**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

Fiber Technologies Networks, L.L.C., )

> )

Complainant, )

> )

v\. ) File No. EB-03-MD-005

> )

Duquesne Light Company, )

> )

Defendant. )

**ORDER**

**Adopted: May 22, 2003** **Released: May 27, 2003**

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1.  In this Order, we reject a Petition To Stay Termination Of Pole
    Attachment Rights[^1] that complainant Fiber Technologies Networks,
    L.L.C., ("Fibertech") filed in this matter pursuant to sections
    1.1403(d) and 1.1415 of the Commission's rules.[^2] Fibertech's Stay
    Petition asks the Commission to stay any attempt by defendant
    Duquesne Light Company ("Duquesne") either to terminate a pole
    attachment agreement between Fibertech and Duquesne or to remove or
    seek removal of Fibertech's facilities from Duquesne's poles,
    pending the Commission's decision on a complaint that Fibertech
    filed against Duquesne[^3] alleging that Duquesne violated section
    224 of the Communications Act of 1934, as amended (the "Act").[^4]
    As explained below, we conclude that the Petition should be
    dismissed as moot to the extent that it seeks to stay any effort by
    Duquesne to remove or seek removal of Fibertech's facilities from
    Duquesne's poles. Moreover, to the extent that the Petition seeks to
    stay any attempt by Duquesne to terminate the parties' pole
    attachment agreement, we conclude that the Petition should be denied
    on the ground that Fibertech has failed to show that, in the absence
    of a stay, it will suffer irreparable harm from the actual or
    threatened termination of that agreement.

    **II. BACKGROUND**

2.  Fibertech filed its Complaint against Duquesne on April 8, 2003. The
    Complaint alleges that Fibertech is a telecommunications carrier
    within the meaning of section 224 of the Act.[^5] It further alleges
    that defendant Duquesne is a corporation engaged in the provision of
    electric utility service in Pennsylvania.[^6] The Complaint charges
    that Duquesne has violated section 224 of the Act by, *inter alia*,
    imposing unreasonable delays and unreasonable expenses on
    Fibertech's attachment of facilities to Duquesne's poles.[^7]
    Specifically, the Complaint alleges that Duquesne impeded
    Fibertech's access to its poles by unreasonably delaying execution
    of a pole attachment agreement with Fibertech,[^8] and imposed
    unnecessary expense on Fibertech's network expansion by imposing
    unjust and unreasonable charges for pole survey, engineering, and
    make-ready work following the parties' execution of a pole
    attachment agreement.[^9] The Complaint seeks an order: (i)
    requiring Duquesne to refund to Fibertech allegedly unlawful
    engineering and make-ready charges that Duquesne allegedly forced
    Fibertech to pay; (ii) terminating additional unlawful charges
    totaling \$570,643 that Duquesne has attempted to collect from
    Fibertech, and which Fibertech has refused to pay;[^10] (iii)
    declaring that certain terms and conditions of attachment imposed by
    Duquesne are unjust and unreasonable; and (iv) and prohibiting
    Duquesne from terminating the Pole Attachment Agreement based on
    Fibertech's refusal to pay disputed amounts, and from removing
    Fibertech's facilities from Duquesne's poles.[^11]

3.  Fibertech filed its Stay Petition on April 8, 2003, the same day
    that it filed the Complaint. The Petition alleges that Duquesne
    issued a Notice of Termination of Fibertech's Pole Attachment
    Agreement to become effective on April 8, 2003.[^12] The alleged
    Notice of Termination consisted of a letter that Duquesne sent to
    Fibertech on February 7, 2003.[^13] The February 7 Letter stated
    that Fibertech had not paid invoices that Duquesne submitted to
    Fibertech in amounts totaling \$565,814. The February 7 Letter
    asserted that the parties' Pole Attachment Agreement requires
    Fibertech to pay submitted invoices within 30 days, and that the
    \$565,814 amount had been past due for more than 30 days. The
    February 7 Letter further stated:

> Fibertech's failure to timely pay the amounts due for services
> provided under the Agreement constitutes a breach of a material term.
> Pursuant to Section 1.2.01 of the Agreement, \[Duquesne\] will have
> the right to terminate the Agreement sixty (60) days from the date of
> this notice if Fibertech has not cured its breach. \[Duquesne\]
> intends thereafter to exercise its rights to the full extent provided
> in the Agreement under applicable law.

4.  Section 1.2.01 of the Pole Attachment Agreement provides that
    Duquesne "has the right to terminate this Agreement upon sixty (60)
    days written notice for a breach of any material term."[^14] Section
    1.2.05 of the Pole Attachment Agreement provides that, in the event
    of termination of the agreement, "the attaching party shall remove
    its facilities from Duquesne's structure within sixty (60) days from
    the date of termination . . .;"[^15] and section 1.2.06 provides
    that, if the attaching party does not remove its facilities within
    the sixty-day time period specified in section 1.2.05, Duquesne
    "shall have the right to remove them at the expense of the attaching
    party . . . ."[^16] In its Petition, Fibertech requests that the
    Commission stay Duquesne's purported attempt to terminate the Pole
    Attachment Agreement between Fibertech and Duquesne, and stay any
    efforts by Duquesne to remove or seek removal of Fibertech's
    facilities from Duquesne's poles pending a decision on the
    Complaint, arguing, *inter alia*, that it will suffer irreparable
    injury in the absence of a stay.[^17]

5.  Under 47 C.F.R. § 1.1403(d), Duquesne was permitted to file a
    response to the Stay Petition within 7 days after it was filed. On
    April 22, 2003, Commission staff, having not received a response to
    the Petition, telephoned Duquesne's counsel, David Pawlik, to
    inquire as to whether Duquesne intended to file a response. Mr.
    Pawlik advised staff that his client, Duquesne, did not intend to
    file a response to the Petition, and that Duquesne had no intention
    of removing Fibertech's facilities from its poles pending the
    resolution of the dispute set forth in Fibertech's Complaint.

6.  On April 24, 2003, Commission staff issued a letter order in this
    proceeding that recounted Mr. Pawlik's representation to staff that
    Duquesne has no intention of removing Fibertech's facilities pending
    resolution of this dispute, and stated that this representation
    appeared to render moot the request for relief set forth in
    Fibertech's Stay Petition.[^18] The Letter Order directed the
    parties to advise staff in writing as to whether they agree that the
    Petition should be dismissed as moot based on the representations of
    Duquesne's counsel, and to provide full support for any objection to
    such dismissal.[^19]

7.  On May 1, 2003, Duquesne's counsel filed a letter in which he
    affirmed that Duquesne "does not intend to remove any \[Fibertech\]
    facilities from \[Duquesne\] poles while the dispute set forth in
    Fibertech's Complaint . . . is pending before the Commission,"[^20]
    and he agreed that the Commission should dismiss the Stay Petition
    as moot. On May 2, 2003, Fibertech's counsel filed a letter in
    response to the Letter Order and Duquesne May 1 Letter.[^21] The
    Fibertech May 2 Letter stated that "Duquesne's promise not to remove
    Fibertech from the poles is a welcome development, but there exists
    the remaining question of whether Duquesne still intends to
    terminate the pole attachment agreement . . . ."[^22] The Fibertech
    May 2 Letter stated that Fibertech "will immediately withdraw its
    petition with Duquesne's promise to allow Fibertech to continue
    operating on Duquesne's poles under the lawful provisions of the
    parties' pole attachment agreements while this proceeding is
    pending, including by processing pole attachment applications that
    Fibertech might submit in accordance with applicable guidelines and
    timeframes."[^23]

8.  The Fibertech May 2 Letter did not dispute that the portion of
    Fibertech's Petition that seeks a stay of any efforts by Duquesne to
    remove or seek removal of Fibertech's facilities from Duquesne's
    poles should be dismissed as moot. Accordingly, and in reliance on
    Duquesne's representations, we dismiss as moot Fibertech's Petition
    to the extent it requests that we stay Duquesne's removal or
    attempted removal of Fibertech's facilities from Duquesne's poles
    pending the conclusion of this complaint proceeding.

9.  Fibertech's May 2 Letter did, however, suggest that the portion of
    Fibertech's Petition that requests a stay of Duquesne's attempted
    termination of the Pole Attachment Agreement was not rendered moot
    by Duquesne's representation. Accordingly, our discussion will focus
    on Fibertech's continuing request for a stay of Duquesne's purported
    attempt to terminate the Pole Attachment Agreement.

    **III. DISCUSSION**

10. Section 1.1403(c) of our rules[^24] states, in pertinent part, that
    a utility shall provide a telecommunications carrier no less than 60
    days' written notice prior to "\[r\]emoval of facilities or
    termination of any service to those facilities, such removal or
    termination arising out of a rate, term or condition of the . . .
    telecommunications carrier's pole attachment agreement." Section
    1.1403(d) states that a telecommunications carrier may file a
    "Petition for Temporary Stay" of the action contained in a notice
    received pursuant to section 1.1403(c) within 15 days of receipt of
    such notice.[^25] Section 1.1403(d) further provides:

> Such submission shall not be considered unless it includes, in concise
> terms, the relief sought, the reasons for such relief, including a
> showing of irreparable harm and likely cessation of cable television
> service or telecommunication service. . . .[^26]

11. We note at the outset that it is not at all clear from the record
    whether Duquesne's February 7 Letter -- which Fibertech calls a
    "Notice of Termination" -- was intended to, or did in fact,
    terminate the Pole Attachment Agreement effective on April 8, 2003.
    The words "notice of termination" did not appear on the February 7
    Letter. Nor did that Letter state that the Pole Attachment Agreement
    would automatically terminate 60 days hence if Fibertech did not pay
    the amount that Duquesne claims it is due. Rather, the Letter simply
    stated that Duquesne "will have the right to terminate the
    Agreement" in 60 days "if Fibertech has not cured its breach," and
    that Duquesne "intends thereafter to exercise its rights to the full
    extent provided in the Agreement under applicable law." Nothing in
    the record before us indicates whether the Pole Attachment Agreement
    was, in fact, terminated on or after April 8, 2003.

12. More fundamentally, Fibertech has failed to demonstrate that the
    actual or threatened termination of the Pole Attachment Agreement
    has caused or will cause Fibertech to suffer irreparable harm -- a
    showing required under section 1.1403(d).[^27] Duquesne's February 7
    Letter indicated that Fibertech could avoid termination of the Pole
    Attachment Agreement by paying the \$565,814 amount that Duquesne
    claims it is due. Although we understand that Fibertech contends
    that the \$565,814 constitutes an overcharge in violation of section
    224, Fibertech fails to explain, in either the Stay Petition or the
    Complaint, how it would be irreparably harmed if it simply paid
    Duquesne the \$565,814 amount now, with the expectation that it
    would later recover this payment as a refund if it succeeds in
    proving the section 224 violations alleged in its Complaint. Indeed,
    the refund Fibertech seeks to recover in this case already includes
    unlawful charges that Fibertech paid Duquesne in the past. In the
    case of those earlier charges, Fibertech apparently chose to pay the
    amount Duquesne demanded, with the intention of later recovering the
    overcharge in an action before the Commission. Fibertech does not
    explain how it would be irreparably harmed by handling the \$565,814
    charge in the same way as the other alleged overcharges at issue in
    this case.[^28] Fibertech's Petition merely offers the unsupported,
    conclusory assertion that "forcing Fibertech into the position of
    paying additional unlawful charges . . . *could* place Fibertech at
    an even greater competitive disadvantage to Duquesne than it has so
    far."[^29] Moreover, the Petition does not present evidence of any
    irreparable harm to Fibertech's relationships with customers,
    investors, or lenders that would result from termination of the
    Agreement.

13. We therefore deny Fibertech's instant request for a stay of
    Duquesne's actual or threatened termination of the Pole Attachment
    Agreement, because Fibertech has failed to demonstrate the
    irreparable harm required under section 1.1403(d) of our rules.[^30]

    **IV. ORDERING CLAUSES**

14. ACCORDINGLY, IT IS ORDERED, pursuant to section 1.1403(d) of the
    Commission's rules, 47 C.F.R. § 1.1403(d), sections 4(i), 4(j), and
    224 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 154(j), and 224, and the authority delegated in sections
    0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111,
    0.311, that Fibertech's Petition To Stay Termination Of Pole
    Attachment Rights is dismissed as moot to the extent that it seeks
    to stay any effort by Duquesne to remove or seek removal of
    Fibertech's facilities from Duquesne's poles.

15. IT IS FURTHER ORDERED, pursuant to section 1.1403(d) of the
    Commission's rules, 47 C.F.R. § 1.1403(d), sections 4(i), 4(j), and
    224 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 154(j), and 224, and the authority delegated in sections
    0.111 and 0.311 of the Commission's rules, 47 C.F.R. §§ 0.111,
    0.311, that to the extent that Fibertech's Petition To Stay
    Termination Of Pole Attachment Rights seeks to stay any attempt by
    Duquesne to terminate the parties' pole attachment agreement, the
    Petition is denied on the ground that Fibertech has failed to show
    that it will suffer irreparable harm from the actual or threatened
    termination of that agreement in the absence of a stay.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: Petition To Stay Termination Of Pole Attachment Rights, File No.
    EB-03-MD-005 (filed April 8, 2003) ("Stay Petition" or "Petition").

[^2]: 47 C.F.R. §§ 1.1403(d) and 1.1415.

[^3]: Complaint, File No. EB-03-MD-005 (filed April 8, 2003)
    ("Complaint"). Sections 1.1401 -- 1.1418 of the Commission's rules,
    47 C.F.R. § 1.1401 -- 1.1418, provide complaint and enforcement
    procedures to ensure that telecommunications carriers and cable
    system operators have non-discriminatory access to utility poles,
    ducts, conduits, and rights-of-way on rates, terms and conditions
    that are just and reasonable. *See* 47 C.F.R. § 1.1401. Although the
    Complaint does not cite to these rules, we will adjudicate the
    Complaint in accordance with the procedures set forth therein.

[^4]: 47 U.S.C. § 224.

[^5]: Complaint at 2-3, ¶¶ 1, 9.

[^6]: Complaint at 2, ¶ 2.

[^7]: ^7^ Complaint at 4-9, ¶¶ 16-33; 9-27 ¶¶ 34-103.

[^8]: Complaint at 4-9, ¶¶ 16-33.

[^9]: Complaint at 9-27 ¶¶ 34-103. The pole attachment agreement that
    Fibertech and Duquesne executed, entitled "Joint Use Agreement," is
    attached as Exhibit 3 to the Complaint ("Pole Attachment Agreement"
    or "Agreement").

[^10]: Complaint at vi; 1-2

[^11]: Complaint at 1-2; 28

[^12]: Petition To Stay at 3-4.

[^13]: Letter from Andrew J. Tomko, Supervisor, Engineering, Duquesne,
    to Contracts and Rights of Way Manager, Fibertech, dated February 7,
    2003, attached to Petition as Exhibit 1 ("February 7 Letter"). The
    February 7 Letter was also attached as Exhibit 8 to the Complaint.

[^14]: Pole Attachment Agreement at 2, § 1.2.01 .

[^15]: *Id*. at 3, § 1.2.05 (cited in Petition at 4).

[^16]: *Id*. at 3, § 1.2.06 (cited in Petition at 4).

[^17]: Petition at 2, 6, 9.

[^18]: Letter from Christopher N. Olsen, Assistant Chief, Market
    Disputes Resolution Division, Enforcement Bureau, to Counsel for
    Fibertech and Counsel for Duquesne, File No. EB-03-MD-005 (rel.
    April 24, 2003) ("Letter Order") at 2.

[^19]: *Id*.

[^20]: Letter from David H. Pawlik, counsel for Duquesne, to Christopher
    N. Olsen, Assistant Chief, Market Disputes Resolution Division,
    Enforcement Bureau, File No. EB-03-MD-005 (filed May l, 2003)
    ("Duquesne May 1 Letter"). The Duquesne May 1 Letter attached a
    letter from Andrew J. Tomko, Supervisor, Engineering, Duquesne, to
    Christopher N. Olsen, Assistant Chief, Market Disputes Resolution
    Division, Enforcement Bureau, stating that "Except in emergency
    situations involving imminent danger to life or property, we do not
    intend to remove any of the attachments of \[Fibertech\] from our
    poles while the underlying dispute, contained in the Complaint that
    \[Fibertech\] filed on April 8, 2003, is pending before the FCC."

[^21]: Letter from J.D. Thomas, counsel for Fibertech, to Christopher N.
    Olsen, Assistant Chief, Market Disputes Resolution Division,
    Enforcement Bureau, File No. EB-03-MD-005 (filed May 2, 2003)
    ("Fibertech May 2 Letter").

[^22]: *Id*. at 1.

[^23]: *Id*.

[^24]: 47 C.F.R. § 1.1403(c).

[^25]: 47 C.F.R. § 1.1403(d).

[^26]: *Id*.

[^27]: *Virginia Petroleum Jobbers Ass'n v. F.P.C.*, 259 F.2d 921, 925
    (D.C. Cir. 1958) and *Washington Metro. Transit Comm'n v. Holiday
    Tours, Inc.*, 559 F.2d 841, 843 (D.C. Cir. 1977), cited in
    Fibertech's Petition at 4-5, also hold that a showing of irreparable
    harm is a prerequisite for obtaining an interim stay.

[^28]: *See e.g., Virginia Petroleum Jobbers Association v. FPC*, 259
    F.2d at 925 (observing that "\[m\]ere injuries, however substantial,
    in terms of money, time and energy necessarily expended in the
    absence of a stay, are not enough" to establish irreparable harm,
    and that the "possibility that adequate compensatory or other
    corrective relief will be available at a later date, in the ordinary
    course of litigation, weighs heavily against a claim of irreparable
    harm."). *Accord*, *Implementation of the Local Competition
    Provisions in the Telecommunications Act of 1996,* Order, 11 FCC
    Rcd. 11,754 at 11,756-57 (1996); *Bachow/Coastal, L.L.C. v. GTE
    Wireless of the South*, Order, 15 FCC Rcd. 5801 at 5802 (Enf. Bur.
    2000).

[^29]: Stay Petition at 6 (emphasis added).

[^30]: 47 C.F.R. § 1.1403(d).