**Before the**

#  Federal Communications Commission

**Washington, D.C. 20554**

TCI Cablevision of Montana, Inc. )

d/b/a AT&T Cable Services )

Complainant, )

) File No. PA 00-002

v\. )

)

Energy Northwest, Inc. )

Respondent. )

**ORDER**

**Adopted: August 16, 2000 Released: August 18, 2000**

By the Deputy Chief, Cable Services Bureau:

Number range level0Number range level1Number range level2Number range
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range level71. On April 14, 2000, TCI Cablevision of Montana, Inc. d/b/a
AT&T Cable Services (\"Complainant\") filed a pole attachment complaint
(\"Complaint\") against Energy Northwest, Inc. (\"Respondent\") pursuant
to Section 224 of the Communications Act of 1934, *as amended* (\"Pole
Attachment Act\")[^1] and Subpart J of the Commission\'s Rules.[^2] On
May 24, 2000,[^3] Respondent filed its Response, which included a
request that the Complaint be dismissed because the Federal
Communications Commission (\"Commission\") lacks jurisdiction over the
Respondent. On June 13, 2000, Complainant filed its Reply.

2\. Pursuant to the Pole Attachment Act, the Commission does not have
jurisdiction to regulate attachments to poles owned or controlled by a
utility that is cooperatively organized.[^4] The Senate Report on the
Pole Attachment Act acknowledged that \"pole rates charged by . . .
cooperative utilities are already subject to a decision making process
based upon constituent needs . . . These rates presumably reflect what .
. . managers of customer-owned cooperatives regard as an equitable
distribution of pole costs between utilities and cable television
systems.\"[^5] Respondent states that, in November 1998, Flathead
Electric Cooperative acquired an investor owned utility's service area
that included the cities of Columbia Falls, Whitefish and Kalispell,
Montana. Because, pursuant to Montana law, these areas were too
populated to be served directly by Flathead Electric Cooperative,
Flathead Electric Cooperative created a wholly-owned subsidiary, Energy
Northwest, Inc. (the Respondent), to service these areas.[^6] Respondent
is incorporated as a for profit corporation under Montana law, because
it is ineligible to incorporate as a rural electric cooperative due to
the size of its service areas. However, Respondent's articles of
incorporation[^7] and bylaws[^8] specifically require Respondent to
operate on a non-profit, patronage basis for the mutual benefit of its
patrons, the users of its services. Respondent's patrons are represented
on the board of trustees of Flathead Electric Cooperative; its profits,
if any, are allocated to its patrons; its directors are democratically
elected by its patrons; and Respondent is classified as a cooperative by
the Internal Revenue Service.[^9]

3\. Complainant argues for a narrow interpretation of the Pole
Attachment Act's term \"cooperatively organized\" that would exclude
Respondent from exemption from our pole attachment regulations.
Complainant argues that Respondent's legal structure, while
\"cooperative like,\" does not satisfy the phrase \"cooperatively
organized\" as it is used in the Pole Attachment Act. We disagree. The
record shows that Respondent's classification as a for profit
corporation under Montana laws creates little, if any, restriction on
Respondent's ability to operate as a cooperative in providing service to
its patrons. We find that Respondent is \"cooperatively organized\" as
the term is used in the Pole Attachment Act. Therefore, we find that the
Commission is without jurisdiction to resolve the Complaint and it will
be dismissed.

4\. Accordingly, IT IS ORDERED, pursuant to Sections 0.321, 1.1402 and
1.1406 of the Commission\'s Rules, 47 C.F.R. §§ 0.321, 1.1402 and
1.1406, that the referenced complaint IS DISMISSED, and the proceeding
IS TERMINATED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> William H. Johnson
>
> Deputy Chief, Cable Services Bureau

[^1]: 47 U.S.C. §224.

[^2]: 47 C.F.R. §§1.1401--1.1418.

[^3]: On May 12, 2000, Respondent filed a motion for extension of time
    to file its response, which was granted. *See* In the Matter of TCI
    Cablevision of Montana, Inc. d/b/a AT&T Cable Services v. Energy
    Northwest, Inc., 15 FCC Rcd 8841 (2000).

[^4]: 47 U.S.C. § 224 (a) (1). *See also* 47 C.F.R. § 1.1402 (a).

[^5]: S. Rep. No. 95-580, 95^th^ Cong., 1^st^ Sess. (1977).

[^6]: Respondent honored a settlement agreement, entered into by
    Complainant and the investor owned utility that had previously
    served Columbia Falls, Whitefish and Kalispell, until the agreement
    expired in December 1999. At that point, Respondent increased the
    annual pole attachment rate from \$3.75 per pole to \$13.84, a rate
    similar to that being charged by Flathead Electric Cooperative in
    its service areas outside of Columbia Falls, Whitefish and
    Kalispell.

[^7]: Response at Exhibit E.

[^8]: Response at Exhibit F. Exhibit F, as filed, contained only
    excerpts of Respondent's bylaws. On August 15, 2000, at the request
    of the Cable Services Bureau staff, Respondent provided a complete
    copy of Exhibit F to its Response.

[^9]: Response at Exhibit A.