**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. PA 97-002           |
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| Omnipoint Corporation,           | ** |                              |
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| PECO Energy Company,             | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: March 24, 2003 Released: March 25, 2003**

By the Chief, Enforcement Bureau:

1.  In this Order we grant in part a complaint that Omnipoint
    Corporation ("Omnipoint") filed against PECO Energy Company
    ("PECO"), pursuant to Section 224 of the Communications Act of 1934,
    as amended ("Pole Attachment Act")[^1] and Subpart J of Part 1 of
    the Commission's rules.[^2] Omnipoint's Complaint concerns access to
    PECO's facilities for the placement of Omnipoint's wireless Personal
    Communications Service ("PCS") base stations, antennas and
    equipment.[^3] Omnipoint requests that the Commission order PECO to
    comply with the Pole Attachment Act and the Commission's rules,
    provide Omnipoint with access to its facilities at just and
    reasonable rates, and provide Omnipoint with the information and
    documentation to support its attachment rate.[^4] We grant
    Omnipoint's Complaint in part and order PECO to comply with the Pole
    Attachment Act and the Commission's pole attachment rules, to the
    extent that Omnipoint continues to seek access to PECO's facilities.

2.  Pursuant to the Pole Attachment Act, the Commission has general
    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, except where such matters are
    regulated by a State.[^5] The Commission has adopted procedures to
    hear and resolve complaints concerning such rates, terms, and
    conditions,[^6] and has developed a formula methodology to determine
    maximum allowable pole attachment rates to ensure that such rates
    are just and reasonable.[^7]

3.  Omnipoint filed its Complaint pursuant to the Commission's pole
    attachment complaint rules. In its Complaint, Omnipoint requests the
    Commission to: a) admonish PECO that it is bound by section 224 of
    the Act and sections 1.1401 to 1.1416 of the Commission's rules; b)
    order PECO to provide information and supporting documentation
    required by section 1.1404(g) of the Commission's rules; c) require
    PECO to set a fair and reasonable pole attachment rate; d) order
    PECO to provide Omnipoint access to its poles, ducts, conduits,
    rights-of-way, and transmission towers on reasonable rates and
    terms; e) grant Omnipoint costs and attorneys fees; and f) grant
    such other relief as the Commission deems just, reasonable and
    proper.[^8]

4.  PECO responds to Omnipoint's Complaint with three jurisdictional and
    ripeness arguments, each of which we reject. First, we deny PECO's
    motion to dismiss the Complaint.[^9] PECO argues that we must
    dismiss the Complaint because Omnipoint is not actually attached to
    any of PECO's poles and the Complaint raises only hypothetical
    questions.[^10] We disagree and deny the motion. A complainant need
    not have gained access in order to file a valid complaint. A
    complaint alleging denial of access, in this case due to an
    allegedly excessive attachment rate, is valid and ripe for review
    under the Pole Attachment Act and the Commission's rules.[^11]

5.  Second, PECO argues that the case is not ripe for review because
    Omnipoint did not make PECO a counteroffer to PECO's proposed per
    site charge of \$2,100.00 and, therefore, did not attempt to engage
    in meaningful negotiations.[^12] In order to conduct fruitful
    negotiations, an attaching party must have the information necessary
    to calculate a just and reasonable rate in accordance with the Pole
    Attachment Act.[^13] PECO failed to provide Omnipoint with the
    necessary information to support PECO's proposed \$2,100.00 rate.
    This failure provided an adequate basis for Omnipoint's filing the
    Complaint. We therefore disagree with PECO that the Commission's
    consideration of the limited request for relief in the Complaint is
    premature.

6.  Finally, PECO argues that the Commission does not have jurisdiction
    in this matter because Omnipoint seeks to attach wireless
    equipment.[^14] We disagree. As the Supreme Court concluded last
    year in *NCTA v. Gulf Power Co*.,[^15] the Commission has
    jurisdiction over wireless telecommunications service attachments.
    This jurisdictional issue was the subject of extensive litigation
    elsewhere during the pendency of this case. The Supreme Court's
    recent resolution of this issue removes a final obstacle to
    resolving Omnipoint's limited request for relief.[^16]

7.  Having rejected PECO's principal defenses to Omnipoint's Complaint,
    we grant Omnipoint's request in large part.[^17] Specifically, we
    order PECO to comply with the Pole Attachment Act and the
    Commission's pole attachment rules. To the extent that Omnipoint
    continues to seek access to PECO's facilities, once Omnipoint
    identifies to PECO the sites it wishes to use and the type of
    equipment to be installed and requests access, PECO shall provide
    Omnipoint with historical cost data related to the specific
    facilities to which Omnipoint seeks attachment, in accordance with
    section 1.1404 of the Commission's rules.[^18] The parties shall
    then negotiate a just and reasonable attachment rate based upon the
    cost data supplied by PECO.[^19] In sum, PECO is obligated to
    provide Omnipoint access to its facilities at just and reasonable
    rates in accordance with the Pole Attachment Act and the
    Commission's rules.[^20]

8.  Finally, we deny Omnipoint's request for attorney's fees and costs.
    The Commission has stated that it does not have the authority to
    award attorney's fees or costs in pole attachment complaint
    proceedings.[^21]

9.  Accordingly, IT IS ORDERED, pursuant to Sections 0.111 and
    1.1401-1.1418 of the Commission's rules, 47 C.F.R. §§ 0.111 and §§
    1.1401-1.1418, that the relief requested in the Complaint IS GRANTED
    TO THE EXTENT INDICATED HEREIN.

10. IT IS FURTHER ORDERED, pursuant to Sections 0.111 and 1.1401-1.1418
    of the Commission\'s Rules, 47 C.F.R. §§ 0.111 and 1.1401-1.1418,
    that, to the extent that Omnipoint continues to seek access to
    PECO's facilities, Omnipoint and PECO SHALL NEGOTIATE IN GOOD FAITH
    maximum just and reasonable rates for pole attachments in accordance
    with 47 U.S.C. § 224 and the Commission\'s rules.

11. IT IS FURTHER ORDERED, pursuant to Sections 0.111 and 1.1401- 1.1418
    of the Commission\'s rules, 47 C.F.R. §§ 0.111 and 1.1401- 1.1418,
    that Omnipoint's request for attorney's fees and costs is DENIED.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 U.S.C. § 224.

[^2]: 47 C.F.R. §§ 1.1401-1.1418.

[^3]: Complaint of Omnipoint Corporation, File No. PA 97-002 (filed
    April 1, 1997) ("Complaint") at 3.

[^4]: Effective March 25, 2002, the Commission transferred
    responsibility for resolving pole attachment complaints from the
    former Cable Services Bureau to the Enforcement Bureau. *See*
    *Establishment of the Media Bureau, the Wireline Competition Bureau
    and the Consumer and Governmental Affairs Bureau, Reorganization of
    the International Bureau and Other Organizational Changes*, 17 FCC
    Rcd 4672 (2002).

[^5]: 47 U.S.C. § 224 (b) and (c). Pennsylvania has not certified that
    it regulates rates, terms and conditions of pole attachments. *See*
    *Public Notice*, "*States That Have Certified That They Regulate
    Pole Attachments*," 7 FCC Rcd 1498 (1992).

[^6]: 47 U.S.C. § 224 (b) (1).

[^7]: *See Adoption of Rules for the Regulation of Cable Television Pole
    Attachments,* First Report and Order, 68 F.C.C. 2d 1585 (1978);
    Second Report and Order, 72 F.C.C. 2d 59 (1979); Memorandum Opinion
    and Order, 77 F.C.C. 2d 187 (1980), *aff\'d, Monongahela Power Co.
    v. FCC*, 655 F.2d 1254 (D.C. Cir. 1985) (*per curiam*); and
    *Amendment of Rules and Policies Governing the Attachment of Cable
    Television Hardware to Utility Poles*, Report and Order, 2 FCC Rcd
    4387 (1987). *See also, Implementation of Section 703(e) of the
    Telecommunications Act of 1996*, Report and Order, 13 FCC Rcd 6777
    (1998) and *Amendment of Rules and Policies Governing Pole
    Attachments*, Report and Order, 15 FCC Rcd 6453 (2000), *pet. for
    recon. denied in part, Amendment of Commission\'s Rules and Policies
    Governing Pole Attachments*, CS Docket No. 97-98; *Implementation of
    Section 703(e) of the Telecommunications Act of 1996*, Consolidated
    Partial Order on Reconsideration, 16 FCC Rcd 12103 (2001), *pet. for
    review denied sub nom. Southern Company Services, Inc. et al. v.
    FCC*, 313 F.3d 574 (D.C. Cir. 2002).

[^8]: Complaint at 6-7.

[^9]: PECO's Motion to Dismiss, File No. PA 97-002 (filed September 18,
    1998).

[^10]: *Id.* at 2-5.

[^11]: *See* 47 USC § 224 (f) and 47 CFR § 1.1404 (m).

[^12]: Response of PECO Energy, File No. PA 97-002 (filed May 1, 1997)
    ("Response") at 5-6.

[^13]: *See* 47 CFR § 1.1404 (j).

[^14]: Response at 6-15.

[^15]: 534 U.S. 327, 338-339 (2002).

[^16]: We also deny American Electric Power Service Company,
    Commonwealth Edison Company, Duke Power Company, and Florida Power
    and Light Company's (collectively "utilities") motion to intervene
    in this proceeding. Motion of American Electric Power Service
    Company, Commonwealth Edison Company, Duke Power Company, and
    Florida Power and Light Company to Intervene, File No. PA 97-002
    (filed June 18, 1997). The utilities allege only a general interest
    in the potential precedent involved in a complaint proceeding, which
    is not a sufficient basis for intervention. *See, e.g., Texas Cable
    and Telecommunications Association v. GTE Southwest Inc*., 17 FCC
    Rcd 6261, 6265 (2002) (". . . the mere precedential effect of the
    agency's rationale in later adjudications does not give rise to a
    legally cognizable injury and it does not create standing to
    intervene"). In any event, the utilities request intervention simply
    to argue that the Commission does not have jurisdiction under the
    Pole Attachment Act to regulate wireless attachments, an argument we
    have already rejected above.

[^17]: PECO also argues that it is required under State law to provide
    all PCS attachers with nondiscriminatory rates, and because it
    offered Omnipoint the same rate that it charged all other PCS
    providers, the requirements of the Pole Attachment Act are
    satisfied. Response at 15-17. We disagree. The mere fact that PECO
    seeks to charge all PCS attachers the same rate does not satisfy the
    requirement of the Pole Attachment Act that the rate be just and
    reasonable.

[^18]: We note that PECO argues that attachments to its transmission
    facilities are not covered by the Pole Attachment Act. We agree with
    PECO, but only to the extent that the transmission facilities are
    interstate and not part of a local distribution system. *See
    Southern Company v. FCC*, 293 F.3d 1338, 1345 (11^th^ Cir. 2002).

[^19]: *See* 47 U.S.C. § 224 (d) (3) (e) (4); *Implementation of Section
    703 (e) of the Telecommunications Act of 1996*, 13 FCC Rcd 6777 at ¶
    102 (1998). We reject PECO's argument that it need not provide
    historical cost data. *See* *Alabama Cable Telecommunications
    Association, et al. v. Alabama Power Company*, 16 FCC Rcd 12209 at
    ¶¶ 32-61 (2001) (stating that the Commission's pole attachment
    formulas provide just compensation), *affirmed Alabama Power Company
    v. FCC*, 311 F.3d 1357 (11^th^ Cir. 2002), *rehearing and rehearing
    en banc denied*, *Alabama Power Co. v. FCC*, \-\-- F.3d \-\-\--
    (11th Cir. Jan 08, 2003), *mandate stayed pending filing of petition
    for cert*.

[^20]: Thus, we do not decide in this order whether PECO's 1997 proposed
    rate is just and reasonable. First, Omnipoint's Complaint did not
    specifically request such a ruling. Second, we do not know whether
    PECO would seek to maintain such a rate today. We note, however,
    that the Commission has stated that the pole attachment formula
    presumptions may be modified or adjusted in order to address unique
    attachments associated with wireless systems. *See* *Implementation
    of Section 703(e) of the Telecommunications Act of 1996*, 13 FCC Rcd
    6777 at ¶ 42 (1998).

[^21]: *See, e.g., Multimedia Cablevision Inc. v. Southwestern Bell Tel.
    Co.*, Memorandum Opinion and Order, 11 FCC Rcd 11202 at ¶ 16 (1996).