Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

Knology, Inc. )

Petitioner )

) File No. PA 00-007

v\. )

)

Georgia Power Company, )

Respondent. )

# ORDER GRANTING TEMPORARY STAY

**Adopted: November 16, 2001 Released: November 21, 2001**

By the Deputy Chief, Cable Services Bureau:

1.  On October 31, 2000, the above-captioned Petitioner filed a petition
    for temporary stay (\"Petition\") with the Federal Communications
    Commission (\"Commission\") against the above-captioned Respondent
    pursuant to Section 224 of the Communications Act of 1934, *as
    amended* (\"Pole Attachment Act\")[^1] and Section 1.1403 (d) of the
    Commission\'s Rules.[^2] The Petition was filed in response to
    notice from Respondent that it was increasing Petitioner's pole
    attachment rate from an annual per pole rate of approximately \$5.00
    to \$53.35. In this Order, we hold the Petition in abeyance, pending
    a status report by the parties concerning their negotiation in good
    faith of a new pole attachment rate agreement in accordance with the
    Commission's rules.

2\. Pursuant to the Pole Attachment Act, the Commission has the
authority to regulate the rates, terms, and conditions for attachments
by a cable television system or provider of telecommunications service
to a pole, duct, conduit, or right-of-way owned or controlled by a
utility. The Commission shall provide that such rates, terms and
conditions are just and reasonable.[^3] The Pole Attachment Act grants
the Commission general authority to regulate such rates, terms and
conditions, except where such matters are regulated by a State.[^4] The
Commission is authorized to adopt procedures necessary to hear and to
resolve complaints concerning such rates, terms, and conditions.[^5] The
Telecommunications Act of 1996 (\"1996 Act\"),[^6] expanded the scope of
Section 224 by applying the pole attachment rate formula to rates for
pole attachments made by telecommunications carriers[^7] in addition to
cable systems,[^8] until a separate methodology[^9] became effective for
telecommunications carriers after February 8, 2001.[^10] A utility must
charge a pole attachment rate that does not exceed the maximum amount
permitted by the formula developed by the Commission. We have concluded
that \"where onerous terms or conditions are found to exist on the basis
of the evidence, a cable company may be entitled to a rate adjustment or
the term or condition may be invalidated.\"[^11]

3.  Section 1.1403 (d) of the Commission's rules provides that a cable
    television system operator or telecommunications carrier may file a
    petition for temporary stay within 15 days of receipt of a notice of
    a rate increase. In our First Report and Order,[^12] we stated that,
    when a utility is about to take some action that is likely to cause
    irreparable harm to an attacher, we believe an attacher should have
    access to some form of temporary relief pending resolution by the
    Commission of the underlying dispute. We anticipated that such a
    petition would be filed only in \"those exceptional circumstances
    where the Commission's authority to order a refund or other
    corrective action after a final determination on the lawfulness of a
    rate increase or other change would not make the \[attacher\]
    whole.\"[^13]

4\. By letter dated October 11, 2000, Respondent announced to Petitioner
that it was increasing its annual per pole attachment rate to
\$53.35.[^14] In its Petition, Petitioner states that it is a cable
operator and telecommunications carrier with attachments on poles owned
by Respondent. Petitioner states that previously it was charged
approximately \$5.00 for its pole attachments. Petitioner states that it
will suffer financial hardship and service disruption if relief from
paying the new rate is not granted. Petitioner asserts that Respondent
did not follow the Commission's rules when establishing its pole
attachment rate.

5\. Respondent asserts a stay will violate Respondent's right to just
compensation under the Fifth Amendment to the United States
Constitution. Because the just and reasonable rate calculated using the
pole attachment formula satisfies the constitutional requirement of just
compensation,[^15] we find that application of the formula will not
result in a taking without just compensation. Respondent also asserts
that Petitioner failed to meets its burden under Section 1.1403 (d) to
establish irreparable harm or cessation of service. On the other hand,
Respondent makes no attempt to assert that it made any effort to
negotiate the new rate or that it followed the Commission's rate formula
to calculate its increase. Our rules require that the parties seek first
to resolve their differences by negotiation.[^16] When the parties to a
pole attachment agreement cannot negotiate a reasonable rate, we apply
our pole attachment rate formula using public data when available.

6\. We find that Respondent has not attempted to negotiate a pole
attachment rate in accordance with the Pole Attachment Act and the
Commission's rules and formulas. The purpose of the Pole Attachment Act,
to prevent the assessment of unjust and unreasonable rents on attachers,
would be frustrated if utilities' charged whatever rate they wanted
without using the Commission's formula as a guide to what is just and
reasonable. Petitioner has not filed a complaint pursuant to the pole
attachment rules[^17] and neither party has provided the Commission with
its current status. We recently determined the appropriate attachment
rates for attachment to Respondent\'s poles in a separate case.[^18] We
will hold the Petition in abeyance pending a report from each party
within 60 days of the release of this Order. The parties will attempt to
resolve their dispute using the information provided in *Teleport v.
Georgia Power Company.*[^19] Both parties will provide the Commission
with a status report on those negotiations and any new relevant facts
and information concerning their dispute.

7\. Accordingly, IT IS ORDERED, pursuant to Sections 0.321 and 1.1403 of
the Commission\'s rules, 47 C.F.R. §§ 0.321 and 1.1403, that the
Petition for Temporary Stay IS HELD IN ABEYANCE PENDING FURTHER ACTION
BY THE COMMISSION.

8\. IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1401-1.1418
of the Commission\'s rules, 47 C.F.R. §§ 0.321 and 1.1401-1.1418, that
Respondent shall continue to GRANT ACCESS to Complainant pending the
negotiation in good faith of a new agreement.

9\. IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1401-1.1418
of the Commission\'s rules, 47 C.F.R. §§ 0.321 and 1.1401-1.1418, that
Petitioner and Respondent SHALL NEGOTIATE IN GOOD FAITH, a new pole
attachment agreement with a just and reasonable annual pole attachment
rate, in accordance with the Commission's rules and *Teleport v. Georgia
Power Company*.

10\. IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1401-1.1418
of the Commission\'s rules, 47 C.F.R. §§ 0.321 and 1.1401-1.1418, that
Petitioner and Respondent SHALL file a report with the Chief, Cable
Services Bureau, within 60 days of the date this Order is released,
indicating the result and/or progress of their negotiations and any new
relevant facts and information concerning their dispute.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson, Deputy Chief

Cable Services Bureau

[^1]: 47 U.S.C. § 224.

[^2]: 47 C.F.R. § 1.1403.

[^3]: 47 U.S.C. § 224 (b) (1).

[^4]: 47 U.S.C. § 224(b) and (c). Georgia has not certified that it
    regulates rates, terms and conditions of pole attachments. *See*
    *Public Notice, \"States That Have Certified That They Regulate Pole
    Attachments,\"* DA 92-201, 7 FCC Rcd 1498 (1992).

[^5]: 47 U.S.C. § 224(b)(1). The Commission has developed a formula
    methodology to determine the maximum allowable pole attachment rate.
    *See* *Adoption of Rules for the Regulation of Cable Television Pole
    Attachments, First Report and Order*, 68 FCC 2d 1585 (1978); *Second
    Report and Order*, 72 FCC 2d 59 (1979); *Memorandum and Order*, 77
    FCC 2d 187 (1980), *aff\'d*, *Monongahela Power Co. v. FCC*, 655
    F.2d 1254 (D.C. Cir. 1985) (*per curiam*); and *Amendment of Rules
    and Policies Governing the Attachment of Cable Television Hardware
    to Utility Poles*, 2 FCC Rcd 4387 (1987). *See also*,
    *Implementation of Section 703(e) of the Telecommunications Act of
    1996*, 13 FCC Rcd 6777 (1998) and *Amendment of Rules and Policies
    Governing Pole Attachments*, FCC 00-116, 15 FCC Rcd 6453 (2000).

[^6]: Pub. L. No. 104-104, 110 Stat. 56 (1996).

[^7]: 47 U.S.C. § 153(44).

[^8]: 47 U.S.C. § 153(8); 47 U.S.C. § 602(5).

[^9]: *See* *Implementation of Section 703(e) of the Telecommunications
    Act of 1996*, 13 FCC Rcd 6777 at ¶¶ 116-130 (1998).

[^10]: *See* 47 U.S.C. § 224(d)(3) and 47 U.S.C. § 224(e)(4). *See*
    *Amendment of Rules and Policies Governing Pole Attachments*, FCC
    00-116, 15 FCC Rcd 6453 at ¶ 5 (2000).

[^11]: *Amendment of Rules and Policies Governing the Attachment of
    Cable Television Hardware to Utility Poles, Memorandum Order and
    Opinion on Reconsideration*, 4 FCC Rcd 468 at ¶ 25 (1989).

[^12]: *See* *Adoption of Rules for the Regulation of Cable Television
    Pole Attachments, First Report and Order*, 68 FCC 2d 1585 at ¶ 8
    (1978).

[^13]: *Id.*

[^14]: *See* letter dated October 11, 2000 to Knology of Augusta from J.
    Daryll Wilson, Joint Use Coordinator, Georgia Power.

[^15]: *See Alabama Cable Telecommunications Association, et al. v.
    Alabama Power Company*, File No. PA 00-003, FCC 01-181, 16 FCC Rcd
    12209 at ¶¶ 32-61 (2001), *appeal pending sub nom. Alabama Power
    Company v. FCC*, Case No. 00-14763-I (11^th^ Cir., filed Sept. 13,
    2000).

[^16]: 47 C.F.R. § 1.1404 (l) (1999).

[^17]: 47 C.F.R. § 1.1401, et seq.

[^18]: *See Teleport v. Georgia Power Company*, PA 00-005, DA 01-2653
    (released November 14, 2001).

[^19]: *Id.*