**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-05-MD-027        |
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| DQE Communications Network       | ) |                              |
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| North Pittsburgh Telephone       | * |                              |
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MEMORANDUM OPINION AND ORDER

**Adopted: February 2, 2007** **Released: February 2, 2007**

By the Chief, Enforcement Bureau:

# Introduction

1.  In this Memorandum Opinion and Order, we grant a Pole Attachment
    Complaint[^1] filed by DQE Communications Network Services, LLC
    ("DQE CNS") against North Pittsburgh Telephone Company ("NPTC")
    pursuant to section 224 of the Communications Act of 1934, as
    amended ("the Act")[^2] and sections 1.1401-1.1418 of the
    Commission's rules.[^3] The Complaint alleges that NPTC violated
    section 224 by denying DQE CNS access to NPTC's poles, ducts,
    conduits, and rights-of-way for the placement of DQE CNS's
    attachments.[^4] DQE CNS requests that the Commission order NPTC
    immediately to provide DQE CNS with "nondiscriminatory access to the
    poles, ducts, conduits, and rights-of-way owned and/or controlled by
    NPTC."[^5] For the reasons stated below, we grant DQE CNS's
    Complaint and order NPTC to provide DQE CNS immediately with
    nondiscriminatory access to these facilities.

# Factual and regulatory BACKGROUND

2.  DQE CNS is authorized by Certificate of Public Convenience issued by
    the Pennsylvania Public Utility Commission ("PaPUC") to "offer,
    render, furnish, or supply telecommunication services as a
    Competitive Access Provider, to the Public, in the Commonwealth of
    Pennsylvania."[^6] DQE CNS offers "telecommunications services . . .
    to business customers for the origination and termination of
    telecommunications between points within" Pennsylvania under the
    terms specified in the "Competitive Access Provider Tariff" ("CAP
    Tariff" or "Tariff") DQE CNS published and filed with the PaPUC on
    December 2, 2004.[^7] Section 3 of the Tariff describes the services
    DQE CNS offers as (i) "Dedicated Transport Services (ICB),"
    including DS3 Service, T1 Service (1.544 Mbps), 10 Mbps-100-1000
    Gbps Ethernet services in increments of 1 Mbps; (ii) "Other
    Services," including "point-to-point high-speed Internet access,
    network management services, digital point-to-point services as well
    as redundant ring topology;" and (iii) "Individual Case Basis (ICB)
    Arrangements," including arrangements "developed on a case-by-case
    basis in response to a bona fide special request from a
    Customer."[^8]

3.  NPTC is an incumbent local exchange carrier providing
    telecommunications within the Commonwealth of Pennsylvania, and thus
    is a "utility" within the meaning of section 224(a)(1) of the
    Act.[^9] As a "utility," NPTC must 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,"[^10] unless it can show that a denial of access
    is justified due to "insufficient capacity" or "for reasons of
    safety, reliability and generally applicable engineering
    purposes."[^11]

4.  On July 20, 2005, DQE CNS sent a letter to NPTC requesting access to
    NPTC's poles via a pole attachment agreement, and describing DQE CNS
    as a carrier that "provides telecommunications services in
    Southwestern Pennsylvania."[^12] In an August 19, 2005 response,
    NPTC asserted that, because DQE CNS provides various private line
    services, DQE CNS is not a "telecommunications carrier" entitled to
    access NPTC poles under the Act.[^13] In a responding letter dated
    August 24, 2005, DQE CNS disputed NPTC's assertions, but was
    unsuccessful in persuading NPTC to grant its request for a pole
    attachment agreement. [^14]

5.  On September 16, 2005, promptly after being denied access, DQE CNS
    filed the instant Complaint alleging that NPTC has denied DQE CNS
    access to its poles in violation of section 224 of the Act, and
    requesting that the Commission order NPTC to provide DQE CNS
    immediate access to NPTC's poles. In its Response to the Complaint,
    NPTC acknowledges that it has denied DQE CNS's request for pole
    access, but argues that DQE CNS is not entitled to such access under
    section 224 of the Act because it has not demonstrated that it is a
    "telecommunications carrier" planning to provide "telecommunications
    services" over the requested attachments, as those terms are defined
    in the Act.[^15]

6.  As the foregoing discussion reveals, the key question presented by
    DQE CNS's Complaint is whether DQE CNS is a "telecommunications
    carrier" with statutory access rights to NPTC's poles under section
    224(f)(1) of the Act.[^16] Answering that question requires
    examination of certain statutory and common law definitions
    described below.

7.  The Act defines "telecommunications carrier," in pertinent part, as
    "any provider of telecommunications services . . ." and specifies
    that "\[a\] telecommunications carrier shall be treated as a common
    carrier under this Act only to the extent that it is engaged in
    providing telecommunications services."[^17] The term
    "telecommunications service" is defined as "the offering of
    telecommunications for a fee directly to the public, or to such
    classes of users as to be effectively available directly to the
    public, regardless of facilities used."[^18] "Telecommunications" is
    defined as "the transmission, between or among points specified by
    the user, of information of the user's choosing, without change in
    the form or content of the information as sent and received."[^19]

8.  In interpreting those statutory definitions, the D.C. Circuit
    affirmed the Commission's conclusions that the term
    "telecommunications service" "is intended to encompass only
    telecommunications provided on a *common carrier* basis,"[^20]
    and (ii) the term "telecommunications carrier," which was added to
    the Act in 1996, has essentially the same meaning as the
    pre-existing term "common carrier."[^21] Courts construing "common
    carrier" have held, *inter alia*, that "the primary *sine qua non*
    of common carrier status is a quasi-public character, which arises
    out of the undertaking to carry for all people indifferently;" and a
    "second prerequisite to common carrier status'" is that "'customers
    transmit intelligence of their own design and choosing."[^22] Such
    offering of service indiscriminately to the public may be either a
    wholesale offering to other carriers or a retail offering to end
    users.[^23]

9.  A "telecommunications carrier" offering to provide
    telecommunications service over a pole attachment may also offer to
    provide one or more *non*-telecommunications services over its pole
    attachments, without losing its right of access under section
    224(f)(1) of the Act. In *NCTA v. Gulf Power*, the Supreme Court
    concluded, in a case involving a cable system attacher, that the
    protections of section 224 extend to attachments by cable systems
    that are simultaneously used to provide cable service and high-speed
    Internet access.[^24] The Court reasoned that an attachment of a
    cable television company providing only cable service is an
    "attachment by a cable television system," subject to section 224,
    and that the addition of another service, such as Internet access
    service, "does not change the character of the attaching entity --
    the entity the attachment is 'by.'" "And this," declared the Court,
    "is what matters under the statute."[^25] Likewise, an entity that
    has established its status as a telecommunications carrier with a
    right of access under section 224(f) by offering to provide a
    telecommunications service over a requested attachment does not lose
    that status by offering non-telecommunications services over the
    same attachment.

# discussion

## DQE CNS Has Established a *Prima Facie* Case That It Is a "Telecommunications Carrier" with a Right of Access to NPTC's Poles Under Section 224(f)(1) of the Act

10. In a case such as this challenging a denial of access, section
    1.1409(b) of our rules provides that the complainant bears the
    burden of establishing a *prima facie* case that the denial of
    access violates section 224(f) of the Act.[^26] Once the complainant
    establishes a *prima facie* case, the defendant utility has the
    burden of proving that its denial was lawful.[^27] Therefore, DQE
    CNS bears an initial burden to establish a *prima facie* case that
    it is a "telecommunications carrier" with a right of access within
    the meaning of the Act. As discussed below, we conclude that DQE CNS
    has met that burden by showing that it possesses a valid state
    authorization to provide telecommunications services, and has filed
    a state tariff offering such services to the public.

11. Specifically, we find that the decisions of the PaPUC to issue a
    Certificate of Public Convenience authorizing DQE CNS to "offer,
    render, furnish, or supply *telecommunications services* as a
    Competitive Access Provider \["CAP"\], to the Public, in the
    Commonwealth of Pennsylvania,"[^28] and to allow DQE CNS to publish
    a CAP Tariff offering such services to the public,[^29] reflect
    judgments by an expert regulatory agency that the services set forth
    in DQE CNS's Tariff constitute "telecommunications services."
    Moreover, NPTC has not identified any material differences between
    the meaning of the terms "telecommunications carrier" and
    "telecommunications service" under Pennsylvania law and the
    definitions of those terms in the Act; and we are aware of none.
    Accordingly, DQE CNS may rely on the PaPUC's authorizations to offer
    to provide "telecommunications service" to establish its *prima
    facie* case under section 224(f)(1) of the Act. [^30]

12. In assessing DQE CNS's proof of its status as a "telecommunications
    carrier" with pole attachment rights under section 224(f) under the
    Act, our reliance on the PaPUC's decisions finds support in cases
    addressing the prerequisites for the analogous process of
    establishing an entity's status as a "cable television system" with
    pole attachment rights under section 224(f). In *Paragon Cable
    Television Inc. v. FCC,* the D.C. Circuit upheld a Commission ruling
    that possession of a valid cable franchise is a reasonable
    precondition for pole attachments. In so holding, the D.C. Circuit
    found that the Commission could apply a "presumption of validity" to
    decisions by the local franchising authority concerning the
    attacher's status as an approved franchisee.[^31] Similarly, in
    *Texas Util. Elec. Co v. FCC*, the D.C. Circuit upheld a Commission
    ruling that section 224 of the Act conferred jurisdiction over those
    pole attachments within the franchise service area defined by the
    local franchise authority.[^32] These cases suggest that attachers
    are entitled to rely on decisions by responsible regulatory
    agencies, such as franchise authorities in the case of cable system
    attachers, and public utility commissions in the case of
    telecommunications carriers, in establishing their status as
    entities entitled to access under section 224(f) of the Act.[^33]

13. Based on the foregoing, we conclude that DQE CNS's possession of a
    valid state authorization to provide telecommunications services,
    together with its associated state tariff filing, constitutes
    presumptive evidence of its status as a "telecommunications carrier"
    within the meaning of the Act. In our view, therefore, DQE CNS has
    made a *prima facie* showing that it is a "telecommunications
    carrier" entitled to nondiscriminatory access to NPTC's poles under
    section 224(f)(1) of the Act. Nevertheless, to avoid disputes such
    as this, and to expedite the pole attachment process, we encourage
    entities seeking pole attachments for the first time to provide to
    the utility sufficient information at the outset to establish their
    right to attach. Moreover, although a utility may inquire as to
    whether the would-be attacher is, in fact, planning to operate as a
    telecommunications carrier offering some telecommunications service
    within the utility's service area, the utility must accept
    reasonable attempts to answer its inquiries. This is particularly
    true where, as here, the requesting entity possesses a state
    regulatory authorization to provide telecommunications services
    pursuant to tariff throughout the state, and a clearly worded
    inquiry on the part of the utility would have likely elicited the
    desired information.[^34]

## NPTC Has Failed to Show That Its Denial of Access Was Lawful

14. Because DQE CNS has established a *prima facie* case, the burden
    shifts to NPTC to demonstrate that its denial of access was
    lawful.[^35] NPTC argues that it lawfully denied access to DQE CNS
    because DQE CNS purportedly does not qualify as a
    "telecommunications carrier" with a right of attachment under
    section 224(f).[^36] We conclude that NPTC has failed to show that
    DQE CNS is not a "telecommunications carrier" under the Act, and
    thus it cannot justify its denial of access on that basis.

### DQE CNS's Tariffed Private Line Services Offered On An "ICB" Basis Are "Telecommunications Services" Under the Act

15. NPTC argues that DQE CNS is not a "telecommunications carrier"
    entitled to pole access because DQE CNS's tariffed private line
    services \-- including dedicated transport services, Internet
    access, network management, point-to-point transport service,
    redundant (Ethernet) ring topology, and other ICB services \-- are
    not "telecommunications services" within the meaning of the
    Act.[^37] NPTC also maintains that DQE CNS's offer of private line
    or other service under ICB arrangements disqualifies DQE CNS from
    being a "telecommunications carrier" because an ICB offering *per
    se*, "does not constitute the offer of telecommunications directly
    to the 'public' \[under the Act\]."[^38] NPTC fails, however, to
    offer any relevant facts, legal arguments, or authorities to support
    either of these arguments. We therefore reject NPTC's contentions,
    and conclude that DQE CNS's tariffed private line services are
    "telecommunications services" within the meaning of section 153(46)
    of the Act.[^39]

16. By offering its dedicated (*i.e.*, private line) transport service
    and digital point-to-point services via its Tariff, DQE is holding
    itself out to the public as providing those services indifferently
    and "indiscriminately" for a fee; [^40] moreover, those services
    involve communications by wire and transmission, between or among
    points specified by the user, of information of the user's choosing,
    without change in the form or content of the information as sent and
    received.[^41] Indeed, the Commission has long regulated as common
    carrier services the provision of "private line" services,[^42]
    which the Commission defines as "facilities or network transmission
    capacity dedicated to the use of an individual customer."[^43] For
    example, the Commission's rules contain general guidelines and rate
    structure requirements for the tariffed private line services of
    dominant common carriers.[^44] Moreover, the Commission classifies
    interstate private line services as interstate telecommunications
    for purposes of universal service contributions.[^45] The Commission
    thus has recognized that private line services may be offered on a
    common carrier basis, and treats private line services offered under
    tariff as common carrier offerings. Accordingly, the fact that DQE
    CNS offers dedicated or "private line" services provides no basis
    for NPTC's assertion that DQE CNS is not a "telecommunications
    carrier" with pole attachment rights under section 224(f)(1) of the
    Act.[^46]

17. We also reject NPTC's argument that DQE CNS's offer of services on
    an "ICB" basis inherently disqualifies it from the status of a
    telecommunications carrier. That argument assumes that the act of
    customizing a telecommunications offering, rather than the
    nondiscriminatory availability of a particular offering, is
    determinative of whether the offering constitutes a
    telecommunications service. NPTC has not cited a single authority
    holding that an entity failed to qualify as a common carrier solely
    because it offered services on an individual case basis, and we are
    aware of none. In fact, the Commission has treated ICB offerings as
    common carrier offerings subject to Title II of the Act.[^47]
    Moreover, DQE CNS represents that it "offers services on an
    'individual case basis' but will provide the same or similar
    services to all customers with nondiscriminatory rates and terms of
    service."[^48] NPTC has not identified any specific features of DQE
    CNS's ICB offering that would undermine DQE CNS's status as a common
    carrier. On the contrary, DQE CNS's tariff makes clear that DQE CNS
    is offering ICB services indiscriminately to the public.[^49] Thus,
    although its initial private line services are being offered on a
    case-by-case basis, DQE CNS is pledging, publicly, through Section
    3.4.A., to price its services on a non-discriminatory basis and
    submit its rates to the PaPUC for approval.[^50] Based on this
    record, NPTC has failed to meet its burden of proving that DQE CNS's
    tariffed offering of private line service on an ICB basis prevents
    DQE CNS from qualifying as a "telecommunications carrier" with pole
    access rights under section 224(f)(1) of the Act.[^51]

### DQE CNS's Tariffed Services Involve "Transmission" of Information

18. NPTC asserts that, under the Act, "telecommunications" must involve
    "transmission" of messages.[^52] NPTC contends that DQE CNS does not
    "transmit messages," and therefore cannot be deemed a provider of
    "telecommunications services" under the Act.[^53] NPTC's contention
    rests solely on language in DQE CNS's CAP Tariff Section 2.2.D.,
    which states: "Carrier does not transmit messages pursuant to this
    Tariff, but its services may be used for that purpose."[^54] We
    conclude, based on an examination of the Tariff as a whole, that DQE
    CNS does, in fact, offer to transmit information of the user's
    choosing through its CAP Tariff, and thus qualifies as a
    "telecommunications carrier" under the Act.

19. Section 2.1.A of the CAP Tariff states: "This Tariff contains the
    regulations and rates applicable to intrastate telecommunications
    services provided by Carrier \[DQE CNS\] to business customers for
    the origination and termination of telecommunications between points
    within the State."[^55] Section 1 defines "Telecommunications" as
    the "*transmission* of voice communications or, subject to the
    *transmission* capabilities of the service, the *transmission* of
    data, facsimile, signaling, metering, or other similar
    communications."[^56] Moreover, most (if not all) of the services
    described in Section 3 of the Tariff \-- including, for example, DS3
    Service, T-1 service, and digital point-to-point services \--
    plainly involve transmission of the user's information.[^57] Given
    this context, we interpret Tariff Section 2.2.D. as indicating
    simply that DQE CNS does not transmit messages *of its own*, but
    rather transmits only the messages of its customers. To hold
    otherwise would effectively nullify all of the many terms and
    conditions in the Tariff that demonstrate DQE CNS's offering of
    telecommunications service.

20. Buttressing our conclusion is DQE CNS's explanation that it included
    the language at issue in Tariff Section 2.2.D merely because such
    provisions are commonly found in other tariffs approved by the
    PaPUC.[^58] Indeed, as DQE CNS has noted, similar tariff provisions
    appear in the Pennsylvania tariffs filed by several other common
    carriers, including NPTC itself.[^59]

21. We therefore reject NPTC's suggestion that Section 2.2.D. of DQE
    CNS's Tariff disclaims the transmission of information. Accordingly,
    Section 2.2.D provides no basis for NPTC's assertion that DQE CNS is
    not a "telecommunications carrier" with pole access rights under
    section 224(f)(1) of the Act.

### DQE CNS Offers Broadband Internet Access Transmission on a Common Carriage Basis 

22. NPTC argues that, insofar as DQE CNS is offering "high speed
    Internet access" service under its Tariff,[^60] DQE CNS is offering
    an "information service," not a "telecommunications service," and
    thus is not a "telecommunications carrier" with pole access rights
    under section 224(f)(1) of the Act. We find that NPTC has no legal
    or factual or basis for denying DQE CNS access on these grounds. As
    an initial matter, we note that DQE CNS qualifies as a
    telecommunications carrier under the Act based on the various
    telecommunications service offerings discussed above, and DQE CNS
    would not lose that status if it were to offer an information
    service in addition to these telecommunications services.[^61]
    Moreover, as explained below, NPTC has failed to show that DQE CNS
    actually offers an information service in NPTC's territory. Although
    DQE CNS's Tariff includes a service called "high speed Internet
    access," an examination of the record shows that this service is
    actually a "telecommunications service."

23. NPTC is correct that the Commission has classified as "information
    service" an integrated service that combines transmission with the
    data storage, manipulation, processing, and retrieval portion,
    *i.e.*, the Internet service provider ("ISP") portion, of an
    Internet access service.[^62] The ISP portion of an Internet access
    service typically provides end users with a comprehensive capability
    for manipulating information using the Internet, including
    applications such as web browsing, file transfers, e-mail access,
    Usenet newsgroups, and Domain Name System access. [^63] The
    Commission has also recognized that the "telecommunications"
    component of an Internet access service can be "part and
    parcel"[^64] of an integrated Internet access service offering, or
    it can be offered separately from the ISP portion of the service and
    consist solely of a transparent transmission path, with no changes
    to the form or content of the transmitted information.[^65] Carriers
    can choose to offer this transmission component as a
    telecommunications service on a stand-alone, wholesale, common
    carrier basis to ISPs, who then use that service as an input for the
    wireline broadband Internet access that the ISPs, in turn, offer to
    their own end-user customers.[^66] Given the foregoing, the
    Commission has held that whether a service is a "telecommunications
    service" or an "information service" turns on the nature of the
    functions the purchaser is offered.[^67] The determinative question,
    briefly put, is: does the service offering involve only a
    transparent transmission path, with no changes to the form or
    content of the transmitted information; or does it involve data
    storage, manipulation, processing, and retrieval?

24. Applying that standard here, we find that the high-speed Internet
    access service that DQE CNS offers through its Tariff is a
    "telecommunications service," not an "information service." Although
    the single phrase "high speed Internet access" in DQE CNS's Tariff,
    standing alone, might suggest an offering of data storage,
    manipulation, processing, and retrieval services, we find such an
    interpretation unreasonable in the context of the Tariff as a whole.
    First, Section 2.1.A. notes that the Tariff encompasses the
    "intrastate telecommunications services provided by \[DQE CNS\] to
    business customers for the origination or termination of
    telecommunications between points within the State.[^68] Section 1
    defines the "Telecommunications" offered as the "transmission of
    voice communications or, subject to the transmission capabilities of
    the service, the *transmission of data, facsimile, signaling,
    metering, or other similar communications.*"[^69] Nowhere in the
    Tariff does DQE CNS offer the ISP portion of Internet access
    service, *i.e.*, data storage, manipulation, processing, and
    retrieval.[^70] Instead, in the Tariff, DQE CNS offers only a
    transparent transmission path, with no changes to the form or
    content of the transmitted information. Specifically, DQE CNS offers
    only the underlying transmission (or "telecommunications") typically
    used by ISPs and other information service providers in the
    provision of retail Internet access and other data processing
    services to subscribers. As we found in the *Wireline Broadband
    Order*, "carriers may choose to offer this type of transmission as a
    common carrier service if they wish. In that circumstance, it is of
    course a telecommunications service."[^71] Accordingly, DQE CNS's
    offering of "high speed Internet access" service provides no basis
    for NPTC's assertion that DQE CNS is not a "telecommunications
    carrier" with pole access rights under section 224(f)(1) of the Act.

### Intrastate Carriers Such as DQE CNS Have Pole Attachment Rights Under Section 224

25. DQE CNS's Certificate of Public Convenience authorizes it to offer
    and provide intrastate telecommunications services as a CAP within
    the Commonwealth of Pennsylvania.[^72] Without offering any support,
    NPTC argues that, because DQE CNS's authority is limited to the
    provision of intrastate service, DQE CNS is not an
    "telecommunications carrier" eligible for access to its poles under
    section 224(f)(1).[^73] We conclude that, contrary to NPTC's
    assertions, section 224 provides pole attachment rights to
    intrastate carriers such as DQE CNS.

26. Section 224(f)(1) unambiguously provides: "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."[^74] Moreover, section 224(b) grants the
    Commission broad jurisdiction over pole attachment issues, except in
    states that certify that they regulate such issues pursuant to
    section 224(c); and Pennsylvania has not so certified.[^75] Further,
    section 2(b) of the Act explicitly recognizes the Commission's
    jurisdiction in connection with intrastate communication service "as
    provided in sections 223 through 227 . . . ."[^76] In view of this
    plain statutory language, we conclude that DQE CNS's status as an
    intrastate carrier provides no basis for NPTC's assertion that DQE
    CNS is not a "telecommunications carrier" with pole access rights
    under section 224(f)(1) of the Act.[^77]

# Conclusion

27. For the reasons stated above, we find that (i) DQE CNS has carried
    its burden to establish a *prima facie* case demonstrating its
    entitlement to attach to NPTC's poles, and (ii) NPTC has failed to
    carry its burden to establish that its denial of access was lawful
    on the alleged ground that DQE CNS is not a "telecommunications
    carrier" offering or providing "telecommunications services," as
    those terms are defined in the Act. We therefore also conclude that
    DQE CNS is a "telecommunications carrier" entitled to pole
    attachments under section 224(f) of the Act, and grant the relief
    requested in the Complaint in its entirety.[^78]

# ordering clauseS

28. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), and
    224 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
    154(i), 154(j), and 224, and sections 1.1401-1.1418 of the
    Commission's rules, 47 C.F.R. §§ 1.1401-1.1418, that the Complaint
    IS GRANTED.

29. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), and 224
    of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
    154(i), 154(j), and 224, and sections 1.1401-1.1418 of the
    Commission\'s rules, 47 C.F.R. §§ 1.1401-1.1418, that, to the extent
    that DQE CNS continues to seek access and attachments to NPTC's
    facilities, DQE CNS and NPTC SHALL PROMPTLY NEGOTIATE IN GOOD FAITH
    nondiscriminatory rates, terms, and conditions of access and
    attachments in accordance with 47 U.S.C. § 224 and the Commission\'s
    rules.

    FEDERAL COMMUNICATIONS COMMISSION

    Kris Anne Monteith

    Chief, Enforcement Bureau

[^1]: Complaint of DQE Communications Network Services, LLC, File No.
    EB-05-MD-027 (filed Sep. 16, 2005) ("Complaint").

[^2]: 47 U.S.C. § 224.

[^3]: 47 C.F.R. §§ 1.1401-1.1418.

[^4]: *See*, *e.g.*, Complaint at 1-2, ¶¶ 1, 2.

[^5]: Complaint at 1, 10, ¶¶ 1, 29. For ease of reference, "poles" or
    "pole attachments" discussed herein refer to all facilities and
    properties owned and/or controlled by NPTC that are the subject of
    DQE CNS's request for access under section 224.

[^6]: *Id.* at 2, ¶¶ 4-5; Exhibit 1, Pennsylvania Public Utility
    Commission, In the Matter of the Application of: A-311233,
    Application of DQE CNS Communications Network Services, LLC for
    approval of the right to begin to offer, render, furnish, or supply
    telecommunication services as a Competitive Access Provider, to the
    Public, in the Commonwealth of Pennsylvania, Certificate of Public
    Convenience, November 18, 2004 ("Certificate of Public
    Convenience").

[^7]: *Id.* at 3, ¶ 6; Exhibit 2 at 7, Section 2.1.A., DQE CNS
    Communications Network Services, LLC, Competitive Access Provider
    Tariff, PA P.U.C. Tariff No. 1, Effective December 03, 2004 ("CAP
    Tariff" or "Tariff").

[^8]: *Id.*, Exhibit 2 at 22, Sections 3.1-3.4.

[^9]: *Id.* at 3, ¶¶ 8-10; Response at 5, ¶¶ 8-10. Section 224(a)(1) of
    the Act defines "utility," in pertinent part, as "a local exchange
    carrier ... who owns or controls poles, ducts, conduits, or
    rights-of-way used, in whole or in part, for any wire
    communications." 47 U.S.C. § 224(a)(1).

[^10]: 47 U.S.C. § 224(f)(1) (emphasis added). *See* 47 U.S.C. §
    224(a)(4) (defining "pole attachment" as "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"). *See* *also* *National Cable & Telecommunications
    Association, Inc. v. Gulf Power Co.*, 534 U.S. 327 (2002) ("*NCTA v.
    Gulf Power*").

[^11]: 47 U.S.C. § 224(f)(2).

[^12]: Complaint at 4, ¶¶ 11-12; Exhibit 5, Letter dated July 20, 2005,
    from David S. Weber, General Manager, Sales, DQE CNS Communications,
    to Kevin Albaugh, Vice President, Regulatory Affairs, North
    Pittsburgh Telephone Company ("DQE CNS July 20 Letter"); Response at
    5-6, ¶¶ 11-12.

[^13]: Complaint at 4, ¶ 13; Exhibit 6, Letter dated August 19, 2005,
    from Kevin Albaugh, Vice President, Regulatory Affairs, North
    Pittsburgh Telephone Company to David S. Weber, General Manager,
    Sales, DQE CNS Communications, LLC ("NPTC August 19 Letter");
    Response at 7-8, ¶ 13.

[^14]: Complaint at 5, ¶¶ 15-16; Exhibit 7, Letter dated August 24,
    2005, from David H. Pawlik, Counsel to Duquesne Light Holdings,
    Inc., to Kevin Albaugh, Vice President, Regulatory Affairs, North
    Pittsburgh Telephone Company, Re: DQE CNS Communications Network
    Services, LLC Request for Attachment to Poles ("DQE CNS August 24
    Letter") at 2-3; Exhibit 8, E-mail from John Alzamora, Counsel to
    North Pittsburgh Telephone Company (acknowledging receipt of DQE CNS
    August 24 Letter); Response at 8-9, ¶¶ 15-16.

[^15]: *See*, *e.g.*, Response at 7-17, ¶¶ 15, 19, 21, 30-54.

[^16]: Although section 224(f)(2) explicitly permits denial of access
    "where there is insufficient capacity and for reasons of safety,
    reliability and generally applicable engineering purposes," 47
    U.S.C. § 224(f)(2), NPTC's denial of access does not rest on any of
    these grounds, but rather solely on NPTC's contention that DQE CNS
    is not a "telecommunications carrier" with a right of access under
    section 224(f)(1).

[^17]: 47 U.S.C. § 153(44).

[^18]: *Id.* at § 153(46). We note that the Act defines
    "telecommunications carrier" as any "*provider* of
    telecommunications service," and defines "telecommunications
    service" as the indiscriminate "*offering* of telecommunications."
    *See* 47 U.S.C. §§ 153(44) and (46) (emphases supplied). These two
    definitions, read together, indicate that a "telecommunications
    carrier" is a carrier that *offers* to supply telecommunications on
    a common carrier basis, regardless of whether the carrier has
    actually supplied such service to a customer in the past. To read
    this statutory language as requiring a carrier to have already
    supplied such services to customers in order to qualify as a
    "telecommunications carrier" would lead to the nonsensical result
    that a facilities-based provider could never establish its identity
    as a telecommunications carrier for purposes of, for example, pole
    attachments under section 224(f)(1) unless it was already supplying
    telecommunications service to the public, which might not even be
    possible without access to the poles.

[^19]: 47 U.S.C. § 153(43).

[^20]: *Virgin Islands Tel. Co. v. FCC*, 198 F.3d 921, 927-30 (D.C. Cir.
    1999) ("*Vitelco*") (emphasis added) (affirming *AT&T Submarine
    Sys., Inc.*, Memorandum Opinion and Order, 13 FCC Rcd 21585 (1998)).

[^21]: *Vitelco*, 198 F.3d at 924-27. *See*, *e.g.*, *Cable & Wireless
    plc,* Memorandum Opinion and Order, 12 FCC Rcd 8516, 8521-23, at ¶¶
    12-17 (1997); *Federal-State Joint Board on Universal Service*,
    Report and Order, 12 FCC Rcd 8776, 9177-78, at ¶ 785 (1997)
    (subsequent history omitted) ("*Universal Service Order*"). The Act
    defines "common carrier" or "carrier" as "any person engaged as a
    common carrier for hire, in interstate or foreign communication by
    wire or radio \...." 47 U.S.C. § 153(10).

[^22]: *Southwestern Bell Telephone Co. v. Federal Communications
    Commission*, 19 F.3d 1475, 1480 (D.C. Cir. 1994) (quoting *National
    Ass\'n of Regulatory Util. Comm\'rs v. FCC*, 533 F.2d 601, 608-09
    (D.C. Cir.1976) (internal quotes and footnotes omitted)); *National
    Ass\'n of Regulatory Util. Comm\'rs v. FCC*, 525 F.2d 630 (D.C. Cir.
    1975), *cert. denied*, 425 U.S. 992 (1976).

[^23]: *See*, *e.g.*, *Federal-State Joint Board on Universal Service*,
    Report to Congress, 13 FCC Rcd 11501, 11556, at ¶ 115 (1998)
    ("*Universal Service Report to Congress*"); *Universal Service
    Order*, 12 FCC Rcd at 9177-78, ¶ 785 (holding that users of common
    carrier services are not limited to end users; "\[c\]ommon carrier
    services include services offered to other carriers, such as
    exchange access service, which is offered on a common carrier basis,
    but is offered primarily to other carriers"). *See generally* *MTS
    and WATS Market Structure, Phase I*, Third Report and Order, 93 FCC
    2d 241, 246-47, 249-50, ¶¶ 13-14, 23 (1983) ("*MTS/WATS Market
    Structure Order*") (stating that access charges are regulated
    services and include "carrier's carrier" services).

[^24]: *NCTA v. Gulf Power*, 534 U.S. at 330.

[^25]: *Id.* at 333. *See generally Heritage Cablevision Assocs. of
    Dallas. L.P. v. Texas Util. Elec. Co.*, Memorandum Opinion and
    Order, 6 FCC Rcd 7099, 7104, ¶ 23, *recon. dismissed*, 7 FCC Rcd
    4192 (1992), *aff'd sub nom. Texas Util. Elec. Co. v. FCC*, 997 F.2d
    925 (D.C. Cir. 1993) (holding that cable system does not lose its
    pole attachment rights when it is also used to provide non-cable
    services on a commingled basis).

[^26]: 47 C.F.R. § 1.1409(b).

[^27]: *Id.*

[^28]: Complaint at 7, ¶ 21; Exhibit 1 (emphasis supplied).

[^29]: *See id.* at 2-3, ¶¶ 5, 6; 7-8, ¶¶ 21-24; Exhibits 1, 2, and 3.

[^30]: We leave open the possibility that a state may define either
    "telecommunications carrier" or "telecommunications service" under
    state law in a manner so inconsistent with the definitions contained
    in sections 153(44) and 153(46) of the Act such that an entity could
    obtain state certification and file state tariffs, yet not meet
    those federal statutory definitions. Similarly, a state might
    authorize an entity to provide telecommunications services only in
    some, but not all, portions of a state such that additional evidence
    of the entity's status would be required to demonstrate a right of
    attachment in those non-certificated portions of the state. Neither
    situation, however, exists in this case, as far as our record shows.

[^31]: *Paragon Cable Television Inc. v. FCC*, 822 F.2d 152, 153-54
    (D.C. Cir. 1987) (holding that the Commission properly refused to
    address the attacher's arguments challenging the legality of the
    franchise authority's decision to revoke the attacher's franchise,
    noting that it was appropriate for the Commission to employ a
    "presumption of validity with respect to the franchising authority's
    actions *vis-à-vis* the franchise"). *See* *id*. at 154 & n.2
    (citing *Tele-Communications, Inc. v. South Carolina Elec. & Gas
    Co.*, File No. PA-83-0027 (Com. Car. Bur. Apr. 19, 1985) (holding
    that the utility could not substitute its judgment for the
    franchising authority by removing pole attachments before such time
    as the franchising authority's revocation actually took effect)).

[^32]: *Texas Util. Elec. Co v. FCC*, 997 F.2d 925, 934-35 (D.C. Cir.
    1993).

[^33]: Moreover, NPTC does not argue that it lacked adequate recourse at
    the state level if it believed that the PaPUC erred either in
    issuing DQE CNS its Certificate of Public Convenience, or in
    accepting DQE CNS's CAP Tariff for filing. *See* Response, Exhibit
    1, Certificate of Public Convenience, at 2 ("The Applicant complied
    with notice requirements set forth in our Implementation Orders. No
    Protests were filed. No hearings were held."); 52 Pa. Code § 54.36
    (procedure for protests to applications); 52 Pa. Code § 5.572
    (procedures for petitions for relief following a final decision).

[^34]: NPTC faults DQE CNS for failing, in its letters requesting pole
    attachments, to identify with specificity the particular
    telecommunications services it intends to provide over the requested
    pole attachments. Response at 7-9, ¶¶ 13, 15. *See* Complaint at
    Exhibits 4 and 5. Even if DQE CNS's letters were vague, however,
    that problem was certainly cured by DQE CNS's submissions here, and
    thus cannot serve as a basis for NPTC's continuing denial of access.
    In any event, the applicable rule does not mandate any particular
    level of specificity about the services to be provided over the
    requested attachments, *see* 47 C.F.R. § 1.1403; and NPTC apparently
    knew about DQE CNS's Tariff and Certificate of Public Convenience.
    *See* Complaint, Exhibit 6 at 2.

[^35]: 47 C.F.R. § 1.1409(b).

[^36]: Response at 7-8, ¶ 13 (citing NPTC August 19 Letter at Complaint,
    Exhibit 6); 13-18, ¶¶ 30-54. In correspondence with DQE CNS, NPTC
    referenced DQE CNS's purported plans to offer "dark fiber" for lease
    as an additional reason for denying DQE CNS access to its poles.
    August 19 Letter (Complaint, Exhibit 6) at 2. According to NPTC,
    offering dark fiber for lease is not a "telecommunications service,"
    and thus the installer of dark fiber is not a "telecommunications
    carrier" within the meaning of the Act. *Id.* The only reference to
    the dark fiber issue in this proceeding appears in two paragraphs in
    NPTC's Response that cite to the arguments it raised in the August
    19, 2005 Letter. *See* Response at 7, ¶ 13; 10, ¶ 17. Thus, it is
    not clear whether NPTC intended to raise the dark fiber issue in
    this proceeding as a justification for its denial of access. In any
    event, in light of our findings that DQE CNS is a telecommunications
    carrier providing or offering other telecommunications services, we
    need not address the allegations concerning providers of dark fiber.
    *See* Section II, ¶ 9, *supra* (explaining that an entity offering a
    telecommunications service does not lose its status as a
    telecommunications carrier by also offering a non-telecommunications
    service).

[^37]: Response at 16, ¶¶ 46-47. We discuss NPTC's claim concerning the
    provision of high-speed internet access under DQE CNS's Tariff in
    Section III.B.3, *infra*.

[^38]: Response at 17, ¶ 52-53; *see id.* at 10-11, ¶ 21. Although NPTC
    fails to elaborate or cite any authorities in support of its
    argument, we interpret its Response as an assertion that ICBs are
    *per se* inconsistent with common carrier status because of their
    individualized nature.

[^39]: 47 U.S.C. § 153(46); *see id.* at § 153(44). The Commission has
    stated that "an entity offering a simple, transparent transmission
    path, without the capability of providing enhanced functionality,
    offers 'telecommunications.'" *Universal Service Report to
    Congress*, 13 FCC Rcd at 11520, ¶ 39. The private line services at
    issue here offer a simple, transparent transmission path for
    information of the user's choosing, without the capability of
    providing enhanced functionality. *See*, *e.g.*, Complaint, Exhibit
    2 at Original Page 22. *See generally* *Implementation of the Local
    Competition Provisions of the Telecommunications Act of 1996,
    Interconnection between Local Exchange Carriers and Commercial
    Mobile Radio Service Providers*, First Report and Order, 11 FCC Rcd
    15499, 15989, at ¶ 922 (1996) (subsequent history omitted) (stating
    that "to the extent a carrier is engaged in providing for a fee
    domestic or international telecommunications, directly to the public
    or to such classes of users as to be effectively available directly
    to the public, the carrier falls within the definition of
    'telecommunications carrier'").

[^40]: Complaint, Exhibit 1, DQE CNS PaPUC CAP Certificate of Public
    Convenience; Exhibit 2, DQE CNS CAP Tariff, Section 2.1.A (tariff
    regulations and rates for intrastate telecommunications offered to
    business customers within the state, without restriction, subject
    only to availability of facilities and services).

[^41]: Complaint, Exhibit 1, Exhibit 3 (Declaration of David S. Weber)
    at 2, ¶¶ 6-7; Reply of DQE Communications Network Services, LLC,
    File No. EB-05-MD-027 (filed Nov. 7, 2005) ("Reply") at 2, ¶ 3.
    Section 3 of DQE CNS's CAP Tariff, Description of Services, contains
    three categories of services: (1) "Dedicated Transport Services
    (ICB), which includes DS3 Service, T-1 service (1.544 Mbps) and 10
    Mbps-100-1000 Gbps Ethernet services in increments of 1 Mbps; (2)
    Section 3.2, "Other Services," which includes "point-to-point
    high-speed internet access, network management services, digital
    point-to-point services, as well as redundant ring topology;" and
    (3) Section 3.4, "Individual Case Basis (ICB) Arrangements," which
    offers service arrangements on a case-by-case basis in response to
    "a bona fide special request from a Customer or prospective
    Customers to develop a bid for a service not generally available
    under this tariff." Complaint, Exhibit 2 at Original Page 22. As DQE
    CNS observed in its August 24 Letter to NPTC, the term "private" in
    this context refers to the customer, not the carrier. Complaint,
    Exhibit 7 at 3.

[^42]: *See*, *e.g.*, *Investigation of Special Access Tariffs of Local
    Exchange Carriers,* Memorandum Opinion and Order, 8 FCC Rcd 4712,
    4712, at ¶ 2 (1993) ("*Special Access Tariff Investigation*"); *MTS
    and WATS Market Structure Order,* 93 FCC 2d at 249-50, at ¶¶ 20-23;
    *American Telephone & Telegraph Company; Private Line Rate Structure
    and Volume Discount Practices*, Notice of Inquiry and Proposed
    Rulemaking, 74 FCC 2d 226 (1979) (investigating whether the pricing
    of AT&T's competitive private line services was consistent with 47
    U.S.C § 202, which prohibits unjust discrimination by common
    carriers).

[^43]: *Special Access Tariff Investigation*, 8 FCC Rcd 4712, at ¶ 2.

[^44]: 47 C.F.R. § 61.40 (providing rate structure requirements for the
    tariffed private line services of dominant common carriers); *Access
    Charge Reform,* Fifth Report and Order, 14 FCC Rcd 14221 (1999)
    (establishing pricing flexibility rules for incumbent local exchange
    carrier ("ILEC") common carrier special access -- interstate private
    line -- services, including circumstances in which ILECs may offer
    such services on an individually tailored "contract tariff' basis),
    *aff'd sub nom. WorldCom v. FCC*, 238 F.3d 449 (D.C. Cir. 2001);
    *see Special Access Tariff Investigation*, *supra* notes 42-43
    (investigating certain issues related to duration of the Other
    Common Carrier (OCC) Rate Equalization Plan adopted in connection
    with replacing local private line services provisioned under tariff
    by AT&T prior to the advent of effective special access tariffs).

[^45]: *Universal Service Order*, 12 FCC Rcd at 9175, ¶ 780.

[^46]: In its August 19 Letter explaining its reasons for denying DQE
    CNS access to its poles, NPTC cites DQE CNS's lack of certification
    by the PaPUC as a "CLEC." Complaint, Exhibit 6 at 1; Response at 7,
    ¶ 13; 10, ¶ 17. If NPTC is thereby contending that it may deny pole
    access to DQE CNS merely because it is certified as a "CAP" rather
    than as a "CLEC," we soundly reject that position. For the reasons
    described above, the "Competitive Access Provider" services listed
    in DQE CNS's CAP Tariff plainly qualify as "telecommunications
    services" under the Act. Moreover, through its CAP Tariff, DQE CNS
    holds itself out to provide the listed telecommunications services
    indiscriminately to the public, for a fee. Thus, the fact that DQE
    CNS is a "CAP" rather than a "CLEC" provides no lawful basis under
    the Act for NPTC to deny DQE CNS access to NPTC's poles.

[^47]: *See Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, 17 FCC Rcd 16960, 16963-64, at ¶¶
    10-11 (2002) ("*2002 Advanced Services Order*"), *citing
    Southwestern Bell Telephone Company Tariff F.C.C. No. 73*, Order
    Designating Issues for Investigation, 12 FCC Rcd 10231, 10242, at ¶
    20 (1997) ("*SWBT Tariff No. 73 Investigation*"); *Local Exchange
    Carriers' Individual Case Basis DS3 Service Offerings*, Memorandum
    Opinion and Order, 4 FCC Rcd 8634, 8641-42, 8645, at ¶¶ 63-67, 87
    (1989) ("*ICB DS3 Rate Order*"); *Common Carrier Bureau Restates
    Commission Policy on Individual Case Basis Tariff Offerings*, Public
    Notice, 11 FCC Rcd 4001 (1995) ("*ICB Public Notice*"). *See also
    MCI Telecommunications Corp. v. FCC*, 917 F.2d 30, 38 (D.C. Cir.
    1990) (rates arrived at through negotiations between a carrier and
    an individual customer and then made generally available to other
    similarly situated customers do not *per se* violate section 202 of
    the Act if the rates are filed with the FCC as tariffs based upon
    contracts).

[^48]: Reply, Weber Declaration at 1-2, ¶ 5. *See* Complaint, Exhibit 2
    at 22 DQE CNS CAP Tariff, Section 3.4.A ("ICB rates will be offered
    to the Customer in writing and on a non-discriminatory basis. All
    such rates will be submitted to the Pennsylvania Utility Commission
    for approval."). We note that the record also supports the assertion
    by DQE CNS that it is a nascent carrier in NPTC's territory, lacking
    sufficient experience to develop averaged rates. Reply, Weber
    Declaration at 1-2, ¶ 5. *See generally 2002 Advanced Services
    Order*, 17 FCC Rcd at 16963-64, at ¶¶ 10-11; *ICB Public Notice*, 11
    FCC Rcd at 4001-02 (stating that an ICB service offering by a
    dominant carrier may not be unreasonably discriminatory when used as
    a transitional mechanism).

[^49]: DQE CNS's ICB arrangements are described in Section 3.4.A of the
    Tariff as follows: "Arrangements will be developed on a case-by-case
    basis in response to a bona fide special request from a Customer or
    prospective Customer to develop a competitive bid for a service not
    generally available under this tariff. ICB rates will be offered to
    the Customer in writing and on a non-discriminatory basis. All such
    rates will be submitted to the Pennsylvania Utility Commission for
    approval." Complaint, Exhibit 2 at Section 3.4.A.

[^50]: How well DQE CNS meets its obligations as an intrastate
    telecommunications common carrier is a matter for the PaPUC to
    determine. We express no view on either the correct interpretation
    or lawfulness *per se* of DQE CNS's CAP Tariff. We examine its terms
    and conditions in this Order solely for the purpose of determining
    DQE CNS's status as a "telecommunications carrier" entitled to
    access NPTC's poles under section 224.

[^51]: As noted previously, NPTC has adequate recourse at the state
    level if it believes the PaPUC erred either in issuing DQE CNS its
    Certificate of Public Convenience, or in accepting DQE CNS's CAP
    Tariff for filing. *See supra* note 33.

[^52]: 47 U.S.C. § 153(43). *See* Response at 10, ¶ 19.

[^53]: 47 U.S.C. § 153(44). *See* Response at 10, ¶ 19 and 13-14, ¶
    30-36.

[^54]: Complaint, Exhibit 2 at 8, Section 2.2.D. *See* Response at 14, ¶
    36.

[^55]: Complaint, Exhibit 2 at 7, Section 2.1.A.

[^56]: Complaint, Exhibit 2 at 6, Section 1 (emphasis supplied).

[^57]: Complaint, Exhibit 2 at 22.

[^58]: Reply at 5, ¶ 6.

[^59]: *Id.* at 5, ¶ 6 (citing Armstrong Telephone Company --
    Pennsylvania, PA P.U.C. No. 10, Governing the Furnishing of
    Telephone Service in Allegheny, Beaver, and Washington Counties, §
    2.3.5 ("Except as otherwise specifically provided in this tariff,
    the Company does not transmit messages but offers the use of its
    facilities for communications between customers."); NPTC PA P.U.C.
    Tariff No. 12, § 2.1.1 (A) ("The Telephone Company does not
    undertake to transmit messages under this Tariff \....")).

[^60]: *See* Complaint, Exhibit 2 (CAP Tariff) at Page 22, Section 3.2
    (listing as "Other Services:" "point-to-point high-speed internet
    access, network management services, digital point-to-point
    services, as well as redundant ring topology. . ."). *See also*
    Response at 16, ¶ 47. The Act defines "information service" as "the
    offering of a capability for generating, acquiring, storing,
    transforming, processing, retrieving, utilizing, or making available
    information via telecommunications, and includes electronic
    publishing, but does not include any use of such capability for the
    management, control, or operation of a telecommunications system or
    the management of a telecommunications service." 47 U.S.C. §
    153(20).

[^61]: *See* *NTCA v. Gulf Power*, 534 U.S. 327 (holding, in an
    analogous context, that the protections of section 224 continue to
    apply to attachments by cable systems, even if the attachments are
    simultaneously used to provide both cable service and a non-cable
    service, such as high-speed Internet access).

[^62]: *Inquiry Concerning High-Speed Access to the Internet Over Cable
    and Other Facilities, Internet Over Cable Declaratory Ruling,
    Appropriate Regulatory Treatment for Broadband Access to the
    Internet Over Cable Facilities*, Declaratory Ruling and Notice of
    Proposed Rulemaking, 17 FCC Rcd 4798, 4821-23, at ¶¶ 36-38 (2002)
    ("*Cable Modem Declaratory Ruling*"); *Appropriate Framework for
    Broadband Access to the Internet Over Wireline Facilities*,
    *Universal Service Obligations of Broadband Providers, Review of
    Regulatory Requirements for Incumbent LEC Broadband
    Telecommunications Services, Computer III Further Remand
    Proceedings: Bell Operating Company Provision of Enhanced Services;
    1998 Biennial Regulatory Review -- Review of Computer III and ONA
    Safeguards and Requirements, Conditional Petition of the Verizon
    Telephone Companies for Forbearance Under 47 U.S.C. § 160(c) with
    Regard to Broadband Services Provided Via Fiber to the Premises;
    Petition of the Verizon Telephone Companies for Declaratory Ruling,
    or, Alternatively, for Interim Waiver with Regard to Broadband
    Services Provided Via Fiber to the Premises*, Report and Order and
    Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14863-64, at ¶¶
    14-15 (2005) ("*Wireline Broadband Order*").

[^63]: *See*, *e.g.*, *National Cable & Telecommunications Ass'n v.
    Brand X Internet Services*, 125 S.Ct. 2688, 2702-12 (2005) ("*Brand
    X*") (affirming *Cable Modem Declaratory Ruling*, *supra* note 62 );
    *Wireline Broadband Order*, 20 FCC Rcd at 14863-64, ¶¶ 14-15; *Cable
    Modem Declaratory Ruling*, 17 FCC Rcd at 4821-22, ¶¶ 36-38;
    *Universal Service Report to Congress*, 13 FCC Rcd at 11537-39, ¶¶
    76-78.

[^64]: *Wireline Broadband Order*, 20 FCC Rcd at 14911, ¶ 104.

[^65]: *See* *Wireline Broadband Order*, 20 FCC Rcd at 14901, 14909-10,
    ¶¶ 90, 103; *C**able Modem Declaratory Ruling*, 17 FCC Rcd at
    4822-25, ¶¶ 38, 41-43; *Universal Service Report to Congress*, 13
    FCC Rcd at 11520-21, ¶¶ 39-41.

[^66]: *See Wireline Broadband Order*, 20 FCC Rcd at 14909-10, ¶ 103.

[^67]: *See Cable Modem Declaratory Ruling*, 17 FCC Rcd at 4821, ¶ 35;
    *Universal Service Report to Congress*, 13 FCC Rcd at 11530, ¶ 59
    (noting "Congress's direction that the classification of a provider
    should not depend on the type of facilities used \... \[but\] rather
    on the nature of the service being offered to consumers").

[^68]: Complaint, Exhibit 2 at 7.

[^69]: *Id.*, Exhibit 2 at 6 (emphasis supplied).

[^70]: Moreover, by virtue of its classification as an unregulated
    information service, retail Internet access service is not offered
    pursuant to tariff.

[^71]: *Wireline Broadband Order*, 20 FCC Rcd at 14910, ¶ 103.

[^72]: Complaint, Exhibit 1.

[^73]: Response at 15, ¶¶ 40-42.

[^74]: 47 U.S.C. § 224(f) (emphasis supplied).

[^75]: *Id.* at § 224(b) and (c); Complaint at 1-2, ¶ 2; Response at 2,
    ¶ 2. *States That Have Certified That They Regulate Pole
    Attachments*, Public Notice, 7 FCC Rcd 1 (1992).

[^76]: *See* 47 U.S.C. § 152(b). In addition, the legislative history of
    section 224 acknowledges that the statute "does expand the
    Commission's authority over entities not otherwise subject to FCC
    jurisdiction (such as electric power companies) and over practices
    of communications common carriers not otherwise subject to FCC
    regulation (principally the intrastate practices of interstate or
    intrastate telephone companies)." Reply at 3, ¶ 4, *citing* S.Rep.
    No. 95-580 at 15 (1978).

[^77]: Although NPTC failed to articulate any basis for its assertion
    that section 224 affords no pole attachment rights to intrastate
    carriers, we note that a footnote in NPTC's Response contains a
    single, unexplained reference to the definition of "common carrier"
    in section 153(10) of the Act, which provides in part, that a
    "'common carrier' or 'carrier' means any person engaged as a common
    carrier for hire, in *interstate* or foreign communication by wire
    or radio \... except where reference is made to common carriers not
    subject to this Act." 47 U.S.C. § 153(10) (emphasis supplied). *See*
    Response at 15, ¶¶ 40-42 and n.4. We reject any implication that
    this definition of "common carrier" limits the reach of section 224
    to "telecommunications carriers" who operate interstate. First, the
    definition of "telecommunications carrier" (including the related
    definitions of "telecommunications service" and
    "telecommunications") contains no limitation to providers of
    interstate communications. 47 U.S.C. §§ 153(44), (46), (43).
    Moreover, such a restrictive interpretation of the term
    "telecommunications carrier" as used in section 224(f)(1) would
    eviscerate Congress' intent to open *local* telecommunications
    markets to competition through the 1996 Act and would undermine the
    Commission's policy of encouraging facilities-based competitive
    entry. *See*, *e.g.*, *Review of the Section 251 Unbundling
    Obligations of Incumbent Local Exchange Carriers, Implementation of
    the Local Competition Provisions of the Telecommunications Act of
    1996, Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, Report and Order and Order on Remand
    and Further Notice of Proposed Rulemaking, 18 FCC Rcd 16978,
    16983-84, at ¶¶ 1-3 (2003) ("*Triennial Review Order*"), *corrected
    by Triennial Review Order Errata*, 18 FCC Rcd 19020 (2003)
    (subsequent history omitted).

[^78]: The relief granted extends to all poles, ducts, conduits and
    rights-of-way over which NPTC is responsible for acting on
    third-party requests for access, including facilities NTPC manages
    or controls under joint use or sharing agreements.