**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+------------------------------+-------+------------------------------+
| In the Matter of             | )     | File No. PA 96-002           |
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| Marcus Cable Associates, LP, | )     |                              |
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| Complainant,                 | )     |                              |
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| v\.                          | )     |                              |
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| Texas Utilities Electric     | )     |                              |
| Company,                     |       |                              |
|                              | )     |                              |
| Respondent.                  |       |                              |
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|                              | )     |                              |
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|                              | )     |                              |
+------------------------------+-------+------------------------------+

**ORDER ON REVIEW**

**Adopted: July 15, 2003 Released: July 28, 2003**

By the Commission:

I.  **INTRODUCTION**

1\. In this Order, we deny in all except one respect an application for
review[^1] of a Cable Services Bureau order[^2] that granted a pole
attachment complaint[^3] filed by Marcus Cable Associates, LP ("Marcus")
against Texas Utilities Electric Company ("TU Electric")[^4] pursuant to
section 224 of the Communications Act of 1934, as amended.[^5] As
explained below, we conclude that the Commission has jurisdiction to
resolve the Complaint. On the merits, we find the Bureau Order to be
well-supported by the non-confidential material contained in the record
and consistent with the mandates of section 224. To the extent the
Bureau Order ruled on TU Electric's pole attachment agreements other
than the parties' Agreement, however, we find it to be overly broad.

II. **BACKGROUND**

> **A. The Parties and the Complaint**

2\. TU Electric is a utility engaged in the generation, purchase,
transmission, distribution, and sale of electric energy in Texas.[^6] TU
Electric is affiliated with various entities providing
telecommunications services within Texas that are using its private
easements and rights-of-way.[^7] Marcus is a franchised cable operator
that offers video programming services in the Dallas-Fort Worth, Texas
metropolitan area.[^8] In addition to its video programming services,
Marcus offers fiber optic conductor capacity over the excess capacity of
its cable system, on mixed-use, commonly-sheathed fiber optic and
coaxial conductors.[^9]

3\. On November 1, 1995, Marcus and TU Electric entered into a pole
attachment agreement ("Agreement").[^10] On July 24, 1996, Marcus filed
its Complaint with the Commission, challenging the reasonableness of
certain provisions in, and actions related to, the Agreement.[^11]
Specifically, Marcus objected to a section of the Agreement that
required Marcus to indicate whether it transmitted "data other than a TV
signal" through its facilities attached to TU Electric's poles.[^12] A
positive response required Marcus to obtain a release from each of its
non-video customers indemnifying both Marcus and TU Electric in
connection with claims arising out of Marcus's or TU Electric's
"negligence, strict liability or other fault of any nature."[^13] The
release also had to state that non-video services provided by Marcus may
not be completely private and may be interrupted, lost or limited for
many reasons.[^14] Marcus alleged that TU Electric included this section
of the Agreement to gain competitively sensitive information to
eliminate Marcus's efforts to deploy fiber optic communications
facilities and market non-video services, and to destroy or interfere
with Marcus's non-video customer relationships.[^15] Marcus also argued
that other provisions in the Agreement (requiring Marcus to indemnify TU
Electric, provide insurance coverage, and post a bond for each pole) are
more than sufficient to shield TU Electric from liability.[^16] In
addition, according to Marcus, TU Electric demanded a portion of
Marcus's revenue derived from the provision of such non-video
services.[^17] Finally, in response to the Bureau's request for
information,[^18] Marcus sought confidential treatment for information
in two contracts with third parties.[^19] TU Electric requested that the
Complaint be denied or dismissed, arguing, *inter alia*, that the
Commission does not have jurisdiction over contractual disputes.[^20]

**B. Bureau Order and Application for Review**

4\. The Bureau Order found that: (1) section 224 of the Act provides the
Commission with jurisdiction to review the parties' Agreement;[^21] (2)
the Agreement's requirements of indemnification and disclosure of
non-video transmissions over Marcus's facilities were unreasonable;[^22]
(3) TU Electric's efforts to collect information about, and money for,
third-party use of Marcus's cables were impermissible;[^23] and (4)
Marcus was not entitled to actual and punitive damages.[^24] The Bureau
Order terminated the provisions of the Agreement that were found to be
unreasonable, and, more broadly, granted Marcus's request for a
declaratory ruling terminating those provisions in all TU Electric pole
attachment agreements.[^25] The Bureau Order further granted Marcus's
request to maintain the confidentiality of the copies of its agreements
with third-party customers.[^26]

5\. On August 20, 1997, TU Electric filed an application for review of
the Bureau Order, asserting that the Bureau erred by: (1) finding that
the Commission has jurisdiction over the Complaint, which TU Electric
continues to assert is simply a contractual dispute;[^27] (2)
misinterpreting section 224 of the Act and the holdings of certain
Commission orders interpreting that section;[^28] (3) basing its
decision on Marcus's contracts with third parties, which TU Electric
never was allowed to review;[^29] (4) deciding the issues raised in the
Complaint without holding a hearing;[^30] and (5) issuing a declaratory
ruling regarding provisions contained in other TU Electric pole
attachment agreements.[^31]

III. **DISCUSSION\
     **

**A. Jurisdiction**

6\. The Bureau correctly determined that the Commission has jurisdiction
to resolve the Complaint. Section 224 of the Act vests the Commission
with authority to regulate the rates, terms, and conditions for
attachments 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.[^32] The Commission further is
authorized to adopt procedures necessary to resolve complaints
concerning such rates, terms, and conditions,[^33] and "where onerous
terms or conditions are found to exist on the basis of the evidence, . .
. the term\[s\] or condition\[s\] may be invalidated."[^34] The
Commission's authority does not supplant that of the local jurisdiction
when the issue between the parties is limited to a breach of contract
claim that does ***not*** include an allegation of unjust or
unreasonable contractual rates, terms, or conditions.[^35]

7\. In response to Marcus's claim that certain provisions and conditions
attendant to the Agreement were unreasonable, TU Electric asserted that
the "real dispute" before the Bureau was whether Marcus violated its
contract by subleasing its pole attachment rights (*i.e.*, allowing a
party to "overlash" its facilities to Marcus's facilities), and that
this issue is beyond the purview of the FCC.[^36] After reviewing the
record, including supplemental information provided by Marcus, the
Bureau disagreed with TU Electric that the issues in the complaint
pertained exclusively to the subleasing provisions of the contract.[^37]
The Bureau instead determined that the Complaint involved questions
regarding the reasonableness of the Agreement's terms and conditions, as
well as the reasonableness of TU Electric's request for additional
payment regarding revenue from non-video services.[^38] The Bureau also
concluded that two Commission-level decisions squarely addressed similar
issues in pole attachment complaint proceedings, and affirmed the
agency's jurisdiction.[^39]

8\. In its Application, TU Electric adheres to its view that the
Commission lacks jurisdiction to resolve the Complaint.[^40] TU Electric
insists that, by concluding that there was no third-party overlashing
(and thus no breach of the Agreement), the Commission necessarily
decided a matter of contract over which it lacked jurisdiction.[^41] We
disagree. The Complaint expressly challenges the reasonableness of the
terms and conditions of Marcus's attachments to TU Electric's
poles.[^42] TU Electric's focus on the issue of "breach" is misplaced.
Regardless of whether the Agreement technically was breached -- and
regardless of whether the fee TU Electric consequently imposed is termed
"restitution" or an "excessive rate"[^43] -- the Complaint's allegations
of unreasonableness fall squarely within the Commission's
jurisdiction.[^44] Stated differently, the description of the fee does
not affect the Commission's jurisdiction, and the Bureau was correct to
review the fee and determine its justness and reasonableness under the
Act.[^45]

**B. Third-Party Overlashing**

9\. TU Electric argues that the Bureau incorrectly concluded that Marcus
did not engage in third-party overlashing.[^46] Specifically, TU
Electric contends that the Bureau improperly based its factual finding
on contradicted and conclusory complaint allegations and on evidence
that TU Electric was not allowed to review. [^47] Moreover, TU Electric
contends that the Bureau wrongly shifted the burden of proof to TU
Electric and refused to hold a hearing.[^48] We reject TU Electric's
assertions as unsupported by the record.

10\. The facts in the record on this issue are as follows: TU Electric
found that in two places a third-party, non-video provider had installed
a handhole[^49] at the base of one of TU Electric's distribution poles,
with a conduit extending to a conduit riser attached to the pole.[^50]
In both locations, a fiber optic cable extends from the handhole, up the
riser, and is overlashed to Marcus's primary cable that is attached to
TU Electric's pole.[^51] This discovery caused TU Electric to question
whether the overlashed cable or other fiber cable was wholly owned by
Marcus, and whether it was being used or leased by third parties.[^52]
Marcus submitted the Pietri Declaration, which states that Marcus
provides non-video services, "typically fiber optic conductor capacity .
. . over the excess capacity of its cable television system, on mixed
use, commonly sheathed fiber and coaxial conductors."[^53] In response
to nine interrogatories propounded by the Bureau, Marcus specified
precisely the type of capacity it provides over its network, and stated
categorically that it wholly owns all facilities it attaches to TU
Electric poles.[^54] Marcus further explained how long fiber optic cable
it owns had been overlashed pursuant to permits obtained by Marcus's
predecessor-in-interest, and confirmed that it has not entered any
agreements permitting a third party to attach to TU Electric's
poles.[^55]

11\. Given this record, the Bureau reasonably concluded that Marcus had
met its burden of demonstrating that it wholly owned the overlashed
cable.[^56] Marcus's assertions were fully supported by affidavit, and
TU Electric did not provide any contradictory evidence. Thus, there was
ample basis to find that Marcus had not engaged in third-party
overlashing, which was the basis for TU Electric's claim that Marcus had
breached the Agreement's non-assignment clause.[^57]

12\. We further reject TU Electric's argument that the Bureau Order
improperly relied on confidential documents provided by Marcus in
response to the Bureau's request for information. The Bureau based its
conclusion that Marcus wholly owned the overlashed cable exclusively on
the substantial, non-confidential evidence in the record.[^58] In other
words, the Bureau ***did not rely*** on the confidential documents in
reaching its conclusion.[^59]

13\. TU Electric contends that the Bureau impermissibly shifted the
burden of proof on the overlashing and other issues to TU Electric.[^60]
We disagree. Once a complainant in a pole attachment matter meets its
burden of establishing a *prima facie* case, the respondent bears a
burden to explain or defend its actions.[^61] Thus, when Marcus proved
as a matter of fact that it had not permitted third-party
overlashing,[^62] TU Electric was required to come forth with some
evidence to support its assertion that Marcus's contentions were wrong
as a factual matter. As discussed above, TU Electric offered no evidence
refuting Marcus's claims. The Bureau's use of phrases such as "failed to
make a sufficient showing"[^63] indicates a failure of TU Electric to
meet its burden of production rather than a shift in the ultimate burden
of proof.

14\. Finally, we reject TU Electric's contention that it was entitled to
a hearing. The pole attachment process is designed to be efficient but
allow all parties to express fully their positions, and the decision to
grant an evidentiary hearing is discretionary.[^64] In this matter, both
parties submitted extensive pleadings, affidavits, and exhibits to
explain their respective positions.[^65] The Bureau found that the
material facts available in the record in written form were sufficient
to support its decision, and we agree.[^66] Moreover, TU Electric has
not identified "a material question of fact that warrants a
hearing."[^67] Consequently, we find that the Bureau did not err in
declining to hold a hearing.

**C. Leasing of Excess Capacity**

15\. In its Application, TU Electric argues that the Bureau erred in
concluding that the terms and conditions of the Agreement with respect
to leased capacity to a telecommunications provider are unjust and
unreasonable, because it based its conclusions on a
pre-Telecommunications Act of 1996 ("1996 Act")[^68] interpretation of
section 224.[^69] In this regard, TU Electric states: "While a
telecommunications carrier may now also have the right to pole
attachments from a utility and, if it does not already have an
agreement, secure a regulated rate, that is the right of a
telecommunications carrier, not a cable system wishing to sublease
one."[^70] As TU Electric notes, at the time of the Bureau decision the
Commission had not itself addressed whether the 1996 Act should be
interpreted to "allow (*e.g.*, force utilities to permit) systems with
attachment rights to let unrelated telecommunications carriers overlash
their cables to existing systems."[^71] TU Electric argues that section
224 applies only to attachments for services offered by the attacher
itself (here, Marcus) and not to attachments that are used to allow
third parties to provide services, because "\[s\]uch subleasing of
capacity clearly is not encompassed within Section 224."[^72]

16\. The Commission subsequently decided that section 224 does indeed
apply to leased capacity:

> We affirm our holding in the *Telecom Order* that if an attachment
> previously used for providing solely cable services would, as a result
> of the leasing of dark fiber, also be used for providing
> telecommunications services, the rate for the attachment would be
> determined using the *Telecom Formula*. However, attaching entities
> may lease their dark fiber to third parties without such leases being
> considered separate attachments and without making an additional
> payment beyond the host's existing attachment rate. The cable system
> operator may lease excess fiber capacity within its existing
> attachment to any party for a negotiated rate without the knowledge or
> consent of the pole owner because the physical attachment will not be
> altered. The dark fibers contained within the attaching host have
> already been taken into account in determining the rent for the
> attachment. The character and content of the services provided do not
> affect the amount of space occupied by the attachment. The type of
> services provided over the attachment only affect the pole attachment
> rate if the services are telecommunications services. If the third
> party leasing the fiber is, or becomes, a telecommunications carrier,
> then the utility is entitled to compensation for the pole attachment
> based on the *Telecom Formula* and must be notified.[^73]

**D. Information and Indemnity Requests\
**

17\. We reject TU Electric's argument that the Bureau had insufficient
evidence to find that the requirements of Section 13.1A of the Agreement
were unreasonable.[^74] Section 13.1A requires disclosure of information
regarding non-video services and mandates that customers of non-video
services execute indemnity and release agreements in favor of TU
Electric.[^75] We concur with the Bureau's conclusion that, beyond an
indication that a pole is being used for the provision of
telecommunications services, the requirements of section 13.1A requiring
identification of non-video customers and their location on Marcus'
system appear to be a thinly-veiled attempt to undermine the provision
of telecommunications services offered by actual or potential
competitors and are unreasonable.[^76] Further, as the Bureau
determined, TU Electric already is adequately indemnified by Marcus for
liability arising out of Marcus's attachment to TU Electric poles.[^77]
Whether or not Marcus seeks indemnity from its third-party customers, TU
Electric is protected by the Agreement.[^78] Consequently, the Bureau
rightly found that the indemnity requirement in Section 13.1A is
unnecessary to protect TU Electric's interests and therefore is
unreasonable.[^79] In addition, contrary to TU Electric's assertion, the
Bureau did not shift the ultimate burden of proof regarding disclosure
and indemnity to TU Electric. Marcus established that the provision was
unnecessary in light of the Agreement's general indemnity
provision.[^80] TU Electric failed to persuade the Bureau that there was
a reason to require the additional indemnification.[^81]

18\. Finally, TU Electric asserts that it was inappropriate for the
Bureau to issue a declaratory ruling affecting multiple TU Electric
agreements.[^82] In addition to invalidating the notice, information and
indemnification requirements contained in Section 13.1A of the parties'
Agreement, the declaratory ruling invalidates those provisions in
***all*** TU Electric pole attachment agreements.[^83] TU Electric
argues that the section 224 adjudicatory process is geared to the
resolution of specific factual claims in specific factual circumstances,
and that it is not proper for the Bureau to make a sweeping
determination affecting agreements that the Commission has not seen and
parties that are not before it.[^84] TU Electric further contends that
because the indemnification provision in Section 13.1A allows individual
companies affected by the provision to reach agreement with TU Electric
as to alternative provisions, which may be acceptable to both parties,
the Bureau should not have issued a declaratory ruling.[^85] We find
that the Bureau did not have adequate record for issuing its declaratory
ruling on this issue insofar as it pertains to TU Electric's pole
attachment agreements other than the parties' Agreement. In sum, there
is an insufficient record in this case to warrant a determination
applicable to agreements and parties that are not presently before the
Commission.

IV. **ORDERING CLAUSE**

19\. For the reasons discussed above, IT IS ORDERED, pursuant to section
1.115 of the Commission's rules, 47 C.F.R. § 1.115, that the Application
for Review of *Marcus Cable Associates, LP v. Texas Utilities Electric
Company*, Declaratory Ruling and Order, 12 FCC Rcd 10362 (Cable Serv.
Bur. 1997), IS GRANTED to the extent indicated above and in all other
respects, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: Application for Review, File No. PA 96-002 (filed Aug. 20, 1997)
    ("Application").

[^2]: *Marcus Cable Associates, LP v. Texas Utilities Electric Company*,
    Declaratory Ruling and Order, 12 FCC Rcd 10362 (Cable Serv. Bur.
    1997) ("Bureau Order").

[^3]: Complaint and Request for Declaratory Ruling, File No. PA 96-002
    (filed July 24, 1996) ("Complaint").

[^4]: TU Electric was the named defendant in the Complaint. *See*
    Complaint at 1. Subsequently, TU Electric was renamed TXU US
    Holdings Company, and a newly formed company, Oncor Electric
    Delivery Company, became the successor-in-interest to the wired
    assets previously held by TU Electric. *See* Letter from Jonathan L.
    Wiener, counsel for TU Electric, to William Caton, Secretary, FCC,
    File No. PA 96-002 (Mar. 4, 2002). To avoid confusion, we will
    continue to refer to the defendant as "TU Electric."

[^5]: 47 U.S.C. § 224.

[^6]: Supplemental Response, File No. PA 96-002 (filed Dec. 13, 1996)
    ("Supplemental Response") at 8.

[^7]: Supplemental Response at 8-9; Bureau Order, 12 FCC Rcd at
    10363-64, ¶ 5.

[^8]: Complaint, Declaration of John Pietri ("Pietri Declaration") at 1,
    ¶ 2.

[^9]: Complaint, Pietri Declaration at 1, ¶ 2.

[^10]: Complaint at 8, ¶ 33, Exhibit 5 (CATV Pole Lease Agreement).

[^11]: Complaint at 3-4, ¶¶ 13-16.

[^12]: Complaint at 9, ¶¶ 36-40.

[^13]: Complaint at 6-8, ¶¶ 25-35, Exhibit 5 at 17-18 & Attachment D;
    Reply, File No. PA 96-002 (filed Sept. 10, 1996) at 12-13, ¶¶ 31-34.

[^14]: Complaint at 7, ¶ 26, Exhibit 5, Attachment D.

[^15]: Complaint at 7-8, ¶¶ 28, 30, 37.

[^16]: Complaint at 7, ¶ 29 & n.5; Reply at 10-11, ¶¶ 24-28.

[^17]: Complaint at 9, 11, ¶¶ 36, 45-47.

[^18]: Letter from Meredith J. Jones, Chief, Cable Services Bureau, to
    Paul Glist, Counsel for Marcus, File No. PA 96-002 (Dec. 2, 1996).

[^19]: Complainant's Response to Bureau's Information Request, File No.
    PA 96-002 (filed Dec. 18, 1996) ("Response to Information Request");
    Request to Withhold Information from Public Inspection, File No. PA
    96-002 (filed Dec. 18, 1996) ("Request to Withhold Information").

[^20]: Response to Complaint and Request for Declaratory Ruling, PA No.
    96-002 (filed Aug. 22, 1996) ("Response") at 5-7, 10; Supplemental
    Response at 2-3, 16-17.

[^21]: Bureau Order, 12 FCC Rcd at 10365-68, ¶¶ 9-16.

[^22]: Bureau Order, 12 FCC Rcd at 10369-71, ¶¶ 20-24.

[^23]: Bureau Order, 12 FCC Rcd at 10371-73, ¶¶ 25-27.

[^24]: Bureau Order, 12 FCC Rcd at 10373, ¶ 29.

[^25]: Bureau Order, 12 FCC Rcd at 10373, ¶ 28.

[^26]: Bureau Order, 12 FCC Rcd at 10373-6, ¶¶ 30-38.

[^27]: Application at 5-7.

[^28]: Application at 19-22.

[^29]: Application at 7-11.

[^30]: Application at 12, 14.

[^31]: Application at 19.

[^32]: 47 U.S.C. § 224(b)(1).

[^33]: 47 U.S.C. § 224(b)(1).

[^34]: *Amendment of Rules and Policies Governing the Attachment of
    Cable Television Hardware to Utility Poles*, Memorandum Order and
    Opinion on Reconsideration, 4 FCC Rcd 468, 471, ¶ 26 (1989).

[^35]: *Alabama Cable Telecommunications Ass'n v. Alabama Power Co.*,
    Order, 16 FCC Rcd 12209, 12217, ¶ 18 (2002), *review denied sub nom.
    Alabama Power Co. v. FCC*, 311 F.3d 1357 (11^th^ Cir. 2002),
    *petition for cert. filed*, 71 U.S.L.W. 3653 (U.S. Apr. 4, 2003)
    (No. 02-1474) ("*Alabama Power*"). *See also Southern Co. Servs.
    Inc. v. FCC*, 313 F.3d 574, 583 (D.C. Cir. 2002) ("*Southern
    Company*") (upholding the Commission's jurisdiction to resolve
    disputes over the terms and conditions of existing contracts).

[^36]: Response at 1-7, Declaration of Robert L. Ewing at 1-2, ¶ 3;
    Supplemental Response at 2, 5-7; Application at 12-13, 21.

[^37]: Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12.

[^38]: Bureau Order, 12 FCC Rcd at 10366, 10372, ¶¶ 11-12, 26.

[^39]: Bureau Order, 12 FCC Rcd at 10366-68, ¶¶ 12-16.

[^40]: Application for Review at 5-7.

[^41]: Application at 6-7.

[^42]: *See, e.g.*, Complaint at 6-12, ¶¶ 24-50 (alleging that the
    provisions of the Agreement requiring (1) disclosure of information
    relating to Marcus's customers; (2) execution of releases by its
    customers; and (3) payment of a portion of non-video revenue are
    unreasonable terms and conditions under section 224).

[^43]: *See* note 45, *infra*

[^44]: 47 U.S.C. § 224(b).

[^45]: *See, e.g.*, *Mile Hi Cable Partners v. Public Service Company of
    Colorado*, Order, 17 FCC Rcd 6268, 6270, ¶ 7 (2002) (the Commission
    had jurisdiction where the issue was "not whether the Complainant
    failed to pay an invoice based on a just and reasonable term or
    condition, but whether the term or condition itself was
    reasonable"), *petition for review filed* *sub nom. Public Service
    Co. of Colorado v. FCC*, No. 02-1163 (D.C. Cir. May 24, 2002).

[^46]: Application at 7-13.

[^47]: Application at 7-13. As part of this argument, TU Electric
    contends that the Bureau erroneously determined that the fee TU
    Electric charged Marcus for Marcus's alleged overlashing was an
    unreasonable term and condition of attachment, rather than
    "restitution" for breach of contract. Application at 13-14. Again,
    notwithstanding TU Electric's nomenclature, this case is not simply
    a contract dispute. The Bureau correctly concluded that the fee was
    a term and condition of attachment and, accordingly, that the
    Commission appropriately assessed the justness and reasonableness of
    the fee. 47 U.S.C. § 224(b).

[^48]: Application at 7-13.

[^49]: A handhole is "\[a\]n access opening, provided in equipment or in
    a below-the-surface enclosure in connection with underground lines,
    into which personnel reach but do not enter, for the purpose of
    installing, operating, or mainlining equipment or cable or both."
    National Electric Safety Code at 7 (1997 ed.).

[^50]: Complaint, Exhibit 9 (Letter from Robert L. Ewing, Distribution
    Planning Manager, TU Electric, to Marcus (May 20, 1996)).

[^51]: Complaint, Exhibit 9.

[^52]: Complaint, Exhibit 9.

[^53]: Complaint, Pietri Declaration at 1, ¶ 2.

[^54]: Response to Information Request at 1-2.

[^55]: Response to Information Request at 2-3.

[^56]: Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12.

[^57]: Because Marcus did not allow a third-party to overlash its cable,
    it was not necessary for the Bureau to determine the reasonableness
    of the non-assignment provision. *See* *Implementation of Section
    703(e) of the Telecommunications Act of 1996*, Consolidated Partial
    Order on Reconsideration, 16 FCC Rcd 12103, 12141, ¶ 75 (2001)
    ("*Reconsideration Order*"), *aff'd Southern Company*, 313 F.3d at
    574.

[^58]: Complaint, Pietri Declaration at 1, ¶ 2; Response to Information
    Request at 1-4.

[^59]: *See* Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12. TU Electric
    also argues that Marcus did not adequately support its request for
    confidential treatment. Application at 8-10. In any event, because
    the Bureau did not rely on the confidential information, we need not
    repeat the lengthy discussion contained in the Bureau Order and its
    analysis of this issue. *See* Bureau Order, 12 FCC Rcd at 10373-77,
    ¶¶ 30-38.

[^60]: Application at 3, 12-18. In addition to the overlashing issues,
    TU Electric claims it wrongly was assigned the burden of proof on
    the reasonableness of the Agreement's disclosure and indemnification
    provisions. We discuss this contention *infra*, section III.D.

[^61]: *See Adoption of Rules for the Regulation of Cable Television
    Pole Attachments*, First Report and Order, 68 FCC2d 1585, 1598, ¶ 40
    (1978); 47 C.F.R. §§ 1.407, 1.1404(j), 1.1409(a); *cf.*
    *Implementation of the Telecommunications Act of 1996, Amendment of
    Rules Governing Procedures to Be Followed When Formal Complaints Are
    Filed Against Common Carriers*, Report and Order, 12 FCC Rcd 22497,
    22617, ¶ 295 (1997) (subsequent history omitted) (it is "incumbent
    upon a defendant . . . to respond fully to any *prima facie* showing
    made by a complainant, with full legal and evidentiary support").

[^62]: *See* Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12; Complaint,
    Pietri Declaration at 1, ¶ 2; Response to Information Request at
    1-3.

[^63]: Bureau Order, 12 FCC Rcd at 10371, ¶ 24; Application at 17.

[^64]: *Alabama Power*, 311 F.3d at 1371; *see* 47 C.F.R. § 1.1407 (". .
    . no other filings . . . will be considered unless authorized by the
    Commission"); 47 C.F.R. § 1.1411 ("The Commission may decide each
    complaint upon the filings and information before it, may require
    one or more informal meetings with the parties to clarify the issues
    or to consider settlement of the dispute, or may, in its discretion,
    order evidentiary procedures upon any issues it finds to have been
    raised by the filings.").

[^65]: In addition to the Agreement, Marcus submitted representative
    invoices and correspondence with TU Electric relating to the
    Agreement, as well as declarations of Marcus's Senior Vice
    President, Vice President of Engineering and Technology, and counsel
    regarding efforts to negotiate contract terms with TU Electric.
    *See* Complaint, Exhibits 1-10 and declarations attached thereto;
    Reply, Exhibit 2 and declaration attached hereto. Further, Marcus
    responded in writing under oath to questions propounded by the
    Bureau and provided certain franchise materials with respect to its
    provision of non-video data capacity to local governments. Response
    to Information Request and attachment thereto. In conjunction with
    its Response, TU Electric submitted four declarations as well as
    correspondence relating to the execution of the Agreement. Response,
    Appendices A-E.

[^66]: Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12.

[^67]: *Alabama Power*, 311 F.3d at 1372.

[^68]: Pub. L. No. 104-104, 110 Stat. 56 (1996).

[^69]: *See Heritage Cablevision Assoc. of Dallas v. Texas Util. Elec.
    Co*., Memorandum Opinion and Order, 6 FCC Rcd 7099 (1991), *recon.
    denied*, 7 FCC Rcd 4192 (1992), *aff'd sub nom.* *Texas Util. Elec.
    Co. v. FCC*, 997 F.2d 925 (D.C. Cir. 1993) ("*Heritage
    Cablevision*"). In *Heritage Cablevision*, the Commission determined
    that the jurisdiction conferred by section 224 extended to pole
    attachments that carry non-video services in addition to traditional
    cable video services. *Heritage Cablevision*, 6 FCC Rcd at 7107, ¶
    39.

[^70]: Application at 20.

[^71]: Application at 21.

[^72]: Application at 21.

[^73]: *Reconsideration Order*, 16 FCC Rcd at 12146, ¶ 86.

[^74]: Application at 15-18.

[^75]: Bureau Order, 12 FCC Rcd at 10368, ¶ 17.

[^76]: Bureau Order, 12 FCC Rcd at 10370-71, ¶¶ 22-23.

[^77]: Bureau Order, 12 FCC Rcd at 10369-70, ¶ 20.

[^78]: Bureau Order, 12 FCC Rcd at 10369-70, ¶ 20.

[^79]: Bureau Order, 12 FCC Rcd at 10369-70, ¶ 20.

[^80]: *See* Complaint at 7, ¶ 29 & n.5; Reply at 9-11, ¶¶ 23-28 &
    Exhibit 5.

[^81]: *Cf.* paragraph 13, *supra*.

[^82]: Application at 19.

[^83]: Bureau Order, 12 FCC Rcd at 10373, ¶ 28.

[^84]: Application at 19.

[^85]: Application at 19.