**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | File No. EB-05-MD-014        |
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| Fiber Technologies Networks,     | ** |                              |
| L.L.C.,                          |    |                              |
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| North Pittsburgh Telephone       | *) |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted: February 23, 2007 Released: February 23, 2007**

By the Chief, Enforcement Bureau:

# introduction

1.  In this Memorandum Opinion and Order, we grant a Complaint[^1] filed
    by Fiber Technologies Networks, L.L.C. ("Fibertech") 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 Fibertech access
    to NPTC's poles for the placement of Fibertech's attachments.[^4]
    Fibertech requests that the Commission grant it immediate access to
    NPTC's poles, and require NPTC to take all actions necessary to
    accommodate Fibertech's access.[^5] For the reasons stated below, we
    grant Fibertech's Complaint and order NPTC to provide Fibertech
    immediately with nondiscriminatory access to NPTC's poles.

# FACTUAL AND REGULATORY background

2.  Fibertech provides facilities-based fiber-optic telecommunications
    capacity and services.[^6] Fibertech holds four Certificates of
    Public Convenience ("Certificates") from the Pennsylvania Public
    Utilities Commission ("PaPUC") to provide "telecommunications
    services to business customers, other carriers and public and
    private institutions."[^7] The Certificates authorize Fibertech to
    "offer, render, furnish, or supply telecommunications services" "to
    the public" "in the Commonwealth of Pennsylvania" as (1) "a Reseller
    of Interexchange Toll Services;"[^8] (2) "a Competitive Access
    Provider;"[^9] and (3) "a Facilities-Based Interexchange
    Carrier."[^10]

3.  Fibertech has filed tariffs with the PaPUC ("Tariffs") offering to
    provide a variety of telecommunications services throughout the
    Commonwealth of Pennsylvania, including, for example: (i) intrastate
    interexchange resale toll services, such as switched and dedicated
    long distance services for business customers; (ii) competitive
    access services, such as trunk-side transport termination, local
    transport, SS7 out-of-band signaling, 800 data base access, and
    dedicated high-speed digital services; and (iii) intrastate
    facilities-based interexchange services, such as interLATA switched
    long-distance service and intraLATA switched long-distance
    service.[^11]

4.  NPTC is a "local exchange carrier" and a "utility" within the
    meaning of section 224(a)(1) of the Act. It provides
    facilities-based, switched access, telecommunications services to
    subscribers in portions of Allegheny, Armstrong, Butler, and
    Westmoreland Counties, Pennsylvania.[^12] 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,"[^13] 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."[^14]

5.  In April and May 2005, Fibertech sought access to NPTC's poles to
    extend into NPTC's service territory a fiber optic network already
    operating elsewhere in Pennsylvania.[^15] Fibertech explained that
    it sought to build in NPTC's service territory a network extension
    of Fibertech's Pittsburgh-area network, enabling Fibertech to
    satisfy the needs of an initial end-user customer as well as "many
    other future customers,"[^16] pursuant to Fibertech's Certificates
    and Tariffs. [^17]

6.  NPTC promptly denied Fibertech's request for access to NPTC's
    poles.[^18] NPTC construed the information supplied by Fibertech as
    showing that Fibertech was planning to (i) construct a private
    network for only one customer rather than a common carriage network
    available to the public, and (ii) offer only dark fiber rather than
    lit fiber. Thus, in NPTC's view, Fibertech was not a
    "telecommunications carrier" with pole access rights under section
    224(f)(1) of the Act. [^19]

7.  On July 8, 2005, Fibertech filed the instant Complaint requesting
    that the Commission grant Fibertech immediate rights of access to
    NPTC's poles.[^20] The key question presented by Fibertech's
    Complaint is whether Fibertech is a "telecommunications carrier"
    with statutory rights of access to NPTC's poles under section
    224(f)(1) of the Act. Answering that question requires examination
    of certain statutory and common law definitions described below.

8.  NPTC must provide Fibertech access to NPTC's poles if Fibertech is a
    "telecommunications carrier" in NPTC's territory.[^21] 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*."[^22] 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 the facilities used."[^23]
    "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."[^24]

9.  In interpreting those statutory definitions, the U.S. Court of
    Appeals for the D.C. Circuit (D.C. Circuit) affirmed the
    Commission's conclusions that (i) the term "telecommunications
    service" "is intended to encompass only telecommunications provided
    on a *common carrier* basis,"[^25] 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."[^26] 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."[^27] Such offering of service
    indiscriminately to the public may be either a wholesale offering to
    other carriers or a retail offering to end users.[^28]

# DISCUSSION

## Fibertech 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 utility's denial of access to
    its poles, 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.[^29]
    Once the complainant establishes a *prima facie* case, the
    respondent utility has the burden of proving that its denial was
    lawful.[^30] Therefore, Fibertech bears an initial burden to
    establish a *prima facie* case that it is a "telecommunications
    carrier" with a right of access to NPTC poles within the meaning of
    the Act. As discussed below, we conclude that Fibertech has met that
    burden by showing that it possesses valid state authorizations to
    provide telecommunications services, and has filed state tariffs
    offering such services to the public.

11. Fibertech has offered proof of its status as a "telecommunications
    carrier" in NPTC's territory by submitting in the record (i) its
    Certificates from the PaPUC authorizing Fibertech to "offer, render,
    furnish, or supply telecommunications services" as a reseller and
    facilities-based carrier of interexchange toll services ("IXC"), and
    as a competitive access provider ("CAP");[^31] and (ii) the
    telecommunications service Tariffs that it has publicly filed with
    the PaPUC pursuant to its authorizations to provide intrastate
    telecommunications services.[^32] We find that the decisions of the
    PaPUC to issue Certificates of Public Convenience authorizing
    Fibertech to provide intrastate "telecommunications services" and to
    allow Fibertech to publish its Tariffs reflect judgments by an
    expert regulatory agency that the services set forth in Fibertech's
    Tariff constitute "telecommunications services" and that Fibertech
    will offer those services for a fee to the public. Such judgments
    suffice to establish a *prima facie* case.

12. NPTC observes that the Pennsylvania statutory provisions defining
    who is a "telecommunications carrier" providing "telecommunications
    service" are not identical to the definitions of those terms
    provided in the Act.[^33] An examination of the Pennsylvania
    definitions, however, reveals that they are, in fact, very similar
    to the federal definitions, although not identical. The applicable
    Pennsylvania statute defines "telecommunications carrier" as "\[a\]n
    entity that provides telecommunications services subject to the
    jurisdiction of the \[PaPUC\]," and defines "telecommunications
    service" as "\[t\]he offering of the transmission of messages or
    communications for a fee to the public."[^34] Like the Act, the
    Pennsylvania statute provides that, to qualify as a
    "telecommunications carrier" providing "telecommunications service,"
    an entity must offer transmission of communications for a fee to the
    public.

13. Recognizing that the Pennsylvania statute provides that a
    "telecommunications carrier" is subject to the jurisdiction of the
    PaPUC, NPTC focuses on the definition of "public utility" in § 102
    of the statute, which identifies entities regulated by the
    PaPUC.[^35] Section 102 states, in pertinent part, that a "Public
    Utility" is "(1) Any person or corporations now or hereafter owning
    or operating in this Commonwealth equipment or facilities for:
    ... (vi) Conveying or transmitting messages or communications ... by
    telephone or telegraph or domestic public land mobile radio service
    ... for the public for compensation."[^36] NPTC argues, based on
    this statutory language, that Pennsylvania law is broader than the
    Act "in that it concerns not only the transmitting of
    communications, but also the conveying of communications (as well as
    'messages')," and it is "narrower in that it applies only to
    entities which own or operate equipment or facilities."[^37]

14. NPTC has not shown, however, that these alleged distinctions
    constitute material differences between the definitions of
    "telecommunications carrier" and "telecommunications service"
    provided under Pennsylvania and federal law; and we discern none.
    Moreover, NPTC provides no reason to conclude, based on these
    alleged definitional distinctions, that Fibertech does not qualify
    as a "telecommunications carrier" under the Act, even though
    Fibertech qualifies as a "telecommunications carrier" and "public
    utility" authorized to provide "telecommunications services" under
    Pennsylvania law. For these reasons, we reject NPTC's suggestion
    that Fibertech is not entitled to rely on the decisions of the PaPUC
    to make a *prima facie* showing that Fibertech is a
    "telecommunications carrier" with pole attachment rights under
    section 224(f) under the Act.[^38]

15. Our reliance on the PaPUC's decisions in assessing whether Fibertech
    has made a *prima facie* showing of its status as a
    "telecommunications carrier" 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 establishing pole
    attachment rights. 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.[^39] Similarly, in *Texas Util. Elec. Co v.
    FCC*, the D.C. Circuit upheld a Commission ruling that section 224
    of the Act confers jurisdiction over those pole attachments within
    the franchise service area defined by the local franchise
    authority.[^40] 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 pole
    access under section 224(f) of the Act.[^41]

16. Based on the foregoing, we conclude that Fibertech's possession of
    valid state authorizations to provide telecommunications services,
    together with its associated state Tariffs, constitute presumptive
    evidence of its status as a "telecommunications carrier" within the
    meaning of the Act. Therefore, in our view, Fibertech 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.

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

17. Because Fibertech has established a *prima facie* case, the burden
    shifts to NPTC to demonstrate that its denial of access was
    lawful.[^42] NPTC cites several factors that purportedly show that
    Fibertech does not qualify as a "telecommunications carrier" with a
    right to attach to NPTC's poles under section 224 of the Act.[^43]
    We have examined each of the factors offered by NPTC and conclude,
    for the reasons set forth below, that NPTC has failed to show that
    Fibertech is not a "telecommunications carrier" under the Act, and
    thus it cannot justify its denial of access on that basis.

### Pursuant to its intrastate CAP and IXC Tariffs, Fibertech holds itself out directly to the public to provide telecommunications for a fee in NPTC's service territory

18. NPTC defends its denial of access on the ground that mere possession
    of authorizations to provide telecommunications service, and the
    filing of tariffs pursuant thereto, do not establish that Fibertech
    is *acting* as a "telecommunications carrier" in NPTC's service
    territory.[^44] NPTC seems to suggest that Fibertech cannot qualify
    as a "telecommunications carrier" unless and until it is actually
    supplying telecommunications service to at least one customer in
    NPTC's territory. NPTC also contends that provision of dark fiber is
    not a "telecommunications service," so Fibertech cannot rely on its
    provision of dark fiber to qualify as a "telecommunications
    carrier." [^45] We reject both of these assertions.

19. First, we reject NPTC's contention that Fibertech must show that it
    is actually supplying telecommunications service to a customer in
    NPTC's territory to qualify as a "telecommunications carrier" with a
    right of attachment under section 224 of the Act. The Act defines
    "telecommunications carrier" as any "*provider* of
    telecommunications services," and defines "telecommunications
    service" as the indiscriminate "*offering* of
    telecommunications."[^46] These two definitions, read together,
    indicate that a "telecommunications carrier" is a carrier that
    *offers* *to provide* telecommunications on a common carrier basis,
    regardless of whether the carrier has actually supplied such service
    to a customer in the past. To hold otherwise would lead to the
    anomalous, Catch-22 result that an entity could not establish its
    identity as a "telecommunications carrier" for purposes of obtaining
    access to poles under section 224(f)(1) unless it was already
    supplying telecommunications service to the public, which might not
    even be possible without first obtaining access to poles.[^47]

20. Turning to the record before us, we find that Fibertech is, in fact,
    offering to provide telecommunications service in NPTC's territory
    within the meaning of the Act. Specifically, Fibertech's PaPUC
    authorizations to provide telecommunications services as a CAP and
    an IXC on a statewide basis, together with its Tariffs, establish
    that Fibertech *offers to provide* a variety of telecommunication
    services to the public for a fee in NPTC's territory.[^48] Indeed,
    the very term "tariff" means an offering to provide service;[^49]
    and the text of Fibertech's Tariffs reflects that meaning. For
    example, Fibertech's CAP Tariff and Switched Access Tariff each set
    forth "the service offerings, rates, terms and conditions applicable
    to the furnishing of ... services for connection to communications
    facilities of \[Fibertech\] to customers."[^50] Therefore, NPTC's
    contention that Fibertech is not a "telecommunications carrier"
    because Fibertech is not yet actually supplying service to any
    customers in NPTC's territory lacks merit.

21. NPTC also asserts, without support, that Fibertech intends to serve
    only a single customer in NPTC's territory, which, in NPTC's view,
    disqualifies Fibertech as a "telecommunications carrier."[^51]
    NPTC's assertions are contradicted by statements from Fibertech's
    representatives affirming that (i) the network segment Fibertech
    seeks to provide to its initial customer will be part of a wider
    network that Fibertech plans to use to serve many future
    customers[^52] and (ii) Fibertech intends to provide a variety of
    telecommunications services in NPTC's service area, including "lit"
    long distance and local dedicated transport service.[^53] Based on
    this record, we find that NPTC's unsubstantiated suppositions about
    Fibertech's intentions are insufficient to rebut Fibertech's *prima
    facie* showing of its status as a telecommunications carrier.

22. We also find unavailing NPTC's attempt to justify its denial of
    access based on Fibertech's plans to provide "dark fiber" facilities
    to its initial customer in NPTC's service area.[^54] According to
    NPTC, dark fiber does not constitute a "telecommunications service"
    under the Act,[^55] and therefore Fibertech has no right to attach
    to NPTC's poles for the purpose of providing dark fiber. This
    argument overlooks the fact that Fibertech, through its Tariffs,
    offers to provide a variety of "lit" services in NPTC's area that
    indisputably qualify as "telecommunications services" under the Act.
    Thus, regardless of the status of dark fiber under the Act -- an
    issue we need not and do not address here -- Fibertech has
    established that it qualifies as a "telecommunications carrier" with
    a right of access under section 224(f) based on these "lit" service
    offerings.

23. This conclusion is supported by the Supreme Court's decision in
    *NCTA v. Gulf Power*, which held, 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.[^56] The Court reasoned that an attachment by 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."[^57] Likewise, Fibertech,
    having established its status as a telecommunications carrier with a
    right of access under section 224(f) based on its lit service
    offering, would not lose that status by offering
    non-telecommunications services over the same attachment. As long as
    Fibertech is offering to provide at least one telecommunications
    service via its pole attachments, its additional offering of an
    alleged non-telecommunications service has no impact on its pole
    attachment rights.

### Fibertech offers to provide "telecommunications" rather than "information" services pursuant to its intrastate Tariffs

24. NPTC also claims that denial of access to its poles is justified
    because Fibertech intends to provide to its initial customer "an
    information (or data transmission) service rather than what the FCC
    views as a 'telecommunications service.'"[^58] In support, NPTC
    states that the Commission has deemed Internet access an
    "information service" rather than a "telecommunications
    service."[^59] As explained below, we reject this argument because
    NPTC has failed to show that Fibertech offers an information service
    in NPTC's territory.

25. 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.[^60] 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.[^61] The Commission has
    also recognized that the "telecommunications" component of an
    Internet access service can be "part and parcel"[^62] 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.[^63] 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.[^64]
    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.[^65] 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?

26. Applying that standard here, we find that the services that
    Fibertech offers through its PaPUC Tariffs are "telecommunications
    services," not "information services." NPTC has not identified, and
    we cannot independently discern, any provision in any of Fibertech's
    various Tariffs that offers to provide the ISP portion of Internet
    access service, *i.e.*, data storage, manipulation, processing, and
    retrieval. Instead, in its applicable Tariffs, Fibertech offers only
    transparent transmission paths, with no changes to the form or
    content of the transmitted information in NPTC's service territory.
    Specifically, Fibertech offers to provide 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.[^66] 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."[^67] Accordingly, Fibertech's
    provision of tariffed service to its initial customer provides no
    basis for NPTC's assertion that Fibertech is not a
    "telecommunications carrier" with pole access rights under section
    224(f)(1) of the Act.

## NPTC\'s Request to Dismiss the Complaint on Procedural Grounds Lacks Merit

27. Finally, NPTC argues that the Complaint, filed on July 8, 2005,
    should be dismissed as defective because it "fails to overcome the
    reasons given for dismissal" of the original complaint that
    Fibertech's filed on the June 24, 2005.[^68] Staff had dismissed the
    original complaint without prejudice on procedural grounds, citing
    Fibertech's failure to comply fully with the Commission's pleading
    rules.[^69] When Fibertech filed its revised Complaint on July 8,
    2005, staff found it to be adequate and accepted it for filing.
    Staff subsequently allowed Fibertech to supplement its pleadings
    with further documentation, and directed both parties to provide
    additional briefing of certain legal issues.[^70]

28. We find that dismissal of the re-filed complaint is unwarranted
    here. Although Fibertech should have included with its Complaint
    *all* of the additional documentation it reasonably believed was
    necessary to support its factual allegations, NPTC has shown
    absolutely no prejudice by Fibertech's later inclusion of these
    materials in the record. We therefore deny NPTC's request to dismiss
    the Complaint for failure to comply with the Commission's rules.

# Conclusion

29. For the reasons stated above, we find that (i) Fibertech has carried
    its burden to establish a *prima facie* case demonstrating its
    entitlement to attach to poles, ducts, conduits and rights-of-way
    owned or controlled by NPTC, and (ii) NPTC has failed to carry its
    burden of proof that denial of access was lawful on the alleged
    ground that Fibertech is not a "telecommunications carrier" offering
    to provide "telecommunications services," as those terms are defined
    in the Act. We therefore find that Fibertech is a
    "telecommunications carrier" entitled to pole attachments under
    section 224(f), and grant the relief requested in the Complaint.

# ordering clauseS

30. 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 0.111 and 1.1401-1.1418 of the
    Commission's rules, 47 C.F.R. §§ 0.111 and §§ 1.1401-1.1418, that
    the Complaint IS GRANTED.

31. 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 0.111 and 1.1401-1.1418 of the
    Commission\'s Rules, 47 C.F.R. §§ 0.111 and 1.1401-1.1418, that, to
    the extent that Fibertech continues to seek access to NPTC's
    facilities, Fibertech and NPTC SHALL PROMPTLY NEGOTIATE IN GOOD
    FAITH nondiscriminatory terms and conditions of access and maximum
    just and reasonable rates for pole attachments in accordance with 47
    U.S.C. § 224 and the Commission\'s rules.

32. 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 0.111 and 1.1401-1.1418 of the
    Commission\'s Rules, 47 C.F.R. §§ 0.111 and 1.1401-1.1418, that, to
    the extent that Fibertech continues to seek access to NPTC's
    facilities, NPTC SHALL: (i) immediately commence survey and
    engineering work on the poles in NPTC's service area to which
    Fibertech seeks to attach; (ii) grant access to NPTC's poles without
    a formal agreement in the event NPTC fails to complete a just and
    reasonable pole attachment agreement within 60 days from the date of
    this Order; and (iii) commence make-ready/facilities arrangements no
    later than 15 days from the date of this Order.[^71]

    FEDERAL COMMUNICATIONS COMMISSION

    Kris Anne Monteith

    Chief, Enforcement Bureau

[^1]: Complaint of Fiber Technologies Networks, LLC, File No.
    EB-05-MD-014 (filed Jul. 8, 2005) ("Complaint").

[^2]: 47 U.S.C. § 224.

[^3]: 47 C.F.R. §§ 1.1401-1.1418.

[^4]: *See*, *e.g.*, Complaint at 5, ¶ 19 and 7, ¶ 29.

[^5]: Complaint at 8-9, ¶ 34.

[^6]: *See*, *e.g.*, Complaint at 1, ¶ 2; Response to Complaint filed by
    NPTC, File No. EB-05-MD-014 (filed Aug. 10, 2005) ("Response") at 1,
    ¶ 2.

[^7]: Order of the PaPUC dated September 28, 2001 approving Fibertech's
    certification applications in PaPUC Docket A-311101, A-311101 F0002,
    A-311101 F0003, and A-311101 F0004 ("*PaPUC Fibertech Order*") at 2,
    attached to Letter dated October 25, 2005 from J.D. Thomas, Counsel
    for Fibertech, to Marlene Dortch, Federal Communications Commission,
    Office of the Secretary, File No. EB-05-MD-014 ("Fibertech October
    25 Letter"). *See* Complaint at 4-5, ¶ 17; Response at 1, ¶ 2 n.1;
    7-8, ¶ 17. *See also* Certificates of Public Convenience granted by
    the PaPUC ("Certificate A-311101," "Certificate A-311101 F0002,"
    "Certificate A-311101 F0003,"), attached to Fibertech October 25
    Letter, and ("Certificate A-311101 F0004"), attached to Letter dated
    August 15, 2006 from Genevieve D. Sapir to Marlene H. Dortch,
    Secretary, Federal Communications Commission, File No. EB-MD-014
    ("Fibertech Aug. 15 Letter").

[^8]: Certificate A-311101, attached to Fibertech October 25 Letter.

[^9]: Certificate A-311101 F0003, attached to Fibertech October 25
    Letter.

[^10]: Certificate A-311101 F0004, attached to Fibertech Aug. 15 Letter.
    Fibertech has also received a Certificate from the PaPUC authorizing
    it to "offer, render, furnish, or supply telecommunications
    services" as a "Reseller and Facilities-Based Competitive Local
    Exchange Carrier to the public within the service territory of
    Verizon Pennsylvania, Inc." Certificate A-311101 F0002, attached to
    Fibertech October 25 Letter.

[^11]: *See* Letter dated November 30, 2005 from J.D. Thomas, David L.
    Sieradzki, Genevieve D. Sapir, Counsel for Fibertech, to Barbara
    Esbin, Market Disputes Resolution Division, Enforcement Bureau, File
    No. EB-05-MD-014 ("Fibertech Nov. 30 Letter"), attaching Fibertech's
    PaPUC Tariffs and a Declaration of Frank Chiaino, Executive Vice
    President and Chief Operating Officer of Fibertech Networks,
    ("Chiaino Declaration"), which describes Fibertech's Tariff
    offerings at 1-3, ¶¶ 2-5. The Tariffs attached to the Fibertech Nov.
    30 Letter include Fiber Technologies Networks, L.L.C., Reseller of
    Interexchange Toll Services Tariff, PA P.U.C. No. 1, Effective June
    19, 2002 ("IXC Reseller Tariff"); Fiber Technologies Networks,
    L.L.C., Competitive Access Tariff, Supplement No. 4 to PA P.U.C. No.
    3, Effective September 30, 2005 (revising PA P.U.C. No. 3, Effective
    June 19, 2002) ("CAP Tariff"); Fiber Technologies Networks, L.L.C.,
    Facilities-Based Interexchange Toll Services Tariff, Supplement No.
    1 to PA P.U.C. No. 4, Effective September 30, 2005 (revising PA
    P.U.C. No. 4, Effective June 19, 2002) ("IXC Tariff"); and Fiber
    Technologies Networks, L.L.C., Switched Access Service for
    Connection to Communications Facilities Tariff, PA P.U.C. No. 5,
    Effective June 19, 2002 ("Switched Access Tariff"). *See*
    Complainant's Reply File No. EB-05-MD-014 (filed Aug. 30, 2005)
    ("Reply") at 9-10; Letter dated October 6, 2005 from J.D. Thomas and
    Genevieve Sapir, to Marlene Dortch, Federal Communications
    Commission, Office of the Secretary, File No. EB-05-MD-014 at 1,
    attaching Declaration of James Baase, Vice President, Engineering,
    of Fibertech Networks, LLC, at 1, ¶ 2.

[^12]: *See*, *e.g*., Complaint at 1, ¶ 3; Response at 2, ¶ 3.

[^13]: 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 Ass'n,
    Inc. v. Gulf Power Co.*, 534 U.S. 327 (2002) ("*NCTA v. Gulf
    Power*").

[^14]: 47 U.S.C. § 224(f)(2).

[^15]: Complaint at 3, ¶ 10; Exhibit 1, Letter dated April 11, 2005 from
    Julie S. Adams, Director of Regulatory Affairs and Compliance,
    Fibertech to Mr. Kevin Albaugh, Vice President Regulatory Affairs,
    NPTC ("Fibertech April 11 Letter") and Exhibit 3, Letter dated May
    5, 2005 from Charles B. Stockdale, Vice President and Corporate
    Counsel, Fibertech to Mr. Kevin Albaugh, Vice President Regulatory
    Affairs, NPTC ("Fibertech May 5 Letter") at 1; Response at 4, ¶ 10.

[^16]: Fibertech May 5 Letter at 1. *See* Fibertech April 11 Letter at
    1.

[^17]: Fibertech April 11 Letter at 1; Fibertech May 5 Letter at 1.

[^18]: Complaint at 3, ¶ 11 and 4, ¶ 13; Exhibit 2, Letter dated May 4,
    2005 from Kevin J. Albaugh, Vice President Regulatory Affairs, NPTC,
    to Julie S. Adams, Director of Regulatory Affairs and Compliance,
    Fibertech ("NPTC May 4 Letter") (seeking additional information
    about Fibertech's attachment request); Exhibit 4, Letter dated May
    25, 2005 from John A. Alzamora, Counsel to NPTC to Charles B.
    Stockdale, Vice President and General Counsel, Fibertech ("NPTC May
    25 Letter") at 1-4 (denying attachment request); Response at 4-5, ¶
    11.

[^19]: NPTC May 4 Letter at 1; NPTC May 25 Letter at 1-4.

[^20]: *See*, *e.g.*, Complaint at 8-9, ¶ 34. Specifically, Fibertech
    seeks an order, *inter alia*, requiring NPTC to: (1) immediately
    commence survey and engineering work on the poles in NPTC's service
    area to which Fibertech seeks to attach; (2) immediately commence
    good-faith negotiations for a pole attachment agreement, with a
    commitment to execute a new pole attachment agreement no later than
    30 days from the date of such order; (3) grant access to NPTC's
    poles without a formal agreement in the event NPTC fails to complete
    a just and reasonable pole attachment agreement within the 30-day
    time period; and (4) commence make-ready/facilities arrangements no
    later than 15 days from the date of such order. Complaint at 9, ¶
    34.

[^21]: 47 U.S.C. § 224(f)(1).

[^22]: 47 U.S.C. § 153(44) (emphases added).

[^23]: 47 U.S.C. § 153(46) (emphasis added).

[^24]: 47 U.S.C. § 153(43).

[^25]: *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)).

[^26]: *Vitelco*, 198 F.3d at 924-27. *See, e.g.*, *Cable & W ireless
    plc,* Memorandum Opinion and Order, 12 FCC Rcd 8516, 8521-23, ¶¶
    12-17 (1997); *Federal-State Joint Board on Universal Service,*
    Report and Order**,** 12 FCC Rcd 8776, 9177-78, ¶ 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).

[^27]: *Southwestern Bell Telephone Co. v. FCC*, 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)). *See*, *e.g.*, *National Ass\'n of
    Regulatory Util. Comm\'rs v. FCC*, 525 F.2d 630 (D.C. Cir. 1976),
    *cert. denied*, 425 U.S. 992 (1976).

[^28]: *See, e.g.*, *Federal-State Joint Board on Universal Service*,
    Report to Congress, 13 FCC Rcd 11501, 11556, ¶ 115 (1998)
    ("*Universal Service Report to Congress*"); *Universal Service
    Order*, 12 FCC Rcd at 9177-78, ¶ 785 (holding that "\[c\]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).

[^29]: 47 C.F.R. § 1.1409(b).

[^30]: 47 C.F.R. § 1.1409(b).

[^31]: Certificate A-311101 and Certificate A-311101 F0003, attached to
    Fibertech October 25 Letter; Certificate A-311101 F0004, attached to
    Fibertech Aug. 15 Letter.

[^32]: IXC Reseller Tariff; CAP Tariff; IXC Tariff; Switched Access
    Tariff, attached to Fibertech October 25 Letter; Complaint at 3, ¶
    10; Fibertech April 11 Letter at 1; Fibertech Nov. 30 Letter
    attaching Fibertech's PaPUC Tariffs.

[^33]: *See* Letter dated December 15, 2005 from John Alzamora, Counsel
    for NPTC, to Barbara Esbin, Market Disputes Resolution Division,
    Enforcement Bureau, File No. EB-05-MD-014 ("NPTC Dec. 15 Letter") at
    4-6 (citing 66 P.C.S.A. § 3012).

[^34]: 66 P.C.S.A. § 3012. *Compare with* 47 U.S.C. §§ 153(44) (defining
    "telecommunications carrier," in pertinent part, as "any provider of
    telecommunications services ... ") and 153(46) (defining
    "telecommunications service" 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").

[^35]: *See* NPTC Dec. 15 Letter at 4-6 (citing 66 P.C.S.A. § 102).
    *See* *also* 66 P.C.S.A. §§ 1101, 1102.

[^36]: *See* 66 P.C.S.A. § 102.

[^37]: NPTC Dec. 15 Letter at 4-5.

[^38]: We leave open the possibility that a state may define either
    "telecommunications carrier" or "telecommunications service" in a
    manner flatly inconsistent with the definitions contained in the
    Act, such that an entity could obtain state certification and file
    state tariffs, yet not meet the definitions contained in sections
    153(44) and 153(46) of the Act. Similarly, there may be instances
    where an entity could be certificated to provide telecommunications
    services only in some, but not all, portions of a state, such that
    additional evidence of its status would be required to demonstrate a
    right of attachment in those non-certificated portions of the state.
    Neither situation, however, is presented here.

[^39]: *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) as 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).

[^40]: *Texas Util. Elec. Co v. FCC*, 997 F.2d 925, 934-35 (D.C. Cir.
    1993).

[^41]: Moreover, NPTC has adequate recourse at the state level if it
    believes the PaPUC erred either in issuing Fibertech its
    Certificates, or in accepting Fibertech's various Tariffs for
    filing. *See* Fibertech Oct. 25 Letter, attaching *PaPUC Fibertech
    Order* at 3 ("The Applicant complied with Section 5.14 of our
    regulations, 52 Pa. Code § 5.14, relating to applications requiring
    notice. No Protests were filed and 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).

[^42]: 47 C.F.R. § 1.1409(b).

[^43]: *See, e.g.*, Response at 1-2, 4-5, 6-8, 11-13, ¶¶ 2, 11, 13, 16,
    17, 36, 38-40; NPTC Dec. 15 Letter at 2, 7-8; NPTC May 25 Letter at
    1-4.

[^44]: Response at 12-13, ¶ 39; NPTC Dec. 15 Letter at 2.

[^45]: *See* Response at 7, ¶ 17; 12-13, ¶¶ 39-40; NPTC May 25 Letter at
    3; NPTC Dec. 15 Letter at 1-2; 7-8.

[^46]: 47 U.S.C. §§ 153(44) and (46) (emphases supplied).

[^47]: In addition, such a holding would be inconsistent with the
    Commission's policy of encouraging competition and infrastructure
    investment and deployment in broadband markets. *See*, *e.g.*,
    *Review of the Section 251 Unbundling* *Obligations of Incumbent
    Local Exchange Carriers*, Order on Reconsideration, 19 FCC Rcd 20293
    (2004); *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
    (2005) ("*Wireline Broadband Order*"), *appeal pending* *sub nom.*
    *Time Warner Telecom v. FCC*, No. 05-4769 (and consolidated cases)
    (3^rd^ Cir. filed Oct. 26, 2005).

[^48]: As noted above, these telecommunications services include, for
    example, switched and dedicated long distance services for business
    customers; competitive access services, such as trunk-side transport
    termination, and local transport; and interLATA and intraLATA
    switched long-distance service. *See* Section II ¶ 3 *supra*. We
    also reject NPTC's further suggestion that providers of competitive
    access services do not qualify as telecommunications carriers with
    pole attachment rights under section 224. *See* Response at 13, ¶
    40; NPTC May 25 Letter at 3 (arguing that "Fibertech's purpose in
    attaching to NPTC poles is not to act as a CLEC or an IXC," and
    suggesting that only CLECs and IXCs have pole attachment rights).
    NPTC's premise is clearly erroneous, as competitive access services
    are, in fact, "telecommunications services" under the Act. *See,
    e.g.*, 47 U.S.C. § 153(16) (defining "exchange access" as "the
    offering of access to telephone exchange services or facilities for
    the purpose of the origination or termination of telephone toll
    services."); *Tariff Filing Requirements for Nondominant Common
    Carriers*, Memorandum Opinion and Order, 8 FCC Rcd 6752, 6754, ¶ 13
    (1993), *vacated on other grounds, Southwestern Bell Corp. v. FCC*,
    43 F.3d 1515 (D.C. Cir. 1995) (recognizing that "CAPs are
    nondominant carriers \[*i.e*., common carriers\] because they have
    not been previously declared dominant").

[^49]: *See*, *e.g.*, *Integrated Services Digital Networks*, First
    Report, 98 FCC 2d 249, 278, n.77 (1984) ("A tariff for interstate
    service is a public offer to provide service ... ."); Harry Newton,
    *Newton\'s Telecom Dictionary* 888 (22nd ed. 2006) (defining
    "tariff" in relevant part as a "public document \[that\] details
    services, equipment and pricing *offered by* the telephone company
    (a common carrier) to all potential customers") (emphasis added).

[^50]: *See* CAP Tariff Section 1, 3^rd^ Revised page 1; Switched Access
    Tariff, Original Title Page. Similar language describing the
    carrier's undertaking to offer service in accordance with the terms
    of its tariffs is contained in Fibertech's IXC Tariff at Section
    2.1.1, Original page 1, and its IXC Reseller Tariff at Section
    2.1.1, Original page 1.

[^51]: *See* Response at 13, ¶ 40; NPTC May 25 Letter at 1-4.

[^52]: Fibertech May 5 Letter at 1.

[^53]: Chiaino Declaration at 2, ¶¶ 2-3.

[^54]: *See, e.g.,* NPTC May 25 Letter at 1-4; Response at 6-8, 12-13 ¶¶
    13, 16-17, 40; NPTC Dec. 15 Letter at 1, 7-8.

[^55]: *See*, *e.g.,* NPTC May 25 Letter at 1-4; Response at 6-8, 12-13
    ¶¶ 13, 16-17, 40; NPTC Dec. 15 Letter at 1, 7-8.

[^56]: *NCTA v. Gulf Power, supra* note 13*.*

[^57]: *Id.* at 333. *See generally Heritage Cablevision Assocs. of
    Dallas. L.P. v. Texas Util. Elec. Co*, Memorandum Opinion & Order, 6
    FCC Rcd 7099, 7104 ¶ 23 (1991), *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 its attachments are used to provide video and
    non-video services on a commingled basis).

[^58]: NPTC May 25 Letter at 3, (citing *Deployment of Wireline Services
    Offering Advanced Telecommunications Capability*, Order on Remand,
    15 FCC Rcd 385, 401, ¶ 34 (1999) and *In the Matter of Federal-State
    Joint Board on Universal Service*, Report to Congress, 13 FCC Rcd
    11501, 11512-14, ¶¶ 23-27 (1998) ("*Universal Service Report*"));
    *See* Response at 12, ¶ 38.

[^59]: Response at 7, ¶ 16; NPTC May 25 Letter at 3. 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 any 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).

[^60]: *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, ¶¶ 36-38 (2002)
    ("*Cable Modem Declaratory Ruling*"); *Wireline Broadband Order*, 20
    FCC Rcd at 14863-64, ¶¶ 14-15.

[^61]: *See, e.g.*, *National Cable & Telecommunications Ass'n v. Brand
    X Internet Services*, 545 U.S. 967, 125 S.Ct. 2688, 2702-12 (2005)
    ("*Brand X*") (affirming *Cable Modem Declaratory Ruling*);
    *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 11537-40, ¶¶
    76-78.

[^62]: *Wireline Broadband Order*, 20 FCC Rcd at 14910-11, ¶ 104.

[^63]: *See* *Wireline Broadband Order*, 20 FCC Rcd at 14901, 14909-10,
    ¶¶ 90, 103; *Cable 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.

[^64]: *See Wireline Broadband Order*, 20 FCC Rcd at 14909-10, ¶ 103.

[^65]: *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 customers").

[^66]: *See*, *e.g.*, CAP Tariff at Section 3.4, 1^st^ Revised Page 14,
    Original Page 15, 1^st^ Revised Page 16 (offering "Dedicated
    High-Speed Digital Service" configured as a "point-to-point service"
    connecting two customer-designated premises at varying speeds,
    including DS-3, OC-3, OC-12, OC-48, OC-192 services); Switched
    Access Tariff at Section 3.1 (offering "a two-point communications
    path between a Customer's premises (or a collocated interconnection
    location) and \[Fibertech's\] network").

[^67]: *Wireline Broadband Order*, 20 FCC Rcd at 14910, ¶ 103.

[^68]: Response at 13-14, ¶¶ 41-45.

[^69]: Letter Ruling dated July 6, 2005 from Alexander P. Starr, Chief,
    Market Disputes Resolution Division, Enforcement Bureau, to J.D.
    Thomas, Genevieve D. Sapir, Counsel for Complainant, and John A.
    Alzamora, Counsel for Respondent, File No. EB-05-MD-012 at 2,
    (citing 47 C.F.R. § 1.1404(m) & (l)).

[^70]: *See* Letter Ruling dated November 15, 2005 from Barbara Esbin,
    Market Disputes Resolution Division, Enforcement Bureau, to J.D.
    Thomas, Genevieve D. Sapir, Counsel for Complainant, and Kenneth E.
    Hardman and John A. Alzamora, Counsel for Respondent, File No.
    EB-05-MD-014 (directing both parties to provide additional briefing
    of certain legal issues; directing Fibertech to provide all tariff
    filings referenced in the Complaint; and granting Fibertech's
    request to file a declaration in support of its Reply, its four
    Certificates, and the *PaPUC Fibertech Order*).

[^71]: 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. *See* Complaint
    at 8-9, ¶ 34.