**Before the**

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | WC Docket No. 07-245         |
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| Implementation of Section 224 of | ) | RM-11293                     |
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Notice of proposed rulemaking

**Adopted: October 31, 2007 Released: November 20, 2007**

**Comment Date: \[30 days after publication in the Federal Register\]**

**Reply Comment Date: \[60 days after publication in the Federal
Register\]**

By the Commission: Chairman Martin and Commissioners Copps, Adelstein,
Tate, and McDowell

issuing separate statements.

Table of Contents

**Para.**

I. INTRODUCTION 1

II\. Background 4

III\. RATES 13

A. Market Forces and Change 13

B. Statutory Framework 18

C. Rate Structure 26

D. Tentative Conclusion for Broadband Internet Access Service 35

IV\. TERMS AND CONDITIONS OF ACCESS 36

V. PROCEDURAL MATTERS 38

A. *Ex Parte* Presentations 38

B. Comment Filing Procedures 39

C. Initial Regulatory Flexibility Analysis 42

D. Paperwork Reduction Act 43

E. Accessible Formats 44

VI\. Ordering Clauses 45

APPENDIX A -- List of Commenters in List of Commenters in RM-11303

APPENDIX B -- List of Commenters in List of Commenters in RM-11293

APPENDIX C -- Initial Regulatory Flexibility Act Analysis

# INTRODUCTION

1.  In this Notice of Proposed Rulemaking (Notice), we seek comment with
    regard to our implementation of section 224 of the Communications
    Act of 1934, as amended (Act).[^1] Section 224 confers on cable
    television systems and telecommunications carriers the right to pole
    attachments at just and reasonable rates, terms and conditions. In
    the Telecommunications Act of 1996 (1996 Act),[^2] Congress expanded
    the definition of a "pole attachment" for purposes of section 224 to
    include not only poles but also "any attachment" to a "duct,
    conduit, or right-of-way owned or controlled by a utility."[^3] We
    seek to ensure that our regulatory framework remains current and
    faithful to the pro-competitive, market-opening provisions of the
    Act in light of our experience over the last decade, advances in
    technology, and developments in the markets for telecommunications
    and video services.

2.  We initiate this rulemaking proceeding in order to consider
    comprehensively the appropriate changes, if any, to our
    implementation of section 224. Utilities and attachers have had
    nearly a decade of experience with the pole attachment rules that
    the Commission adopted to implement the 1996 Act, and we seek to
    draw on their experience and that of other interested parties as we
    consider adopting rules to facilitate pole and conduit access. We
    intend to promote the pro-competitive and deregulatory goals of the
    Act, as well as to reduce the need of parties to resort to the
    section 224 complaint process. We are further guided by the
    overarching concerns embodied in the statute and our precedent,
    including safety, certainty, administrability, and
    nondiscrimination.

3.  In conducting this rulemaking proceeding, we ask commenters to
    assist us in compiling a record that will create, to the extent
    possible, a context into which we can place the experiences of
    utilities, attachers, state commissions, end users, and others in
    the decade since the Commission began to implement the 1996 Act.
    Specifically, we seek comment on a variety of issues relating to our
    implementation of section 224 including whether our existing rules
    governing pole attachment rates remain appropriate in light of
    increasing intermodal competition in the marketplace today; whether
    section 224 confers rights on incumbent local exchange carriers
    (LECs) to regulation of the rates they pay for pole attachments; and
    whether it would be appropriate to adopt specific rules regarding
    certain non-price terms and conditions associated with section 224
    access rights. With regard to rates, we tentatively conclude that
    all attachments used for broadband Internet access service should be
    subject to a single rate, regardless of the platform over which
    those services are provided, and that that rate, for reasons
    discussed herein, should be greater than the current cable rate, yet
    no greater than the telecommunications rate.

# Background

4.  *Rate Regulation.* Congress first directed the Commission to ensure
    that the rates, terms, and conditions for pole attachments by cable
    television systems were just and reasonable in 1978 when it added
    section 224 to the Act.[^4] Then, as now, the statute provided that
    the Commission will regulate pole attachments except where such
    matters are regulated by a state.[^5] Eighteen states and the
    District of Columbia have certified that they regulate pole
    attachments, and thus the Commission does not regulate pole
    attachments in those states.[^6] In a series of orders, the
    Commission implemented a formula that cable television system
    attachers and utilities could use to determine a just and reasonable
    rate, and procedures for resolving rate complaints.[^7] In 1987, the
    U.S. Supreme Court found that the formula the Commission devised for
    pole attachments by cable television systems (the cable rate) did
    not result in an unconstitutional "taking."[^8]

5.  Congress expanded the reach of section 224 in several notable ways
    in the 1996 Act.[^9] For one, Congress granted attachers an
    affirmative right to access utility poles.[^10] The 1996 Act also
    added ducts, conduits, and rights-of-way to the facilities covered
    by section 224.[^11] Congress included a proviso, however, that
    utilities providing electric service may deny access, on a
    nondiscriminatory basis, where there is insufficient capacity and
    for reasons of safety, reliability and generally applicable
    engineering purposes.[^12]

6.  Further, Congress added "telecommunications carrier" as a category
    of attacher under section 224.[^13] Congress established two
    separate provisions governing the maximum rates for pole attachments
    -- one for attachments used by "telecommunications carriers" to
    provide telecommunications services (the telecom rate), and another
    for attachments used "solely to provide cable service" (the cable
    rate).[^14] It also provided that the telecom rate, which applies
    also to cable television systems that offer telecommunications
    services, would be phased in over a five-year period.[^15] For
    purposes of section 224, Congress excluded incumbent LECs from the
    definition of "telecommunications carriers."[^16]

7.  In the *1998 Implementation Order*, the Commission adopted new pole
    attachment rates for telecommunications carriers.[^17] In addition
    to specifying the new telecom rate for pole attachments, the
    Commission addressed the issues of cable attachments used to offer
    commingled cable and Internet access services and attachments by
    wireless carriers. The Commission held that cable television systems
    that offer commingled cable and Internet access service should
    continue to pay the cable rate.[^18] Finally, the Commission also
    determined that the extension of section 224 to telecommunications
    carriers encompassed pole attachments by wireless carriers.[^19]

8.  In 2000, the Supreme Court upheld the *1998 Implementation
    Order*.[^20] The Court held that section 224 gives the Commission
    broad authority to adopt just and reasonable rates.[^21] The Court
    thus rejected the view that "the straightforward language of
    \[section 224's\] subsections (d) and (e) establish two specific
    just and reasonable rates \[and\] no other rates are
    authorized."[^22] The Court also found no textual support for the
    proposition that section 224 conferred pole attachment rights on
    traditional wire-based service providers only, and deferred to the
    Commission's conclusion that wireless carriers fit the definition of
    "telecommunications carrier" and were therefore entitled by section
    224 to attach their equipment to poles.[^23]

9.  *Access Regulation*. To implement the new section 224 access
    requirements of the 1996 Act, the Commission adopted five rules of
    general applicability and several broad policy guidelines in the
    *Local Competition Order*.[^24] These rules and guidelines addressed
    issues such as capacity expansion, reservation of space by utilities
    for their own use, and the right of non-electric utilities to deny
    access for capacity or safety reasons.[^25] The Commission declined
    at that time to mandate specific access requirements, concluding
    instead that the reasonableness of particular conditions of access
    imposed by a utility should be resolved on a case-specific
    basis.[^26] The Commission stated that it would monitor the effect
    of the case-specific approach, and would propose specific rules at a
    later date if conditions warranted.[^27]

10. The Commission also concluded that section 224's principle of
    nondiscrimination required utilities to expand capacity for
    attachers as they would for themselves.[^28] The Commission further
    determined that the lack of capacity on a particular facility did
    not mean that there is no capacity in the underlying right-of-way,
    and that requiring capacity expansion, including installation of a
    larger pole where necessary, was a fair reading of the statute
    because the cost of modification would be borne only by the
    attacher, and not by the utility or its ratepayers.[^29]

11. The U.S. Court of Appeals for the Eleventh Circuit rejected the
    Commission's requirement that utilities expand capacity for
    attachers.[^30] In *Southern*, the Eleventh Circuit held that, under
    the plain language of section 224 of the Act, "\[w\]hen it is agreed
    that capacity is insufficient, there is no obligation to provide
    third parties with access" to poles.[^31] The Eleventh Circuit also
    held, however, that the term "insufficient capacity" is not defined
    by statute and is ambiguous, and that utilities do not "enjoy the
    unfettered discretion to determine when capacity is
    insufficient."[^32]

12. *Petitions for Rulemaking.* On December 7, 2005, Fibertech Networks,
    LLC (Fibertech) petitioned the Commission to conduct a rulemaking to
    adopt seven "standard practices" for pole and conduit access.[^33]
    On October 11, 2005, United States Telecom Association (USTelecom)
    petitioned the Commission to conduct a rulemaking to consider
    whether, as providers of telecommunications services, incumbent LECs
    are entitled to regulated pole attachment rates.[^34] Among the
    numerous *ex parte* filings submitted in these dockets, Time Warner
    Telecom, Inc. (TWTC) filed a White Paper asking that we adopt a
    single pole attachment rate for both cable television systems and
    telecommunications carriers in order to remove regulatory bias from
    investment decisions regarding deployment of broadband and other
    services.[^35] Other commenters raise many other issues and ask us
    to reconsider, modify, expand, or clarify pole attachment rights and
    obligations under section 224.[^36]

# RATES

## Market Forces and Change

13. *The State of the Market and the Goals of the Act*. We inquire about
    the current state of pole attachments, ducts, conduits, and
    rights-of-way,[^37] and the relationship between these facilities
    and the competitive telecommunications market. In particular, we
    seek data on the nature and scope of pole attachments by the various
    types of providers. We inquire about the difference in pole
    attachment prices paid by cable systems, incumbent LECs, and
    competing telecommunications carriers that provide the same or
    similar services. For example, how many poles and how much conduit
    do the different types of providers or different network
    architectures access pursuant to section 224? In a typical
    metropolitan area, how many poles have three attachments or fewer,
    and how many support so many users that they are approaching full
    capacity? In addition to amassing price and usage data, we seek
    comment on how pole attachment price and usage by various different
    types of providers affect the larger goals of the Act. In what ways
    do pole attachments affect the expansion of broadband Internet
    access service? How do pole attachments by cable systems and
    providers of telecommunications services affect competition to
    deliver services? We seek comment on how the states that regulate
    pole attachments handle issues that arise concerning rates and
    access. We also seek information regarding how many pole attachments
    are used to offer, among other services, broadband Internet access
    service, and conversely, how many pole attachments are not used to
    offer such services.

14. *Cable Television Systems and Telecommunications Carriers*. Over the
    last few years, the Commission has recognized that the once-clear
    distinction between "cable television systems" and
    "telecommunications carriers" has blurred as each type of company
    enters markets for the delivery of services historically associated
    with the other.[^38] The Commission has identified cable operators
    as market participants in both the enterprise and mass market for
    telecommunications services.[^39] The Wireline Competition Bureau
    has recently clarified that wholesale telecommunications carriers
    that provide services to other service providers, including cable
    operators providing voice over Internet Protocol (VoIP) services,
    are indeed "telecommunications carriers" for the purposes of section
    251 of the Act, and are thus entitled to interconnect with incumbent
    LECs.[^40] The Commission has likewise acted to remove barriers to
    the provision of video services by telecommunications carriers,[^41]
    and further took action to ensure competitive video access to
    multiple dwelling units (MDUs) and other real estate
    developments.[^42]

15. *Incumbent LECs*. In addition, we seek comment regarding possible
    changes in bargaining power between electric utilities and incumbent
    LECs, and whether pole attachment rates paid by incumbent LECs could
    affect the vitality of competition to deliver telecommunications,
    video services, and broadband Internet access service. USTelecom
    maintains that the percentage of poles owned by electric utilities
    has increased significantly since 1996, and that electric utilities
    leverage the growing imbalance in pole ownership to engage in unjust
    and unreasonable practices.[^43] AT&T reports that electric
    utilities refuse to renegotiate outdated joint-use arrangements, and
    that electric utilities now use more pole space, and incumbent LECs
    less pole space, than has historically been the case.[^44] Incumbent
    LECs maintain that the competitive market for services could be
    distorted if they alone pay unregulated rates for pole
    attachments.[^45] AEPSC counters that incumbent LECs and power
    companies have often used each others' poles for a nominal per-pole
    fee, and that attachment rates justifiably spike when power
    companies begin to charge incumbent LECs real allocated costs.[^46]
    We seek comment on developments related to rates, costs, and
    bargaining power between electric utilities and incumbent LECs. We
    also seek data that may shed light on how many poles incumbent LECs
    own or control compared with the number of poles owned or controlled
    by electric utilities. We seek comment regarding "joint use
    agreements," including the number and percentage of poles that are
    owned or managed jointly, and how to evaluate when ownership and
    control of poles is truly "joint."[^47] For example, Exelon
    maintains that power companies pay a disproportionate share of the
    cost of maintaining jointly held poles, such as restoring poles
    after storms.[^48] When poles are owned jointly, do utilities
    require attachers to obtain licenses from both owners? Do joint
    owners coordinate survey and make-ready work? What other indicia
    establish joint ownership and control? AEPSC also comments that most
    state commissions already regulate the sale or lease of facilities
    between public utilities, and we seek discussion of state regulation
    of joint use arrangements or joint ownership of utility poles.[^49]

16. We also seek comment on claims that small and rural incumbent LECs
    are particularly at a disadvantage.[^50] When incumbent LECs do not
    themselves own or control poles, do they have a stronger claim for a
    regulated rate? Particularly with regard to incumbent LECs, can
    rates and terms be effectively regulated absent a right of
    access?[^51]

## Statutory Framework

17. *Authority to Regulate Pole Attachments*. We seek general comment
    regarding the contours of our flexibility to interpret section
    224.[^52] Section 224(b)(1) states 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"[^53] and section 224(a)(4) states that "\[t\]he term
    'pole attachment' means 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."[^54] In addition
    to this broad mandate, and as noted above, section 224 also provides
    two separate and explicit rate formulas. One rate -- the cable rate
    -- applies to cable television systems' attachments used solely to
    provide cable service; the other -- the telecom rate -- applies to
    both cable systems and telecommunications carriers' attachments used
    to provide telecommunications services.[^55]

18. The statute does not specify which of these rates, if either, should
    apply to transmission of information access services. When the
    Commission first addressed this question in 1998, it applied the
    cable rate to cable television systems that offered Internet access
    services with cable services.[^56] The Supreme Court upheld this
    conclusion in *Gulf Power*, and rejected the view that section 224
    authorizes only two specific just and reasonable rates. The Court
    also held, however, that "the specific controls but only within the
    self-described scope."[^57]

19. We seek comment on the extent to which the current cable rate
    formula, whose space factor does not include unusable space, results
    in a subsidized rate, and, if so, whether cable operators should
    continue to receive such subsidized pole attachment rate at the
    expense of electric consumers. More importantly, we seek comment on
    whether cable operators should continue to qualify for the cable
    rate where they offer multiple services in addition to cable
    service.

20. Likewise, we ask whether all telecommunications carriers must pay
    the telecom rate, regardless of what other services they may provide
    over their attachments. If not, under what circumstances may the
    Commission adopt another rate? What is the extent of the
    Commission's ability to modify how the cable and telecom rates are
    applied? For example, are wireless carriers entitled to attach
    equipment at the subsection (e) telecom rate, or do their
    attachments differ to such an extent that another rate would be more
    reasonable? We further seek comment on the reach of the Commission's
    general authority to regulate pole attachments pursuant to section
    224(b). Does the Commission have authority under section 224 to
    regulate pole attachment rates for all providers of
    telecommunications services, including incumbent LECs?

21. *A Unified Pole Attachment Rate and the Existing Cable and Telecom
    Rates*. We seek comment on the statutory limits, if any, to unifying
    the pole attachment rate paid by both cable systems and
    telecommunications carriers when their pole attachments are used to
    provide broadband Internet access service. TWTC proposes that we
    should eliminate the telecom rate and apply the cable rate to all
    pole attachments.[^58] TWTC also argues that the Commission's rules
    provide for the prescription or substitution of just and reasonable
    rates, and the termination of unjust or unreasonable rates, and
    argues that the Commission should use its broad authority to apply
    the cable rate to all pole attachments.[^59] TWTC points out that
    the Commission has stated that "where access is mandated, the rates,
    terms and conditions of access must be uniformly applied to all
    telecommunications and cable operators that have or seek
    access."[^60] TWTC further argues that section 224(e)(1) mandates
    that rates must be nondiscriminatory, and that where cost allocation
    guidelines yield discriminatory rates, that the nondiscrimination
    mandate trumps the cost allocation guidelines.[^61]

22. We question TWTC's assertion that the cable rate should apply to all
    pole attachments, particularly because, as discussed above, the
    cable rate does not include an allocation of the cost of unusable
    space. We also seek comment on the advantages and disadvantages of a
    unitary rate for all providers of broadband Internet access service,
    and, as discussed below, the appropriate level of such rate.

23. *The Rights of Incumbent LECs Under Section 224*. We also seek
    comment on the extent of our authority to regulate pole attachment
    rates for incumbent LECs. In the *Local Competition Order* and
    succeeding orders, and in the rules implementing section 224, the
    Commission interpreted the exclusion of incumbent LECs from the term
    "telecommunications carrier" (and from the corresponding right to
    attach to utility poles) to mean that section 224 does not apply to
    attachment rates paid by incumbent LECs.[^62] USTelecom asks us to
    revisit that interpretation.[^63] USTelecom acknowledges that
    incumbent LECs are excluded from the section 224 definition of
    "telecommunications carrier."[^64] USTelecom argues, 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
    *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.[^65] USTelecom asks the Commission to revise any pole
    attachment rule that conflates "right of access" with "just and
    reasonable rates, terms, and conditions."[^66]

24. USTelecom argues that Congress could have required just and
    reasonable rates only for "a cable television system or any
    telecommunications carrier" -- the phrase used to specify the right
    of access[^67] -- but Congress chose instead to afford such
    protection to "any attachment by a cable television system or
    provider of telecommunications service."[^68] Therefore, according
    to USTelecom, because our current rules ignore this distinction,
    they only partially implement section 224.[^69] Under USTelecom's
    proposal, although only cable television systems and
    "telecommunications carriers" would be assured of access to poles,
    all attaching "providers of telecommunications service," including
    incumbent LECs, would be assured of just and reasonable rates.[^70]
    We seek comment on the view that, under section 224, "access" and
    "rates, terms, and conditions" are severable rights that should be
    implemented separately.

25. First, we ask whether the language and structure of section 224 are
    clear with regard to this question. Do the terms "telecommunications
    carrier" and "provider of telecommunications service," as used in
    section 224, unambiguously refer to different groups with separate
    rights with regard to pole attachments?[^71] Conversely, is it plain
    from the text and structure of section 224 that incumbent LECs are
    excluded from all of its protections?[^72] We ask commenters to
    address the relationship between section 224 and the statutory
    definition in section 3, which states that a "telecommunications
    carrier" is a "provider of telecommunications services."[^73] We
    also ask commenters to address what provisions of section 224, if
    any, would govern rates paid by incumbent LECs, noting that section
    224(e) refers to charges paid by "telecommunications carriers,"
    which section 224(a)(5) defines to exclude incumbent LECs.[^74]
    Second, to the extent the language of section 224 is ambiguous, we
    seek analysis of Congress's intent.[^75] The Commission has relied
    on the legislative history of section 224 in prior orders,[^76] and
    various parties urge us to rely on that legislative history
    further.[^77] In particular, in light of previous construction of
    statutory intent by the Commission or the courts, what does the
    history of the Act show regarding Congress's concerns? Should
    section 224 be read in conjunction with other sections of the Act,
    such as Congress's intention in section 706 to promote the rollout
    of advanced services?[^78]

## Rate Level 

26. As discussed below, we seek comment on whether we should move toward
    a single rate for pole attachments used for the same or similar
    services. Does having different rates for different classes of
    providers providing the same services distort investment decisions
    or tilt the competitive playing field? Are there differences in the
    historical relationships between these classes of providers, or in
    the nature of certain attachments that warrant different rates when
    the same or similar services are involved? How should we determine a
    rate that is not only just and reasonable but also equitable,
    competitively neutral, and otherwise consistent with the goals of
    the Act? As discussed more fully below, we tentatively conclude that
    all attachers should pay the same pole attachment rate for all
    attachments used to provide broadband Internet access service, and
    we seek comment on that tentative conclusion.

27. We seek comment on whether adopting a single pole attachment rate
    would promote the goals of the Act with regard to competition,
    deregulation, and the deployment of advanced telecommunications
    capability. TWTC argues that we should "regulate like services in a
    similar manner"[^79] and maintains that adopting a single attachment
    rate for both cable television systems and telecommunication
    carriers would remove regulatory bias from investment decisions
    regarding deployment of broadband and other services.[^80] TWTC also
    notes that both cable television systems and telecommunications
    carriers pay a single rate for using conduit, which suggests that
    having two different rates for pole attachments is inherently
    baseless and discriminatory.[^81] TWTC further claims having two
    rates discourages investment in broadband networks,[^82] and for
    these reasons proposes that we eliminate the telecom rate and apply
    the cable rate to all wire and cable pole attachments.[^83] Although
    we question TWTC's argument that we should adopt the cable rate as
    the single rate, we seek comment on whether having a single pole
    attachment rate better achieves the goals of the Act than having two
    separate rates. Specifically, we ask whether the current pole
    attachment rate structure unreasonably discriminates between
    similarly situated entities or otherwise distorts the market.

28. We also seek comment regarding whether having two rates leads to
    recurring disputes over which rate to apply. TWTC illustrates this
    potential for controversy by asking us to consider what rate a cable
    operator that does not itself provide telecommunications services
    must pay if it leases capacity to a provider of telecommunications
    services.[^84] Does having two rates needlessly lead to this and
    similar disputes, thereby adding to the transaction and
    administration costs of both attachers and utilities? We solicit
    general comment on whether the current system is clear, certain, and
    enforceable, and to what extent there is a perceived uncertainty
    about which rate to apply. If so, would the use of the same rate for
    similar services address this concern?

29. Sections 224(d) and (e) set forth two specific standards for just
    and reasonable rates for pole attachments -- one applies to pole
    attachments by cable television systems used solely to provide cable
    services (the "cable rate"), and the other applies to pole
    attachments by any telecommunications carrier providing a
    telecommunications service (the "telecom rate").[^85] The Commission
    adopted specific formulas implementing the cable rate and telecom
    rate,[^86] which differ only in the manner in which the costs
    associated with the unusable portion of the pole are allocated.[^87]
    Both of these formulas include a component for the net costs of a
    bare pole and the carrying charge rate.[^88] Carrying charges are
    the costs incurred by the utility in owning and maintaining poles
    regardless of the presence of pole attachments.[^89]

30. TWTC argues that the similarities in the Commission's cable rate and
    telecom rate formulas are inappropriate, in light of textual
    differences between section 224(d) and section 224(e) regarding
    costs.[^90] In particular, TWTC contends that the telecom rate
    includes elements not mentioned in section 224(e),[^91] citing (1)
    the "carrying charges" and (2) the "rate of return" element.[^92]
    TWTC alleges that such costs "bear no relation" to the cost of
    providing space for attachment and should be eliminated from the
    telecom rate.[^93] Under TWTC's proposal to calculate the telecom
    rate, utilities would determine "how much extra a utility must incur
    to provide non-usable and usable space on poles for pole attachments
    (in both construction and maintenance costs) and then fully allocate
    those costs based on the cost-apportionment formulas under Section
    224(e)(2) and (3)."[^94] TWTC suggests that, because neither of
    section 224's rate provisions explains how the utilities must
    calculate the cost of providing space, the Commission has the
    authority to adopt a different manner of calculation.[^95]

31. TWTC argues that we should move to a single rate, and that we should
    achieve such rate by revising our formula for computing the
    telecommunications rate so as to "eliminate or dramatically reduce
    the differential in pole attachment rates."[^96] We seek comment
    first on the desirability of moving to a single pole attachment
    rate. We also seek comment on the appropriate level of such a single
    rate. We further seek comment regarding whether TWTC's arguments
    concerning nondiscrimination and regulatory distortion necessarily
    suggest that we should adjust the cable rate "up" to resemble the
    telecom rate. We also invite comment on the possible effect on small
    entities from adopting a single rate.

32. We seek comment on USTelecom's suggestion that the default "just and
    reasonable" attachment rate for incumbent LECs should be the telecom
    rate.[^97] If we adopt rules or guidelines that concern jointly
    owned poles, how should we consider variables such as the proportion
    of poles owned, the division of maintenance costs and
    responsibilities, the income each party receives from other
    attachers, and similar variables?[^98] If incumbent LECs generally
    control significantly more space on poles than entities that attach
    pursuant to section 224, how should that affect their rate?[^99] We
    also seek comment regarding whether, given the historical and
    continuing relationship regarding pole ownership between electric
    utilities and incumbent LECs, a "just and reasonable" rate for
    incumbent LECs should be determined by a method other than by
    applying a rate formula.[^100] For example, FirstEnergy advocates
    adopting a system modeled on that used in Maine, which pro-rates
    costs based on estimates of what each entity would pay if it had to
    install its own poles. We seek comment on that and other alternative
    approaches.[^101]

33. In addition, we seek comment on whether the historical relationship
    between incumbent LECs and power companies suggests that the
    Commission should adopt a purely procedural solution instead of
    applying a rate formula.[^102] For example, if an electric utility
    and incumbent LEC are unable to arrive privately at a satisfactory
    pole attachment license or joint use agreement, should we require
    the parties to engage in mediated negotiation or arbitration subject
    to Commission review? We seek comment on these and any other issues
    as they relate to incumbent LECs.[^103]

34. Wireless telecommunications carriers urge the Commission to adopt
    rules explicitly stating that the Commission's telecommunications
    rate formula applies to the attachment of wireless devices.[^104] In
    the *1998 Implementation Order*, the Commission found no clear
    indication that the rules could not accommodate wireless attachers'
    use of poles, and that when attachments required more than the
    presumptive one foot of usable space on the pole, or otherwise
    imposed unusual costs on a pole owner, the one-foot presumption
    could be rebutted.[^105] We seek comment on whether, when they are
    "telecommunications carriers," wireless providers are entitled to
    the telecom rate as a matter of law, or whether we should adopt a
    rate specifically for wireless pole attachments. For example, if a
    wireless facility uses more than the presumptive one foot of space,
    could the per-foot rate simply be doubled, trebled, or otherwise
    multiplied as required?[^106] If wireless providers are permitted to
    attach facilities to pole tops, should pole owners receive a higher
    rate of compensation, because unlike lateral space, each pole has
    only one top?[^107]

35. We seek comment on the extent to which municipalities lease pole
    attachments for municipal broadband purposes or other services such
    as telecommunications services. We also seek comment on the
    impact that the tentative conclusion herein might have on
    municipalities seeking to provide their residents municipal
    broadband or other services like telecommunications services.

## Tentative Conclusion for Broadband Internet Access Service

36. Due to the importance of promoting broadband deployment and the
    importance of technological neutrality, we tentatively conclude that
    all categories of providers should pay the same pole attachment rate
    for all attachments used for broadband Internet access service, and
    we seek comment on that tentative conclusion. Section 706 of the
    1996 Act directs us to promote the deployment of broadband
    infrastructure, and this directive leads us to separate out those
    pole attachments that are used to offer broadband Internet access
    service from those used for other services. As a policy matter, we
    tentatively conclude that the critical need to create even-handed
    treatment and incentives for broadband deployment would warrant the
    adoption of a uniform rate for all pole attachments used for
    broadband Internet access service.[^108] Additionally, we conclude
    that the rate should be higher than the current cable rate, yet no
    greater than the telecommunications rate. We seek comment on these
    tentative conclusions. We also seek comment on the possible economic
    effect on small entities of adopting this tentative conclusion.

# TERMS AND CONDITIONS OF ACCESS

37. When the Commission adopted general rules governing requests for
    access pursuant to the 1996 Act,[^109] it declined to regulate
    specific techniques for pole and conduit modification. Rather, the
    Commission concluded that the reasonableness of particular
    conditions of access imposed by a utility should be resolved on a
    case-specific basis.[^110] In the record developed in response to
    the Fibertech Petition, a number of concerns have been expressed
    regarding terms and conditions of access to pole attachments, and we
    seek comment on these concerns.[^111] For example, commenters raised
    concerns regarding searches and surveys of both poles and conduit,
    including related information management practices.[^112] Parties
    also expressed concerns regarding performance of make-ready work,
    including timeliness,[^113] safety, capacity, and the use of boxing
    and extension arms.[^114] Sunesys supports Fibertech's position, but
    also submits its own plan to limit survey and make-ready work to six
    months, proposing that utility-approved contractors could perform
    the work if they were required to meet the deadline.[^115] Other
    commenters also recommended the use of qualified third-party
    contract workers.[^116] Certain commenters raised additional issues
    regarding access to in-building ducts, conduit, and rights-of-way,
    including access to incumbent LEC central offices.[^117] Parties
    also express concern regarding practices relating to drop lines and
    poles.[^118] These are illustrative categories of access concerns.
    We seek comment on these and any other pole attachment access
    concerns, such as concerns about the process for obtaining access.

38. Finally, we seek comment on practices of attachers that have the
    potential to adversely impact the safety and reliability of an
    integral component of our nation's critical infrastructure, our
    electric power system. The record contains allegations or concerns
    regarding unauthorized attachments, or attachments that have been
    installed without a lawful attachment agreement.[^119] We seek
    comment on the prevalence of this practice. We also seek comment on
    whether the Commission's existing enforcement mechanisms are
    sufficient to address any unlawful practices by attachers and ensure
    the safety and reliability of critical electric infrastructure. We
    ask commenters to address whether, in addition to the right, under
    section 224(f)(2) of the Act, of a utility to deny access to poles
    on a nondiscriminatory basis for reasons of safety, reliability and
    generally applicable engineering purposes, specific enforceable
    safety requirements should be adopted. For example, we ask
    commenters to address to what extent safety codes, such as the NESC,
    should apply to all attachers, and whether our enforcement authority
    can or should be used to address alleged violations of such codes.
    Finally, we seek comment on the general usefulness of rules,
    presumptions, or guidelines, as opposed to case-specific
    adjudication, and we particularly seek comment on how these
    alternative approaches to resolving access issues affect small
    entities.[^120]

# PROCEDURAL MATTERS 

## *Ex Parte* Presentations

39. The rulemaking this Notice initiates shall be treated as a
    "permit-but-disclose" proceeding in accordance with the Commission's
    *ex parte* rules.[^121] Persons making oral *ex parte* presentations
    are reminded that memoranda summarizing the presentations must
    contain summaries of the substance of the presentations and not
    merely a listing of the subjects discussed. More than a one or two
    sentence description of the views and arguments presented generally
    is required.[^122] Other requirements pertaining to oral and written
    presentations are set forth in section 1.1206(b) of the Commission's
    rules.[^123]

## Comment Filing Procedures

40. Pursuant to sections 1.415 and 1.419 of the Commission's
    rules,[^124] interested parties may file comments and reply comments
    regarding the Notice on or before the dates indicated on the first
    page of this document. **All filings related to this Notice of
    Proposed Rulemaking should refer to WC Docket No. 07-245**. Comments
    may be filed using: (1) the Commission's Electronic Comment Filing
    System (ECFS), (2) the Federal Government's eRulemaking Portal,
    or (3) by filing paper copies. *See* Electronic Filing of Documents
    in Rulemaking Proceedings, 63 FR 24121 (1998).

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the
    Federal eRulemaking Portal: http://www.regulations.gov. Filers
    should follow the instructions provided on the website for
    submitting comments.

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-   ECFS filers must transmit one electronic copy of the comments for WC
    Docket No. 07‑245. In completing the transmittal screen, filers
    should include their full name, U.S. Postal Service mailing address,
    and the applicable docket number. Parties may also submit an
    electronic comment by Internet e-mail. To get filing instructions,
    filers should send an e-mail to ecfs@fcc.gov, and include the
    following words in the body of the message, "get form." A sample
    form and directions will be sent in response.

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-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. Filings can be sent by hand
    or messenger delivery, by commercial overnight courier, or by
    first-class or overnight U.S. Postal Service mail (although we
    continue to experience delays in receiving U.S. Postal Service
    mail). All filings must be addressed to the Commission's Secretary,
    Marlene H. Dortch, Office of the Secretary, Federal Communications
    Commission, 445 12th Street, S.W., Washington, D.C. 20554.

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-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002.
    The filing hours at this location are 8:00 a.m. to 7:00 p.m. All
    hand deliveries must be held together with rubber bands or
    fasteners. Any envelopes must be disposed of [before]{.underline}
    entering the building.

-   Commercial overnight mail (other than U.S. Postal Service Express
    Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
    Capitol Heights, MD 20743.

-   U.S. Postal Service first-class, Express, and Priority mail should
    be addressed to 445 12th Street, S.W., Washington D.C. 20554.

41. Parties should send a copy of their filings to the Competition
    Policy Division, Wireline Competition Bureau, Federal Communications
    Commission, Room 5-C140, 445 12th Street, S.W., Washington, D.C.
    20554, or by e-mail to cpdcopies@fcc.gov. Parties shall also serve
    one copy with the Commission's copy contractor, Best Copy and
    Printing, Inc. (BCPI), Portals II, 445 12th Street, S.W., Room
    CY-B402, Washington, D.C. 20554, (202) 488-5300, or via e-mail to
    fcc@bcpiweb.com.

42. Documents in WC Docket No. 07-245, RM-11293 and RM-11303 will be
    available for public inspection and copying during business hours at
    the FCC Reference Information Center, Portals II, 445 12th Street
    S.W., Room CY-A257, Washington, D.C. 20554. The documents may also
    be purchased from BCPI, telephone (202) 488-5300, facsimile (202)
    488-5563, TTY (202) 488-5562, e-mail fcc@bcpiweb.com.

## Initial Regulatory Flexibility Analysis

43. As required by the Regulatory Flexibility Act of 1980,[^125] the
    Commission has prepared an Initial Regulatory Flexibility Analysis
    (IRFA) of the possible significant economic impact on small entities
    of the policies and rules addressed in this document. The IRFA is
    set forth in Appendix C. Written public comments are requested on
    this IRFA. Comments must be identified as responses to the IRFA and
    must be filed by the deadlines for comments on the Notice provided
    on or before the dates indicated on the first page of this Notice.

## Paperwork Reduction Act

44. This document contains proposed new or modified information
    collection requirements. The Commission, as part of its continuing
    effort to reduce paperwork burdens, invites the general public and
    the Office of Management and Budget (OMB) to comment on the
    information collection requirements contained in this document, as
    required by the Paperwork Reduction Act of 1995, Public Law 104-13.
    In addition, pursuant to the Small Business Paperwork Relief Act of
    2002, Public Law 107-198,[^126] we seek specific comment on how we
    might "further reduce the information collection burden for small
    business concerns with fewer than 25 employees."

## Accessible Formats

45. To request materials in accessible formats for people with
    disabilities (Braille, large print, electronic files, audio format),
    send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
    Affairs Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY).
    Contact the FCC to request reasonable accommodations for filing
    comments (accessible format documents, sign language interpreters,
    CART, etc.) by e‑mail: FCC504@fcc.gov; phone: 202-418-0530 or TTY:
    202-418-0432.

# Ordering Clauses

46. Accordingly, IT IS ORDERED that pursuant to sections 1, 4(i), 4(j),
    224, 303 and 403 of the Communications Act of 1934, as amended, 47
    U.S.C. §§ 151, 154(i)-(j), 224, 303, 403, this Notice of Proposed
    Rulemaking in WC Docket No. 07-245 IS ADOPTED.

47. IT IS FURTHER ORDERED that the Fibertech Networks, LLC, Petition for
    Rulemaking, RM-11303, and the United States Telecom Association
    Petition for Rulemaking, RM-11293, ARE GRANTED to the extent
    indicated herein and otherwise ARE DENIED.

48. IT IS FURTHER ORDERED that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Notice, including the Initial Regulatory
    Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
    Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

> Marlene H. Dortch
>
> Secretary

**APPENDIX A**

**List of Commenters in RM-11303**

Fibertech Petition for Rulemaking

Commenters

1\. Ameren Corporation, Florida Power & Light Company, Pacificorp,
Public Service Electric and Gas Company, Southern California Edison
Company, Tampa Electric Company and Virginia Electric and Power Company
(Ameren)

2\. American Electric Power Service Corporation, Duke Energy
Corporation, Wisconsin Electric Power Company WPS Resources Corporation
and Xcel Energy Inc. (AEPSC)

3\. AT&T Inc. (AT&T)

4\. CompTel

5\. Indiana Fiber Works, LLC (IFW)

6\. McLeodUSA Telecommunications Services, Inc. (McLeodUSA)

7\. NextG Networks, Inc. (NextG)

8\. Qwest Communications (Qwest)

9\. segTEL, Inc. (segTEL)

10\. Sigecom, LLC (Sigecom)

11\. Sunesys, Inc. (Sunesys)

12\. The Real Access Alliance (RRA)

13\. Tropos Networks (Tropos)

14\. United Telecom Council and Electric Institute (UTC-EEI)

15\. United States Telecom Association (USTelecom)

16\. Verizon telephone companies (Verizon)

17\. Virtual Hipster Corporation (Virtual Hipster)

18\. Western Massachusetts Electric Company (WMECO)

Reply Commenters

1\. AT&T Inc. (AT&T)

2\. Clearlinx Network Corporation, LLC (Clearlinx)

3\. Fibertech Networks, LLC (Fibertech)

4\. Massachusetts Department of Telecommunications and Energy (MDTE)

5\. NSTAR Electric & Gas Corporation (NSTAR)

6\. Sunesys, Inc. (Sunesys)

7\. T-Mobile USA, Inc. (T-Mobile)

8\. Time Warner Telecom Inc. (TWTC)

9\. United States Telecom Association (USTelecom)

10\. United Telecom Council and the Edison Electric Institute (UTC-EEI)

11\. Verizon telephone companies (Verizon)

**APPENDIX B**

**List of Commenters in RM-11293**

USTelecom Petition for Rulemaking

Commenters

1\. AEP Service Corp., Duke Energy Corp, WPS Resources Corp., Xcel
Energy Inc. (AEPSC)

2\. Alltel Corp (Alltel)

3\. Ameren, Entergy, Florida Power & Light, Southern Co., Virginia
Electric & Power Co. (Ameren)

4\. BellSouth Corporation (BellSouth)

5\. CenturyTel, Inc.

6\. Edison Electric Institute

7\. Exelon Corporation (Exelon)

8\. FirstEnergy Corporation (FirstEnergy)

9\. Level 3 Communications, Inc. (Level 3)

10\. National Telecommunications Cooperative Association (NTCA)

11\. United Telecom Council and Edison Electric Institute (UTC-EEI)

Reply Commenters

1\. AT&T Inc. (AT&T)

2\. Level 3 Communications, Inc. (Level 3)

3\. T-Mobile USA, Inc. (T-Mobile)

4\. Tropos Networks (Tropos)

5\. United States Telecom Association (USTelecom)

**APPENDIX C**

INITIAL REGULATORY FLEXIBILITY ANALYSIS

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^127] the Commission has prepared this present Initial
    Regulatory Flexibility Analysis (IRFA) of the possible significant
    economic impact on a substantial number of small entities by the
    policies and rules proposed in this Notice of Proposed Rulemaking
    (Notice). Written public comments are requested on this IRFA.
    Comments must be identified as responses to the IRFA and must be
    filed by the deadlines for comments on the Notice provided on the
    first page of the Notice. The Commission will send a copy of the
    Notice, including this IRFA, to the Chief Counsel for Advocacy of
    the Small Business Administration (SBA).[^128] In addition, the
    Notice and IRFA (or summaries thereof) will be published in the
    Federal Register.[^129]

## Need for, and Objectives of, the Proposed Rules

49. The Notice seeks comment on a variety of issues relating to
    implementation of section 224 pole attachment rules in light of
    increasing intermodal competition in the decade since the Commission
    began to implement the 1996 Act. Specifically, the Notice asks
    whether existing rules governing pole attachment rates remain
    appropriate in light of competition in the marketplace today;
    whether section 224 confers rights on incumbent local exchange
    carriers (LECs), including regulation of the rates they pay for pole
    attachments; and whether it would be appropriate to adopt specific
    rules regarding certain non-price terms and conditions associated
    with section 224 access rights. With regard to rates, the Notice
    tentatively concludes that all attachments used for broadband
    Internet access service should be subject to a single rate,
    regardless of the platform over which those services are provided.

## Legal Basis 

50. The legal basis for any action that may be taken pursuant to the
    Notice is contained in sections 1, 4(i), 4(j), 224, 303 and 403 of
    the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
    154(i)-(j), 224, 303, 403.

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

51. 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.[^130] The RFA generally defines the
    term "small entity" as having the same meaning as the terms "small
    business," "small organization," and "small governmental
    jurisdiction."[^131] In addition, the term "small business" has the
    same meaning as the term "small business concern" under the Small
    Business Act.[^132] 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 Small Business Administration (SBA).[^133]

52. *Small Businesses*. Nationwide, there are a total of approximately
    22.4 million small businesses, according to SBA data.[^134]

53. *Small Organizations*. Nationwide, there are approximately 1.6
    million small organizations.[^135]

54. *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."[^136] Census Bureau data
    for 2002 indicate that there were 87,525 local governmental
    jurisdictions in the United States.[^137] We estimate that, of this
    total, 84,377 entities were "small governmental
    jurisdictions."[^138] Thus, we estimate that most governmental
    jurisdictions are small.

### Telecommunications Service Entities

#### Wireline Carriers and Service Providers

55. We have included small incumbent LECs 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."[^139] The SBA's
    Office of Advocacy contends that, for RFA purposes, small incumbent
    LECs are not dominant in their field of operation because any such
    dominance is not "national" in scope.[^140] We have therefore
    included small incumbent LECs in this RFA analysis, although we
    emphasize that this RFA action has no effect on Commission analyses
    and determinations in other, non-RFA contexts.

56. *Incumbent LECs*. Neither the Commission nor the SBA has developed a
    small business size standard specifically for incumbent LECs. 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.[^141]
    According to Commission data,[^142] 1,303 carriers have reported
    that they are engaged in the provision of incumbent local exchange
    services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or
    fewer employees and 283 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 action.

57. *Competitive LECs, 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.[^143] According to Commission data,[^144] 859 carriers
    have reported that they are engaged in the provision of either
    competitive access provider services or competitive LEC services. Of
    these 859 carriers, an estimated 741 have 1,500 or fewer employees
    and 118 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,
    44 carriers have reported that they are "Other Local Service
    Providers." Of the 44, an estimated 43 have 1,500 or fewer employees
    and one has more than 1,500 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.

58. *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.[^145] According to Commission
    data,[^146] 330 carriers have reported that they are engaged in the
    provision of interexchange service. Of these, an estimated 309 have
    1,500 or fewer employees and 21 have more than 1,500 employees.
    Consequently, the Commission estimates that the majority of IXCs are
    small entities that may be affected by our action.

#### Wireless Telecommunications Service Providers

59. Below, for those services subject to auctions, we note that, as a
    general matter, the number of winning bidders that qualify as small
    businesses at the close of an auction does not necessarily represent
    the number of small businesses currently in service. Also, the
    Commission does not generally track subsequent business size unless,
    in the context of assignments or transfers, unjust enrichment issues
    are implicated.

60. *Wireless Service Providers*. The SBA has developed a small business
    size standard for wireless firms within the two broad economic
    census categories of "Paging"[^147] and "Cellular and Other Wireless
    Telecommunications."[^148] Under both SBA categories, a wireless
    business is small if it has 1,500 or fewer employees. For the census
    category of Paging, Census Bureau data for 2002 show that there were
    807 firms in this category that operated for the entire year.[^149]
    Of this total, 804 firms had employment of 999 or fewer employees,
    and three firms had employment of 1,000 employees or more.[^150]
    Thus, under this category and associated small business size
    standard, the majority of firms can be considered small. For the
    census category of Cellular and Other Wireless Telecommunications,
    Census Bureau data for 2002 show that there were 1,397 firms in this
    category that operated for the entire year.[^151] Of this total,
    1,378 firms had employment of 999 or fewer employees, and 19 firms
    had employment of 1,000 employees or more.[^152] Thus, under this
    second category and size standard, the majority of firms can, again,
    be considered small.

61. *Cellular Licensees*. The SBA has developed a small business size
    standard for wireless firms within the broad economic census
    category "Cellular and Other Wireless Telecommunications."[^153]
    Under this SBA category, a wireless business is small if it has
    1,500 or fewer employees. For the census category of Cellular and
    Other Wireless Telecommunications, Census Bureau data for 2002 show
    that there were 1,397 firms in this category that operated for the
    entire year.[^154] Of this total, 1,378 firms had employment of 999
    or fewer employees, and 19 firms had employment of 1,000 employees
    or more.[^155] Thus, under this category and size standard, the
    majority of firms can be considered small. Also, according to
    Commission data, 437 carriers reported that they were engaged in the
    provision of cellular service, Personal Communications Service
    (PCS), or Specialized Mobile Radio (SMR) Telephony services, which
    are placed together in the data.[^156] We have estimated that 260 of
    these are small under the SBA small business size standard.[^157]

62. *Paging*. The SBA has developed a small business size standard for
    the broad economic census category of "Paging."[^158] Under this
    category, the SBA deems a wireless business to be small if it has
    1,500 or fewer employees. Census Bureau data for 2002 show that
    there were 807 firms in this category that operated for the entire
    year.[^159] Of this total, 804 firms had employment of 999 or fewer
    employees, and three firms had employment of 1,000 employees or
    more.[^160] In addition, according to Commission data,[^161] 365
    carriers have reported that they are engaged in the provision of
    "Paging and Messaging Service." Of this total, we estimate that 360
    have 1,500 or fewer employees, and five have more than 1,500
    employees. Thus, in this category the majority of firms can be
    considered small.

63. We also note that, 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.[^162] In this
    context, 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.[^163] The
    SBA has approved this definition.[^164] An auction of Metropolitan
    Economic Area (MEA) licenses commenced on February 24, 2000, and
    closed on March 2, 2000. Of the 2,499 licenses auctioned, 985 were
    sold.[^165] Fifty-seven companies claiming small business status won
    440 licenses.[^166] An auction of MEA and Economic Area (EA)
    licenses commenced on October 30, 2001, and closed on December
    5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold.[^167]
    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 commenced on May 13, 2003, and closed on May 28, 2003.
    Seventy-seven bidders claiming small or very small business status
    won 2,093 licenses.[^168] We also note that, currently, there are
    approximately 74,000 Common Carrier Paging licenses.

64. *Wireless Telephony*. Wireless telephony includes cellular, personal
    communications services (PCS), and specialized mobile radio (SMR)
    telephony carriers. As noted earlier, the SBA has developed a small
    business size standard for "Cellular and Other Wireless
    Telecommunications" services.[^169] Under that SBA small business
    size standard, a business is small if it has 1,500 or fewer
    employees.[^170] According to Commission data, 432 carriers reported
    that they were engaged in the provision of wireless telephony.[^171]
    We have estimated that 221 of these are small under the SBA small
    business size standard.

65. *Broadband Personal Communications Service*. The broadband Personal
    Communications Service (PCS) spectrum is divided into six frequency
    blocks designated A through F, and the Commission has held auctions
    for each block. The Commission defined "small entity" for Blocks C
    and F as an entity that has average gross revenues of \$40 million
    or less in the three previous calendar years.[^172] For Block F, an
    additional classification 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."[^173] These standards defining "small entity" in
    the context of broadband PCS auctions have been approved by the
    SBA.[^174] 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.[^175] On March 23, 1999, the Commission
    re-auctioned 347 C, D, E, and F Block licenses. There were 48 small
    business winning bidders. On January 26, 2001, the Commission
    completed the auction of 422 C and F Broadband PCS licenses in
    Auction No. 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.

66. *Narrowband Personal Communications Services*. To date, two auctions
    of narrowband personal communications services (PCS) licenses have
    been conducted. For purposes of the two auctions that have already
    been held, "small businesses" were entities with average gross
    revenues for the prior three calendar years of \$40 million or less.
    Through these auctions, the Commission has awarded a total of 41
    licenses, out of which 11 were obtained by small businesses. To
    ensure meaningful participation of small business entities in future
    auctions, the Commission has adopted a two-tiered small business
    size standard in the Narrowband PCS Second Report and Order.[^176] 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.[^177] In the future, the
    Commission will auction 459 licenses to serve Metropolitan Trading
    Areas (MTAs) and 408 response channel licenses. There is also one
    megahertz of narrowband PCS spectrum that has been held in reserve
    and that the Commission has not yet decided to release for
    licensing. The Commission cannot predict accurately the number of
    licenses that will be awarded to small entities in future auctions.
    However, four of the 16 winning bidders in the two previous
    narrowband PCS auctions were small businesses, as that term was
    defined. The Commission assumes, for purposes of this analysis that
    a large portion of the remaining narrowband PCS licenses will be
    awarded to small entities. The Commission also assumes that at least
    some small businesses will acquire narrowband PCS licenses by means
    of the Commission's partitioning and disaggregation rules.

67. *Rural Radiotelephone Service*. The Commission has not adopted a
    size standard for small businesses specific to the Rural
    Radiotelephone Service.[^178] A significant subset of the Rural
    Radiotelephone Service is the Basic Exchange Telephone Radio System
    (BETRS).[^179] The Commission uses the SBA's small business size
    standard applicable to "Cellular and Other Wireless
    Telecommunications," *i.e.*, an entity employing no more than 1,500
    persons.[^180] 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 adopted
    herein.

68. *Air-Ground Radiotelephone Service*. The Commission has not adopted
    a small business size standard specific to the Air-Ground
    Radiotelephone Service.[^181] We will use SBA's small business size
    standard applicable to "Cellular and Other Wireless
    Telecommunications," i.e., an entity employing no more than 1,500
    persons.[^182] There are approximately 100 licensees in the
    Air-Ground Radiotelephone Service, and we estimate that almost all
    of them qualify as small under the SBA small business size standard.

69. *Offshore Radiotelephone Service*. This service operates on several
    UHF television broadcast channels that are not used for television
    broadcasting in the coastal areas of states bordering the Gulf of
    Mexico.[^183] There are presently approximately 55 licensees in this
    service. We are unable to estimate at this time the number of
    licensees that would qualify as small under the SBA's small business
    size standard for "Cellular and Other Wireless Telecommunications"
    services.[^184] Under that SBA small business size standard, a
    business is small if it has 1,500 or fewer employees.[^185]

### Cable and OVS Operators

70. *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."[^186] 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.[^187] 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.[^188] 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.[^189] Thus, the
    majority of these firms can be considered small.

71. *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.[^190] Industry
    data indicate that, of 1,076 cable operators nationwide, all but
    eleven are small under this size standard.[^191] In addition, under
    the Commission's rules, a "small system" is a cable system serving
    15,000 or fewer subscribers.[^192] Industry data indicate that, of
    7,208 systems nationwide, 6,139 systems have under 10,000
    subscribers, and an additional 379 systems have 10,000-19,999
    subscribers.[^193] Thus, under this second size standard, most cable
    systems are small.

72. *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."[^194] 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.[^195] Industry data indicate that, of 1,076 cable
    operators nationwide, all but ten are small under this size
    standard.[^196] 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,[^197] and therefore we are unable to estimate more
    accurately the number of cable system operators that would qualify
    as small under this size standard.

73. *Open Video Systems (OVS)*. In 1996, Congress established the open
    video system (OVS) framework, one of four statutorily recognized
    options for the provision of video programming services by local
    exchange carriers (LECs).[^198] The OVS framework provides
    opportunities for the distribution of video programming other than
    through cable systems. Because OVS operators provide subscription
    services,[^199] OVS falls within the SBA small business size
    standard of Cable and Other Program Distribution Services, which
    consists of such entities having \$13.5 million or less in annual
    receipts.[^200] The Commission has certified 25 OVS operators, with
    some now providing service. Broadband service providers (BSPs) are
    currently the only significant holders of OVS certifications or
    local OVS franchises.[^201] As of June, 2005, BSPs served
    approximately 1.4 million subscribers, representing 1.5 percent of
    all MVPD households.[^202] Affiliates of Residential Communications
    Network, Inc. (RCN), which serves about 371,000 subscribers as of
    June, 2005, is currently the largest BSP and 14th largest
    MVPD.[^203] RCN received approval to operate OVS systems in New York
    City, Boston, Washington, D.C. and other areas. The Commission does
    not have financial information regarding the entities authorized to
    provide OVS, some of which may not yet be operational. We thus
    believe that at least some of the OVS operators may qualify as small
    entities.

### Internet Service Providers

74. *Internet Service Providers*. The SBA has developed a small business
    size standard for Internet Service Providers (ISPs). ISPs "provide
    clients access to the Internet and generally provide related
    services such as web hosting, web page designing, and hardware or
    software consulting related to Internet connectivity."[^204] Under
    the SBA size standard, such a business is small if it has average
    annual receipts of \$23 million or less.[^205] According to Census
    Bureau data for 2002, there were 2,529 firms in this category that
    operated for the entire year.[^206] Of these, 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 these firms are small entities that
    may be affected by our action.

75. *All Other Information Services*. "This industry comprises
    establishments primarily engaged in providing other information
    services (except new syndicates and libraries and archives)."[^207]
    The SBA has developed a small business size standard for this
    category; that size standard is \$6.5 million or less in average
    annual receipts.[^208] According to Census Bureau data for 2002,
    there were 155 firms in this category that operated for the entire
    year.[^209] Of these, 138 had annual receipts of under \$5 million,
    and an additional four firms had receipts of between \$5 million and
    \$9,999,999. Consequently, we estimate that the majority of these
    firms are small entities that may be affected by our action.

### Public Utilities

76. *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."[^210] 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."[^211] According to Census Bureau data for
    2002, there were 1,644 firms in this category that operated for the
    entire year.[^212] 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.

77. *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."[^213] The SBA has developed a
    small business size standard for this industry, which is: all such
    firms having 500 or fewer employees.[^214] According to Census
    Bureau data for 2002, there were 468 firms in this category that
    operated for the entire year.[^215] Of this total, 424 firms had
    employment of fewer than 500 employees, and 18 firms had employment
    of 500 to 999 employees.[^216] Thus, the majority of firms in this
    category can be considered small.

78. *Water Supply and Irrigation Systems*. This economic census category
    "comprises establishments primarily engaged in operating water
    treatment plants and/or operating water supply systems."[^217] 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.[^218] According to Census Bureau data for 2002, there were
    3,830 firms in this category that operated for the entire
    year.[^219] 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.[^220] Thus, the majority of firms in this
    category can be considered small.

## Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

79. Should the Commission alter the pole attachment rate structure, such
    action could result in increased, reduced, or otherwise altered
    reporting, recordkeeping or other compliance requirements for pole
    owners and attaching entities. For example, if the Commission were
    to adopt a uniform rate for all pole attachments used for broadband
    Internet access service, providers of such services might be
    required to record and report where such service is offered.[^221]
    If the Commission were to adopt a uniform rate for all pole
    attachments, such action could eliminate the need for cable
    television systems to record and report to utilities where they or
    their lessees offer telecommunications services.[^222] Changes to
    reporting, recordkeeping or other compliance requirements could
    either be new (*e.g*., if telecommunications carriers begins to
    record or report where they offer broadband Internet access service)
    or could reconfigure existing requirements (*e.g.*, if cable
    television systems begin to record and report where they or their
    lessees offer broadband Internet access service, but cease to record
    and report where they or their lessees offer telecommunications
    services). If the Commission initiates regulation of the rates,
    terms, and conditions of pole attachment by incumbent LECs, such
    regulation could increase reporting, recordkeeping or other
    compliance requirements for pole owners and incumbent LECs where
    incumbent LECs attach to poles owned by other utilities.[^223]

80. Should the Commission adopt regulations concerning access to poles,
    ducts, conduits, and rights-of-way, such action could result in
    increased, reduced, or otherwise altered reporting, recordkeeping or
    other compliance requirements for pole owners, attaching entities,
    and users of ducts, conduits, and rights-of-way. In particular, if
    the Commission adopts rules governing specific techniques for pole
    and conduit modification, as opposed to resolution on a
    case-specific complaint basis, reporting, recordkeeping or other
    compliance requirements could change.[^224] Examples of specific
    topics where recordkeeping, reporting, or compliance requirements
    could change by virtue of Commission action include: (1) searches
    and surveys of both poles and conduit, including information
    management; (2) performance of make-ready work, including
    timeliness, safety, capacity, and the use of boxing and extension
    arms; (3) the use of qualified third-party contract workers; (4)
    access to in-building ducts, conduit, and rights-of-way, including
    access to incumbent LEC central offices; or (5) practices relating
    to drop lines and poles.[^225]

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

81. 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.[^226]

82. The Commission's tentatively concludes that it will promote
    broadband deployment and technological neutrality by requiring all
    categories of companies to pay the same pole attachment rate for all
    pole attachments used for broadband Internet access service, and the
    Notice seeks comment on the possible economic effect on small
    entities of adopting this requirement.[^227] In coming to this
    tentative conclusion, we first assessed the alternative of
    continuing a system of two rates.[^228] Another objective is to
    implement overarching policies concerning safety, certainty,
    administrability, and nondiscrimination.[^229] When alternatives are
    discussed, such as whether it would be better to choose an existing
    rate as the broadband Internet access services rate (and, if so,
    which rate) or to modify existing rates, the Notice invites small
    entities to discuss the economic ramifications of such action.[^230]
    The Notice seeks comment on whether regulation of pole attachment
    rates is particularly necessary for small incumbent LECs, and asks
    how incumbent LECs could be affected if rates and terms were
    regulated absent a right of access.[^231] The Notice also seeks
    comment on the general usefulness of rules, presumptions, or
    guidelines, as opposed to case-specific adjudication, and how these
    alternative approaches to resolving access issues may affect small
    entities.[^232]

## Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules

83. None. We note that, since the enactment of the 1996 Act, the
    Commission has encouraged disputing parties to participate in
    staff-supervised, pre-complaint mediation.[^233] Such mediation has
    proven to be very successful, including in pole attachment
    disputes.[^234] Certain rules regarding pole attachment complaints,
    however, may have had the unintended consequence of discouraging
    pre-complaint mediation.[^235] Thus, we seek comment on whether
    those rules should be amended or eliminated to facilitate mediation
    of disputes. In addition, under current Commission rules, an
    attacher may execute a pole attachment agreement with a utility, and
    then later file a complaint challenging the lawfulness of a
    provision of that agreement.[^236] We seek comment on whether we
    should adopt some contours to the rule, such as time-frames for
    raising written concerns about a provision of a pole attachment
    agreement.

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: Implementation of Section 224 of the Act; Amendment of the
Commission's Rules and Policies Governing Pole Attachments WC Docket No.
07-245, RM-11293, RM-11303*

I am pleased that the Commission has adopted this Notice of Proposed
Rulemaking tentatively concluding to adopt a single rate for all pole
attachments used to provide broadband services, providing a level
playing field for all providers of broadband. Establishing parity
between all providers of broadband services will help to promote
competition between providers of broadband services. The Commission will
continue to look for ways to remove barriers to competition across all
platforms and with respect to all services that we regulate. The public
interest demands that all Americans reap the benefits of competition.

It is also important that pole owners be properly compensated for the
use of their infrastructure by others. I do not think electric consumers
should be subsidizing any broadband companies. Establishing parity
should not come at the expense of pole owners or electric consumers.

Pole attachments provide an important means for the deployment of
broadband and other services to Americans. However, the safety and
reliability of critical electric infrastructure is a paramount concern.
Our work on telecommunications reliability should not come at the
expense of other public safety systems. I look forward to developing a
full record in response to this Notice.

**SEPARATE STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS, APPROVING**

 

Re:       *In the Matter of Implementation of Section 224 of the Act;
Amendment of the Commission's Rules and Policies Governing Pole
Attachments*, WC Docket No. 07-245, RM-11293, RM-11303, Notice of
Proposed Rulemaking (Oct. 31, 2007)

 

While implementing pole attachment policy is one of the drier and more
technical issues the Commission faces, it is also essential to ensuring
that we have a competitive broadband market.  I have said for some time
that I believe we need to act in an expeditious fashion to resolve
petitions before the agency that would clarify the rules that apply to
the rates, terms and conditions for broadband providers' access to
poles. I am pleased that the Commission heads down this road today with
an expansive Notice of Proposed Rulemaking that tees up the many
pole-related issues sitting before us. It may be hard to imagine, but
relatively simple tweaks to our current rules could greatly assist in
unleashing the deployment of competitive broadband throughout the
country. Goodness knows how badly we need that!  I look forward to
quickly completing a record upon which the Commission can act, and I am
pleased to support this item.

**SEPARATE STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

Re: Implementation of Section 224 of the Act; Amendment of the
Commission's Rules and Policies Governing Pole Attachments; WC Docket
No. 07-245, RM-11293, RM-11303, Notice of Proposed Rulemaking (Oct. 31,
2007).

The utility pole may have hit its iconic high point in the fall of 1947,
when Norman Rockwell painted a New England Telephone Company employee
perched atop a telephone pole, giving us his historic depiction of this
venerable lineman. I have a copy in my office to remind me of the
important work men and women on the lines do every day to make our
networks run. While it's hard to top attention from Norman Rockwell, I'm
pleased that the Commission today devotes some of its time to the
critical issue of access to utility poles for telecommunications and
broadband providers.

Through this Notice, we seek comment on two petitions that ask the
Commission to explore changes to its pole attachment rules in order to
reduce competitive distortions among broadband providers. These parties
have asked the Commission to consider, among other things, changes to
its rules for pole attachment rates, complaint processes, and procedures
for providing access to poles, ducts, and conduits. Even this
Commission, with its preference for facilities-based competition, has
recognized that it is impractical and undesirable to have multiple sets
of utility poles in our neighborhoods, so I am pleased that this Order
recognizes that timely access to poles, ducts, and conduits is critical
for facilities-based providers of broadband services. It is important
that the Commission move forward with these petitions as expeditiously
as possible. I look forward to working with my colleagues and the many
segments of industry as we make progress on these issues. We should do
so keeping in mind the need to level the competitive playing field for
facilities-based providers of broadband services.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

*Implementation of Section 224 of the Act; Amendment of the Commission's
Rules and Policies Governing Pole Attachments*, WC Docket No. 07-245,
RM-11293, RM-11303, Notice of Proposed Rulemaking

Nearly 10 years ago the FCC implemented section 224 of the
Telecommunications Act which conferred on cable and telecommunications
providers the right to pole attachments at "just and reasonable rates,
terms and conditions". Since that time the competitive landscape has
changed dramatically with providers of voice, broadband, and video
services increasingly competing cross-platform. As convergence has
become a reality in the United States, I have sought to limit the
regulatory hindrances to competition, in part by seeking to ensure a
level regulatory playing field. To the extent possible all providers of
the same service must be treated in the same manner regardless of the
technology they employ. To that end I have worked to help ensure
technological and competitive neutrality in communications markets to
minimize marketplace distortions arising from regulatory advantage. For
example, we have adopted the same regulatory approach for broadband
Internet access service provided over cable systems, telephone wires,
power lines, and wireless platforms; helping to promote competition and
which will in turn propel broadband deployment- one of my principal
priorities.

Through section 706 of the Act Congress charges the FCC with promoting
the deployment of broadband infrastructure. In initiating this inquiry
we properly seek input on whether our rules governing pole attachment
rates remain appropriate in light of the increasing intermodal
competition in the marketplace today. Significantly, due to the import
of promoting broadband deployment and the importance of technological
neutrality, we tentatively conclude that all categories of companies
should pay the same pole attachment rate for all attachments used for
broadband Internet access service.

Through this inquiry we will seek to ensure that our regulatory
framework responds to the dynamic changes in technology and the markets
for telecommunications and video services and remains faithful to the
pro-competitive, market- provisions of the Act.

**STATEMENT**

**COMMISSIONER ROBERT M. McDOWELL**

*Re*: Implementation of Section 224 of the Act; Amendment of the
Commission's Rules and Policies Governing Pole Attachments, *Notice of
Proposed Rulemaking*, WC Docket No. 07-245, RM-11293, RM‑11303

While increased competition and technological convergence empower
consumers, such progress often exposes outdated regulations for the
anachronisms they are. In this notice of proposed rulemaking, we are
seeking comment on the requirements for pole attachments, ducts,
conduits and rights-of-way by both cable television systems and
telecommunications service providers that are contained in Section 224
of the Communications Act. That provision embodies terms that, as
interpreted by the Commission in the past, have resulted in different
treatment for cable systems and telecommunications service providers in
rates, terms and conditions.

We now are faced with the reality that different providers using pole
attachments are offering substantially similar services. As the
stovepipe regulations of yesteryear become increasingly burdensome, we
should strive to modernize our regulations so that similar offerings are
regulated similarly. While I favor parity of regulation for similar
providers of services, at the same time, we must meet our statutory
obligations. In this situation, Section 224 contains standards for
determining both the cable rate and the telecom rate; yet, the *Notice*
tentatively concludes that there should be a single rate for all
attachments used to provide broadband Internet access service. As
always, I look forward to carefully analyzing the legal arguments that
support and oppose development of a uniform rate for all pole
attachments.

[^1]: 47 U.S.C. § 224.

[^2]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
    (1996).

[^3]: 47 U.S.C. § 224(a)(4).

[^4]: Pole Attachment Act of 1978, Pub. L. No. 95-234, 92 Stat. 33
    (1978). Congress reacted to an apparent need in the cable television
    industry to resolve conflicts between such providers, then known as
    "CATV systems," and utility pole, duct, and conduit owners over the
    charges for use of such facilities. *See generally* S. Rep. No.
    95‑580, 95th Cong., 1st Sess. (1977).

[^5]: 47 U.S.C. § 224(c).

[^6]: The following states have certified that they regulate pole
    attachments: Alaska, California, Connecticut, Delaware, District of
    Columbia, Idaho, Illinois, Kentucky, Louisiana, Maine,
    Massachusetts, Michigan, New Jersey, New York, Ohio, Oregon, Utah,
    Vermont, and Washington. *See* *States That Have Certified That They
    Regulate Pole Attachments*, Public Notice, 7 FCC Rcd 1498 (1992).
    Section 224 also withholds from the Commission jurisdiction to
    consider attachment complaints where the utility owning or
    controlling poles, ducts, conduits, or rights of way is a railroad,
    cooperatively organized, or owned by a government entity. 47 U.S.C.
    § 224(a)(1).

[^7]: *See*, *e.g.*, *Adoption of Rules for the Regulation of Cable
    Television Pole Attachments*, CC Docket No. 78-144, First Report and
    Order, 68 FCC 2d 1585 (1978) (adopting complaint procedures);
    *Adoption of Rules for the Regulation of Cable Television Pole
    Attachments*, CC Docket No. 78-144, Memorandum Opinion and Order, 77
    FCC 2d 187 (1980) (defining, *e.g.*, safety space, average usable
    space, attachment as occupying 12 inches of space, make-ready as
    non-recurring cost); *Amendment of Rules and Policies Governing the
    Attachment of Cable Television Hardware to Utility Poles*, CC Docket
    No. 86-212, Report and Order, 2 FCC Rcd 4387 (1987) (*1987 Rate
    Order*), *rev'd,* *Florida Power Corp. v. FCC*, 772 F.2d 1537 (11th
    Cir. 1985) (*Florida Power Corp. v. FCC* ), *rev'd,* *FCC v. Florida
    Power Corp*., 480 U.S. 245 (1987). The *1987 Rate Order* revised,
    for example, computation of carrying charges and certain complaint
    procedures. Carrying charges are an attacher's share of the
    utility's fully allocated costs of owning a pole, including
    administration, taxes, cost of capital, depreciation and maintenance
    utilized. *S**ee 1987 Rate Order*, 2 FCC Rcd at 4791, para. 25.

[^8]: *FCC v. Florida Power Corp*., 480 U.S. 245 (1987).

[^9]: *See* 47 U.S.C. § 224.

[^10]: Previously, section 224 did not guarantee cable television
    systems the right to attach to utility poles but merely provided
    that where cable television systems were able to obtain such
    attachments, the rates, terms, and conditions must be just and
    reasonable.

[^11]: 47 U.S.C. § 224(f)(1).

[^12]: 47 U.S.C. § 224(f)(2).

[^13]: 47 U.S.C. § 224(a)(4).

[^14]: *See* 47 U.S.C. § 224(d) (describing the "cable rate"), (e)
    (describing the "telecom rate").

[^15]: 47 U.S.C. § 224(e)(4).

[^16]: 47 U.S.C. § 224(a)(5).

[^17]: *Implementation of Section 703(e) of the Telecommunications Act,
    Amendment of the Commission's Rules and Policies Governing Pole
    Attachments*, CS Docket No. 97-151, Report and Order, 13 FCC Rcd
    6777 (1998) (*1998 Implementation Order*), *aff'd in part, rev'd in
    part*, *Gulf Power v. FCC*, 208 F.3d 1263 (11th Cir. 2000) (*Gulf
    Power v. FCC*), *rev'd,* *Nat'l Cable & Telecommunications Ass'n v.
    Gulf Power*, 534 U.S. 327 (2002) (*Gulf Power*).

[^18]: *See 1998 Implementation Order*, 13 FCC Rcd at 6796, para. 34.

[^19]: *See 1998 Implementation Order*, 13 FCC Rcd at 6797-99, paras.
    36-42. Specifically, the Commission reasoned that, because the Act
    defines a "telecommunications carrier" as "any provider of
    telecommunications services," 47 U.S.C. § 3(44); defines
    "telecommunications services" as the "offering of telecommunications
    for a fee directly to the public . . . regardless of the facilities
    used," 47 U.S.C. § 3(46); and defines "telecommunications" as "the
    transmission, between or among points specified by the user, or
    information of the user's choosing, without change in the form or
    content of the information as sent and received," 47 U.S.C. § 3(43),
    section 224 therefore entitles wireless telecommunications carriers
    to attach equipment to utility poles at just and reasonable rates,
    terms, and conditions. *1998 Implementation Order*, 13 FCC Rcd at
    6798, paras. 39-40.

[^20]: *See generally* *Gulf Power*, 534 U.S. 327.

[^21]: *See Gulf Power*, 534 U.S. at 336, 338-89.

[^22]: *Gulf Power*, 534 U.S. at 335 (citing *Gulf Power v. FCC*, 208
    F.3d at 1276 n.29).

[^23]: *See Gulf Power*, 534 U.S. at 341.

[^24]: *Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996*, CC Docket Nos. 96‑98, 95-185,
    Report and Order, 11 FCC Rcd 15499 (1996) (*Local Competition
    Order*) (subsequent history omitted).

[^25]: *See Local Competition Order*, 11 FCC Rcd at 16058-107, paras.
    1119-240 (Part XI.B. "Access to Rights of Way"). The five specific
    rules are: (1) a utility may rely on industry codes, such as the
    National Electrical Safety Code (NESC), to prescribe standards with
    respect to capacity, safety, reliability and general engineering
    principles; (2) a utility will still be subject to any federal
    requirements, such as those imposed by Federal Energy Regulatory
    Commission (FERC) or Occupational Safety and Health Administration
    (OSHA), which might affect pole attachments; (3) state and local
    requirements will be given deference if not in direct conflict with
    Commission rules; (4) rates, terms and conditions of access must be
    uniformly applied to all attachers on a nondiscriminatory basis; and
    (5) a utility may not favor itself over other parties with respect
    to the provision of telecommunications or video services. *See Local
    Competition Order*, 11 FCC Rcd at 16071-74, paras. 1151-58; *see
    also id.* at 16074-85, paras. 1159-86 (adopting guidelines).

[^26]: *See Local Competition Order*, 11 FCC Rcd at 16067-68, para.
    1143. *See generally* 47 C.F.R §§ 1.1403-1.1418 (section 224
    complaint rules).

[^27]: *See Local Competition Order*, 11 FCC Rcd at 16068, para. 1143;
    *Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996*, CC Docket Nos. 96-98, 95-185, Order
    on Reconsideration, 14 FCC Rcd 18049, 18051, paras. 4-5 (1999)
    (*Local Competition Reconsideration Order*) (allowing parties
    flexibility to reach agreements on access subject to dispute
    resolution mechanism if negotiations fail).

[^28]: *See Local Competition Order*, 11 FCC Rcd at 16075-76, para.
    1162.

[^29]: *See Local Competition Order*, 11 FCC Rcd at 16075-76, para.
    1162; *see also Local Competition Reconsideration Order*, 14 FCC Rcd
    at 18067, para. 53 (reiterating capacity-expansion rule, and
    grounding it in historical practice and industry expectations).

[^30]: *Southern Co. v. FCC*, 293 F.3d 1338, 1346-47 (11th Cir. 2002)
    (*Southern*) (holding Commission's approach contrary to the plain
    language of § 224(f)(2)).

[^31]: *Southern*, 293 F.3d at 1346-47.

[^32]: *Southern*, 293 F.3d at 1348.

[^33]: Fibertech Networks, LLC, Petition for Rulemaking, RM-11303 (filed
    Dec. 7, 2005) (Fibertech Petition). Comments on the Fibertech
    Petition were due by January 30, 2006, and replies were due by March
    1, 2006. *See Pleading Cycle Established for Petition for Rulemaking
    of Fibertech Networks,* *LLC*, RM-11303, Public Notice, 20 FCC Rcd
    19865 (2005); *Fibertech Networks, LLC, Petition for Rulemaking*,
    RM-11303, Order, 21 FCC Rcd 155 (WCB 2006). A list of commenters in
    this proceeding is included in Appendix A.

[^34]: United States Telecom Association Petition for Rulemaking,
    RM-11293 (filed Oct. 11, 2005) (USTelecom Petition). Oppositions and
    comments on the USTelecom Petition were due by November 10, 2005.
    *See Petitions for Rulemaking Filed*, Report No. 2737 (CGB rel. Nov.
    2, 2005). A list of commenters in this proceeding is included in
    Appendix B. To distinguish these pleadings from pleadings by the
    same parties in the Fibertech docket, we identify all pleadings by
    docket number.

[^35]: *See* Letter from Thomas Jones, Counsel for Time Warner Telecom
    Inc., to Marlene H. Dortch, Secretary, FCC, RM-11293, RM-11303,
    Attach. at 11-12 (filed Jan. 16, 2007) (TWTC White Paper).

[^36]: We hereby incorporate the records of the Fibertech Petition,
    RM-11303, and USTelecom Petition, RM-11293, proceedings into WC
    Docket No. 07-245. Commenters need not resubmit material previously
    filed in these proceedings.

[^37]: References to "pole attachments," "attachment," and "attacher" do
    not exclude use of duct, conduit, and right-of-way.

[^38]: *See*, *e.g*.*,* *Implementation of Section 621(a)(1) of the
    Cable Communications Policy Act of 1984 as Amended by the Cable
    Television Consumer Protection and Competition Act of 1992*, MB
    Docket No. 05-311, Report and Order and Further Notice of Proposed
    Rulemaking, 22 FCC Rcd 5101, 5103, para. 2 (2007) (*Competitive
    Franchise Order*); *Applications for Consent to the Assignment
    and/or Transfer of Control of Licenses, Adelphia Communications
    Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors,
    to Time Warner Cable Inc. (Subsidiaries), Assignees, Adelphia
    Communications Corporation, (and Subsidiaries,
    Debtors-In-Possession), Assignors and Transferors, to Comcast
    Corporation (Subsidiaries), Assignees and Transferees, Comcast
    Corporation, Transferor, to Time Warner Inc., Transferee, Time
    Warner Inc., Transferor, to Comcast Corporation, Transferee*, MB
    Docket No. 05-192, Memorandum Opinion and Order, 21 FCC Rcd 8203,
    8209-12, paras. 8, 12 (2006) (*Adelphia/Time Warner Merger*)
    (explaining that, in 2006, Comcast provided facilities-based
    residential local telephone service to approximately 1.225 million
    customers and VoIP service to approximately 19 million households,
    and that Time Warner \[Cable\] provided high-speed Internet service
    to approximately 4.1 million residential subscribers, and VoIP to
    approximately 500,000 subscribers); *Annual Assessment of the Status
    of Competition in the Market for the Delivery of Video Programming*,
    MB Docket No. 05-255, Twelfth Annual Report, 21 FCC Rcd 2503, 2508,
    para. 15 (2006) (finding that larger incumbent LECs have accelerated
    plans to roll out video services using digital subscriber line (DSL)
    and fiber-based distribution platforms).

[^39]: *See Verizon Communications Inc. and MCI, Inc. Application for
    Approval of Transfer of Control*, WC Docket No. 05-75, Memorandum
    Opinion and Order, 20 FCC Rcd 18433, 18467, 18473-74, paras. 64, 74
    (2005) (*Verizon/MCI Order*) (finding that cable companies compete
    to provide telecommunications services to enterprise customers),
    *id*. at 18479-80, para. 88 n.256 (finding growing mass-market
    subscription to cable-based VoIP); *SBC Communications Inc. and AT&T
    Corp. Applications for Approval of Transfer of Control*, WC Docket
    No. 05-65, Memorandum Opinion and Order, 20 FCC Rcd 18290, 18395,
    18331, paras. 64, 73 (2005) (*SBC/AT&T Order*).

[^40]: *See Time Warner Cable Request for Declaratory Ruling that
    Competitive Local Exchange Carriers May Obtain Interconnection Under
    Section 251 of the Communications Act of 1934, as Amended, to
    Provide Wholesale Telecommunications Services to VoIP Providers*, WC
    Docket No. 06-55, Memorandum Opinion and Order, 22 FCC Rcd 3513 (WCB
    2007).

[^41]: *See Competitive Franchise Order*, 22 FCC Rcd 5101;
    *Implementation of Section 621(a)(1) of the Cable Communications
    Policy Act of 1984 as amended by the Cable Television Consumer
    Protection and Competition Act of 1992*, MB Docket No. 05-311,
    Second Report and Order, FCC 07-190 (rel. Nov. 6, 2007) (extending a
    number of the rules promulgated in a previous Report and Order to
    incumbents as well as new entrants).

[^42]: *See Exclusive Service Contracts for Provision of Video Services
    in Multiple Dwelling Units and Other Real Estate Developments*, MB
    Docket No. 07-51, Notice of Proposed Rulemaking, 22 FCC Rcd 5935
    (2007); *FCC Adopts Rules to Increase Choice and Competition Among
    Video Providers for Consumers Residing in Multiple Dwelling Units*,
    MB Docket No. 07-51, Report and Order and Further Notice of Proposed
    Rulemaking, FCC 07-189 (rel. Nov. 13, 2007) (adopting regulations
    banning the use of exclusivity clauses for the provision of video
    services to multiple dwelling units or other real estate
    developments).

[^43]: *See* USTelecom Reply, RM-11293, at 8-10, 12-13.

[^44]: *See* AT&T Reply, RM-11293, at 2-5.

[^45]: *See* USTelecom Petition, RM-11293, at 3; Alltel Comments,
    RM-11293, at 2-4.

[^46]: *See* AEPSC Joint Opposition, RM-11293, at 17-18.

[^47]: *Compare* USTelecom Petition, RM-11293, at 9-12 (discussing
    effect on competition on joint use agreements), *with* AEPSC Joint
    Opposition, RM-11293, at 17-18; FirstEnergy Opposition, RM-11293, at
    4-6 (describing joint use agreements as useful and mutually
    beneficial).

[^48]: *Compare* FirstEnergy Opposition, RM-11293, at 3, 13-15, *with*
    USTelecom Reply, RM-11293, at 12-13 (arguing that power companies
    have often install poles in first instance and have operational
    advantage).

[^49]: *See* AEPSC Joint Opposition, RM-11293, at 19.

[^50]: *Compare, e.g.*, BellSouth Comments, RM-11293, at 3-4, 11
    (arguing that BellSouth experiences unjust and unreasonable pole
    attachment practices), *with, e.g.*, NTCA Comments, RM-11293, at 3
    (arguing that small and rural carriers are disproportionately
    harmed).

[^51]: *See* Exelon Comments, RM-11293, at 5 (arguing that regulated
    rate, terms and conditions are not enforceable without right of
    attachment).

[^52]: Ameren Opposition, RM-11293, at 13-14 (stating that Commission
    has no authority to provide relief sought, that opportunity to raise
    issue of incumbent LEC section 224 rights has passed, and that
    USTelecom may seek recourse before Congress).

[^53]: 47 U.S.C. § 224(b)(1).

[^54]: 47 U.S.C. § 224(a)(4).

[^55]: *See* 47 U.S.C. § 224(d), (e).

[^56]: *See 1998 Implementation Order*, 13 FCC Rcd at 6790, para. 34.

[^57]: *Gulf Power*, 534 U.S. at 336.

[^58]: *See* TWTC White Paper, RM-11293, at 13-17.

[^59]: *See* TWTC White Paper, RM-11293, at 17 (citing 47 C.F.R. §
    1.1410).

[^60]: *See* TWTC White Paper, RM-11293, at 14 (citing *Local
    Competition Order*, 11 FCC Rcd at 16073, para. 1156).

[^61]: *See* TWTC White Paper, RM-11293, at 14.

[^62]: *See*, *e.g*.*, Local Competition Order*, 11 FCC Rcd at 16103-04,
    para. 16103; *1998* *Implementation Order*, 13 FCC Rcd at 6781,
    para. 5 ("Because, for purposes of Section 224, an ILEC is a utility
    but is not a telecommunications carrier, an ILEC must grant other
    telecommunications carriers and cable television systems access to
    its poles, even though the ILEC has no rights under Section 224 with
    respect to the poles of other utilities."); *Amendment of
    Commission's Rules and Policies Governing Pole Attachments;
    Implementation of Section 703(e) of the Communications Act,
    Amendment of the Commission's Rules and Policies Governing Pole
    Attachments*, CS Docket Nos. 97-97, 97-151, Consolidated Partial
    Order on Reconsideration, 16 FCC Rcd 12103, 12106, para. 2 (2001)
    (*2001 Order on Reconsideration*); 47 U.S.C. § 224(f)(1) (stating
    that "a utility shall provide . . . any telecommunications carrier
    with nondiscriminatory access to any pole, duct, conduit, or
    right-of-way owned or controlled by it"); 47 U.S.C. § 224(a)(5)
    (stating that "\[f\]or purposes of this section, the term
    'telecommunications carrier' does not include any incumbent local
    exchange carrier."); 47 C.F.R. § 1.1401 ("Purpose: The rules and
    regulations contained in . . . this part provide complaint and
    enforcement procedures to ensure that telecommunications carriers
    and cable system television systems have nondiscriminatory access to
    utility poles, ducts, conduits, and rights-of-way on rates, terms,
    and conditions that are just and reasonable.").

[^63]: *See* USTelecom Petition, RM-11293, at 1-3.

[^64]: *See* 47 U.S.C. § 224(a)(5) ("For purposes of this section, the
    term 'telecommunications carrier' (as defined in section 153 of this
    title) does not include any incumbent local exchange carrier as
    defined in section 251(h) of this title."); USTelecom Petition at 7.

[^65]: *See* USTelecom Petition, RM-11293, at 6-10 (citing 47 U.S.C. §
    224(a)(4)) ("The term 'pole attachment' means 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."); 47 U.S.C. § 224(b)(1) ("\[T\]he 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.")).

[^66]: Specifically, USTelecom asks us to (1) amend our section 224
    rules to distinguish between access rights and regulation of rates,
    terms, and conditions; (2) amend our complaint procedures to permit
    incumbent LECs to use them when negotiations over rates, terms, and
    conditions fail; and (3) adopt the telecom rate as the default "just
    and reasonable" rate for incumbent LEC attachment to utility poles.
    *See* USTelecom Petition, RM-11293, at 18-21 (suggesting specific
    revisions to 47 C.F.R. § 1.1401 ("Purpose"), § 1.1404 ("Complaint"),
    and § 1.1409 ("Commission consideration of the complaint")).

[^67]: 47 U.S.C. § 224(f)(1) ("A utility shall provide a *cable
    television system or any telecommunications carrier* with
    nondiscriminatory access to any pole, duct, conduit, or right-of-way
    owned or controlled by it.") (emphasis added).

[^68]: *See* USTelecom Petition, RM-11293, at 8-10.

[^69]: *See* USTelecom Petition, RM-11293, at 8-9 ("Where Congress
    chooses to use different phrases in the same section of the
    Telecommunications Act, the Commission must read those phrases as
    having different meanings.").

[^70]: *See* USTelecom Petition, RM-11293, at 9-10.

[^71]: *Compare* USTelecom Reply, RM-11293, at 3-4 (arguing that
    Congress saw no need to guarantee incumbent LEC access, but afforded
    all attachers just and reasonable rates, terms, and conditions of
    attachment, backed by complaint process), *with* AEPSC Joint
    Opposition, RM-11293, at 3, 6 (countering that USTelecom's argument
    premised on "flawed assumption" that section 224(a)(4) has broader
    meaning than the section 224(f)(1) right of access, and would
    nonsensically exempt incumbent LECs from the section 224(f)(2)
    statutory exceptions to that right).

[^72]: *Compare* FirstEnergy Opposition, RM-11293, at 7-11 (calling
    statutory language clear and unequivocal); Ameren Opposition,
    RM-11293, at 5-9; UTC-EEI Comments, RM-11293, at 4-5; Exelon
    Comments, RM-11293, at 3-4, *with* BellSouth Comments, RM-11293, at
    8 (arguing that statute is ambiguous).

[^73]: 47 U.S.C. § 153(44).

[^74]: 47 U.S.C. § 224(a)(5), (e)(1).

[^75]: *See*, *e.g*., Ameren Opposition, RM-11293, at 9-13; UTC-EEI
    Comments at 5-9 (arguing that legislative history and structure of
    statute reveal intention to exclude incumbent LECs).

[^76]: *See*, *e.g*., *1998 Implementation Order*, 13 FCC Rcd at 6780,
    para. 2 n.10; *see also* S. Rep. No. 580, 95th Congress., 1st Sess.
    at 19-20 (1977) (*1977 Senate Report*), reprinted in 1978
    U.S.C.C.A.N. 109 ("The purpose of Section 224 of the Communications
    Act is to ensure that the deployment of communications networks and
    the development of competition are not impeded by private ownership
    and control of the scarce infrastructure and rights-of-way that many
    communications providers must use in order to reach customers.");
    *2001 Order on Reconsideration*, 16 FCC Rcd at 12209, para.7 n.35
    (citing *1977 Senate Report* at 19-20 to support proposition that
    "Congress enacted this legislation as a solution to a perceived
    danger of anticompetitive practices by utilities in connection with
    cable television service.").

[^77]: *See*, *e.g*., USTelecom Petition, RM-11293, at 4 (citing *1977
    Senate Report* at 122 to support proposition that "Congress believed
    the \[1978 Pole Attachment Act\] would 'serve two specific,
    interrelated purposes.'").

[^78]: Pub. L. 104-104, Title VII, § 706, Feb. 8, 1996, 110 Stat. 153,
    codified at 47 U.S.C. § 157 nt.

[^79]: *See* TWTC White Paper, RM-11293, at 12 (citing *Appropriate
    Framework for Broadband Access to the Internet over Wireline
    Facilities*, CC Docket No. 02-33, Report and Order and Notice of
    Proposed Rulemaking, 20 FCC Rcd 14853, 14877-78, para. 45 (2005)
    (quoting statement by the Commission regarding an intention to
    "regulate like services in a similar manner so that all potential
    investors in broadband network platforms, and not just a particular
    group of investors, are able to make market-based, rather than
    regulatory-driven, investment and deployment decisions")).

[^80]: *See* TWTC White Paper, RM-11293, at 11-12.

[^81]: *See* TWTC White Paper, RM-11293, at 11 (citing 47 C.F.R. §
    1.1409(e)(3) (conduit rate formula)).

[^82]: *See* TWTC White Paper, RM-11293, at 12.

[^83]: TWTC also argues that, at a minimum, we should reformulate our
    rules to make the rates as similar as possible. *See* TWTC White
    Paper, RM-11293, at 17-20. We discuss this possibility separately
    below.

[^84]: *See* TWTC White Paper, RM-11293, at 20-23 (arguing that, under
    the current dual-rate system, services provided by third-party
    lessee should be irrelevant in determining rate).

[^85]: 47 U.S.C. § 224(d), (e).

[^86]: 47 C.F.R. § 1.1409(e)(1), (2). Beginning in 1978, the Commission
    developed a methodology to determine the maximum allowable pole
    attachment rate under section 224(d)(1) of the Pole Attachment Act,
    which is referred to as the "Cable Rate Formula." *See*, *e.g*.,
    *1987 Rate Order,* 2 FCC Rcd 4387 (amending and clarifying the
    methodology). Section 703 of the 1996 Act added new subsections
    224(e)(1-4), which set forth a separate methodology to govern
    charges for pole attachments used to provide telecommunications
    services beginning Feb. 8, 2001. 47 U.S.C. § 224(e)(1-4). The
    Commission adopted a separate methodology to implement this section,
    which is referred to as the "Telecom Rate Formula." *1998
    Implementation Order,* 13 FCC Rcd 6777. Both formulas were codified
    in the *1998 Implementation Order. See 1998 Implementation Order,*
    13 FCC Rcd at 6853-54 (App. A).

[^87]: *See 2001 Order on Reconsideration,* 16 FCC Rcd at 12131.
    Explained another way, the "space factor" is calculated differently
    in each of the formulas. *Compare* 47 C.F.R. § 1.1409(e)(1); *2001
    Order on Reconsideration,* 16 FCC Rcd at 12131, para. 53, *with* 47
    C.F.R. § 1.1409(e)(2); *2001 Order on Reconsideration,* 16 FCC Rcd
    at 12131-32, para. 55 (citing *1988 Implementation Order*, 13 FCC
    Rcd at 6799-800, paras. 43-44).

[^88]: 47 C.F.R. § 1.1409(e)(1), (2).

[^89]: *See*, *e.g.*, *1987 Rate Order,* 2 FCC Rcd at 4391, para. 25;
    *2001 Order on Reconsideration,* 16 FCC Rcd at 12121, para. 28.
    These charges include the utility's administrative, maintenance, and
    depreciation expenses, a return on investment, and associated income
    taxes. *Id*.

[^90]: *See* TWTC White Paper, RM-11293, at 19.

[^91]: *See* TWTC White Paper, RM-11293, at 18.

[^92]: *See* TWTC White Paper, RM-11293, at 19 (citing *Amendment of
    Rules and Policies Governing Pole Attachments*, CS Docket No. 97-98,
    Report and Order, 15 FCC Rcd 6453, 6477-91, paras. 44-76 (2000)
    (revising formula for determining cable rate) (*2000 Cable Rate
    Formula Order*)).

[^93]: *See* TWTC White Paper, RM-11293, at 19-20.

[^94]: *See* TWTC White Paper, RM-11293, at 20 (emphasis in original).

[^95]: *See* TWTC White Paper, RM-11293, at 18.

[^96]: *See* TWTC White Paper, RM-11293, at 3, 20.

[^97]: *See* USTelecom Petition at 18, 21.

[^98]: *See*, *e.g*., FirstEnergy Opposition, RM-11293, at 3, 13-15;
    USTelecom Reply, RM-11293, at 11-13.

[^99]: *See* FirstEnergy Opposition, RM-11293, at 6 (arguing that,
    unlike other attachers, incumbent LECs receive between two and three
    feet on pole and may rent out extra space).

[^100]: *See* 47 U.S.C. § 224(d), (e); 47 C.F.R. § 1.1409(e)(1)-(3).

[^101]: *Compare* FirstEnergy Opposition, RM-11293, at 18-19, nn.26-27
    (discussing Maine pole attachment regulations, in which Maine
    determined that telephone companies' requirements are greater than
    those of cable companies but less than those of electric utilities,
    and divides costs on a 24:20:15 ratio), *with* USTelecom Petition,
    RM-11293, at 18; BellSouth Comments, RM-11293, at 11-12 (advocating
    application of telecom rate to incumbent LECs). *See* Letter from
    Jack Richards and Thomas B. Magee, Keller and Heckman LLP, to
    Marlene H. Dortch, Secretary, FCC, RM-11293, RM-11303, at 3-4 (filed
    Jun. 1, 2007) (arguing that Maine's system distributes costs
    equitably).

[^102]: *See* BellSouth Comments, RM-11293, at 10 (arguing that private
    negotiation is preferable, but existence of a procedure for
    resolving disputes facilitate negotiation and deters unjust
    practices.)

[^103]: *See* FirstEnergy Opposition, RM-11293, at 15-18.

[^104]: *See* NextG Comments, RM-11293, at 8-10; Clearlinx Reply,
    RM-11293, at 12; Virtual Hipster, RM-11293, Comments at 1, 11;
    T-Mobile Reply, RM-11293, at 2, 9; Tropos Networks Comments,
    RM-11293, at 5-8.

[^105]: *See 1998 Implementation Order*, 13 FCC Rcd at 6799, para. 42.

[^106]: *See* Virtual Hipster, RM-11293, at 9 (stating that if the
    telecom formula produces a rate of \$10 per foot per year, and
    Virtual Hipster occupies five feet of space, its rate should be \$50
    per year).

[^107]: *See*, *e.g*., NextG Comments, RM-11293, at 10-12.

[^108]: Attachments used for broadband Internet access service includes
    attachments used to provide broadband Internet access service as a
    part of a bundled package of services.

[^109]: *Local Competition Order*, 11 FCC Rcd at 16058-107, paras.
    1119-240 (Part XI.B. "Access to Rights of Way").

[^110]: *Local Competition Order*, 11 FCC Rcd at 16067-68, para. 1143;
    *see generally* 47 C.F.R §§ 1.1403-1.1418 (section 224 complaint
    rules). We note that, since the enactment of the 1996 Act, the
    Commission has encouraged disputing parties to participate in
    staff-supervised, pre-complaint mediation. *See*, *e.g*.,
    *Implementation of the Telecommunications Act of 1996, Amendment of
    Rules Governing Procedures to be Followed when Formal Complaints are
    Filed Against Common Carriers*, CC Docket No. 96-238, Report and
    Order, 12 FCC Rcd 22497, 22507-08, 22540, paras. 20-24, 100-01
    (1997), *aff'd on recon*., Order on Reconsideration, 16 FCC Rcd
    5681, 5689, 5697, paras. 17, 36-37 (2001) (*Order on
    Reconsideration*). Such mediation has proven to be very successful,
    including in pole attachment disputes. *Order on Reconsideration*,
    16 FCC Rcd at 5697, para. 36. Certain rules regarding pole
    attachment complaints, however, may have had the unintended
    consequence of discouraging pre-complaint mediation. *See* 47 C.F.R.
    §§ 1.1410(c) (the amount of a refund or payment awarded as a remedy
    for an unlawful rate, term, or condition will "normally" be measured
    from the date the complaint is filed), 1.1404(m) (potential
    attachers who are denied access to a pole, duct, or conduit must
    file a complaint within 30 days of the denial). Thus, we seek
    comment on whether those rules should be amended or eliminated to
    facilitate mediation of disputes. In addition, under current
    Commission rules, an attacher may execute a pole attachment
    agreement with a utility, and then later file a complaint
    challenging the lawfulness of a provision of that agreement. *See*,
    *e.g*., *Southern Company Services, Inc. v. FCC*, 313 F.3d 574,
    582-84 (D.C. Cir. 2002). We seek comment on whether we should adopt
    some contours to the rule, such as time-frames for raising written
    concerns about a provision of a pole attachment agreement.

[^111]: *See generally* Fibertech Petition, RM-11303.

[^112]: Certain concerns relate to pole surveys. *Compare*, *e.g*.,
    Fibertech Petition, RM-11303, at 16-18, 30; segTEL Comments,
    RM-11303, at 11; Sigecom Comments, RM-11303, at 4; Indiana Fiber
    Works Comments, RM-11303, at 4; McLeod Comments at 4, RM-11303,
    *with, e.g.*, Verizon Reply, RM-11303, at 6-7; AEPSC Comments,
    RM‑11303, at 19; Qwest Comments, RM-11303, at 5-6; AEPSC Joint
    Opposition, RM-11303, at 18; Verizon Opposition, RM-11303, at 3-4;
    Verizon Opposition, RM-11303, Attach B. (Harrington Declaration) at
    3, 10, paras. 6-7, 27-28. Others relate to conduit surveys.
    *Compare, e.g.*, Fibertech Petition, RM-11303, at 29-30, *with,
    e.g.*, segTEL Comments, RM-11303, at 11; Verizon Opposition,
    RM-11303, at 8-10; AEPSC Joint Opposition, RM‑11303, at 24; AEPSC
    Joint Opposition, RM-11303, at 22. We also ask commenters whether we
    should clarify the general record-keeping and information-sharing
    responsibilities of utilities and attachers.

[^113]: *Compare, e.g.*, Fibertech Petition, RM-11303, at 16-17; Sigecom
    Comments, RM-11303, at 5, *with, e.g.*, AEPSC Joint Opposition,
    RM-11303, at 19; NSTAR Reply, RM‑11303, at 2; AEPSC Joint
    Opposition, RM-11303, at 9, 18-19; Qwest Comments, RM-11303, at 5-6;
    Verizon Opposition, RM-11303, at 4.

[^114]: *Compare, e.g.*, Fibertech Petition, RM-11303, at 13-18; segTEL
    Comments, RM-11303, at 3-5; Virtual Hipster, RM-11303, at 5-6,
    *with, e.g.*, UTC-EEI Comments, RM-11303, at 10-11; Verizon
    Opposition, RM-11303, at 2, 5; AEPSC Joint Opposition, RM-11303, at
    5, 11-18; WMECO Comments, RM-11303, at 2; Ameren Opposition,
    RM-11303, at 15-16. Commenters also raise the specific issue of the
    propriety of the application of the NESC or other standards. *See*,
    *e.g*., AEPSC Joint Opposition, RM-11303, at 3-4, 7, 12; Ameren
    Opposition, RM-11303, at 6-8, 10-11, 13; UTC-EEI Comments, RM-11303,
    at 9-10.

[^115]: *See* Sunesys Comments and Reply Comments, RM-11293 (supporting
    Fibertech); *see also*, *e.g.,* Supplemental *Ex Parte* Filing of
    Sunesys, Inc. in RM-11303 (filed June 23, 2006) (Sunesys June 23,
    2006 Supplemental Filing); Letter from Alan G. Fischel and Jeffrey
    E. Rummel, Counsel for Sunesys, LLC, to Marlene H. Dortch,
    Secretary, FCC, in RM-11303 at 2 (Aug. 28, 2007) (proposing to
    permit utilities six months to complete survey and make-ready work;
    require utilities to use utility-approved contractors to perform the
    work if necessary to meet the six-month deadline; and permit
    utilities to charge only for "compliance neutral" make ready,
    *i.e*., work that is necessary to bring the pole to the same level
    of compliance with NESC standards as the state of the pole before
    make ready).

[^116]: *Compare, e.g.*, Fibertech Petition, RM-11303, at 18-19;
    Fibertech Petition, RM-11303, Exh. 3; Sigecom Comments, RM-11303, at
    4-5; Sunesys Comments, RM-11303, at 4-5; McLeod Comments, RM-11303,
    at 4-6; segTel Comments, RM-11303, at 7, *with, e.g.*, Ameren
    Opposition, RM-11303, at 6-8; AEPSC Joint Opposition, RM-11303, at
    19-21; UTC-EEI Comments, RM-11303, at 12-13; Verizon Opposition,
    RM-11303, at 6; NSTAR Reply, RM-11303, at 3.

[^117]: *See generally* Letter from Andrew D. Lipman, Counsel for
    American Fiber Systems, Inc. and Cavalier Telephone, LLC to Marlene
    H. Dortch, Secretary, FCC, RM-11293, RM-11303 (filed Mar. 8, 2007)
    (attaching Petition for Declaratory Ruling of Coalition of
    Competitive Fiber Providers, CC Docket No. 01-77 (filed Mar. 15,
    2001) (Fiber Coalition Petition)); Fibertech Petition, RM-303, at
    35.

[^118]: *Compare, e.g.*, Fibertech Petition, RM-11303, at 22; Fibertech
    Comments, RM-11303, at 22-23, *with, e.g.*, AEPSC Joint Opposition,
    RM-11303, at 21; Qwest Comments, RM-11303, at 7; Verizon Opposition,
    RM-11303, at 7-8; UTC-EEI Comments, RM-11303, at 13.

[^119]: *See*, *e.g*., Letter from Thomas Jones, Counsel for Time Warner
    Telecom, to Marlene H. Dortch, Secretary, FCC, RM-11303, RM-11293
    (filed May 10, 2007) (expressing concerns about make-ready, survey
    and inspection costs, delays in obtaining access, proposed
    improvements to the contracting process, and other concerns
    regarding pole attachment access); AEPSC Joint Opposition, RM-11303,
    at 14 (expressing concern regarding unauthorized attachments).

[^120]: *Compare*, *e.g*., Fibertech Petition, RM-11303, at 5, 10;
    McLeodUSA Comments, RM-11303, at 1; CompTel Comments, RM-11303, at
    5-6; segTel Comments, RM-11303, at 2; T-Mobile Reply at 7-9, *with,
    e.g.*, Ameren Opposition, RM-11303, at 4-5; UTC-EEI Comments,
    RM-11303, at 7-8. *See generally Local Competition Order*, 11 FCC
    Rcd at 16068, para. 1143 (stating that the Commission would monitor
    the effect of the case-specific approach).

[^121]: 47 C.F.R. §§ 1.200 *et seq*.

[^122]: *See* 47 C.F.R. § 1.1206(b)(2).

[^123]: 47 C.F.R. § 1.1206(b).

[^124]: 47 C.F.R. §§ 1.415, 1.419.

[^125]: *See* 5 U.S.C. § 603.

[^126]: *See* 44 U.S.C. § 3506(c)(4).

[^127]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§601-12, has been
    amended by the Small Business Regulatory Enforcement Fairness Act of
    1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).

[^128]: *See* 5 U.S.C. § 603(a).

[^129]: *See* 5 U.S.C. § 603(a).

[^130]: 5 U.S.C. §§ 603(b)(3), 604(a)(3).

[^131]: 5 U.S.C. § 601(6).

[^132]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act, 15 U.S.C.
    § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such terms which are appropriate to the activities of
    the agency and publishes such definitions(s) in the Federal
    Register."

[^133]: 15 U.S.C. § 632.

[^134]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^135]: Independent Sector, The New Nonprofit Almanac & Desk Reference
    (2002).

[^136]: 5 U.S.C. § 601(5).

[^137]: U.S. Census Bureau, Statistical Abstract of the United States:
    2006, Section 8, page 272, Table 415.

[^138]: We assume that the villages, school districts, and special
    districts are small, and total 48,558. *See* U.S. Census Bureau,
    Statistical Abstract of the United States: 2006, section 8, page
    273, Table 417. For 2002, Census Bureau data indicate that the total
    number of county, municipal, and township governments nationwide was
    38,967, of which 35,819 were small. *Id.*

[^139]: 15 U.S.C. § 632.

[^140]: Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to
    William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business
    Act contains a definition of "small-business concern," which the RFA
    incorporates into its own definition of "small business." *See* 15
    U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA
    regulations interpret "small business concern" to include the
    concept of dominance on a national basis. *See* 13 C.F.R. §
    121.102(b).

[^141]: 13 C.F.R. § 121.201, NAICS code 517110.

[^142]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, *Trends in Telephone Service* at Table 5.3,
    page 5-5 (Feb. 2007) (*Trends in Telephone Service*). This source
    uses data that are current as of October 20, 2005.

[^143]: 13 C.F.R. § 121.201, NAICS code 517110.

[^144]: *Trends in Telephone Service* at Table 5.3.

[^145]: 13 C.F.R. § 121.201, NAICS code 517110.

[^146]: *Trends in Telephone Service* at Table 5.3.

[^147]: 13 C.F.R. § 121.201, NAICS code 517211 (changed from 513321 in
    Oct. 2002).

[^148]: 13 C.F.R. § 121.201, NAICS code 517212 (changed from 513322 in
    Oct. 2002).

[^149]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 5, NAICS code 517211 (issued Nov. 2005).

[^150]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is firms with "1000
    employees or more."

[^151]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 5, NAICS code 517212 (issued Nov. 2005).

[^152]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is firms with "1000
    employees or more."

[^153]: 13 C.F.R. § 121.201, NAICS code 513322 (changed to 517212 in
    Oct. 2002).

[^154]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 5, NAICS code 517212 (issued Nov. 2005).

[^155]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is firms with "1000
    employees or more."

[^156]: *Trends in Telephone Service* at Table 5.3.

[^157]: *Id.*

[^158]: 13 C.F.R. § 121.201, NAICS code 517211.

[^159]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 5, NAICS code 517211 (issued Nov. 2005).

[^160]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^161]: *Trends in Telephone Service*, Table 5.3.

[^162]: *Revision of Part 22 and Part 90 of the Commission's Rules to
    Facilitate Future Development of Paging Systems*, WT Docket No.
    96-18, PP Docket No. 93-235, Second Report and Order, 12 FCC Rcd
    2732, 2811-2812, paras. 178-181 (*Paging Second Report and Order*);
    *see also* *Revision of Part 22 and Part 90 of the Commission's
    Rules to Facilitate Future Development of Paging Systems*, WT Docket
    No. 96-18, PP Docket No. 93-235, Memorandum Opinion and Order on
    Reconsideration, 14 FCC Rcd 10030, 10085-10088, paras. 98-107
    (1999).

[^163]: *Paging Second Report and Order*, 12 FCC Rcd at 2811, para. 179.

[^164]: *See* Letter from Aida Alvarez, Administrator, Small Business
    Administration, to Amy Zoslov, Chief, Auctions and Industry Analysis
    Division, Wireless Telecommunications Bureau (dated Dec. 2, 1998)
    (SBA Dec. 2, 1998 Letter).

[^165]: *See* "929 and 931 MHz Paging Auction Closes," Public Notice, 15
    FCC Rcd 4858 (WTB 2000).

[^166]: *Id.*

[^167]: *See* *Lower and Upper Paging Band Auction Closes*, Public
    Notice, 16 FCC Rcd 21821 (WTB 2002).

[^168]: *See* *Lower and Upper Paging Bands Auction Closes*, Public
    Notice, 18 FCC Rcd 11154 (WTB 2003).

[^169]: 13 C.F.R. § 121.201, NAICS code 517212.

[^170]: *Id.*

[^171]: *Trends in Telephone Service* at Table 5.3.

[^172]: *See Amendment of Parts 20 and 24 of the Commission's Rules --
    Broadband PCS Competitive Bidding and the Commercial Mobile Radio
    Service Spectrum Cap*, WT Docket No. 96-59, Report and Order, 11 FCC
    Rcd 7824, 61 FR 33859 (July 1, 1996) (*PCS Order*); *see also* 47
    C.F.R. § 24.720(b).

[^173]: *See PCS Order*, 11 FCC Rcd 7824.

[^174]: *See*, *e.g*., *Implementation of Section 309(j) of the
    Communications Act -- Competitive Bidding*, PP Docket No. 93‑253,
    Fifth Report and Order, 9 FCC Rcd 5332, 59 FR 37566 (Jul. 22, 1994).

[^175]: FCC News, Broadband PCS, D, E and F Block Auction Closes, No.
    71744 (rel. Jan. 14, 1997); *see also Amendment of the Commission's
    Rules Regarding Installment Payment Financing for Personal
    Communications Services (PCS) Licenses*, WT Docket No. 97-82, Second
    Report and Order, 12 FCC Rcd 16436, 62 FR 55348 (Oct. 24, 1997).

[^176]: *Amendment of the Commission's Rules to Establish New Personal
    Communications Services, Narrowband PCS*, ET Docket No. 92-100, PP
    Docket No. 93-253, Second Report and Order and Second Further Notice
    of Proposed Rulemaking, 15 FCC Rcd 10456, 65 FR 35875 (June 6,
    2000).

[^177]: *See* SBA Dec. 2, 1998 Letter.

[^178]: *See* 47 C.F.R. § 22.99 (defining Rural Radiotelephone Service).

[^179]: *See* 47 C.F.R. §§ 22.757, 22.759 (defining BETRS).

[^180]: 13 C.F.R. § 121.201, NAICS code 517212.

[^181]: *See* 47 C.F.R. § 22.99 (defining Air-Ground Radiotelephone
    Service).

[^182]: 13 C.F.R. § 121.201, NAICS code 517212 (changed from 513322 in
    Oct. 2002).

[^183]: This service is governed by Subpart I of Part 22 of the
    Commission's rules. *See* 47 C.F.R. §§ 22.1001-22.1037.

[^184]: 13 C.F.R. § 121.201, NAICS code 517212.

[^185]: *Id*.

[^186]: U.S. Census Bureau, 2007 NAICS Definitions, "517110 Wired
    Telecommunications Carriers" (partial definition);
    http://www.census.gov/naics/2007/def/ND517110.HTM#N517110.

[^187]: 13 C.F.R. § 121.201, NAICS code 517110.

[^188]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, Table 4, Receipts Size of Firms for the United States:
    2002, NAICS code 517510 (issued November 2005).

[^189]: *Id*. An additional 61 firms had annual receipts of \$25 million
    or more.

[^190]: 47 C.F.R. § 76.901(e). The Commission determined that this size
    standard equates approximately to a size standard of \$100 million
    or less in annual revenues. *Implementation of Sections of the 1992
    Cable Act: Rate Regulation,* Sixth Report and Order and Eleventh
    Order on Reconsideration, MM Docket Nos. 92-266, 93-215, 10 FCC Rcd
    7393, 7408 (1995).

[^191]: These data are derived from: R.R. Bowker, *Broadcasting & Cable
    Yearbook 2006*, "Top 25 Cable/Satellite Operators," pages A-8 & C-2
    (data current as of June 30, 2005); Warren Communications News,
    *Television & Cable Factbook 2006*, "Ownership of Cable Systems in
    the United States," pages D-1805 to D-1857.

[^192]: 47 C.F.R. § 76.901(c).

[^193]: Warren Communications News, *Television & Cable Factbook 2006*,
    "U.S. Cable Systems by Subscriber Size," page F-2 (data current as
    of Oct. 2005). The data do not include 718 systems for which
    classifying data were not available.

[^194]: 47 U.S.C. § 543(m)(2); *see* 47 C.F.R. § 76.901(f) & nn. 1-3.

[^195]: 47 C.F.R. § 76.901(f); *see FCC Announces New Subscriber Count
    for the Definition of Small Cable Operator*, Public Notice, DA
    01‑158, 16 FCC Rcd 2225 (Cable Services Bureau, Jan. 24, 2001).

[^196]: These data are derived from: R.R. Bowker, *Broadcasting & Cable
    Yearbook 2006*, "Top 25 Cable/Satellite Operators," pages A-8 & C-2
    (data current as of June 30, 2005); Warren Communications News,
    *Television & Cable Factbook 2006*, "Ownership of Cable Systems in
    the United States," pages D-1805 to D-1857.

[^197]: The Commission does receive such information on a case-by-case
    basis if a cable operator appeals a local franchise authority's
    finding that the operator does not qualify as a small cable operator
    pursuant to § 76.901(f) of the Commission's rules. *See* 47 C.F.R. §
    76.909(b).

[^198]: 47 U.S.C. § 571(a)(3)-(4). *See* *Annual Assessment of the
    Status of Competition in the Market for the Delivery of Video
    Programming, Eleventh Annual Report,* 20 FCC Rcd 2507, 2549, para.
    88 (2006) (*2006 Cable Competition Report*).

[^199]: *See* 47 U.S.C. § 573.

[^200]: 13 C.F.R. § 121.201, NAICS code 517510.

[^201]: *See 2006 Cable Competition Report*, 20 FCC Rcd at 2549, para.
    88. BSPs are newer firms that are building state-of-the-art,
    facilities-based networks to provide video, voice, and data services
    over a single network.

[^202]: *See id*. at 2507, para. 14.

[^203]: *See 2006 Cable Competition Report*, 20 FCC Rcd at 2549, para.
    89. WideOpenWest is the second largest BSP and 16th largest MVPD,
    with cable systems serving about 292,000 subscribers as of June,
    2005. The third largest BSP is Knology, serving approximately
    170,800 subscribers as of June 2005. *Id*.

[^204]: U.S. Census Bureau, "2002 NAICS Definitions: 518111 Internet
    Service Providers," *available at*
    http://www.census.gov/epcd/naics02/def/ND518111.HTM (visited Oct.
    16, 2007).

[^205]: 13 C.F.R. § 121.201, NAICS code 518111 (changed from 514191,
    "On-Line Information Services," in Oct. 2002).

[^206]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization," Table 4, NAICS code 518111 (issued Nov. 2005).

[^207]: U.S. Census Bureau, "2002 NAICS Definitions: 519190 All Other
    Information Services," *available at*
    http://www.census.gov/epcd/naics02/def/ND519190.HTM (visited Oct.
    16, 2007).

[^208]: 13 C.F.R. § 121.201, NAICS code 519190.

[^209]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4, NAICS code 514199 (issued Oct. 2000). This
    category was created for the 2002 Economic Census by taking a
    portion of the superseded 1997 category, "All Other Information
    Services," NAICS code 514199. The data cited in the text above are
    derived from the superseded category.

[^210]: U.S. Census Bureau, 2002 NAICS Definitions, "2211 Electric Power
    Generation, Transmission and Distribution";
    http://www.census.gov/epcd/naics02/def/NDEF221.HTM.

[^211]: 13 C.F.R. § 121.201, NAICS codes 221111, 221112, 221113, 221119,
    221121, 221122, footnote 1.

[^212]: U S. Census Bureau, 2002 Economic Census, Subject Series:
    Utilities, \"Establishment and Firm Size (Including Legal Form of
    Organization),\" Table 4, NAICS codes 221111, 221112, 221113,
    221119, 221121, 221122 (issued Nov. 2005).

[^213]: U.S. Census Bureau, 2007 NAICS Definitions, "221210 Natural Gas
    Distribution"; http://www.census.gov/epcd/naics02/def/ND221210.HTM.

[^214]: 13 C.F.R. § 121.201, NAICS code 221210.

[^215]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Utilities, "Establishment and Firm Size: 2002 (Including Legal Form
    of Organization)," Table 5, NAICS code 221210 (issued November
    2005).

[^216]: *Id*. An additional 26 firms had employment of over 1,000
    employees.

[^217]: U.S. Census Bureau, 2007 NAICS Definitions, "221310 Water Supply
    and Irrigation Systems" (partial definition);
    http://www.census.gov/naics/2007/def/ND221310.HTM.

[^218]: 13 C.F.R. § 121.201, NAICS code 221310.

[^219]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Utilities, "Establishment and Firm Size: 2002 (Including Legal Form
    of Organization)," Table 4, NAICS code 221310 (issued November
    2005).

[^220]: *Id*. An additional 36 firms had annual sales of \$10 million or
    more.

[^221]: *See* Notice at para. 36.

[^222]: *See* Notice at para. 28.

[^223]: *See* Notice at paras. 32-33.

[^224]: *See* Notice at para. 38.

[^225]: *See* Notice at para. 37.

[^226]: 5 U.S.C. § 603(c).

[^227]: *See* Notice at para. 36.

[^228]: *See* Notice at paras. 26-32

[^229]: *See*, *e.g*., Notice at paras. 2, 27.

[^230]: *See* Notice at para. 30.

[^231]: *See* Notice at para. 16; *see also* paras. 31-36.

[^232]: *See* Notice at para. 37.

[^233]: *See*, *e.g.*, *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, 22507-08, 22537, 22541 (1997), *aff'd on
    recon*., *Order on Reconsideration*, 16 FCC Rcd 5681, 5689, 5697
    (2001) (*Order on Reconsideration*).

[^234]: *Order on Reconsideration*, 16 FCC Rcd at 5697.

[^235]: *See* 47 C.F.R. §§ 1.1410(c) (the amount of a refund or payment
    awarded as a remedy for an unlawful rate, term, or condition will
    "normally" be measured from the date the complaint is filed),
    1.1404(m) (potential attachers who are denied access to a pole,
    duct, or conduit must file a complaint within 30 days of the
    denial).

[^236]: *See*, *e.g*., *Southern Company Services, Inc. v. FCC*, 313
    F.3d 574, 582-84 (D.C. Cir. 2002).