORMATION CONTACT: Jonathan Reel, Wireline Competition 
Bureau, Competition Policy Division, 202-418-1580. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, send an e-mail to 
[email protected] or contact Judith B. Herman at 202-418-0214.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Report and Order and Order on Reconsideration (Order), FCC 11-50, 
adopted and released on April 7, 2011. The full text of the Order is 
available for inspection and copying during regular business hours in 
the FCC Reference Center, 445 Twelfth Street, SW., Room CY-A257, 
Portals II, Washington, DC 20554, and may also be purchased from the 
Commission's copy contractor, BCPI, Inc., Portals II, 445 Twelfth 
Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact 
BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-
3160. This document is available in alternative formats (computer 
diskette, large print, audio record, and braille). Persons with 
disabilities who need documents in these formats may contact the FCC by 
e-mail: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

Synopsis of Report and Order and Order on Reconsideration

    1. In 1978, Congress added section 224 to the Communications Act of 
1934, as amended (Communications Act or Act) thereby directing the 
Commission to ensure that the rates, terms, and conditions for pole 
attachments by cable television systems are just and reasonable. 
Section 224 provides that the Commission will regulate pole attachments 
except where such matters are regulated by a state. Section 224 also 
withholds from the Commission jurisdiction to regulate attachments

[[Page 26621]]

where the utility is a railroad, cooperatively organized, or owned by a 
government entity.
    2. The Telecommunications Act of 1996 (1996 Act) expanded the 
definition of pole attachments to include attachments by providers of 
telecommunications service, and granted both cable systems and 
telecommunications carriers an affirmative right of nondiscriminatory 
access to any pole, duct, conduit, or right-of-way owned or controlled 
by a utility. However, the 1996 Act permits utilities to deny access 
where there is insufficient capacity and for reasons of safety, 
reliability or generally applicable engineering purposes. Besides 
establishing a right of access, the 1996 Act set forth section 224(e) 
-- a rate methodology for ``attachments used by telecommunications 
carriers to provide telecommunications services'' -- in addition to the 
existing methodology in section 224(d) for attachments ``used by a 
cable television system solely to provide cable service.''
    3. The Commission implemented the new section 224 access 
requirements in the Local Competition Order (47 FR 47283, Sept. 6, 
1996, FCC 96-333, rel. Aug. 8, 1996). At that time, the Commission 
concluded that it would determine the reasonableness of a particular 
condition of access on a case-by-case basis. Finding that no single set 
of rules could take into account all attachment issues, the Commission 
specifically declined to adopt the National Electrical Safety Code 
(NESC) in lieu of access rules. The Commission also recognized that 
utilities typically develop individual standards and incorporate them 
into pole attachment agreements, and that, in some cases, Federal, 
state, or local laws also impose relevant restrictions. The Local 
Competition Order acknowledged concerns that utilities might deny 
access unreasonably, but, rather than adopt a set of substantive 
engineering standards, the Commission decided that procedures for 
requiring utilities to justify the conditions they placed on access 
would best safeguard attachers' rights. The Commission did adopt five 
rules of general applicability and several broad policy guidelines in 
the Local Competition Order. The Commission also stated that it would 
monitor the effect of the case-specific approach, and would propose 
specific rules at a later date if conditions warranted.
    4. In the 1998 Implementation Order (63 FR 12013, Mar. 12, 1998, 
FCC 98-20, rel. Feb. 6, 1998), the Commission adopted rules 
implementing the 1996 Act's new pole attachment rate formula for 
telecommunications carriers. The Commission also concluded that cable 
television systems offering both cable and Internet access service 
should continue to pay the cable rate. The Commission further held that 
wireless carriers had a statutory right of nondiscriminatory access to 
poles. Although the latter two determinations were challenged, both 
were ultimately upheld by the Supreme Court. In particular, the Court 
held that section 224 gives the Commission broad authority to adopt 
just and reasonable rates. The Court also deferred to the Commission's 
conclusion that wireless carriers are entitled by section 224 to attach 
facilities to poles.
    5. On November 20, 2007, the Commission issued the Pole Attachment 
NPRM (73 FR 6879, Feb. 6, 2008, FCC 07-187, rel. Nov. 20, 2007) in 
recognition of the importance of pole attachments to the deployment of 
communications networks, in part in response to petitions for 
rulemaking from USTelecom and Fibertech Networks. USTelecom argued that 
incumbent LECs, as providers of telecommunications service, are 
entitled to just and reasonable pole attachment rates, terms, and 
conditions of attachment even though, under section 224, they are not 
included in the term ``telecommunications carriers'' and therefore have 
no statutory right of access. Fibertech petitioned the Commission to 
initiate a rulemaking to set access standards for pole attachments, 
including standards for timely performance of make-ready work, use of 
boxing and extension arms, and use of qualified third-party contract 
workers, among other concerns. The Pole Attachment NPRM sought comment 
on the concerns raised by USTelecom and Fibertech, as well as the 
application of the telecommunications rate to wireless pole attachments 
and other pole access concerns.
    6. The American Recovery and Reinvestment Act of 2009 included a 
requirement that the Commission develop a national broadband plan to 
ensure that every American has access to broadband capability. On March 
16, 2010, the National Broadband Plan was released, and identified 
access to rights-of-way--including access to poles--as having a 
significant impact on the deployment of broadband networks. 
Accordingly, the Plan included several recommendations regarding pole 
attachment access, enforcement, and pricing policies to further advance 
broadband deployment.
    7. On May 20, 2010, the Commission issued the Pole Attachment Order 
and FNPRM. In the 2010 Order (75 FR 45494, Aug. 3, 2010, FCC 10-84, 
rel. May 20, 2010), the Commission took initial steps to clarify the 
rules governing pole attachments and to streamline the pole attachment 
process. The Commission clarified the statutory right of communications 
providers to use the same space- and cost-saving techniques that pole 
owners use, such as placing attachments on both sides of a pole 
(boxing), and established that providers have a statutory right to 
timely access to poles. In the FNPRM (75 FR 41338, July 15, 2010, FCC 
10-84, rel. May 20, 2010), the Commission sought comment on a variety 
of measures to speed access to poles. The Commission proposed a 
comprehensive timeline for all wired pole attachment requests and 
sought comment on possible adjustments to that timeline. The Commission 
sought comment on whether to adopt a separate timeline for wireless 
attachments. The Commission proposed to permit attachers to use 
independent contractors to perform surveys and make-ready work if the 
pole owner missed its deadlines, subject to certain conditions. The 
Commission further proposed that utilities may deny access by 
contractors to work among the electric lines. In addition, the 
Commission proposed a staggered payment system for make-ready work; 
proposed requiring a schedule of make-ready charges; proposed requiring 
joint pole owners to designate a single managing utility; and sought 
comment on improving the collection and availability of data.
    8. The Commission also sought comment on whether current rules 
governing pole attachment complaints create appropriate incentives for 
parties to settle or resolve disputes informally, and whether 
appropriate remedies are available when parties pursue formal 
complaints. The FNPRM sought comment on ways to reduce the existing 
disparities in pole rental rates and proposed to address those 
disparities by reinterpreting the telecom rate formula and by 
considering the issues surrounding possible regulation of pole 
attachments by incumbent local exchange carriers (LECs).
    9. On September 2, 2010, various electric utilities and cable 
providers filed petitions seeking clarification or reconsideration of 
parts of the 2010 Order concerning the nondiscriminatory use of 
attachment techniques. The petitions ask the Commission to clarify, 
among other things, whether a utility must allow attachers to use the 
same attachment techniques that it uses for itself in the electric 
space, and whether a pole owner is free to impose new boxing and 
extension arm requirements going forward.

[[Page 26622]]

    10. The Commission has held workshops addressing pole attachment 
issues. On September 28, 2010 the Wireline Competition Bureau convened 
a workshop to ``learn from the experiences and insights of state 
regulators regarding the Commission's proposed pole attachment 
regulations.'' On February 9, 2011, the Commission held a Broadband 
Acceleration Conference that brought together leaders from Federal, 
state, and local governments; broadband providers; telecommunications 
carriers; tower companies; equipment suppliers; and utility companies 
to identify opportunities to reduce regulatory and other barriers to 
broadband build-out. At this conference, the Commission announced its 
Broadband Acceleration Initiative: an agenda for work inside the 
Commission, with our partners in Tribal, state, and local government, 
and with the private sector to reduce barriers to broadband deployment.

Improved Access to Utility Poles

    11. We take several steps to improve access to utility poles. Our 
rules are generally consistent with proposals in the FNPRM, but also 
reflect a close examination of the record developed in this proceeding. 
We adopt a four-stage timeline that provides a maximum of 148 days for 
attachers to access the communications space on utility poles. For 
wireless attachments above the communications space, we adopt a 
modified form of the timeline. The timeline begins to run after the 
requester submits a complete application. We also establish that a 
utility may stop the clock for emergencies pursuant to a ``good and 
sufficient cause'' standard. We adopt rules that allow attachers to use 
independent contractors pre-authorized by the utilities to complete 
survey and make-ready work in the communications space, subject to a 
number of protections and conditions, if the pole owner does not meet 
the prescribed timelines. In particular, electric utilities have 
ultimate decision-making authority regarding the contractor's work with 
respect to section 224(f)(2) denial-of-access issues.
    12. We allow a utility to limit on a per-state basis the size of a 
pole attachment request that is subject to the timeline, and allow 
extra time for large orders. Specifically, we apply the basic timeline 
to requests of up to 300 pole attachments per state or attachments to 
0.5 percent of the utility's in-state poles, whichever is less. For 
larger requests of up to 3,000 pole attachments per state or 5 percent 
of the utility's in-state poles, whichever is less, additional time is 
provided for survey and make-ready. Utilities may treat multiple in-
state requests from a single attacher during a 30-day period as one 
request. Our rules further provide that any denial of a request to 
attach must cite with specificity the particular safety, reliability, 
engineering, or other valid concern that is the basis for denial. We 
clarify that blanket prohibitions on pole top access are not permitted. 
And, as noted elsewhere in the Order, we encourage a high degree of 
pre-planning and coordination between attachers and pole owners, to 
begin as early in the process as possible.
    13. We decline to adopt several proposals set forth in the FNPRM or 
that commenters recommend, and explain those decisions. For example, we 
determine that the timeline will provide adequate incentives for joint 
owners of poles to coordinate, and thus do not require joint owners to 
name a single management entity. We also conclude that several 
subsections of section 224 provide the Commission with sufficient 
authority to adopt a timeline and other access rules.

A. Timeline for Section 224 Access.

    14. For most attachments, the total time from submission of the 
request through completion of make-ready should take between 105 and 
148 days, depending on how long the parties take to prepare and accept 
an estimate. Attachers may hire contractors authorized by the utility 
to complete make-ready either on the 133rd or 148th day, depending on 
whether an owner timely notifies the attacher that it intends to move 
existing facilities and conduct make-ready if existing attachers have 
failed to move their attachments. Although we establish this timeline 
as a maximum, we recognize that the necessary work can often proceed 
more rapidly, especially at the estimate and acceptance stages, or for 
relatively routine requests. It would not be reasonable behavior for a 
utility to take longer to fulfill any requests simply because a 
timeline with maximum timeframes is being adopted. Likewise, for large 
orders, we allow 15 more days for the survey and 45 more days to 
complete make-ready.
    15. Stage 1--Survey: 45 days. We require a utility to respond 
within 45 days of receipt of a complete application to attach 
facilities on the utility's poles--for both wireline and wireless 
attachments either in or above the communications space. This required 
response is specified in our current 45-day response rule, which 
provides that, where a utility denies an attachment request, it must 
provide a written explanation of its denial that is specific; include 
all supporting evidence and information; and explain how the evidence 
and information relate to reasons of lack of capacity, safety, 
reliability, or engineering standards. The 45-day period also accords 
with the ``survey'' period in some state models and a proposal in the 
record. Indeed, the FNPRM stated that ``[the 45-day response] rule is 
functionally identical to a requirement for a survey and engineering 
analysis when applied to wired facilities, and is generally understood 
by utilities as such.'' No commenter disagrees, and most utilities 
regularly meet this deadline. According to a Utilities Telecom Council 
survey of its members, utilities meet the 45-day requirement 81 percent 
of the time. More than half of the missed deadlines are caused by 
either the size of the project or errors in the application. Our new 
rules address both of these problems: under the rules we adopt today 
the timeline does not start until a completed application is submitted, 
and there is flexibility for larger orders. Thus, we expect that 
utilities acting diligently and in good faith will be able to conduct 
surveys within the prescribed 45-day period. Owners are given an 
additional 15 days for large orders.
    16. To constitute a ``request for access'' necessary to trigger the 
timeline, a requester must submit a complete application that provides 
the utility with the information necessary under its procedures to 
begin to survey the poles. We find that pole owners must timely notify 
attachers of errors in an application, and may not stop the clock to 
correct errors in an application once it is accepted as complete, as 
surveys that are not interrupted are more conducive to dependable 
timeframes. Furthermore, the timing of any such notification of 
deficiencies in an application must be reasonable. If the request 
involves attachment of facilities that are unfamiliar to the utility, 
engineering specifications must be established prior to submission of 
the application. If an application is submitted for which such 
engineering specifications have not been established, the pole owner 
must respond in a manner that is reasonable and timely under the 
circumstances, but in any event within 45 days. We leave the specific 
processes for establishing such engineering specifications to 
individual utilities, so long as they are reasonable and timely.
    17. Stages 2 and 3--Estimate and Acceptance: Where a request for 
access is not denied, a utility must present to a requesting entity an 
estimate of charges to perform all necessary make-

[[Page 26623]]

ready work within 14 days of providing its Stage 1 response--or within 
14 days after the requesting entity delivers its own survey to the pole 
owner, as it may do if the pole owner fails to meet the timeline's 
Stage 1 deadline. The requesting entity may consider the estimate for 
14 days after receiving it before the utility may withdraw the offer. 
Both offer and acceptance may be made sooner than the maximum 14 days. 
Estimates will not expire automatically after 14 days, but rather must 
be actively withdrawn by the utility. If an estimate is withdrawn by 
the utility, the prospective attacher must resubmit its application for 
attachment.
    18. Stage 4--Make-Ready: Upon receipt of payment from the attacher, 
we require a utility to notify immediately and in writing all known 
entities with existing attachments that may be affected by the planned 
make-ready. The notice shall: (1) Specify where and what make-ready 
will be performed; (2) set a date for completion of make-ready no later 
than 60 days after notification (or 105 days after notification in the 
case of larger orders) for attachments in the communications space, or 
no later than 90 days after notification (or 135 days after 
notification in the case of larger orders) for wireless attachments 
above the communications space; (3) state that any entity with an 
existing attachment may add to or modify the attachment before the date 
set for completion of make-ready; (4) state that the utility may assert 
its right to 15 additional days to complete make-ready and that, for 
attachment in the communications space, the requesting entity may 
complete the specified make-ready itself if make-ready is not completed 
by the date set by the utility (or, if the utility has asserted its 15-
day right of control, by the date 15 days after that completion date); 
and (5) state the name, telephone number, and e-mail address of a 
person to contact for more information about the make-ready procedure. 
Under normal circumstances, performance of make-ready will complete the 
elements of the timeline that precede actual attachment.
    19. For wireless attachments above the communications space on a 
pole, we include an extra 30 days for make-ready for two reasons. 
First, these attachments generally are located in, near or above the 
electric space, which can raise significant safety concerns. Second, 
the record reflects that, at present, there is less experience with 
application of state timelines to attachments at the pole top, and in 
those circumstances, it is appropriate to err on the side of caution. 
Also, we follow state models that allow additional days for make-ready 
for large orders within a single state.
    20. Completion by Owner: If make-ready is not completed by the date 
specified in the utility's notice to entities with existing 
attachments, a utility, prior to the expiration of the 60-day notice 
period (or 105-day notice period in the case of larger orders), may 
notify the requesting attacher in writing that it intends to assert its 
right to complete all remaining work within 15 days. In such cases, the 
utility will have an additional 15 days to complete make-ready. If 
make-ready remains unfinished at the end of the 15-day extension, the 
attacher may assume control of make-ready at that point (Day 148 of the 
timeline, or Day 193 in the case of larger orders). Thus, we permit a 
pole owner to assert its right to 15 days to complete make-ready in 
lieu of adopting an automatic fifth stage for ``multi-party 
coordination'' as proposed in the FNPRM. For attachments in the 
communications space, if the utility does not timely assert its right 
to 15 extra days to perform make-ready, control of the project 
transfers to the new attacher immediately at the end of the 60-day 
period (or 105-day period in the case of larger orders), and the 
attacher may use a contractor to complete make-ready.
    21. Scope of the Timeline. The timeline we adopted--which is 
modeled after the timeline that has been in use in Utah--applies to all 
requests by telecommunications carriers (including wireless) and cable 
operators for attachment in the communications space on a pole. The 
timeline begins when an application is complete, such that the utility 
has been provided with the information necessary under its procedures 
to begin to survey the requested pole(s), including developed 
engineering specifications for the particular equipment to be attached. 
A modified form of the timeline applies to wireless attachments by 
telecommunications carriers and cable operators that are made above the 
communications space. The timeline does not apply to section 224 ducts, 
conduits, or rights-of-way. We affirm that completion of an initial 
pole attachment agreement or ``master agreement'' is not a prerequisite 
to starting the clock on a completed application, which may have 
multiple attachment requests within it. Applications that are outside 
the scope of the timeline remain subject to the general requirement 
that the pole owner provide a specific written response within 45 days.
    22. Remedy: Utility-Approved Contractors. Requesters need a way to 
obtain access to poles if a utility does not meet the deadlines we 
impose. We adopt the proposal in the FNPRM and hold that, if a utility 
does not meet the deadline to complete a survey or make-ready 
established in the timeline, an attacher may hire contractors to 
complete the work in the communications space. We require each utility 
to make available a reasonably sufficient list of contractors that it 
authorizes to perform surveys or make-ready on its poles, and require 
that the attacher must use contractors from this list. We also seek to 
ensure that safety and network integrity are preserved at all costs. 
Thus, we require attachers that hire contractors to perform survey and 
make-ready work to provide a utility with an opportunity for a utility 
representative to accompany and consult with the attacher and its 
contractor prior to commencement of any make-ready work by the 
contractor. Consulting electric utilities are entitled to make final 
determinations in case of disputes over capacity, safety, reliability, 
and generally applicable engineering purposes.
    23. Limit on Order Size. Based on the record before us and 
successful state models, we adopt limits on the size of attachment 
requests that are subject to the timelines we adopt today. The limits 
on size of attachment requests apply both to attachments in the 
communications space and the longer timeline for wireless attachments 
above the communications space. Specifically, we apply the timeline to 
orders up to the lesser of 0.5 percent of the utility's total poles 
within a state or 300 poles within a state during any 30-day period. 
For larger orders--up to the lesser of 5 percent of a utility's total 
poles in a state or 3,000 poles within a state--we add 15 days to the 
timeline's survey period and 45 days to the timeline's make-ready 
period, for a total of 60 days. For in-state orders greater than 3,000 
poles, we require parties to negotiate in good faith regarding the 
timeframe for completing the job. An attacher always has the ability to 
submit requests of up to 3,000 poles in any 30-day period, so an 
attacher could start a 9,000 pole order within a single state through 
the timeline over three successive months.
    24. Stopping the Clock. Emergencies and certain events during the 
make-ready phase that are beyond a utility's control may legitimately 
interrupt pole attachment projects, and the FNPRM sought comment on how 
best to reconcile the timeline with this reality. We adopt a ``good and 
sufficient cause'' standard under which a utility may toll the timeline 
for no longer than necessary where conditions render it

[[Page 26624]]

infeasible to complete the make-ready work within the prescribed 
timeframe. A utility must exercise its judgment in invoking a clock 
stoppage in the context of its general duty to provide timely and 
nondiscriminatory access, and an attacher may challenge a utility's 
failure to either meet its deadline or surrender control of make-ready 
if a clock stoppage is not justified by good and sufficient cause.

B. Wireless

    25. Specificity of Denials. We clarify that, regardless of whether 
a utility has a master agreement with a wireless carrier, the 
specificity requirement of Sec.  1.1403(b) of the Commission's rules 
applies to all denials of requests for access. The Commission's rules 
require that, when a utility denies a request for access, it must state 
with specificity its reasons for doing so. Section 1.1403(b) of the 
Commission's rules requires that denials of access be confirmed in 
writing within 45 days of the request. The utility also ``shall be 
specific, shall include all relevant evidence and information 
supporting its denial, and shall explain how such evidence and 
information relate to a denial of access for reasons of lack of 
capacity, safety, reliability or engineering standards.'' In the FNPRM, 
the Commission proposed that, where a utility has no master agreement 
with a carrier for wireless attachments requested, the utility may 
satisfy the requirement to respond with a written explanation of its 
concerns with regard to capacity, safety, reliability, or engineering 
standards.
    26. Pole Tops. We clarify that section 224 allows wireless 
attachers to access the space above what has traditionally been 
referred to as ``communications space'' on a pole. On previous 
occasions, the Commission has declined to establish a presumption that 
this space may be reserved for utility use only, and has stated that 
the only recognized limits to access for antenna placement are those 
contained in the statute. Yet wireless attachers assert that pole top 
access is persistently challenged by pole owners, who often impose 
blanket prohibitions on attaching to some or all pole tops. Blanket 
prohibitions are not permitted under the Commission's rules. We reject 
the assertions of some utilities that our rule regarding pole tops will 
create a ``de facto presumption in favor of pole top attachments'' or 
otherwise ``restrict an electric utility's right to deny access for 
reasons of safety and reliability.'' Instead, we clarify that a 
wireless carrier's right to attach to pole tops is the same as it is to 
attach to any other part of a pole. Utilities may deny access ``where 
there is insufficient capacity, and for reasons of safety, reliability, 
and generally applicable engineering purposes.'' The record in this 
proceeding is replete with examples of various types of pole top 
attachments that have been successfully accommodated, both for wireless 
attachers and for the utilities themselves.

C. Use of Contractors for Attachment

    27. As proposed in the FNPRM, we resolve an ambiguity in the 
Commission's rules regarding the use of contractors to attach 
facilities ``in the proximity of electric lines'' after make-ready has 
been completed and attachment permits issued. Specifically, we clarify 
that ``proximity of electric lines'' in this context includes work that 
extends into the safety space that separates the communications space 
from the electric space, but does not include work among the power 
lines. While an attacher may use a contractor to attach a wireless 
antenna above the communications space and associated safety space, we 
find that an attacher may only use a contractor that has the proper 
qualifications and that the utility has approved to perform such work. 
Utilities are not required to keep a separate list of contractors for 
this purpose, but must be reasonable in approving or disapproving 
contractors. Accordingly, the standard for attachment by a contractor 
in the communications space remains that of the ``same qualifications'' 
as the utility, but any attachment in the electric space must be at the 
higher utility-approved standard.

D. Joint Ownership

    28. In the FNPRM, we proposed to require owners to consolidate 
authority in one managing utility when more than one utility owns a 
pole and to make the identity of this managing utility publicly 
available. We decline to adopt the proposed rules relating to joint 
ownership, but we clarify and emphasize that we expect joint owners to 
coordinate and cooperate with each other and with requesting attachers 
consistent with pole owners' duty to provide just and reasonable 
access.

E. Legal Authority

    29. We conclude that section 224 authorizes the Commission to 
promulgate the access rules we adopted, including the timeline and its 
self-effectuating remedy for failure to meet the timeline in the 
communications space. Through section 224(b)(1), Congress explicitly 
delegated authority to the Commission to ``regulate the rates, terms, 
and conditions for pole attachments,'' as well as to develop procedures 
necessary for resolving complaints arising under the Commission's 
substantive regulations, and to fashion appropriate remedies. In 
addition, section 224(b)(2) directs the Commission to make rules to 
carry out the provisions of this section. Congress also gave more 
specific substantive guidance for access to poles in section 224(f): 
``just and reasonable'' access must also be ``nondiscriminatory.''

Improving the Enforcement Process

    30. Revising Pole Attachment Dispute Resolution Procedures. In the 
FNPRM, we sought comment on whether the Commission should modify its 
existing procedural rules governing pole attachment complaints. Several 
commenters expressed the view that new procedures and processes are not 
needed or that existing procedures can be improved to address any 
problems. Similarly, there was little discussion of, or support for, 
the formation of specialized forums to address enforcement issues. 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.
    31. 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 disputes prior to the 
initiation of litigation. We believe a requirement similar to that 
imposed by the California Public Utility Commission, requiring 
``executive-level'' discussions, should be incorporated into the 
Commission's rules. We therefore revise Commission rule Sec.   
1.1404(k) to require that there be ``executive-level discussions'' 
(i.e., discussions among individuals who have sufficient authority to 
make binding decisions on behalf of the company they represent), 
preferably face-to-face, prior to the filing of a complaint at the 
Commission. We will consider in any enforcement proceedings whether 
such coordination has taken place.
    32. In addition, a number of commenters expressed concern about the 
length of time it takes for the Commission to resolve pole attachment 
complaints. We believe that the new

[[Page 26625]]

processes adopted elsewhere in the Order will have the effect of 
expediting the pole access process. And, to the extent that access 
disputes remain a problem, we will make every effort to resolve them 
expeditiously. We do not believe that other substantial changes, such 
as new procedures or specialized forums, are justified at this time.
    33. Efficient Informal Dispute Resolution Process. The FNPRM sought 
comment on whether the Commission should attempt to encourage ``local 
dispute resolution,'' and several commenters endorsed the notion. We 
agree, and believe that it is desirable for parties to include dispute 
resolution procedures in their pole attachment agreements. Any refusal 
to enter into an agreement because it contains a dispute resolution 
provision would be considered unreasonable. We suggest that issues to 
be addressed specifically in a dispute resolution provision might 
include the requirement of executive-level settlement negotiations, and 
reliance on a forum other than the Commission (e.g., an arbitrator or 
expert panel) to resolve disputes. We also note that the Commission's 
pre-complaint mediation process has had marked success in helping 
parties resolve pole attachment disputes, and we encourage parties to 
utilize that process.
    34. This Order also concludes, as proposed in the FNPRM, that the 
portion of the Commission's rules Sec.  1.1404(m) that provides that 
potential attachers who are denied access to a pole, duct, or conduit 
must file a complaint ``within 30 days of such denial'' should be 
eliminated. We believe the 30-day rule no longer serves a useful 
purpose, and is actually counterproductive at times. Any concern about 
stale complaints is addressed by our modifications of the Commission's 
rules Sec.  1.1410, which state that remedies must be ``consistent with 
the applicable statute of limitations.'' We therefore eliminate the 
portion of the Commission's rules Sec.  1.1404(m) requiring that denial 
of access complaints be filed within 30 days.
    35. Remedies. The FNPRM proposed to amend Sec.  1.1410 of the 
Commission's pole attachment complaint rules to enumerate the remedies 
available to an attacher that proves a utility has unlawfully delayed 
or denied access to its poles, simply codifying the existing authority 
and practice, and we accordingly adopt the rule change as proposed. The 
FNPRM also proposed to amend the Commission's rules Sec.  1.1410 to 
specify that compensatory damages may be awarded where an unlawful 
denial or delay of access is established, or a rate, term, or condition 
is found to be unjust and unreasonable. After reviewing voluminous and 
sharply divided comments on this question, we decline, at this time, to 
amend the Commission's rules Sec.  1.1410 to allow compensatory 
damages. Given all of the rules designed to improve and expedite pole 
access that we adopt herein, we anticipate that attachers will 
experience far fewer difficulties than they have to date.
    36. We also adopt the proposed modification of the Commission's 
rules Sec.  1.1410(c), which permits a monetary award in the form of a 
``refund or payment,'' measured ``from the date that the complaint, as 
acceptable, was filed, plus interest.'' We believe that this 
modification, which will allow monetary recovery in a pole attachment 
action to extend back as far as the applicable statute of limitations, 
will make injured attachers whole, and will be consistent with the way 
that claims for monetary recovery are generally treated under the law. 
It will also remove the perceived impediment to pre-complaint 
negotiations between the parties to resolve disputes about rates, terms 
and conditions of attachment. We reject the contention that the 
proposed rule change creates an incentive for attaching entities to 
attempt to maximize their monetary recovery by waiting until shortly 
before the statute of limitations has expired to bring a dispute over 
rates to the Commission.
    37. Unauthorized Attachments. In modifying our rules regarding 
penalties for unauthorized attachments, we acknowledge the wide range 
of opinions among commenters regarding the scope of the problem posed 
by unauthorized attachments. Although the record is insufficient for us 
to make specific findings regarding the scope and severity of non-
compliance, there appears to be a well-founded concern that the current 
unauthorized attachment regime (i.e., the Mile Hi case), which involves 
payment amounting to no more than back rent, provides little incentive 
for attachers to follow authorization processes, and that competitive 
pressure to bring services to market overwhelms any deterrent effect. 
That said, we take seriously the arguments by attachers that utilities 
may deem attachments to be unauthorized because of poor record keeping 
or changes in pole ownership, rather than because of the attacher's 
failure to follow proper protocol. Consequently, the policy we 
enunciate today applies on a prospective basis only--i.e., to new 
agreements, or amendments to existing agreements, executed after the 
effective date of this Order.
    38. To address the concerns implicated by unauthorized attachments, 
we explicitly abandon the Mile Hi limitation on penalties and instead 
create a safe harbor for more substantial penalties. Specifically, 
going forward, we will consider contract-based penalties for 
unauthorized attachments to be presumptively reasonable if they do not 
exceed those implemented by the Oregon PUC. Oregon has established a 
multifaceted system that contains, among others, the following 
provisions:
     An unauthorized attachment fee of $500 per pole for pole 
occupants without a contract (i.e., when there is no pole attachment 
agreement between the parties);
     An unauthorized attachment fee of five times the current 
annual rental fee per pole if the pole occupant does not have a permit 
and the violation is self-reported or discovered through a joint 
inspection, with an additional sanction of $100 per pole if the 
violation is found by the pole owner in an inspection in which the pole 
occupant has declined to participate.
     A requirement that the pole owner provide specific notice 
of a violation (including pole number and location) before seeking 
relief against a pole occupant.
     An opportunity for attachers to avoid sanctions by 
submitting plans of correction within 60 calendar days of receipt of 
notification of a violation or by correcting the violation and 
providing notice of the correction to the owner within 180 calendar 
days of receipt of notification of the violation.
     A mutual obligation of pole owners and pole occupants to 
correct immediately violations that pose imminent danger to life or 
property. If a party corrects another party's violation, the party 
responsible for the violation must reimburse the correcting party for 
the actual cost of corrections.
     The opportunity for resolution of factual disputes via 
settlement conferences before an alternative dispute resolution forum.
    39. In a case where an attacher makes unauthorized attachments to a 
pole at a time when the attacher has no pole attachment agreement with 
the utility, but later enters into such an agreement, we find that it 
would be reasonable for the utility to apply the unauthorized 
attachment provisions in that agreement to attachments that were made 
before the agreement was executed, as well as to any unauthorized 
attachments made following execution. If an attacher who has made 
unauthorized attachments without any contract with the utility refuses 
to enter into a pole attachment

[[Page 26626]]

agreement, the utility may seek other remedies including, for example, 
an action in state court for trespass.
    40. We do not adopt the Oregon system as Federal law, but rather 
continue to favor agreements negotiated between utilities and attaching 
entities. We simply conclude that we have examined Oregon's rules and 
find them to be reasonable, and that we would expect to find reasonable 
any unauthorized attachment provisions contained in agreements that do 
not exceed the Oregon penalties. As noted above, however, the Oregon 
sanctions are part of a larger system that also affords protections to 
attachers that operate in good faith. Consequently, we anticipate that, 
like the Oregon system, a reasonable pole attachment agreement also 
will contain provisions that provide notice to attachers, a fair 
opportunity to remedy violations, and a reasonable process for 
resolving factual disputes that may arise.
    41. The ``Sign and Sue'' Rule. Our review of the comments 
responding to the FNPRM's proposal to revise the Commission's long-
standing ``sign and sue'' rule, which allows an attacher to challenge 
the lawfulness of terms in an executed pole attachment agreement that 
the attacher claims it was coerced to accept in order to gain access to 
utility poles, persuades us that the Commission should not amend Sec.  
1.1404(d) of the Commission's rules to add a notice requirement to the 
``sign and sue'' rule. Such a requirement poses a significant risk of 
unduly delaying the negotiation process and adding unnecessary 
complexity to the adjudication of pole attachment disputes before the 
Commission. Moreover, we find that a number of the intended benefits of 
the proposed notice provision will be realized through the amendment to 
the Commission's rules Sec.  1.1404(k), requiring executive-level 
discussions between the parties.

Pole Rental Rates

    42. In the FNPRM, the Commission sought to limit the distortions 
present in the current pole rental rates ``to increase the availability 
of, and competition for, advanced services to anchor institutions and 
as middle-mile inputs to wireless services and other broadband 
services,'' some of which potentially could be classified as 
telecommunications services. Accordingly, the Commission sought comment 
on alternative approaches for reinterpreting the telecom rate formula 
within the existing statutory framework, including a specific 
Commission proposal based on elements proposed by TW Telecom (TWTC). 
This approach was consistent with the National Broadband Plan's 
recommendation to establish rates ``as low and close to uniform as 
possible'' based on evidence that the uncertainty regarding the 
applicable rate ``may be deterring broadband providers that pay lower 
pole rates from extending their networks or adding capabilities (such 
as high-capacity links to wireless towers).'' This uncertainty results 
from the risk that, by offering services that potentially could be 
classified as ``telecommunications services,'' a higher telecom rental 
rate might then be applied to the broadband provider's entire network.

A. The New Telecom Pole Rental Rate

    43. The Commission adopts a modified form of the FNPRM's proposal 
as the new telecom rate. The new telecom rate generally will recover 
the same portion of pole costs as the current cable rate, is fully 
compensatory, and is grounded in sound economic policies. Accordingly, 
the new rate will minimize the difference in rental rates paid for 
attachments that are used to provide voice, data, and video services, 
and thus will help remove market distortions that affect attachers' 
deployment decisions. Removing these barriers to telecommunications and 
cable deployment will enable consumers to benefit through increased 
competition, affordability, and availability of advanced communications 
services, including broadband.
    44. The Order reinterprets the telecommunications rate formula for 
pole attachments consistent with its authority and the existing 
statutory framework. The Commission identifies a range of possible 
rates consistent with section 224(e), from the current application of 
the telecom rate formula based on fully allocated costs at the upper 
end, to an alternative application of the telecom rate formula based on 
cost causation principles that results in a rate closer to incremental 
costs at the lower end. Within that range, Commission seeks to balance 
the goals of promoting broadband and other communications services with 
the historical role that pole rental rates have played in supporting 
the investment in pole infrastructure, and thus define the ambiguous 
statutory term ``cost of providing space'' on that basis.
    45. Upper-Bound Rate. To begin identifying the range of reasonable 
rates that could result from the telecom rate formula, we first 
identify the present telecom rate as a reasonable upper bound. The 
Commission's current telecom rate formula is based on a fully allocated 
cost methodology, which recovers costs that the pole owner incurs 
regardless of the presence of attachments. It includes a full range of 
costs, some of which do not directly relate to or vary with the 
presence of pole attachments.
    46. Lower-Bound Rate. As the Commission observed in the FNPRM, ``a 
rate that covers the pole owners' incremental cost associated with 
attachment would, in principle, provide a reasonable lower limit.'' 
However, the section 224(e) formulas allocate the relevant costs in 
such a way that simply defining ``cost'' as equal to incremental cost, 
as TWTC initially proposed, would result in pole rental rates below 
incremental cost.
    47. Thus, to identify a lower-bound rate that is consistent with 
this statutory framework--and enables costs to be allocated based on 
the prescribed cost-apportionment formulas--the Commission relies on 
the basic principles of cost causation that would underlie a marginal 
cost rate without defining ``cost'' as equivalent to marginal or 
incremental cost per se. Under cost causation principles, if a customer 
is causally responsible for the incurrence of a cost, then that 
customer--the cost causer--pays a rate that covers this cost. This is 
consistent with the Commission's existing approach in the make-ready 
context, where a pole owner recovers the entire associated capital 
costs through make-ready fees.
    48. For purposes of identifying a lower bound for the telecom pole 
rental rate, we exclude capital costs from the definition of ``cost of 
providing space.'' As an initial matter, we note that if capital costs 
arise from the make-ready process, existing rules are designed to 
require attachers to bear the entire amount of those costs. With 
respect to other capital costs, the record demonstrates that the 
attacher is not the ``cost causer'' of these costs. In the case here of 
applying cost-causation principles to identify the lower-bound telecom 
rate, the record includes findings by economists and analysts that 
capital costs are justifiably excluded from the lower-bound rate 
because the attachers cause none or no more than a de minimis amount of 
these costs, other than those that are recovered up front through the 
make-ready fees.
    49. By contrast, we continue to include certain operating 
expenses--namely maintenance and administrative expenses--in the 
definition of ``cost'' for purposes of the lower bound telecom rate 
formula. This is generally consistent with cost causation principles 
because it is likely that an attacher is causally responsible for some 
of the ongoing maintenance and administrative expenses relating to use

[[Page 26627]]

of the pole. Although the attacher might not be the cost causer with 
respect to all the operating costs that would be included in the lower 
bound telecom rate, Congress' intention was that the Commission not 
``embark upon a large-scale ratemaking proceeding in each case brought 
before it, or by general order'' to establish pole rental rates.
    50. Determining the New Just and Reasonable Telecom Rate. From 
within the range of possible interpretations of the term ``cost'' for 
purposes of section 224(e), the Commission adopts a particular 
definition of cost, and therefore a particular rate as the appropriate 
just and reasonable telecom rate. The definition of cost we select is 
based on a balancing of policy goals. We seek to ensure that the 
Commission's policies promote the availability of broadband services 
and efficient competition for those services. We also recognize, 
however, that pole rental rates historically have helped support the 
investment utilities make in their pole infrastructure, and acknowledge 
utilities' policy concerns about shifting that burden to utility 
ratepayers.
    51. We agree with commenters who explain that today, the telecom 
rate is sufficiently high that it hinders important statutory 
objectives. For example, commenters explain that reducing the telecom 
rate would improve the business case for providing advanced services, 
because it will reduce the expected incremental cash outflows of 
providing such services, thereby increasing the likelihood that the 
present value of the expected incremental cash inflows will exceed the 
present value of the expected incremental cash outflows. In addition to 
reducing barriers to the provision of new services, reducing the 
telecom rate can expand opportunities for communications network 
investment. We thus conclude that lowering the telecom rates will 
better enable providers to compete on a level playing field, will 
eliminate distortions in end-user choices between technologies, and 
lead to provider behavior being driven more by underlying economic 
costs than arbitrary price differentials. We also find persuasive the 
views of consumer advocates in this respect. Notably, ``NASUCA members 
are interested in keeping the costs of pole attachments down, so as to 
keep the costs of the[se] services * * * down. But NASUCA members also 
* * * are interested in ensuring that pole attachment rates 
appropriately compensate the owners of the poles, so that other 
services are not required to subsidize the attachments.'' Balancing 
these concerns, NASUCA recommends that the cable rate ``should be used 
for all pole attachments.''
    52. We also observe that pole owners have the opportunity to 
recover through make-ready fees all of the capital costs actually 
caused by third-party attachers. As a result, the pole owner need not 
bear any significant risk of unrecovered pole investment undertaken to 
accommodate a third-party attacher. Thus, permitting recovery of 100 
percent of apportioned, fully allocated costs through the pole rental 
rate seems unwarranted under the statute and could undermine 
furtherance of important statutory objectives.
    53. Although we do not permit utilities to recover 100 percent of 
apportioned, fully allocated costs through the new telecom rate, we 
find it appropriate to allow the pole owner to charge a monthly pole 
rental rate that reflects some contribution to capital costs, aside 
from those recovered through make-ready fees. For example, regulated 
pole attachment rates historically have included such a contribution, 
and we are concerned that adopting a telecom rate that no longer 
permits utilities to recover such capital costs would unduly burden 
their ratepayers. We are also mindful of the possible adverse impact of 
other pole attachment reforms. For one, our regulation of rates for 
attachments by incumbent LECs could reduce the amount of costs that 
utilities are able to recover from other sources. Moreover, in 
conjunction with the pole access reforms adopted in this Order, we are 
mindful of Congress' expectation that the priority afforded an 
attacher's access to poles would relate to its sharing in the costs of 
that infrastructure. We balance these considerations by adopting, in 
most cases, the following definition of ``cost'' for purposes of 
section 224(e): (a) In urban areas, 66 percent of the fully allocated 
costs used for purposes of the pre-existing telecom rate; and (b) in 
non-urban areas, 44 percent of the fully allocated costs used for 
purposes of the pre-existing telecom rate. Defining cost in terms of a 
percentage of the fully allocated costs previously used for purposes of 
the telecom rate is a readily administrable approach, and consistent 
with Congress' direction that the Commission's pole attachment rate 
regulations be ``simple and expeditious'' to implement. Further, the 
specific percentages we select provide a reduction in the telecom rate, 
and will, in general, approximate the cable rate, advancing the 
Commission's policies.
    54. We adopt a different definition of cost in non-urban areas--
namely, 44 percent of fully allocated costs--to address the fact that 
there typically are fewer attachers on poles in non-urban areas, as 
reflected by the Commission's presumptions. Given the operation of 
section 224(e), using the same definition of cost in both types of 
areas would increase the burden pole attachment rates pose for 
providers of broadband and other communications services in non-urban 
areas, as compared to urban areas. Such an outcome would be problematic 
given the increased challenges already faced in non-urban areas, where 
cost characteristics can be different and where the availability of, 
and competition for, broadband services tends to be less today than in 
urban areas. By defining cost in non-urban areas as 44 percent of the 
fully allocated costs we largely mitigate that concern, particularly 
under the Commission's presumptions.
    55. We observe that these definitions of cost, when applied 
pursuant to the cost apportionment formula in section 224(e), generally 
will recover a portion of the pole costs that is equal to the portion 
of costs recovered in the cable rate. We conclude that the pole owner 
will have appropriate incentives to invest in poles and provide 
attachments to third-party attachers, carrying forward under our new 
approach to the telecom rate. Moreover, this approach will 
significantly reduce the marketplace distortions and barriers to the 
availability of new broadband facilities and services that arose from 
disparate rates.
    56. The Commission's calculations show that the costs for urban and 
non-urban areas typically will be within the higher- and lower-bound 
range permissible under section 224(e), and in those circumstances, we 
adopt that definition of cost for establishing the just and reasonable 
telecom rate. However, if scenarios arise where the costs identified 
above would be lower than the 100 percent of administrative and 
operating expenses that serves as a lower bound for the zone of 
reasonableness, we adopt the higher definition of cost in those 
circumstances. In sum, the applicable cost for purposes of section 
224(e) will be the costs identified above or 100 percent of 
administrative and operating expenses, whichever is higher.
    57. We also reaffirm that wireless carriers are entitled to the 
benefits and protection of section 224, including the right to the 
telecom rate under section 224(e). Specifically, in the 1998 
Implementation Order, the Commission explained that it has authority 
under section 224(e)(1) to prescribe rules governing wireless 
attachments used by telecommunications carriers to provide

[[Page 26628]]

telecommunications services. The Commission also stated that Congress 
did not intend to distinguish between wired and wireless attachments 
and that there was no basis to limit the definition of 
telecommunications carriers under the statute only to wireline 
providers. The Commission noted that, despite the ``potential 
difficulties in applying the Commission's rules to wireless pole 
attachments, as opponents of attachment rights have argued,'' it did 
not see any need for separate rules. Instead, it explained that 
``[w]hen an attachment requires more than the presumptive one-foot of 
usable space on the pole,'' the presumption can be rebutted. 
Accordingly, wireless attachments are entitled to the telecom rate 
formula, and where parties are unable to reach agreement through good 
faith negotiations, they may bring a complaint before the Commission.
    58. We also address the role of the new telecom rate in the context 
of commingled services. Some cable operators express concern that pole 
owners will seek to impose rates higher than both the cable rate and 
the new telecom rate where cable operators or telecommunications 
carriers also provide services, such as VoIP, that have not been 
classified. We agree that this outcome would be contrary to our policy 
goals of reducing the disparity in pole rental rates among providers of 
competing services and of minimizing disputes. Consequently, we make 
clear that the use of pole attachments by providers of 
telecommunications services or cable operators to provide commingled 
services does not remove them from the pole attachment rate regulation 
framework under section 224. Rather, we will not consider rates for 
pole attachments by telecommunications carriers or cable operators 
providing commingled services to be ``just and reasonable'' if they 
exceed the new telecom rate. This action does not disturb prior 
Commission decisions addressing particular scenarios regarding 
commingled services.
    59. We believe that section 224(e) provides the Commission 
sufficient latitude to adopt our definition of costs underlying the new 
telecom rate. In particular, section 224(e)(2) and (3) describe how 
``[a] utility shall apportion the cost of providing space'' on a pole--
whether usable or unusable--but does not define the term ``cost.'' We 
therefore find the term ``the cost of providing space'' to be 
ambiguous.'' Our new telecom rate reflects a reasonable interpretation 
of the ambiguous statutory language, and we conclude that Congress gave 
the Commission authority to interpret section 224(e), including the 
ambiguous phrases ``cost of providing space * * * other than the usable 
space'' in section 224(e)(2) and ``cost of providing usable space'' in 
section 224(e)(3).
    60. We are not persuaded by electric utilities that argue section 
224(e) must be read in a manner that mandates use of a fully allocated 
cost methodology based on legislative history. Primarily, they cite to 
language in the legislative history of the House bill endorsing a fully 
allocated cost methodology and other discussions in the legislative 
history attempting to link the benefits attachers receive from pole 
attachments to pole rental rates. We are not persuaded that these 
arguments compel an interpretation of section 224(e) that is contrary 
to the Commission's approach.
    61. We also are not persuaded by claims of utilities that the new 
telecom rate will not enable them to recover their costs. The new 
telecom rate is compensatory and is designed so that utilities will not 
be cross-subsidizing attachers, as it ensures that utilities will 
recover more than the incremental cost of making attachments. The 
record provides no evidence indicating that there is any category or 
type of costs that are caused by the attacher that are not recovered 
through the new telecom rate.

B. Incumbent LEC Pole Attachments

    62. In the 2010 FNPRM, the Commission asked parties to refresh the 
record on the issues raised in the 2007 Pole Attachment NPRM ``both in 
light of the specific telecom rate proposals, as well as the factual 
findings of the National Broadband Plan.'' In addition, the Commission 
sought comment ``on the relationship between the pole rental rates paid 
by incumbent LECs and any other rights and responsibilities they have 
by virtue of their pole access agreements with utilities,'' such as 
joint use agreements, and whether any remedies otherwise were available 
to incumbent LECs absent the ability to file complaints with the 
Commission. The FNPRM also sought comment on proposals under which 
incumbent LECs' regulated rate would be an existing rate, whether the 
cable rate, the pre-existing telecom rate, or any new rate adopted in 
this proceeding, or an alternative rate, as well as how to balance the 
rate paid with the other terms and conditions in incumbent LECs' pole 
attachment agreements with other utilities.
    63. Based on the record in this proceeding, we find it appropriate 
to revisit our interpretation of section 224 with respect to rates, 
terms and conditions for pole attachments by incumbent LECs. We allow 
incumbent LECs to file complaints with the Commission challenging the 
rates, terms and conditions of pole attachment agreements with other 
utilities.
    64. Statutory Analysis. In implementing section 224, as amended by 
the 1996 Act, the Commission interpreted the exclusion of incumbent 
LECs from the term ``telecommunications carrier'' to mean that section 
224 does not apply to attachment rates paid by incumbent LECs. Although 
these decisions did not consider alternative interpretations of 
incumbent LECs' rights under section 224 in detail, the Commission's 
interpretation appears to have been based in part on incumbent LECs' 
status as pole owners and thus ``utilities'' under section 224, and in 
part on the view that ``Congress' intent'' was to ``promote competition 
by ensuring the availability of access to new telecommunications 
entrants.''
    65. We find it appropriate to change the Commission's prior 
interpretation of section 224(b) with respect to incumbent LECs given 
the evidence in the record regarding current market realities. Over 
time, aggregate incumbent LEC pole ownership has diminished relative to 
that of electric utilities. Thus, incumbent LECs often may not be in an 
equivalent bargaining position with electric utilities in pole 
attachment negotiations in some cases. Further, although we agree with 
the Commission's prior assessment that ``Congress' intent'' in section 
224--and the 1996 Act more broadly--was to ``promote competition,'' we 
believe this intent was not limited to entities that were ``new 
telecommunications entrants'' at the time of the 1996 Act.
    66. In reviewing the Commission's prior interpretation of section 
224, we note that even incumbent LECs acknowledge that they are 
excluded from the section 224 definition of ``telecommunications 
carrier,'' and generally concede that they thus have no statutory right 
to nondiscriminatory pole access under section 224(f)(1). That is, they 
agree that because section 224(f)(1) requires utilities to provide 
nondiscriminatory access to ``telecommunications carriers,'' which 
exclude incumbent LECs, they have no statutory right of 
nondiscriminatory access to poles, ducts, conduits or rights-of-way 
under this provision of the Act. We agree. They also contend, however, 
that sections 224(b)(1) and 224(a)(4) provide an independent right to 
reasonable rates, terms and conditions for any pole attachment by a

[[Page 26629]]

provider of telecommunications service, and that the statute thus 
mandates the Commission to apply the ``just and reasonable'' standard 
to pole attachments for all such providers, including incumbent LECs.
    67. We are persuaded to revisit our prior conclusion, and instead 
adopt a new interpretation of section 224(b). Specifically, we find 
that the Commission has authority to ensure that incumbent LECs' 
attachments to other utilities' poles are pursuant to rates, terms and 
conditions that are just and reasonable. For one, this reflects the 
marketplace evidence discussed above. This also reflects the fact that 
actions to reduce input costs, such as pole rental rates, can expand 
opportunities for investment, especially in combination with other 
actions, which is particularly important given the up to 24 million 
Americans that do not have access to broadband today. Incumbent LECs 
identify five specific categories of consumer benefits arising from 
ensuring just and reasonable rates for incumbent LECs' attachments to 
other utilities' poles: (1) Reduced demand on the universal service 
fund arising from reduced incumbent LEC costs; (2) automatic flow-
through of cost reductions to the regulated rates of rate-of-return 
incumbent LECs; (3) use of cost savings to improve service and/or lower 
prices for broadband services in areas with competition; (4) increased 
broadband deployment in areas where incumbent LECs currently do not 
provide broadband due to the improved business case; and (5) a source 
of capital for expansion. We expect these promised consumer benefits to 
occur, and we encourage incumbent LECs to provide data to the 
Commission on an ongoing basis demonstrating the extent to which these 
benefits are being realized. We would be concerned if these consumer 
benefits were not realized. We will continue to monitor the outcomes of 
the Order, and in the absence of evidence that expected benefits are 
being realized, we may, among other things, revisit our approach to 
this issue.
    68. We conclude that neither the language or structure of section 
224 precludes our finding that incumbent LECs are entitled to pole 
attachment rates, terms and conditions that are just and reasonable 
pursuant to section 224(b)(1). The Commission's authority to regulate 
the rates, terms and conditions of pole attachments by incumbent LECs 
derives principally from section 224(b) of the Act. In particular, 
section 224(b)(1) provides that the Commission ``shall regulate the 
rates, terms, and conditions for pole attachments to provide that such 
rates, terms, and conditions are just and reasonable, and shall adopt 
procedures necessary and appropriate to hear and resolve complaints 
concerning such rates, terms, and conditions.'' The statute defines the 
term ``pole attachment,'' in turn, as ``any attachment by a cable 
television system or provider of telecommunications service to a pole, 
duct, conduit, or right-of-way owned or controlled by a utility.''
    69. Although section 224(a)(5) cites section 3 of the 
Communications Act as a starting point for defining 
``telecommunications carrier,'' by excluding incumbent LECs, it 
deviates from that baseline, resulting in a definition that is unique 
to section 224. In addition, where Congress did not intend for the 
Commission to regulate rates, terms and conditions in a particular 
respect, it stated this clearly. Section 224's departure from the 
definition in section 3, coupled with the fact that Congress could have 
expressly excluded attachments by incumbent LECs from the Commission's 
jurisdiction over rates, terms and conditions under section 224(b)(1), 
persuade us to interpret ``provider of telecommunications service'' as 
distinct from ``telecommunications carrier'' for purposes of section 
224.
    70. Interpreting these terms as distinct leads us to conclude that 
the definition of ``pole attachment'' includes pole attachments of 
incumbent LECs. Moreover, because section 224(b) requires the 
Commission to ``regulate the rates, terms, and conditions for pole 
attachments,'' under our revised reading the Commission has a statutory 
obligation to regulate the attachments of incumbent LECs.
    71. Guidance Regarding Commission Review of Incumbent LEC Pole 
Attachment Complaints. Having found that section 224(b) enables the 
Commission to ensure that pole attachments by incumbent LECs are 
accorded just and reasonable rates, terms and conditions, we recognize 
the need to exercise that authority in a manner that accounts for the 
potential differences between incumbent LECs and telecommunications 
carrier or cable operator attachers. As we observed in the FNPRM, the 
issues related to rates for pole attachments by incumbent LECs raise 
complex questions, both with respect to potential remedies for 
incumbent LECs and the details of the complaint process itself. These 
complexities can arise because, for example, incumbent LECs also own 
many poles and historically have obtained access to other utilities' 
poles within their incumbent LEC service territory through ``joint 
use'' or other agreements. We therefore decline at this time to adopt 
comprehensive rules governing incumbent LECs' pole attachments, finding 
it more appropriate to proceed on a case-by-case basis. We do, however, 
provide certain guidance below regarding the Commission's approach to 
incumbent LEC pole attachment complaints.
    72. We also note that outside of the carrier's incumbent LEC 
service territory, it would be subject to the pole attachment 
regulations applicable to a telecommunications carrier. In addition, we 
decline to apply our new interpretation of section 224 retroactively, 
and make clear that incumbent LECs only can get refunds of amounts paid 
subsequent to the effective date of this Order.
    73. Evidence of Bargaining Power. We recognize that not all 
incumbent LECs are similarly situated in terms of their bargaining 
position relative to other pole owners. For example, although there has 
been a general trend of reduced pole ownership by incumbent LECs' 
relative to other utilities, there is evidence that circumstances can 
vary considerably from location to location. Where parties are in a 
position to achieve just and reasonable rates, terms and conditions 
through negotiation, we believe it generally is appropriate to defer to 
such negotiations. Thus, in evaluating incumbent LEC pole attachment 
complaints, the Commission will consider the incumbent LEC's evidence 
that it is in an inferior bargaining position to the utility against 
which it has filed the complaint.
    74. Existing vs. New Agreements. The record reveals that incumbent 
LECs frequently have access to pole attachments pursuant to joint use 
agreements today. Although some incumbent LECs express concerns about 
existing joint use agreements, these long-standing agreements generally 
were entered into at a time when incumbent LECs concede they were in a 
more balanced negotiating position with electric utilities, at least 
based on relative pole ownership. As explained above, we question the 
need to second guess the negotiated resolution of arrangements entered 
into by parties with relatively equivalent bargaining power. Consistent 
with the foregoing, the Commission is unlikely to find the rates, terms 
and conditions in existing joint use agreements unjust or unreasonable. 
The record also indicates, however, that both incumbent LECs and other 
utilities have the ability to terminate existing agreements and seek 
new arrangements, and that, at times, each type of entity has sought to 
do so.

[[Page 26630]]

To the extent that an incumbent LEC can demonstrate that it genuinely 
lacks the ability to terminate an existing agreement and obtain a new 
arrangement, the Commission can consider that as appropriate in a 
complaint proceeding. The Commission will review complaints regarding 
agreements between incumbent LECs and other utilities entered into 
following the adoption of this Order based on the totality of those 
agreements, consistent with the additional guidance we offer below. In 
addition, to the extent that an incumbent LEC can show that it was 
compelled to sign a new pole attachment agreement with rates, terms, or 
conditions that it contends are unjust or unreasonable simply to 
maintain pole access as a result of a utility's unequal bargaining 
power, we note that the ``sign and sue'' rule will apply here in a 
manner similar to its application in the context of pole attachment 
agreements between pole owners and either cable operators or 
telecommunications carriers.
    75. Reference to Other Agreements. As discussed above, the 
historical joint use agreements between incumbent LECs and other 
utilities implicate rights and responsibilities that differ from those 
in typical pole lease agreements between utilities and 
telecommunications carriers or cable operators. Under any new 
agreements, to the extent that the incumbent LEC demonstrates that it 
is obtaining pole attachments on terms and conditions that leave them 
comparably situated to telecommunications carriers or cable operators, 
we believe it will be appropriate to use the rate of the comparable 
attacher as the ``just and reasonable'' rate for purposes of section 
224(b). As discussed above, just and reasonable pole attachments rates 
for incumbent LECs are not bound by the formulas in sections 224(d) or 
(e). Where incumbent LECs are attaching to other utilities' poles on 
terms and conditions that are comparable to those that apply to a 
telecommunications carrier or a cable operator--which generally will be 
paying a rate equal or similar to the cable rate under our rules--
competitive neutrality counsels in favor of affording incumbent LECs 
the same rate as the comparable provider (whether the 
telecommunications carrier or the cable operator). In this regard, an 
incumbent LEC might demonstrate that it obtains access to poles on 
terms and conditions that are the same as a telecommunications carrier 
or cable operator. Likewise, an incumbent LEC may seek the same term or 
condition that applies to a telecommunications carrier or cable 
operator upon a showing that it otherwise is comparably situated to 
that provider.
    76. Even if the terms and conditions of access are not the same, 
however, incumbent LECs may seek to demonstrate that the arrangement at 
issue does not provide a material advantage to incumbent LECs relative 
to cable operators or telecommunications carriers. To facilitate this 
analysis, we modify our pole attachment complaint rules to require that 
incumbent LECs provide, in a complaint proceeding, any agreements 
between the defendant utility and a third party attacher with whom the 
incumbent LEC claims it is similarly situated (or that the other 
utility do so if necessary).
    77. By contrast, if a new pole attachment agreement between an 
incumbent LEC and a pole owner includes provisions that materially 
advantage the incumbent LEC vis a vis a telecommunications carrier or 
cable operator, we believe that a different rate should apply. Just as 
considerations of competitive neutrality counsel in favor of similar 
treatment of similarly situated providers, so too should differently 
situated providers be treated differently. In particular, we find it 
reasonable to look to the pre-existing, high-end telecom rate as a 
reference point in complaint proceedings involving a pole owner and an 
incumbent LEC attacher that is not similarly situated, or has failed to 
show that it is similarly situated to a cable or telecommunications 
attacher. As a higher rate than the regulated rate available to 
telecommunications carriers and cable operators, it helps account for 
particular arrangements that provide net advantages to incumbent LECs 
relative to cable operators or telecommunications carriers. We find it 
prudent to identify a specific rate to be used as a reference point in 
these circumstances because it will enable better informed pole 
attachment negotiations between incumbent LECs and electric utilities. 
We also believe it will reduce the number of disputes for which 
Commission resolution is required by providing parties clearer 
expectations regarding the potential outcomes of formal complaints, 
thus narrowing the scope of the conflict. For example, we would be 
skeptical of a complaint by an incumbent LEC seeking a proportionately 
lower rate to attach to an electric utility's poles than the rate the 
incumbent LEC is charging the electric utility to attach to its poles. 
We believe that a just and reasonable rate in such circumstances would 
be the same proportionate rate charged the electric utility, given the 
incumbent LEC's relative usage of the pole (such as the same rate per 
foot of occupied space). Further, we find it more administrable to look 
to the existing, high-end telecom rate, which historically has been 
used in the marketplace, than to attempt to develop in this Order an 
entirely new rate for this context.
    78. We also recognize that incumbent LECs generally are pole owners 
themselves and, like electric utilities, have agreements governing 
access to their poles. As appropriate, in evaluating an incumbent LEC's 
complaint, the Commission may also consider the rates, terms and 
conditions that the incumbent LEC offers to the electric utility or 
other attachers for access to the incumbent LEC's poles, including 
whether they are more or less favorable than the rates, terms and 
conditions the incumbent LEC is seeking. Further, evidence that a term 
or condition was contained in the parties' prior joint use agreement 
will carry significant weight in the Commission's assessment of whether 
a refusal to agree to a substantially different term or condition 
regarding the same subject in a new agreement is unreasonable.
    79. Other Fora for Dispute Resolution. Some electric utilities and 
other commenters have observed that certain state commissions might 
provide a forum for resolving incumbent LEC-electric utility pole 
attachment disputes. We do not preclude parties from electing to pursue 
complaints before state commissions, rather than before the Commission. 
Section 224 ensures incumbent LECs of appropriate Commission oversight 
of their pole attachments, however, and we therefore do not require 
incumbent LECs to pursue relief in state fora before filing a complaint 
with the Commission.

Clarification and Reconsideration of the 2010 Order

    80. Prospective Policies. We clarify that a utility may not simply 
prohibit an attacher from using boxing, bracketing, or any other 
attachment technique on a going forward basis where the utility, at the 
time of an attacher's request, employs such techniques itself. As 
Fibertech points out, even a policy that is equally applied 
prospectively is discriminatory in the sense that it disadvantages new 
attachers. Thus, the relevant standards for purposes of determining a 
utility's ``existing practices'' are those that a utility applies at 
the time of an attacher's request to use a particular attachment 
technique--not the standards that a utility wishes to apply going 
forward. A utility may,

[[Page 26631]]

however, choose to reduce or eliminate altogether the use of a 
particular method of attachment used on its poles, including boxing or 
bracketing, which would alter the range of circumstances in which it is 
obligated to allow future attachers to use the same techniques.
    81. Joint Ownership. We also clarify that, where a pole is jointly 
owned and the owners have adopted different standards regarding the use 
of boxing, bracketing, or other attachment techniques, the joint owners 
may apply the more restrictive standards. For instance, if an electric 
utility and an incumbent LEC jointly own a pole but have divergent 
standards regarding the use of boxing, they may refuse to allow an 
attacher to box in a situation where boxing would be allowed by one 
utility's standards but not the other's. We disagree with Fibertech 
that permitting application of the more restrictive standard will allow 
joint pole owners to ``double team'' attachers by demanding compliance 
with one set of standards initially and then a different set later. In 
order to avoid a claim that their terms and conditions for access are 
unjust, unreasonable or discriminatory, joint pole owners should settle 
on and apply a single set of standards--not different sets at different 
times.
    82. Similar Circumstances and the Electric Space. At the 
Coalition's request, we clarify that an electric utility's use of a 
particular attachment technique for facilities in the electric space 
does not obligate the utility to allow the same technique to be used by 
attachers in the communications space. We likewise clarify, in response 
to the Florida IOUs' request, that the existence of boxing and 
bracketing configurations in the electric space do not trigger an 
attacher's right to use boxing and bracketing in the communications 
space. The 2010 Order specified that attachers are entitled to use the 
same techniques that the utility itself uses in similar circumstances, 
and we agree with the petitioners that the above situations do not 
involve similar circumstances. For instance, boxing and bracketing in 
the communications space can limit the use of climbing as a means of 
maintenance and repair, and also complicate pole change out.
    83. We disagree with the petitioners, however, that the 
nondiscrimination requirement in section 224(f)(1) applies only to the 
extent that a pole owner has allowed itself or others to use an 
attachment technique in the communications space of a pole. As 
explained in further detail below, the Act does not limit a utility's 
nondiscrimination obligations to activities that take place in the 
communications space. Thus, while an electric utility's use of an 
attachment technique in the electric space might not obligate it to 
permit use of such technique in the communications space, its use of an 
attachment technique (like boxing and bracketing) in the electric space 
may, in fact, obligate it to allow use of that technique in the 
electric space. The salient issue is whether the attacher's use of a 
particular technique is consistent with the utility's, not whether its 
use is consistent with the utility's in the communication space.
    84. Insufficient Capacity and the Electric Space. We deny the 
Florida IOUs' request to find that a pole has ``insufficient capacity'' 
if an electric utility must rearrange its electric facilities to 
accommodate a new attacher. As explained in the 2010 Order, a pole does 
not have insufficient capacity where a request for attachment could be 
accommodated using traditional methods of attachment. Rearrangement of 
facilities on a pole is one of these methods, and nothing in the 
statute suggests that, for purposes of gauging capacity, rearrangement 
of facilities in the electric space should be treated differently from 
rearrangement of facilities in the communications space. Thus, where 
rearrangement of a pole's facilities--whether in the communications 
space or the electric space--can accommodate an attachment, there is 
not ``insufficient capacity'' under section 224(f)(2).
    85. Space-and Cost-Saving. The Florida IOUs argue that section 
224(f)(2) allows an electric utility to deny use of a particular 
attachment technique when the utility itself has not used or authorized 
that technique as a means of saving both space and cost. We disagree 
that section 224(f)(2) is so limited. We find that the Florida IOUs' 
restrictive interpretation has no basis in the text of section 224 and 
would enable a utility to refuse an attacher use of a particular 
attachment technique in situations where the utility itself uses the 
technique or authorizes its use by third parties. If a utility uses 
bracketing as a means of saving cost (but not space) in a particular 
type of situation, for instance, it must allow attachers also to use 
bracketing. But under the Florida IOUs' formulation, the utility would 
have no duty to do so.

Congressional Review Act

    86. The Commission will send a copy of this Report and Order in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Paperwork Reduction Act of 1995 Analysis

    87. This document contains new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-
13. It will be submitted to the Office of Management and Budget (OMB) 
for review under section 3507(d) of the PRA. OMB, the general public, 
and other Federal agencies are invited to comment on the new or 
modified information collection requirements adopted in this Order.

Final Regulation Flexibility Analysis

    88. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
included in the 2010 Order and FNPRM in WC Docket No. 07-245 and GN 
Docket No. 09-51. The Commission sought written public comment on the 
proposals in these dockets, including comment on the IRFA. This Final 
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Proposed Rules

    89. In this Report and Order and Order on Reconsideration (Order), 
FCC 11-50, adopted and released on April 7, 2011, the Commission 
revises its pole attachment rules to promote competition and to reduce 
the potentially excessive costs of deploying telecommunications, cable, 
and broadband networks. The Commission has historically relied 
primarily on private negotiations and case-specific adjudications to 
ensure just and reasonable rates, terms, and conditions, but its 
experience during the past 15 years has demonstrated the need to 
provide more guidance. Accordingly, the Commission establishes a four-
stage timeline for wireline and wireless access to poles; provides 
attachers with a self-effectuating contractor remedy in the 
communications space; improves its enforcement rules; reinterprets the 
telecommunications rate formula within the existing statutory 
framework; and addresses rates, terms, and conditions for pole 
attachments by incumbent LECs. The Commission also resolves multiple 
petitions for reconsideration and addresses various points regarding 
the nondiscriminatory use of attachment techniques.

B. Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA and Summary of the Assessment of the Agency of 
Such Issues

    90. One commenter discussed the IRFA from the FNPRM. A group of

[[Page 26632]]

associations representing rural telephone companies argued specifically 
that the Commission should adopt the lowest telecom rate for broadband 
connections, adopt an incumbent LEC dispute resolution process, and cap 
pole attachment orders at 100 poles. We squarely address these concerns 
by revising the section 224(e) rental rate for pole attachments used by 
telecommunications carriers to provide telecommunications services; 
permitting incumbent LECs to file complaints with the Commission to 
ensure reasonable rates, terms, and conditions of pole attachments; and 
adopting the lesser of a numerical or a percentage-based cap on pole 
orders.

C . Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules May Apply

    91. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and policies, if adopted. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA.
    92. Small Businesses. Nationwide, there are a total of 
approximately 29.6 million small businesses, according to the SBA.
    93. Small Organizations. Nationwide, as of 2002, there are 
approximately 1.6 million small organizations. A ``small organization'' 
is generally ``any not-for-profit enterprise which is independently 
owned and operated and is not dominant in its field.''
    94. Small Governmental Jurisdictions. The term ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, towns, 
townships, villages, school districts, or special districts, with a 
population of less than fifty thousand.'' Census Bureau data for 2002 
indicate that there were 87,525 local governmental jurisdictions in the 
United States. We estimate that, of this total, 84,377 entities were 
``small governmental jurisdictions.'' Thus, we estimate that most 
governmental jurisdictions are small.
    95. We have included small incumbent local exchange carriers in 
this present RFA analysis. As noted above, a ``small business'' under 
the RFA is one that, inter alia, meets the pertinent small business 
size standard (e.g., a telephone communications business having 1,500 
or fewer employees), and ``is not dominant in its field of operation.'' 
The SBA's Office of Advocacy contends that, for RFA purposes, small 
incumbent local exchange carriers are not dominant in their field of 
operation because any such dominance is not ``national'' in scope. We 
have therefore included small incumbent local exchange carriers in this 
RFA analysis, although we emphasize that this RFA action has no effect 
on Commission analyses and determinations in other, non-RFA contexts.
    96. Incumbent Local Exchange Carriers (ILECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The appropriate 
size standard under SBA rules is for the category Wired 
Telecommunications Carriers. Under that size standard, such a business 
is small if it has 1,500 or fewer employees. According to Commission 
data, 1,311 carriers have reported that they are engaged in the 
provision of incumbent local exchange services. Of these 1,311 
carriers, an estimated 1,024 have 1,500 or fewer employees and 287 have 
more than 1,500 employees. Consequently, the Commission estimates that 
most providers of incumbent local exchange service are small businesses 
that may be affected by our proposed action.
    97. Competitive Local Exchange Carriers (CLECs), Competitive Access 
Providers (CAPs), ``Shared-Tenant Service Providers,'' and ``Other 
Local Service Providers.'' Neither the Commission nor the SBA has 
developed a small business size standard specifically for these service 
providers. The appropriate size standard under SBA rules is for the 
category Wired Telecommunications Carriers. Under that size standard, 
such a business is small if it has 1,500 or fewer employees. According 
to Commission data, 1005 carriers have reported that they are engaged 
in the provision of either competitive access provider services or 
competitive local exchange carrier services. Of these 1005 carriers, an 
estimated 918 have 1,500 or fewer employees and 87 have more than 1,500 
employees. In addition, 16 carriers have reported that they are 
``Shared-Tenant Service Providers,'' and all 16 are estimated to have 
1,500 or fewer employees. In addition, 89 carriers have reported that 
they are ``Other Local Service Providers.'' Of the 89, all have 1,500 
or fewer employees. Consequently, the Commission estimates that most 
providers of competitive local exchange service, competitive access 
providers, ``Shared-Tenant Service Providers,'' and ``Other Local 
Service Providers'' are small entities that may be affected by our 
proposed action.
    98. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA has developed a small business size standard specifically for 
providers of interexchange services. The appropriate size standard 
under SBA rules is for the category Wired Telecommunications Carriers. 
Under that size standard, such a business is small if it has 1,500 or 
fewer employees. According to Commission data, 300 carriers have 
reported that they are engaged in the provision of interexchange 
service. Of these, an estimated 268 have 1,500 or fewer employees and 
32 have more than 1,500 employees. Consequently, the Commission 
estimates that the majority of IXCs are small entities that may be 
affected by our proposed action.
    99. Satellite Telecommunications and All Other Telecommunications. 
These two economic census categories address the satellite industry. 
The first category has a small business size standard of $15 million or 
less in average annual receipts, under SBA rules. The second has a size 
standard of $25 million or less in annual receipts. The most current 
Census Bureau data in this context, however, are from the (last) 
economic census of 2002, and we will use those figures to gauge the 
prevalence of small businesses in these categories.
    100. The category of Satellite Telecommunications ``comprises 
establishments primarily engaged in providing telecommunications 
services to other establishments in the telecommunications and 
broadcasting industries by forwarding and receiving communications 
signals via a system of satellites or reselling satellite 
telecommunications.'' For this category, Census Bureau data for 2002 
show that there were a total of 371 firms that operated for the entire 
year. Of this total, 307 firms had annual receipts of under $10 
million, and 26 firms had receipts of $10 million to $24,999,999. 
Consequently, we estimate that the majority of Satellite 
Telecommunications firms are small entities that might be affected by 
our action.
    101. The second category of All Other Telecommunications comprises, 
inter alia, ``establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications

[[Page 26633]]

telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems.'' For this 
category, Census Bureau data for 2002 show that there were a total of 
332 firms that operated for the entire year. Of this total, 303 firms 
had annual receipts of under $10 million and 15 firms had annual 
receipts of $10 million to $24,999,999. Consequently, we estimate that 
the majority of All Other Telecommunications firms are small entities 
that might be affected by our action.
    102. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the Census Bureau has placed wireless firms within this new, 
broad, economic census category. Prior to that time, such firms were 
within the now-superseded categories of ``Paging'' and ``Cellular and 
Other Wireless Telecommunications.'' Under the present and prior 
categories, the SBA has deemed a wireless business to be small if it 
has 1,500 or fewer employees. Because Census Bureau data are not yet 
available for the new category, we will estimate small business 
prevalence using the prior categories and associated data. For the 
category of Paging, data for 2002 show that there were 807 firms that 
operated for the entire year. Of this total, 804 firms had employment 
of 999 or fewer employees, and three firms had employment of 1,000 
employees or more. For the category of Cellular and Other Wireless 
Telecommunications, data for 2002 show that there were 1,397 firms that 
operated for the entire year. Of this total, 1,378 firms had employment 
of 999 or fewer employees, and 19 firms had employment of 1,000 
employees or more. Thus, we estimate that the majority of wireless 
firms are small.
    103. Common Carrier Paging. As noted, since 2007 the Census Bureau 
has placed paging providers within the broad economic census category 
of Wireless Telecommunications Carriers (except Satellite). Prior to 
that time, such firms were within the now-superseded category of 
``Paging.'' Under the present and prior categories, the SBA has deemed 
a wireless business to be small if it has 1,500 or fewer employees. 
Because Census Bureau data are not yet available for the new category, 
we will estimate small business prevalence using the prior category and 
associated data. The data for 2002 show that there were 807 firms that 
operated for the entire year. Of this total, 804 firms had employment 
of 999 or fewer employees, and three firms had employment of 1,000 
employees or more. Thus, we estimate that the majority of paging firms 
are small.
    104. In addition, in the Paging Second Report and Order, the 
Commission adopted a size standard for ``small businesses'' for 
purposes of determining their eligibility for special provisions such 
as bidding credits and installment payments. A small business is an 
entity that, together with its affiliates and controlling principals, 
has average gross revenues not exceeding $15 million for the preceding 
three years. The SBA has approved this definition. An initial auction 
of Metropolitan Economic Area (MEA) licenses was conducted in the year 
2000. Of the 2,499 licenses auctioned, 985 were sold. Fifty-seven 
companies claiming small business status won 440 licenses. A subsequent 
auction of MEA and Economic Area (EA) licenses was held in the year 
2001. Of the 15,514 licenses auctioned, 5,323 were sold. One hundred 
thirty-two companies claiming small business status purchased 3,724 
licenses. A third auction, consisting of 8,874 licenses in each of 175 
EAs and 1,328 licenses in all but three of the 51 MEAs, was held in 
2003. Seventy-seven bidders claiming small or very small business 
status won 2,093 licenses.
    105. Currently, there are approximately 74,000 Common Carrier 
Paging licenses. According to the most recent Trends in Telephone 
Service, 281 carriers reported that they were engaged in the provision 
of ``paging and messaging'' services. Of these, an estimated 279 have 
1,500 or fewer employees and two have more than 1,500 employees. We 
estimate that the majority of common carrier paging providers would 
qualify as small entities under the SBA definition.
    106. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. As noted, the SBA has developed a small business 
size standard for Wireless Telecommunications Carriers (except 
Satellite). Under the SBA small business size standard, a business is 
small if it has 1,500 or fewer employees. According to Trends in 
Telephone Service data, 434 carriers reported that they were engaged in 
wireless telephony. Of these, an estimated 222 have 1,500 or fewer 
employees and 212 have more than 1,500 employees. We have estimated 
that 222 of these are small under the SBA small business size standard.
    107. Broadband Personal Communications Service. The broadband 
personal communications services (PCS) spectrum is divided into six 
frequency blocks designated A through F, and the Commission has held 
auctions for each block. The Commission has created a small business 
size standard for Blocks C and F as an entity that has average gross 
revenues of less than $40 million in the three previous calendar years. 
For Block F, an additional small business size standard for ``very 
small business'' was added and is defined as an entity that, together 
with its affiliates, has average gross revenues of not more than $15 
million for the preceding three calendar years. These small business 
size standards, in the context of broadband PCS auctions, have been 
approved by the SBA. No small businesses within the SBA-approved small 
business size standards bid successfully for licenses in Blocks A and 
B. There were 90 winning bidders that qualified as small entities in 
the Block C auctions. A total of 93 ``small'' and ``very small'' 
business bidders won approximately 40 percent of the 1,479 licenses for 
Blocks D, E, and F. In 1999, the Commission reauctioned 155 C, D, E, 
and F Block licenses; there were 113 small business winning bidders.
    108. In 2001, the Commission completed the auction of 422 C and F 
Broadband PCS licenses in Auction 35. Of the 35 winning bidders in this 
auction, 29 qualified as ``small'' or ``very small'' businesses. 
Subsequent events, concerning Auction 35, including judicial and agency 
determinations, resulted in a total of 163 C and F Block licenses being 
available for grant. In 2005, the Commission completed an auction of 
188 C block licenses and 21 F block licenses in Auction 58. There were 
24 winning bidders for 217 licenses. Of the 24 winning bidders, 16 
claimed small business status and won 156 licenses. In 2007, the 
Commission completed an auction of 33 licenses in the A, C, and F 
Blocks in Auction 71. Of the 14 winning bidders, six were designated 
entities. In 2008, the Commission completed an auction of 20 Broadband 
PCS licenses in the C, D, E and F block licenses in Auction 78.
    109. Advanced Wireless Services. In 2008, the Commission conducted 
the auction of Advanced Wireless Services (AWS) licenses. This auction, 
which as designated as Auction 78, offered 35 licenses in the AWS 1710-
1755 MHz and 2110-2155 MHz bands (AWS-1). The AWS-1 licenses were 
licenses for which there were no winning bids in Auction 66. That same 
year, the Commission completed Auction 78. A

[[Page 26634]]

bidder with attributed average annual gross revenues that exceeded $15 
million and did not exceed $40 million for the preceding three years 
(small business) received a 15 percent discount on its winning bid. A 
bidder with attributed average annual gross revenues that did not 
exceed $15 million for the preceding three years (very small business) 
received a 25 percent discount on its winning bid. A bidder that had 
combined total assets of less than $500 million and combined gross 
revenues of less than $125 million in each of the last two years 
qualified for entrepreneur status. Four winning bidders that identified 
themselves as very small businesses won 17 licenses. Three of the 
winning bidders that identified themselves as a small business won five 
licenses. Additionally, one other winning bidder that qualified for 
entrepreneur status won 2 licenses.
    110. Narrowband Personal Communications Services. In 1994, the 
Commission conducted an auction for Narrowband PCS licenses. A second 
auction was also conducted later in 1994. For purposes of the first two 
Narrowband PCS auctions, ``small businesses'' were entities with 
average gross revenues for the prior three calendar years of $40 
million or less. Through these auctions, the Commission awarded a total 
of 41 licenses, 11 of which were obtained by four small businesses. To 
ensure meaningful participation by small business entities in future 
auctions, the Commission adopted a two-tiered small business size 
standard in the Narrowband PCS Second Report and Order. A ``small 
business'' is an entity that, together with affiliates and controlling 
interests, has average gross revenues for the three preceding years of 
not more than $40 million. A ``very small business'' is an entity that, 
together with affiliates and controlling interests, has average gross 
revenues for the three preceding years of not more than $15 million. 
The SBA has approved these small business size standards. A third 
auction was conducted in 2001. Here, five bidders won 317 (Metropolitan 
Trading Areas and nationwide) licenses. Three of these claimed status 
as a small or very small entity and won 311 licenses.
    111. Cellular Radiotelephone Service. Auction 77 was held to 
resolve one group of mutually exclusive applications for Cellular 
Radiotelephone Service licenses for unserved areas in New Mexico. 
Bidding credits for designated entities were not available in Auction 
77. In 2008, the Commission completed the closed auction of one 
unserved service area in the Cellular Radiotelephone Service, 
designated as Auction 77. Auction 77 concluded with one provisionally 
winning bid for the unserved area totaling $25,002.
    112. Private Land Mobile Radio (PLMR). PLMR systems serve an 
essential role in a range of industrial, business, land transportation, 
and public safety activities. These radios are used by companies of all 
sizes operating in all U.S. business categories, and are often used in 
support of the licensee's primary (non-telecommunications) business 
operations. For the purpose of determining whether a licensee of a PLMR 
system is a small business as defined by the SBA, we use the broad 
census category, Wireless Telecommunications Carriers (except 
Satellite). This definition provides that a small entity is any such 
entity employing no more than 1,500 persons. The Commission does not 
require PLMR licensees to disclose information about number of 
employees, so the Commission does not have information that could be 
used to determine how many PLMR licensees constitute small entities 
under this definition. We note that PLMR licensees generally use the 
licensed facilities in support of other business activities, and 
therefore, it would also be helpful to assess PLMR licensees under the 
standards applied to the particular industry subsector to which the 
licensee belongs.
    113. As of March 2010, there were 424,162 PLMR licensees operating 
921,909 transmitters in the PLMR bands below 512 MHz. We note that any 
entity engaged in a commercial activity is eligible to hold a PLMR 
license, and that any revised rules in this context could therefore 
potentially impact small entities covering a great variety of 
industries.
    114. Fixed Microwave Services. Fixed microwave services include 
common carrier, private operational-fixed, and broadcast auxiliary 
radio services. At present, there are approximately 22,015 common 
carrier fixed licensees and 61,670 private operational-fixed licensees 
and broadcast auxiliary radio licensees in the microwave services. The 
Commission has not created a size standard for a small business 
specifically with respect to fixed microwave services. For purposes of 
this analysis, the Commission uses the SBA small business size standard 
for the category Wireless Telecommunications Carriers (except 
Satellite), which is 1,500 or fewer employees. The Commission does not 
have data specifying the number of these licensees that have no more 
than 1,500 employees, and thus are unable at this time to estimate with 
greater precision the number of fixed microwave service licensees that 
would qualify as small business concerns under the SBA's small business 
size standard. Consequently, the Commission estimates that there are 
22,015 or fewer common carrier fixed licensees and 61,670 or fewer 
private operational-fixed licensees and broadcast auxiliary radio 
licensees in the microwave services that may be small and may be 
affected by the rules and policies proposed herein. We note, however, 
that the common carrier microwave fixed licensee category includes some 
large entities.
    115. Local Multipoint Distribution Service. Local Multipoint 
Distribution Service (LMDS) is a fixed broadband point-to-multipoint 
microwave service that provides for two-way video telecommunications. 
The auction of the 986 LMDS licenses began and closed in 1998. The 
Commission established a small business size standard for LMDS licenses 
as an entity that has average gross revenues of less than $40 million 
in the three previous calendar years. An additional small business size 
standard for ``very small business'' was added as an entity that, 
together with its affiliates, has average gross revenues of not more 
than $15 million for the preceding three calendar years. The SBA has 
approved these small business size standards in the context of LMDS 
auctions. There were 93 winning bidders that qualified as small 
entities in the LMDS auctions. A total of 93 small and very small 
business bidders won approximately 277 A Block licenses and 387 B Block 
licenses. In 1999, the Commission re-auctioned 161 licenses; there were 
32 small and very small businesses winning that won 119 licenses.
    116. Rural Radiotelephone Service. The Commission has not adopted a 
size standard for small businesses specific to the Rural Radiotelephone 
Service. A significant subset of the Rural Radiotelephone Service is 
the Basic Exchange Telephone Radio System (BETRS). In the present 
context, we will use the SBA's small business size standard applicable 
to Wireless Telecommunications Carriers (except Satellite), i.e., an 
entity employing no more than 1,500 persons. There are approximately 
1,000 licensees in the Rural Radiotelephone Service, and the Commission 
estimates that there are 1,000 or fewer small entity licensees in the 
Rural Radiotelephone Service that may be affected by the rules and 
policies proposed herein.
    117. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems, previously referred to as Multipoint

[[Page 26635]]

Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service (MMDS) systems, and ``wireless cable,'' transmit video 
programming to subscribers and provide two-way high speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)). In 
connection with the 1996 BRS auction, the Commission established a 
small business size standard as an entity that had annual average gross 
revenues of no more than $40 million in the previous three calendar 
years. The BRS auctions resulted in 67 successful bidders obtaining 
licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 
auction winners, 61 met the definition of a small business. BRS also 
includes licensees of stations authorized prior to the auction. At this 
time, we estimate that of the 61 small business BRS auction winners, 48 
remain small business licensees. In addition to the 48 small businesses 
that hold BTA authorizations, there are approximately 392 incumbent BRS 
licensees that are considered small entities. After adding the number 
of small business auction licensees to the number of incumbent 
licensees not already counted, we find that there are currently 
approximately 440 BRS licensees that are defined as small businesses 
under either the SBA or the Commission's rules. In 2009, the Commission 
conducted Auction 86, the sale of 78 licenses in the BRS areas. The 
Commission offered three levels of bidding credits: (i) A bidder with 
attributed average annual gross revenues that exceed $15 million and do 
not exceed $40 million for the preceding three years (small business) 
will receive a 15 percent discount on its winning bid; (ii) a bidder 
with attributed average annual gross revenues that exceed $3 million 
and do not exceed $15 million for the preceding three years (very small 
business) will receive a 25 percent discount on its winning bid; and 
(iii) a bidder with attributed average annual gross revenues that do 
not exceed $3 million for the preceding three years (entrepreneur) will 
receive a 35 percent discount on its winning bid. Auction 86 concluded 
in 2009 with the sale of 61 licenses. Of the ten winning bidders, two 
bidders that claimed small business status won 4 licenses; one bidder 
that claimed very small business status won three licenses; and two 
bidders that claimed entrepreneur status won six licenses.
    118. In addition, the SBA's Cable Television Distribution Services 
small business size standard is applicable to EBS. There are presently 
2,032 EBS licensees. All but 100 of these licenses are held by 
educational institutions. Educational institutions are included in this 
analysis as small entities. Thus, we estimate that at least 1,932 
licensees are small businesses. Since 2007, Cable Television 
Distribution Services have been defined within the broad economic 
census category of Wired Telecommunications Carriers; that category is 
defined as follows: ``This industry comprises establishments primarily 
engaged in operating and/or providing access to transmission facilities 
and infrastructure that they own and/or lease for the transmission of 
voice, data, text, sound, and video using wired telecommunications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies.'' The SBA has developed a small 
business size standard for this category, which is: all such firms 
having 1,500 or fewer employees. To gauge small business prevalence for 
these cable services we must, however, use current census data that are 
based on the previous category of Cable and Other Program Distribution 
and its associated size standard; that size standard was: all such 
firms having $13.5 million or less in annual receipts. According to 
Census Bureau data for 2002, there were a total of 1,191 firms in this 
previous category that operated for the entire year. Of this total, 
1,087 firms had annual receipts of under $10 million, and 43 firms had 
receipts of $10 million or more but less than $25 million. Thus, the 
majority of these firms can be considered small.
    119. Cable Television Distribution Services. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for this category, which is: all such firms having 1,500 or fewer 
employees. To gauge small business prevalence for these cable services 
we must, however, use current census data that are based on the 
previous category of Cable and Other Program Distribution and its 
associated size standard; that size standard was: all such firms having 
$13.5 million or less in annual receipts. According to Census Bureau 
data for 2002, there were a total of 1,191 firms in this previous 
category that operated for the entire year. Of this total, 1,087 firms 
had annual receipts of under $10 million, and 43 firms had receipts of 
$10 million or more but less than $25 million. Thus, the majority of 
these firms can be considered small.
    120. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers, nationwide. Industry data 
indicate that, of 1,076 cable operators nationwide, all but eleven are 
small under this size standard. In addition, under the Commission's 
rules, a ``small system'' is a cable system serving 15,000 or fewer 
subscribers. Industry data indicate that, of 6,635 systems nationwide, 
5,802 systems have fewer than 10,000 subscribers, and an additional 302 
systems have 10,000-19,999 subscribers. Thus, under this second size 
standard, most cable systems are small.
    121. Cable System Operators. The Communications Act of 1934, as 
amended, also contains a size standard for small cable system 
operators, which is ``a cable operator that, directly or through an 
affiliate, serves in the aggregate fewer than 1 percent of all 
subscribers in the United States and is not affiliated with any entity 
or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' The Commission has determined that an operator serving 
fewer than 677,000 subscribers shall be deemed a small operator, if its 
annual revenues, when combined with the total annual revenues of all 
its affiliates, do not exceed $250 million in the aggregate. Industry 
data indicate that, of 1,076 cable operators nationwide, all but ten 
are small under this size standard. We note that the Commission neither 
requests nor collects information on whether cable system operators are 
affiliated with entities whose gross annual revenues exceed $250 
million, and therefore we are unable to estimate more accurately the 
number of cable system operators that would qualify as small under this 
size standard.
    122. Open Video Systems. The open video system (OVS) framework was 
established in 1996, and is one of four statutorily recognized options 
for the provision of video programming

[[Page 26636]]

services by local exchange carriers. The OVS framework provides 
opportunities for the distribution of video programming other than 
through cable systems. Because OVS operators provide subscription 
services, OVS falls within the SBA small business size standard 
covering cable services, which is ``Wired Telecommunications 
Carriers.'' The SBA has developed a small business size standard for 
this category, which is: All such firms having 1,500 or fewer 
employees. To gauge small business prevalence for such services we 
must, however, use current census data that are based on the previous 
category of Cable and Other Program Distribution and its associated 
size standard; that size standard was: all such firms having $13.5 
million or less in annual receipts. According to Census Bureau data for 
2002, there were a total of 1,191 firms in this previous category that 
operated for the entire year. Of this total, 1,087 firms had annual 
receipts of under $10 million, and 43 firms had receipts of $10 million 
or more but less than $25 million. Thus, the majority of cable firms 
can be considered small. In addition, we note that the Commission has 
certified some OVS operators, with some now providing service. 
Broadband service providers (BSPs) are currently the only significant 
holders of OVS certifications or local OVS franchises. The Commission 
does not have financial or employment information regarding the 
entities authorized to provide OVS, some of which may not yet be 
operational. Thus, again, at least some of the OVS operators may 
qualify as small entities.
    123. Cable Television Relay Service. This service includes 
transmitters generally used to relay cable programming within cable 
television system distribution systems. This cable service is defined 
within the broad economic census category of Wired Telecommunications 
Carriers; that category is defined as follows: ``This industry 
comprises establishments primarily engaged in operating and/or 
providing access to transmission facilities and infrastructure that 
they own and/or lease for the transmission of voice, data, text, sound, 
and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for this category, which is: All such firms having 1,500 or fewer 
employees. To gauge small business prevalence for cable services we 
must, however, use current census data that are based on the previous 
category of Cable and Other Program Distribution and its associated 
size standard; that size standard was: all such firms having $13.5 
million or less in annual receipts. According to Census Bureau data for 
2002, there were a total of 1,191 firms in this previous category that 
operated for the entire year. Of this total, 1,087 firms had annual 
receipts of under $10 million, and 43 firms had receipts of $10 million 
or more but less than $25 million. Thus, the majority of these firms 
can be considered small.
    124. Multichannel Video Distribution and Data Service. MVDDS is a 
terrestrial fixed microwave service operating in the 12.2-12.7 GHz 
band. The Commission adopted criteria for defining three groups of 
small businesses for purposes of determining their eligibility for 
special provisions such as bidding credits. It defined a very small 
business as an entity with average annual gross revenues not exceeding 
$3 million for the preceding three years; a small business as an entity 
with average annual gross revenues not exceeding $15 million for the 
preceding three years; and an entrepreneur as an entity with average 
annual gross revenues not exceeding $40 million for the preceding three 
years. These definitions were approved by the SBA. On January 27, 2004, 
the Commission completed an auction of 214 MVDDS licenses (Auction No. 
53). In this auction, ten winning bidders won a total of 192 MVDDS 
licenses. Eight of the ten winning bidders claimed small business 
status and won 144 of the licenses. The Commission also held an auction 
of MVDDS licenses on December 7, 2005 (Auction 63). Of the three 
winning bidders who won 22 licenses, two winning bidders, winning 21 of 
the licenses, claimed small business status.
    125. Internet Service Providers. The 2007 Economic Census places 
these firms, whose services might include voice over Internet protocol 
(VoIP), in either of two categories, depending on whether the service 
is provided over the provider's own telecommunications connections 
(e.g. cable and DSL, ISPs), or over client-supplied telecommunications 
connections (e.g. dial-up ISPs). The former are within the category of 
Wired Telecommunications Carriers, which has an SBA small business size 
standard of 1,500 or fewer employees. The latter are within the 
category of All Other Telecommunications, which has a size standard of 
annual receipts of $25 million or less. The most current Census Bureau 
data for all such firms, however, are the 2002 data for the previous 
census category called Internet Service Providers. That category had a 
small business size standard of $21 million or less in annual receipts, 
which was revised in late 2005 to $23 million. The 2002 data show that 
there were 2,529 such firms that operated for the entire year. Of 
those, 2,437 firms had annual receipts of under $10 million, and an 
additional 47 firms had receipts of between $10 million and 
$24,999,999. Consequently, we estimate that the majority of ISP firms 
are small entities.
    126. Electric Power Generation, Transmission and Distribution. The 
Census Bureau defines this category as follows: ``This industry group 
comprises establishments primarily engaged in generating, transmitting, 
and/or distributing electric power. Establishments in this industry 
group may perform one or more of the following activities: (1) Operate 
generation facilities that produce electric energy; (2) operate 
transmission systems that convey the electricity from the generation 
facility to the distribution system; and (3) operate distribution 
systems that convey electric power received from the generation 
facility or the transmission system to the final consumer.'' This 
category includes Electric Power Distribution, Hydroelectric Power 
Generation, Fossil Fuel Power Generation, Nuclear Electric Power 
Generation, and Other Electric Power Generation. The SBA has developed 
a small business size standard for firms in this category: ``A firm is 
small if, including its affiliates, it is primarily engaged in the 
generation, transmission, and/or distribution of electric energy for 
sale and its total electric output for the preceding fiscal year did 
not exceed 4 million megawatt hours.'' According to Census Bureau data 
for 2002, there were 1,644 firms in this category that operated for the 
entire year. Census data do not track electric output and we have not 
determined how many of these firms fit the SBA size standard for small, 
with no more than 4 million megawatt hours of electric output. 
Consequently, we estimate that 1,644 or fewer firms may be considered 
small under the SBA small business size standard.
    127. Natural Gas Distribution. This economic census category 
comprises: ``(1) Establishments primarily engaged in operating gas 
distribution systems (e.g., mains, meters); (2) establishments known as 
gas marketers that buy gas from the well and sell it to a distribution 
system; (3) establishments known as gas brokers or agents that arrange 
the sale of gas over gas distribution systems operated by others; and 
(4) establishments primarily engaged in transmitting and distributing 
gas to final consumers.'' The SBA has developed a

[[Page 26637]]

small business size standard for this industry, which is: All such 
firms having 500 or fewer employees. According to Census Bureau data 
for 2002, there were 468 firms in this category that operated for the 
entire year. Of this total, 424 firms had employment of fewer than 500 
employees, and 18 firms had employment of 500 to 999 employees. Thus, 
the majority of firms in this category can be considered small.
    128. Water Supply and Irrigation Systems. This economic census 
category ``comprises establishments primarily engaged in operating 
water treatment plants and/or operating water supply systems.'' The SBA 
has developed a small business size standard for this industry, which 
is: All such firms having $6.5 million or less in annual receipts. 
According to Census Bureau data for 2002, there were 3,830 firms in 
this category that operated for the entire year. Of this total, 3,757 
firms had annual sales of less than $5 million, and 37 firms had sales 
of $5 million or more but less than $10 million. Thus, the majority of 
firms in this category can be considered small.

D. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    129. The timeline for access to poles that we adopt today will 
marginally affect recordkeeping and compliance requirements for 
utilities and attachers. We anticipate that utilities and attachers 
will modify their recordkeeping regarding the performance of make-ready 
work, including timeliness, safety, and capacity, in order to show 
compliance with the timeline in the case of a dispute. The notification 
rule requires the inclusion of certain information in make-ready 
notifications sent to other attachers. We also anticipate that the rule 
regarding the publication of qualified third-party contract workers 
will involve more recordkeeping for utilities that must maintain and 
make available the list to prospective attachers. However, we expect 
the costs of complying with these rules to be minimal, since they do 
not measurably differ from the requirements in place before the 
adoption of this Order.
    130. The changes we adopt today in the enforcement process, 
specifically for pole attachment complaints, similarly do not produce 
significant differences in recordkeeping and compliance requirements 
from the requirements in place before the adoption of this Order. For 
example, although our decision to permit recovery of a monetary award 
to extend as far back as the appropriate statute of limitations allows, 
rather than beginning the award period with the filing of the 
complaint, may increase the period of time over which a complainant 
must produce data to support its monetary claim, we have not adopted 
any requirements of data collection or filing per se.
    131. We expect the costs of complying with the new rules affecting 
attachment rates to be minimal, since any of these compliance costs do 
not significantly differ from requirements in place before the adoption 
of this Order.

E. Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    132. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include (among others) the following four alternatives: (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    133. The specific timeline and additional rules adopted in this 
Order provide a predictable, timely process for parties to seek and 
obtain pole attachments, while maintaining a utility's interest in 
preserving safety, reliability, and sound engineering. We do not adopt 
different requirements for small entities because we expect the 
economic impact on small entities to be minimal. Since we cap the 
number of poles subject to the timeline based on the lesser of a 
numerical cap or a percentage of poles owned by a utility in a state, 
small entities do not undergo any disproportionate hardship. The 100 
pole order cap proposed by NTCA et al. does not achieve the same 
benefit for small entities because it is not specifically tailored to 
the size of the entity. Also, it is unlikely that the timeline will 
result in any significant recordkeeping burdens for small entities 
since prudent utilities and attachers already keep records regarding 
make-ready work and pole capacity and we do not impose any additional 
information collection requirements. Similarly, identifying the 
contractors that utilities themselves already use to prospective 
attachers should not require an additional resource burden. Finally, 
the Commission does not have authority to regulate (and the proposed 
rules, thus, do not apply to) small utilities that are municipally or 
cooperatively owned.
    134. Further, in this Order, the Commission revises the section 
224(e) rental rate for pole attachments used by telecommunications 
carriers to provide telecommunications services. This new telecom rate 
generally will recover the same portion of pole costs as the current 
cable rate. The new formula will minimize the difference in rental 
rates paid for attachments that are used to provide voice, data, and 
video services, and thus will help remove market distortions that pose 
barriers to deployment of new services by small cable and 
telecommunications providers. The Commission also revisits its prior 
interpretation of the statute and allows incumbent LECs to file pole 
attachment complaints before the Commission if they are unable to 
negotiate just and reasonable rates, terms, and conditions with other 
pole owners. Thus, we believe that the rules adopted in this Order to 
ensure that pole attachment rates are just and reasonable will have a 
positive economic benefit on small entities in areas that fall under 
the Commission's regulatory jurisdiction, rather than an adverse 
impact.
    135. Specifically, NTCA et al. asserts that small rural incumbent 
LECs are concerned about unreasonably high rates and ``face 
difficulties in negotiating and, in some cases, litigating contractual 
terms for pole attachments.'' NCTA et al. also asserts that ``[t]he 
Commission's current pole attachment rules effectively deny rural ILECs 
a remedy against unreasonable pole attachment provisions which has a 
significant economic impact on a substantial number of small ILECs.'' 
NTCA requested that the Commission adopt a ``remedy mechanism by which 
[rural ILECs] can present claims of unjust or unreasonable pole 
attachment rates, terms and conditions imposed by utilities''--and 
stated that such a provision ``would reduce the economic impact on 
small rural communications providers.'' The Commission, in fact, adopts 
such a rule in this Order--allowing incumbent LECs to file pole 
attachment complaints. Further, the Commission provides guidance 
regarding its approach to evaluating those complaints and what the 
appropriate rate may be.
    136. Also in this Order, the Commission responds to small cable 
operator concerns about ``possible increases in rates for comingled 
Internet and video services,'' as noted by the U.S. Small Business 
Administration. Addressing the role of the new telecom rate in the 
context of commingled

[[Page 26638]]

services, the Commission recognized concerns by some cable operators 
that pole owners may seek to impose rates higher than both the cable 
rate and the new telecom rate where cable operators or 
telecommunications carriers also provide services, such as VoIP, that 
have not been classified. The Commission stated that this outcome would 
be contrary to its policy goals here in which it adopts a lower and 
more uniform attachment rate to reduce the disparity in pole rental 
rates among providers of competing services to minimize disputes 
resulting from the disparity between cable and pre-existing higher 
telecom rates. This disparity has acted to deter investment and network 
expansion for new services by cable providers because of the risk that 
some of those services could potentially be classified as 
``telecommunications services''--triggering disputes and litigation as 
to whether the higher telecom rate should be applied over their entire 
pole attachment network. The Commission also makes clear that the use 
of pole attachments by telecommunications carriers or cable operators 
to provide commingled services does not remove them from the pole rate 
regulation framework, and that rates generally will not be considered 
just and reasonable if they exceed the new telecom rate.
    137. In addition, the new rate for attachments used by 
telecommunications carriers will have a positive economic impact on 
small competitive LECs. It will minimize competitive disadvantages that 
these carriers faced by having to pay higher rates for these key inputs 
to communications services. The Order also confirms that wireless 
carriers are entitled to the same rate under the statute as other 
telecommunications carriers. Specifically, the Commission explains that 
wireless carriers are entitled to the benefits and protection of 
section 224, including the right to the telecom rate under section 
224(e), in response to reports by the wireless industry of cases where 
wireless providers were not afforded the regulated rate and instead had 
been charged higher rates that were unreasonable.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    138. None.

Ordering Clauses

    Accordingly, it is ordered that pursuant to sections 1, 4(i), 4(j), 
224, 251(b)(4), and 303, of the Communications Act of 1934, as amended, 
and section 706 of the Telecommunications Act of 1996, as amended, 47 
U.S.C. 151, 154(i), 154(j), 224, 251(b)(4), 303(r), 1302, this Report 
and Order and Order on Reconsideration is adopted.
    It is further ordered that part 1 of the Commission's rules is 
amended as set forth in Appendix A.
    It is further ordered that, pursuant to Sec. Sec.  1.4(b)(1) and 
1.103(a) of the Commission's rules, 47 CFR 1.4(b)(1), 1.103(a), this 
Report and Order and Order on Reconsideration shall become effective 
June 8, 2011. The information collection requirements contained in the 
Report and Order will become effective following OMB approval.
    It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order and Order on Reconsideration, including 
the Final Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 1

    Administrative practices and procedure, Cable television, 
Communications common carriers, Communications equipment, 
Telecommunications, Telephone, Television.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 1 to read as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 160, 201, 225, and 303.

Subpart J--Pole Attachment Complaint Procedures

0
2. Revise Sec.  1.1401 to read as follows:


Sec.  1.1401  Purpose.

    The rules and regulations contained in subpart J of this part 
provide complaint and enforcement procedures to ensure that 
telecommunications carriers and cable system operators have 
nondiscriminatory access to utility poles, ducts, conduits, and rights-
of-way on rates, terms, and conditions that are just and reasonable. 
They also provide complaint and enforcement procedures for incumbent 
local exchange carriers (as defined in 47 U.S.C. 251(h)) to ensure that 
the rates, terms, and conditions of their access to pole attachments 
are just and reasonable.

0
3. Section 1.1402 is amended by revising paragraphs (d) and (e) to read 
as follows:


Sec.  1.1402  Definitions.

* * * * *
    (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 it has been 
denied access to a utility pole, duct, conduit, or right-of-way in 
violation of this subpart and/or that a rate, term, or condition for a 
pole attachment is not just and reasonable. It also means a filing by 
an incumbent local exchange carrier (as defined in 47 U.S.C. 251(h)) or 
an association of incumbent local exchange 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, an association of 
telecommunications carriers, an incumbent local exchange carrier (as 
defined in 47 U.S.C. 251(h)) or an association of incumbent local 
exchange carriers who files a complaint.
* * * * *

0
4. Section 1.1404 is amended by revising paragraphs (g)(1)(ix), (k) and 
(m) to read as follows:


Sec.  1.1404  Complaint.

* * * * *
    (g) * * *
    (1) * * *
    (ix) The annual carrying charges attributable to the cost of owning 
a pole. The utility shall submit these charges separately for each of 
the following categories: Depreciation, rate of return, taxes, 
maintenance, and administrative. These charges may be expressed as a 
percentage of the net pole investment. With its pleading, the utility 
shall file a copy of the latest decision of the state regulatory body 
or state court that determines the treatment of accumulated deferred 
taxes if it is at issue in the proceeding and shall note the section 
that specifically determines the treatment and amount of accumulated 
deferred taxes.
* * * * *
    (k) The complaint shall include a certification that the 
complainant has,

[[Page 26639]]

in good faith, engaged or attempted to engage in executive-level 
discussions with the respondent to resolve the pole attachment dispute. 
Executive-level discussions are discussions among representatives of 
the parties who have sufficient authority to make binding decisions on 
behalf of the company they represent regarding the subject matter of 
the discussions. Such certification shall include a statement that, 
prior to the filing of the complaint, the complainant mailed a 
certified letter to the respondent outlining the allegations that form 
the basis of the complaint it anticipated filing with the Commission, 
inviting a response within a reasonable period of time, and offering to 
hold executive-level discussions regarding the dispute. A refusal by a 
respondent to engage in the discussions contemplated by this rule shall 
constitute an unreasonable practice under section 224 of the Act.
* * * * *
    (m) In a case where a cable television system operator or 
telecommunications carrier as defined in 47 U.S.C. 224(a)(5) claims 
that it has been denied access to a pole, duct, conduit or right-of-way 
despite a request made pursuant to section 47 U.S.C. 224(f), the 
complaint shall include the data and information necessary to support 
the claim, including:
    (1) The reasons given for the denial of access to the utility's 
poles, ducts, conduits, or rights-of-way;
    (2) The basis for the complainant's claim that the denial of access 
is unlawful;
    (3) The remedy sought by the complainant;
    (4) A copy of the written request to the utility for access to its 
poles, ducts, conduits, or rights-of-way; and
    (5) A copy of the utility's response to the written request 
including all information given by the utility to support its denial of 
access. A complaint alleging unlawful 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.

0
5. Section 1.1409 is amended by revising paragraph (e)(2) to read as 
follows:


Sec.  1.1409  Commission consideration of the complaint.

* * * * *
    (e) * * *
    (2) With respect to attachments to poles by any telecommunications 
carrier or cable operator providing telecommunications services, the 
maximum just and reasonable rate shall be the higher of the rate 
yielded by paragraphs (e)(2)(i) or (e)(2)(ii) of this section.
    (i) The following formula applies to the extent that it yields a 
rate higher than that yielded by the applicable formula in paragraph 
1.1409(e)(2)(ii) of this section:

Rate = Space Factor x Cost
Where Cost
in Urbanized Service Areas = 0.66 x (Net Cost of a Bare Pole x 
Carrying Charge Rate)
in Non-Urbanized Service Areas = 0.44 x (Net Cost of a Bare Pole x 
Carrying Charge Rate).

[GRAPHIC] [TIFF OMITTED] TR09MY11.024

    (ii) The following formula applies to the extent that it yields a 
rate higher than that yielded by the applicable formula in paragraph 
1.1409(e)(2)(i) of this section:
[GRAPHIC] [TIFF OMITTED] TR09MY11.025

* * * * *

0
6. Section 1.1410 is amended by revising paragraphs (a) and (b) to read 
as follows:


Sec.  1.1410  Remedies.

* * * * *
    (a) If the Commission determines that the rate, term, or condition 
complained of is not just and reasonable, it may prescribe a just and 
reasonable rate, term, or condition and may:
    (1) Terminate the unjust and/or unreasonable rate, term, or 
condition;
    (2) Substitute in the pole attachment agreement the just and 
reasonable rate, term, or condition established by the Commission;
    (3) Order a refund, or payment, if appropriate. The refund or 
payment will normally be the difference between the amount paid under 
the unjust and/or unreasonable rate, term, or condition and the amount 
that would have been paid under the rate, term, or condition 
established by the Commission, plus interest, consistent with the 
applicable statute of limitations; and
    (b) If the Commission determines that access to a pole, duct, 
conduit, or right-

[[Page 26640]]

of-way has been unlawfully denied or delayed, it may order that access 
be permitted within a specified time frame and in accordance with 
specified rates, terms, and conditions.
* * * * *

0
7. Add Sec.  1.1420 to subpart J to read as follows:


Sec.  1.1420  Timeline for access to utility poles.

    (a) The term ``attachment'' means any attachment by a cable 
television system or provider of telecommunications service to a pole 
owned or controlled by a utility.
    (b) All time limits in this subsection are to be calculated 
according to Sec.  1.4.
    (c) Survey. A utility shall respond as described in Sec.  1.1403(b) 
to a cable operator or telecommunications carrier within 45 days of 
receipt of a complete application to attach facilities to its utility 
poles (or within 60 days, in the case of larger orders as described in 
paragraph (g) of this section). This response may be a notification 
that the utility has completed a survey of poles for which access has 
been requested. A complete application is an application that provides 
the utility with the information necessary under its procedures to 
begin to survey the poles.
    (d) Estimate. Where a request for access is not denied, a utility 
shall present to a cable operator or telecommunications carrier an 
estimate of charges to perform all necessary make-ready work within 14 
days of providing the response required by Sec.  1.1420(c), or in the 
case where a prospective attacher's contractor has performed a survey, 
within 14 days of receipt by the utility of such survey.
    (1) A utility may withdraw an outstanding estimate of charges to 
perform make-ready work beginning 14 days after the estimate is 
presented.
    (2) A cable operator or telecommunications carrier may accept a 
valid estimate and make payment anytime after receipt of an estimate 
but before the estimate is withdrawn.
    (e) Make-ready. Upon receipt of payment specified in paragraph 
(d)(2) of this section, a utility shall notify immediately and in 
writing all known entities with existing attachments that may be 
affected by the make-ready.
    (1) For attachments in the communications space, the notice shall:
    (i) Specify where and what make-ready will be performed.
    (ii) Set a date for completion of make-ready that is no later than 
60 days after notification is sent (or 105 days in the case of larger 
orders, as described in paragraph (g) of this section).
    (iii) State that any entity with an existing attachment may modify 
the attachment consistent with the specified make-ready before the date 
set for completion.
    (iv) State that the utility may assert its right to 15 additional 
days to complete make-ready.
    (v) State that if make-ready is not completed by the completion 
date set by the utility (or, if the utility has asserted its 15-day 
right of control, 15 days later), the cable operator or 
telecommunications carrier requesting access may complete the specified 
make-ready.
    (vi) State the name, telephone number, and e-mail address of a 
person to contact for more information about the make-ready procedure.
    (2) For wireless attachments above the communications space, the 
notice shall:
    (i) Specify where and what make-ready will be performed.
    (ii) Set a date for completion of make-ready that is no later than 
90 days after notification is sent (or 135 days in the case of larger 
orders, as described in paragraph (g) of this section).
    (iii) State that any entity with an existing attachment may modify 
the attachment consistent with the specified make-ready before the date 
set for completion.
    (iv) State that the utility may assert its right to 15 additional 
days to complete make-ready.
    (v) State the name, telephone number, and e-mail address of a 
person to contact for more information about the make-ready procedure.
    (f) For wireless attachments above the communications space, a 
utility shall ensure that make-ready is completed by the date set by 
the utility in paragraph (e)(2)(ii) of this section (or, if the utility 
has asserted its 15-day right of control, 15 days later).
    (g) For the purposes of compliance with the time periods in this 
section:
    (1) A utility shall apply the timeline described in paragraphs (c) 
through (e) of this section to all requests for pole attachment up to 
the lesser of 300 poles or 0.5 percent of the utility's poles in a 
state.
    (2) A utility may add 15 days to the survey period described in 
paragraph (c) of this section to larger orders up to the lesser of 3000 
poles or 5 percent of the utility's poles in a state.
    (3) A utility may add 45 days to the make-ready periods described 
in paragraph (e) of this section to larger orders up to the lesser of 
3000 poles or 5 percent of the utility's poles in a state.
    (4) A utility shall negotiate in good faith the timing of all 
requests for pole attachment larger than the lesser of 3000 poles or 5 
percent of the utility's poles in a state.
    (5) A utility may treat multiple requests from a single cable 
operator or telecommunications carrier as one request when the requests 
are filed within 30 days of one another.
    (h) A utility may deviate from the time limits specified in this 
section:
    (1) Before offering an estimate of charges if the parties have no 
agreement specifying the rates, terms, and conditions of attachment.
    (2) During performance of make-ready for good and sufficient cause 
that renders it infeasible for the utility to complete the make-ready 
work within the prescribed time frame. A utility that so deviates shall 
immediately notify, in writing, the cable operator or 
telecommunications carrier requesting attachment and other affected 
entities with existing attachments, and shall include the reason for 
and date and duration of the deviation. The utility shall deviate from 
the time limits specified in this section for a period no longer than 
necessary and shall resume make-ready performance without 
discrimination when it returns to routine operations.
    (i) If a utility fails to respond as specified in paragraph (c) of 
this section, a cable operator or telecommunications carrier requesting 
attachment in the communications space may, as specified in Sec.  
1.1422, hire a contractor to complete a survey. If make-ready is not 
complete by the date specified in paragraph (e)(1)(ii) of this section, 
a cable operator or telecommunications carrier requesting attachment in 
the communications space may hire a contractor to complete the make-
ready:
    (1) Immediately, if the utility has failed to assert its right to 
perform remaining make-ready work by notifying the requesting attacher 
that it will do so; or
    (2) After 15 days if the utility has asserted its right to perform 
make-ready by the date specified in paragraph (e)(1)(ii) of this 
section and has failed to complete make-ready.

0
8. Add Sec.  1.1422 to subpart J to read as follows:


Sec.  1.1422  Contractors for survey and make-ready.

    (a) A utility shall make available and keep up-to-date a reasonably 
sufficient list of contractors it authorizes to perform surveys and 
make-ready in the communications space on its utility poles in cases 
where the utility has failed to meet deadlines specified in Sec.  
1.1420.

[[Page 26641]]

    (b) If a cable operator or telecommunications carrier hires a 
contractor for purposes specified in Sec.  1.1420, it shall choose from 
among a utility's list of authorized contractors.
    (c) A cable operator or telecommunications carrier that hires a 
contractor for survey or make-ready work shall provide a utility with a 
reasonable opportunity for a utility representative to accompany and 
consult with the authorized contractor and the cable operator or 
telecommunications carrier.
    (d) The consulting representative of an electric utility may make 
final determinations, on a nondiscriminatory basis, where there is 
insufficient capacity and for reasons of safety, reliability, and 
generally applicable engineering purposes.

0
9. Add Sec.  1.1424 to subpart J to read as follows:


Sec.  1.1424  Complaints by incumbent local exchange carriers.

    Complaints by an incumbent local exchange carrier (as defined in 47 
U.S.C. 251(h)) or an association of incumbent local exchange carriers 
alleging that a rate, term, or condition for a pole attachment is not 
just and reasonable shall follow the same complaint procedures 
specified for other pole attachment complaints in this part, as 
relevant. In complaint proceedings where an incumbent local exchange 
carrier (or an association of incumbent local exchange carriers) claims 
that it is similarly situated to an attacher that is a 
telecommunications carrier (as defined in 47 U.S.C. 251(a)(5)) or a 
cable television system for purposes of obtaining comparable rates, 
terms or conditions, the incumbent local exchange carrier shall bear 
the burden of demonstrating that it is similarly situated by reference 
to any relevant evidence, including pole attachment agreements. If a 
respondent declines or refuses to provide a complainant with access to 
agreements or other information upon reasonable request, the 
complainant may seek to obtain such access through discovery. 
Confidential information contained in any documents produced may be 
subject to the terms of an appropriate protective order.

[FR Doc. 2011-11137 Filed 5-6-11; 8:45 am]
BILLING CODE 6712-01-P