Before the

Federal Communications Commission

Washington, D.C. 20554

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ORDER AND REQUEST FOR INFORMATION

**Adopted: June 6, 2000** **Released: June 7, 2000**

By the Deputy Chief, Cable Services Bureau:

# INTRODUCTION

1.  In this Order we consider a pole attachment complaint
    (\"Complaint\"), filed with the Federal Communications Commission
    (\"Commission\") on November 30, 1999, by Cavalier Telephone, LLC
    (\"Complainant\") against Virginia Electric and Power Company
    (\"Respondent\"), pursuant to Section 224 of the Communications Act
    (\"Pole Attachment Act\")[^1] and Part 1, Subpart J, of the
    Commission's rules.[^2] On December 28, 1999, we granted Respondent
    an extension until January 6, 2000, to file is response.[^3]
    Respondent filed its opposition (\"Response\") on January 6, 2000
    which included a motion to dismiss (\"Motion I\"). Complainant filed
    a timely reply on January 27, 2000 (\"Reply\"). Pursuant to the
    Commission's rules,[^4] further information was requested by the
    Commission via letter[^5] and both Complainant and Respondent
    replied.[^6] Our rules require that the parties seek first to
    resolve their differences by negotiation.[^7] Based on our review of
    the record, we accept Complainant's assertion that further
    negotiations between the two parties are likely to be fruitless.[^8]
    In this Order, we grant the Complaint in part and reserve our
    determination of certain issues pending our review of additional
    information to be provided by Respondent, which we request herein.

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.[^9] 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.[^10] The Commission is authorized to adopt
    procedures necessary to hear and to resolve complaints concerning
    such rates, terms, and conditions.[^11] 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.\"[^12]

3.  The Pole Attachment Act, as amended by the Telecommunications Act of
    1996 (\"1996 Act\"),[^13] also imposes upon all utilities, the duty
    to \"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.\"[^14] This directive
    ensures that \"no party can use its control of the enumerated
    facilities and property to impede, inadvertently or otherwise, the
    installation and maintenance of telecommunications and cable
    equipment by those seeking to compete in those fields.\"[^15] In the
    Local Competition Order,[^16] the Commission outlined rules of
    general applicability to be applied in evaluating a request for
    access pursuant to the Pole Attachment Act.[^17] Specifically, 1) a
    utility may rely on industry codes, such as the National Electrical
    Safety Code (\"NESC\"), to prescribe standards with respect to
    capacity, safety, reliability and general engineering principles; 2)
    a utility will still be subject to any federal requirements, such as
    those imposed by FERC or OSHA, which might affect pole
    attachments; 3) state and local requirements will be given deference
    if not in direct conflict with Commission rules; 4) rates, terms and
    conditions of access must be uniformly applied to all attachers on a
    nondiscriminatory basis; and 5) a utility may not favor itself over
    other parties with respect to the provision of telecommunications or
    video services.[^18]

4.  In the Local Competition Order, the Commission also enumerated
    guidelines concerning the reasonableness of certain terms and
    conditions of access.[^19] These guidelines were later modified and
    refined in the Local Competition Reconsideration Order.[^20] Some of
    the pertinent provisions include: 1) a utility must explore
    potential accommodations in good faith with the party seeking access
    before denying access based on a lack of capacity[^21] and must
    expand capacity to accommodate requests for attachment just as it
    would expand capacity to meet its own needs;[^22] 2) the assessment
    of issues of capacity, safety, reliability and engineering must be
    done in a nondiscriminatory manner;[^23] 3) attaching parties may
    use any workers who have the same qualifications, in terms of
    training, as the utility's own workers;[^24] 4) utilities must allow
    access, subject to conditions necessary for reasons of safety and
    reliability, to transmission facilities;[^25] 5) absent an emergency
    or private agreement, a pole owner must provide written notification
    to attachers, 60 days before the modifications commence;[^26] 6) a
    utility or other party that uses a modification as an opportunity to
    correct safety violations will be responsible for its share of the
    modification costs;[^27] and, 7) a utility must notify an attacher
    within 45 days of its written request for access that the access is
    either granted or denied.[^28]

# PRELIMINARY MOTIONS

5.  Respondent filed three motions for leave to file additional motions,
    one for dismissal so that the parties might proceed to arbitration
    (\"Motion II\") (filed January 6, 2000), one for an evidentiary
    hearing (\"Motion III\") (filed January 6, 2000), and another for
    dismissal based on a recent court decision (\"Motion IV\") (filed
    May 1, 2000). Complainant filed timely oppositions/responses to the
    motions and Respondent filed replies. We grant the motions for leave
    to file and deny all four of Respondent's substantive motions for
    the following reasons. In Motion I, Respondent argues that
    Complainant should not be allowed to request an expedited review
    process pursuant to the Commission's rules.[^29] Because we have
    allowed Respondent to file a full and complete Response in
    accordance with our regular complaint procedures,[^30] we find
    Respondent's Motion I to be moot and it is therefore denied. In its
    Motion II, Respondent argues that Complainant's agreement to
    arbitrate contract disputes in effect waives Complainant's right to
    file a complaint pursuant to 47 U.S.C. § 224. We disagree. In a
    letter ruling dated January 17, 1997, we made clear that any attempt
    to require an attacher to waive its rights and remedies under § 224
    would be a per se violation of § 224. Although certain remedies for
    breach of contract may be pursued in forums other than the
    Commission, the Commission has primary jurisdiction over issues
    about the reasonableness of rates, terms and conditions concerning
    pole attachments.[^31] An arbitration clause cannot be applied to
    prevent a party from seeking redress with the Commission. Therefore,
    we deny Respondent's Motion II.

6.  We also deny Respondent's Motion III requesting an evidentiary
    hearing. The pole attachment complaint procedures are intended to
    ensure a simple and expeditious process for resolving
    complaints.[^32] The Commission may resolve the complaint based upon
    the filings, it may require meetings with the parties to clarify
    issues, and it may, at its discretion, order evidentiary
    proceedings.[^33] The decision of whether to hold a hearing on any
    issue related to a complaint is solely within the discretion of the
    Commission.[^34] In this matter, both parties have submitted
    extensive pleadings, affidavits and exhibits to explain their
    respective positions. We conclude that we have before us sufficient
    information upon which to make a decision in this matter. We will
    request further information where necessary. Accordingly, we will
    not hold a hearing in this proceeding and will deny Respondent's
    Motion III.

7.  Finally, Respondent filed its Motion IV, requesting dismissal of the
    Complaint for lack of jurisdiction, based on the recent decision in
    Gulf Power, et al. v. FCC[^35] (\"Gulf Power II\"). Gulf Power II
    disposed of consolidated petitions for review of the Commission's
    Order[^36] implementing 47 USC § 224, as amended by the 1996 Act.
    Further litigation in this matter is in progress and as a
    consequence, the mandate in the Gulf Power II proceeding has not
    been issued by the Court. Pending the issuance of a mandate from the
    Court, or a clarification of the Gulf Power II decision, we will
    continue to apply our pole attachment rules to all attachers who are
    either cable service or telecommunications service providers.
    Therefore, we will deny Motion IV.

# BACKGROUND

8.  Complainant is an independent, facilities based competitive local
    exchange carrier (\"CLEC\") that is building a 150 mile fiber optic
    network in the Richmond, Tidewater and northern Virginia areas.[^37]
    Complainant plans to offer local telephone service, high-speed
    Internet access and Internet caller identification[^38] in these
    areas. Respondent is a regulated utility engaged in the provision of
    electric services in the Commonwealth of Virginia. Respondent also
    provides telecommunications services, having formed a
    telecommunications subsidiary, VPS Communications, Inc. (\"VPSC\")
    in 1997. VPSC received certification as a CLEC in August 1999.
    Respondent describes VPSC as a \"carrier's carrier,\" that provides
    long-haul capacity to local exchange carriers (\"LECs\") and
    interexchange carriers (\"IXCs\"), but does not serve as a
    significant provider of service to end users.[^39] Complainant
    believes that the existence of VPSC qualifies Respondent as a
    \"telecommunications-diversifying electric utility\" that has built
    a 600 mile fiber network in Virginia to serve communities from
    Norfolk to Richmond to Arlington and Fairfax Counties.[^40]
    Respondent's involvement in telecommunications leads Complainant to
    assert that it is in a competitive relationship with the utility in
    the quest for customers and access to support structures.
    Complainant believes that this competitive relationship accounts for
    Respondent's discriminatory treatment of Complainant.

9.  Complainant alleges that it has been effectively denied access to
    poles owned by Respondent. The complaint seeks immediate relief from
    alleged illegal and discriminatory terms and conditions of pole
    attachments imposed by Respondent. Complainant seeks an order
    compelling Respondent to (a) grant Complainant access to all support
    structures and right-of-ways; (b) cease unreasonable and
    discriminatory access terms, conditions and practices contained in
    the pole attachment agreement between the parties or otherwise
    imposed; (c) terminate the unlawful pole attachment rate and set a
    rate not to exceed the lawful amount calculated under 47 U.S.C. §
    224(d); (d) refund to Complainant excessive rental and other
    administrative, engineering and make-ready fees[^41] charged to
    date.[^42] Complainant also asks that the Commission impose
    forfeitures for Respondent's ongoing violations of the Pole
    Attachment Act, past Commission Orders and the Commission's access
    rules.

10. Respondent answers that, prior to Complainant's requests for
    attachment, its utility poles were already crowded with electric and
    telephone lines, cable television lines and the lines of
    telecommunications carriers. Respondent argues that, given the
    extent of the prior joint use of these poles, no new attacher could
    reasonably expect to simply add its line to the poles without a
    substantial amount of effort in order to maintain adherence with
    applicable codes of safety and good engineering practice. Respondent
    claims that it has no motive to disadvantage Complainant and that
    every practice and policy it employs is absolutely necessary for the
    safe and reliable delivery of electric power to its customers.
    Respondent claims that its pole attachment agreements with
    Complainant follow industry standards and that it has negotiated and
    signed approximately 400 pole attachment agreements with numerous
    entities, including Complainant. Respondent alleges that certain
    routes that follow natural corridors are desired by several parties
    wishing to attach and that most poles do not have vacant space that
    could simply be made available to Complainant with just a minimum of
    make-ready work.[^43]

# terms of the agreement

11. Complainant alleges that, pursuant to its pole attachment agreements
    with Respondent, its rights are completely subordinate to any other
    attaching party. Specifically, Complainant alleges that Section 2 of
    the agreements, which provides that Complainant's applications for
    attachments \"shall be subject to the attachment rights of other
    parties under joint use\" is in violation of the anti-discrimination
    proscriptions of Section 224(f)(1), and the Commission's access
    principles as enumerated in the Local Competition Order and Local
    Competition Reconsideration Order.[^44] Respondent responds that
    Section 2 of the pole attachment agreements simply alerts
    Complainant that Respondent has joint use agreements with other
    utilities.[^45] Electric and telephone utilities frequently enter
    into joint use agreements to assign or transfer the right to
    contract pole space out to prospective attachers. Pursuant to a
    joint use agreement, a telephone company may have acquired the
    authority to enter into a pole agreement with other telephone
    companies seeking to attach to poles the telephone company does not
    own. Section 2 of the pole attachment agreements states that
    Respondent has entered into joint use agreements with other parties
    for the use of its poles and that the attachment rights of
    Complainant will be subject to the rights of these parties. We
    believe that the plain language of Section 2 does not translate into
    Complainant's attachment rights being \"subordinate\" to the rights
    of all other parties attaching to Respondent's poles. We find
    Respondent's explanation that Section 2 alerts Complainant to the
    existence of joint use agreements and obtains Complainant's
    acknowledgement of these relationships and the different rights that
    belong to the pole owners, as opposed to the licensees, to be
    reasonable. However, we note that this term of the agreements cannot
    be applied by Respondent in a manner that will discriminate in favor
    of the joint users or pole owner with respect to the provision of
    telecommunications or video services.[^46]

12. Complainant argues that Section 4a of the agreements[^47] makes
    Complainant responsible for all pole modifications necessitated by
    any pre-existing or subsequently attaching party.[^48] Respondent
    claims that Section 4a merely requires Complainant to pay its own
    costs to install, maintain and repair its attachments in a manner
    that doesn't conflict with the rights of the pole owners, and that
    this is a completely reasonable requirement.[^49] We agree that, on
    its face, this term merely acknowledges that Complainant is required
    to pay for its own attachments and not interfere with other
    attachers. This is reasonable as long as Complainant is not required
    to pay in excess of the maximum pole attachment rate under our
    formula or reimburse Respondent in excess of the actual costs of
    make-ready or pole change-out work necessitated by Complainant's
    attachment. The term cannot be applied to allow Respondent to
    subordinate Complainant's attachments to other attachers, nor can it
    be read to subordinate other attachers to Complainant's attachments.
    It also may not be applied to require Complainant to pay the costs
    incurred by other attachers.

13. Complainant also argues that Section 7 of the pole attachment
    agreement makes it responsible for the full cost of maintenance and
    of all pole modifications necessitated by pre-existing or
    subsequently attaching parties to Respondent's poles.[^50]
    Respondent points out that Section 7 does not represent a mandate
    that Complainant pay for maintenance for all the parties attached to
    any given pole, but rather that it pay for any costs generated by
    its own attachment to the pole.[^51] Respondent argues that the
    section appears in pole attachment agreements with other attachers
    and operates to protect Complainant from their costs. The term on
    its face does not appear unreasonable but it cannot be applied by
    Respondent to require Complainant to pay for the costs of other
    attachers' safety violations or other attachers' rearrangements
    which are not necessitated by Complainant's attachment. Also, it may
    not be interpreted to require Complainant to pay for its make-ready
    work twice. To the extent Complainant is required to pay the cost of
    make-ready work to attach to a pole, that cost cannot be included in
    the pole rental fee. Normal pole maintenance costs will be included
    in the pole rental fee and Complainant cannot be required to pay
    twice for the same costs.[^52]

14. Finally, Complainant argues that Section 3 of the pole attachment
    agreements gives Respondent the discretion to deny access based on
    the \"character\" of the attachments.[^53] Complainant argues that
    this provision violates the Pole Attachment Act.[^54] Respondent
    charges that Complainant has failed to provide a single example of
    where an attachment has been denied due to its character.[^55]
    Respondent concludes that until Complainant is subjected to an
    actual or threatened denial, any claim that the contract provision
    is unreasonable is purely speculative.[^56] We disagree. The second
    sentence of Section 3 attempts to acknowledge that Respondent may
    deny access based on reasons that are not related to capacity or
    safety and is unreasonable on its face. Respondent may only deny
    access for the reasons stated in the Pole Attachment Act.

# delays in the permit process

15. Complainant alleges that it has suffered numerous delays in
    obtaining Respondent's approval to attach to its poles and that
    these permitting delays have slowed the building of Complainant's
    network and driven up costs. Respondent answers that under the
    Commission's rules, it is required to respond to Complainant's
    permit requests within 45 days only if it is going to deny the
    application.[^57] Our rules require Respondent to grant or deny
    access within 45 days of receiving a complete application for a
    permit.[^58] We have previously stated that the Pole Attachment Act
    seeks to ensure that no party can use its control of facilities to
    impede the installation and maintenance of telecommunications and
    cable equipment by those seeking to compete in those fields.[^59] We
    have interpreted the Commission\'s rules, 47 C.F.R. § 1.1403 (b), to
    mean that a pole owner \"must deny a request for access within 45
    days of receiving such a request or it will otherwise be deemed
    granted.\"[^60] We conclude that Respondent is required to act on
    each permit application submitted by Complainant within 45 days of
    receiving the request. To the extent that a permit application
    includes a large number of poles, Respondent is required to approve
    access as the poles are approved, so that Complainant is not
    required to wait until all the poles included in a particular permit
    are approved prior to being granted any access at all. Respondent
    shall immediately grant access to all poles to which attachment can
    be made permanently or temporarily, without causing a safety hazard,
    for which permit applications have been filed with Respondent for
    longer than 45 days.[^61]

16. Complainant maintains that Respondent has imposed the costs of all
    make-ready work associated with its poles on Complainant, even
    though the work may have been required only to correct another
    attaching entity's pre-existing safety violations. Complainant
    believes that Respondent should be required to allocate the costs of
    correcting pre-existing safety violations among the attaching
    entities that are responsible for these costs. Respondent argues
    that it is entitled to deny Complainant access because of
    pre-existing safety violations that must be corrected before
    Complainant can attach. Respondent suggests that Complainant can
    expedite the permitting process by paying for and correcting these
    pre-existing safety violations or waiting for up to 5 years for
    Respondent to correct them.[^62] Respondent suggests that
    Complainant has the option to expedite the make-ready process by
    contacting and working with attachers with outstanding
    violations.[^63] Respondent argues that it is not required to ensure
    that other attachers pay their share of correcting safety
    violations.[^64] We find this to be unacceptable. While we find
    Respondent's interest in correcting safety violations to be
    laudable, Complainant is only responsible for make-ready costs
    generated by its own attachments. Respondent is prohibited from
    holding Complainant responsible for costs arising from the
    correction of safety violations of attachers other than Complainant.
    Respondent must reimburse Complainant for any payments made to
    Respondent to correct other attachers safety violations. It is up to
    Respondent to require other attachers to reimburse Respondent or
    otherwise pay for corrections of safety violations.

17. Respondent also believes that it is not responsible for managing
    attachments to the pole or notifying attachers when safety
    violations must be corrected or when make-ready or other work which
    may affect the attachments is going to be performed.[^65] Respondent
    is required by the Pole Attachment Act to notify other attachers of
    any pending work which will affect their attachments.[^66]
    Respondent cannot abrogate its duties as pole owner or force
    Complainant to accept Respondent's duties towards other attachers in
    order to delay the process of attachment. Due to the inherent
    disparity in the relationship of the Complainant and the Respondent
    to the other parties that have attached to a pole, we find that
    Respondent is responsible for coordinating and notifying the
    attaching parties. Any costs incurred by Respondent in managing and
    maintaining its poles is passed through to Complainant and other
    attachers in the form of make-ready costs or the pole rental fee.

18. The Complainant also alleges that Respondent has refused to allow it
    to use third party contractors for make-ready work, even when the
    contractors were similarly trained and qualified as those employed
    by the Respondent.[^67] The Respondent argues that while the
    Commission has required it to allow qualified workers to work in
    proximity to electric lines, it is not required to allow its own
    electric facilities to be handled by non-employees or
    contractors.[^68] According to the Respondent, it does not allow
    multi-party[^69] engineers and contractors under the control of
    another company to work on its facilities.[^70] We have stated that
    a \"utility may require that individuals who will work attaching or
    making ready attachments of telecommunications or cable system
    facilities to utility poles, in the proximity of electric lines,
    have the same qualifications, in terms of training, as the utility's
    own workers, but the party seeking access will be able to use any
    individual workers who meet these criteria.\"[^71] While we agree
    that the use of multi-party contractors is an efficient means to
    accomplish make-ready work, and we encourage Respondent to consider
    that alternative, we are not ready to order Respondent to proceed
    with that method. However, Respondent must make the effort to
    coordinate all make-ready work and specifically to perform any
    necessary work on its own facilities in a timely and cooperative
    manner. Respondent cannot use its control of its own facilities to
    impede Complainant's deployment of telecommunications facilities.

19. Finally, Complainant argues that Respondent has discriminated
    against Complainant because it allows its own use or other
    attachers' use of extension arms,[^72] boxing[^73] and taller
    replacement poles and refused to allow Complainant to use these same
    methods. There are also numerous allegations of other delaying
    tactics such as changing guying[^74] instructions, unnecessary stop
    work orders and not allowing temporary attachments. Respondent
    cannot discriminate against Complainant in favor of other attachers
    or itself. That premise is at the heart of the 1996 Act. Respondent
    has already agreed to allow temporary attachments.[^75] Respondent
    uses extension arms and boxing for its own attachments[^76] and must
    allow other attachers to do the same.[^77] Perhaps Respondent's
    allowance of extension arms and boxing will preclude the need for
    taller poles. However, we have stated that a utility must \"take all
    reasonable steps to expand capacity to accommodate requests for
    attachment just as it would expand capacity to meet its own
    needs;\"[^78] and \"explore potential accommodations in good faith
    with the party seeking access.\"[^79] Respondent already has some
    poles that are taller than 55 feet. Respondent argues that it only
    has a few bucket trucks capable of reaching the taller poles and
    that these trucks may not be available after separation of the
    transmission and distribution functions through deregulation of the
    electric industry.[^80] Complainant states that it is not interested
    in a significant conversion to taller poles but only an occasional
    taller pole to accommodate its attachment. Respondent must negotiate
    in good faith with the Complainant to replace poles where it is
    necessary to accommodate Complainant's attachment. Respondent
    already has bucket trucks capable of maintaining the taller poles
    and will always need a number of these trucks to maintain its own
    taller poles. Complainant is responsible for the costs of the
    change-out. In addition, Respondent must cease and desist from
    selectively enforcing safety standards or unreasonably changing the
    safety standards to which Complainant must adhere.

# access to other utility facilities

20. Complainant alleges that Respondent denied Complainant access to
    transmission support structures, ducts and conduits.[^81] Respondent
    answers that it is not denying access and is pursuing negotiations
    for that access.[^82] We stated that an electric utility may
    \"impose conditions on access to transmission facilities, if
    necessary for reasons of safety and reliability.\"[^83] However,
    Respondent is under an obligation to grant or deny access within the
    established period of time and to charge Complainant only for the
    actual costs incurred in ascertaining available capacity.[^84]
    Respondent must provide Complainant with an explanation of any costs
    associated with ascertaining available capacity. Respondent must
    also supply Complainant with any relevant data pertaining to
    Complainant's request for access.[^85] Respondent is charged with
    negotiating in good faith with Complainant to accommodate
    Complainant's requests for access.[^86] Should the parties fail to
    reach an agreement on the terms of this access, Complainant may seek
    recourse with the Commission.

# RATES AND FEES

21. Complainant alleges that Respondent is charging an unreasonable
    annual pole attachment fee of \$36.00 per pole in 1999, \$37.00 in
    2000 and a projected \$38.00 in 2001. Respondent is charging cable
    companies approximately \$5.00 per pole and other Virginia utilities
    are charging Complainant approximately \$4.00 per pole.[^87] The
    1996 Act amended the Pole Attachment Act in several important
    respects. Section 703(6) of the 1996 Act added a new Subsection
    224(d)(3),[^88] that expanded the scope of Section 224 by applying
    the pole attachment rate formula to rates for pole attachments made
    by telecommunications carriers[^89] in addition to cable
    systems,[^90] until a separate methodology[^91] becomes effective
    for telecommunications carriers after February 8, 2001.[^92] Our
    current formula applies to attachments made by cable systems and
    telecommunications carriers providing telecommunications services
    until February 8, 2001.[^93] In order to calculate a reasonable pole
    attachment rate when the parties to a pole attachment agreement
    cannot negotiate a reasonable rate, we apply our formula using
    public data when available. Respondent provided information from its
    FERC Form 1 filings for 1998 and 1999 but did not include the pole
    count used to calculate rates. Therefore, we will request Respondent
    to file that additional information with the Cable Services Bureau
    and any other necessary information as required by Bureau staff. We
    will issue a separate order calculating a reasonable rate and any
    refund liability for overcharges.

22. Complainant also alleges that respondent is charging unlawful
    application and administrative fees.[^94] Specifically, Complainant
    is charged an application fee of \$50.00 per permit or \$4.00 per
    pole, whichever is larger.[^95] A just and reasonable pole
    attachment rate assures a utility recovery of not less than the
    incremental cost of providing pole attachments nor more than the
    fully allocated costs.[^96] A rate that is comprised of both
    incremental and fully allocated components is not *per se*
    unreasonable or unjust nor does the Commission view the mandate set
    out in Section 224(d)(1) of the Act[^97] as requiring a utility to
    charge rates that are based either on incremental cost or fully
    allocated costs.[^98] Incremental costs may consist of both
    recurring and non-recurring costs.[^99] Non-recurring incremental
    costs are out-of-pocket expenses attributable to pole attachments.
    They include pre-construction, survey, engineering, make-ready, and
    change-out costs. Non-recurring incremental costs are directly
    reimbursable to the utility and are excluded from the incremental
    rate.[^100] We stated that a \"separate charge or fee for items such
    as application processing or periodic inspections of the pole plant
    is not justified if the costs associated with these items are
    already included in the rate, based on fully allocated costs, which
    the utility charges the cable company since the statute does not
    permit utilities to recover in excess of fully allocated
    costs.\"[^101] We look closely at make-ready and other charges to
    ensure that there is no double recovery for expenses for which the
    utility has been reimbursed through the annual fee.[^102] The record
    contains no explanation of the fees contested by the Complainant
    other than that the fees are not otherwise recovered by
    Respondent.[^103] The application fee appears to be an
    administrative fee for costs associated with the application process
    and does not appear to reflect actual costs. It may be a recurring
    cost recoverable through the annual fee and included in the carrying
    charges when calculating the maximum rate. If so, the application
    fee effectively increases the annual fee beyond the maximum
    permissible rate and, therefore, results in an annual fee that is
    unjust and unreasonable. Because Respondent provided no explanation
    that the administrative costs associated with permit application
    processing are not otherwise included in the carrying charges, we
    find that the fees are an unjust and unreasonable rate, term, or
    condition.

23. Complainant also alleges that Respondent charged excessive
    engineering costs and delayed the permitting process through shoddy
    and unnecessary engineering requirements.[^104] Respondent replies
    that the additional engineering work was required because
    Complainant's original engineering firm was incompetent.[^105]
    Complainant claims that it could not simply make a determination
    regarding the work that needed to be performed so that it could
    install its new attachments, but was required to measure and
    document all pole attachments of all parties, including Respondent's
    attachments.[^106] Respondent claims that it never kept records of
    the elevations of its attachments and overhanging wires or of other
    companies' attachments.[^107] Apparently neither Complainant's nor
    Respondent's engineers were perfect. However, we find it unusual
    that an attacher (possibly the third or fourth telecommunications
    attacher, in addition to the Respondent with electric and
    communications attachments, as well as telephone and cable
    attachers) was required to document all these attachments when
    apparently no other attacher was required to do so. Otherwise,
    Respondent would have had records of prior engineering work.
    Respondent cannot require Complainant to perform engineering work
    that other attachers are not required to perform. If Respondent has
    records of prior engineering work on poles that Complainant wishes
    to attach to, Respondent must produce those records for the benefit
    of Complainant. To the extent that Complainant paid Respondent for
    engineering work that was useless or otherwise defective, Respondent
    should reimburse Complainant. Complainant asks for half of the
    \$168,500 that was charged by Respondent.[^108] Respondent implies
    that it already made deductions for unproductive work performed by
    its engineers.[^109] Respondent will provide Complainant with
    documentation of these deductions and will determine if a refund is
    due to Complainant for unproductive work.

24. In its pleading, Complainant registers two other objections to
    Respondent's rate-setting methodologies. The first concerns
    Respondent's treatment of make-ready charges that are reimbursed by
    Complainant. Respondent has recorded Complainant's make-ready
    reimbursements, and those of other attachers, as capital
    contributions in aid of construction (\"CIAC\"). To justify this
    methodology, Respondent offers the following excerpt from Internal
    Revenue Service Bulletin 1987-2 (July-December):

    New section 118(b) of the Internal Revenue Service code of 1986 (the
    \"1986 Code\") expressly provides that contributions in aid of
    construction and other contributions made by a customer or potential
    customer (collectively, \"CIACs\") are not contributions to capital
    and thus are not excluded from gross income under section 118.
    Accordingly, such amounts are required to be included in gross
    income under section 61.

25. Respondent asserts that the make-ready reimbursements it receives
    from Complainant and other attachers qualify as CIAC. Furthermore,
    Respondent provides a copy of Rider D to its Terms and Conditions
    for providing electric service, approved by the State Corporation
    Commission of Virginia, that specifically includes the Tax Effect
    Recovery Factor (TERF) applied to its CIAC. Respondent claims that
    the TERF funds it collects pass through directly to taxing
    authorities and, therefore, it derives no direct benefit from their
    assessment.

26. On the other hand, Complainant believes that the reimbursements it
    provides to Respondent for make-ready represent offsets to
    Respondent's plant maintenance expense and, consequently, are not
    subject to a gross up for Federal income tax purposes. Specifically,
    Complainant notes that FERC Account 593 \"shall include the cost of
    labor, materials used and expenses incurred in the maintenance of
    overhead distribution line facilities, the book cost of which is
    includible in account 364, Poles, Towers and Fixtures, account 365,
    Overhead Conductors and Devices, and account 369, Services.\"[^110]
    Also, according to Complainant, the assignment of the following
    make-ready items to Account 593 demonstrates that they should be
    accorded treatment as maintenance expense rather than as a capital
    item such as CIAC:

> a\) Moving line or guy pole in relocation of pole or section of line.
>
> b\) Readjusting and changing position of guys and braces.
>
> c\) Realigning and straightening poles, crossarms, braces, pins,
> racks, brackets, and other pole fixtures.
>
> d\) Relocating crossarms, racks, brackets and other fixtures on poles.
>
> e\) Supporting conductors, transformers, and other fixtures and
> transferring them to new poles during pole replacements.
>
> f\) Resagging, retying, or rearranging position or spacing of
> conductors.

27. Complainant observes that the IRS Notice upon which Respondent
    relies is silent with regard to whether make-ready costs may be
    classified as CIAC, and offers its own IRS support in the form of
    Private Letter Ruling 90-50-001 (August 21, 1990). This ruling
    indicates that make-ready costs are properly attributable to the
    costs of obtaining licenses from utilities and:

> The primary component of make-ready work is the removal and relocation
> of utility property (lines and related equipment) to provide adequate
> space for the \[attacher's\] cables. Such work is a condition of the
> licenses that must be met before the \[attacher\] may use the licenses
> to gain access to the utilities' poles. The costs for such work are
> simply part of the costs incurred by the utilities and reimbursed by
> the \[attacher\] in granting access to their poles. The reimbursements
> for make-ready work are payments to which the utilities are entitled
> under the license agreements.

The IRS also concluded that \".... the proper analogy to make-ready
costs is damages\" which, Complainant points out, are normally not taxed
as income, and:

> The costs for make-ready work are part of the costs incurred by the
> utilities in issuing the licenses (granting access) to their poles.
> Reimbursement of these costs by the \[attacher\] does not convert them
> from license costs to construction expenditures.

Lastly, Complainant argues that Respondent benefits from applying the
TERF because it raises the gateway costs of pole access by nearly 30%
and stifles potential competitors' access to Respondent's plant.

28. We believe, from an accounting perspective, that Complainant makes
    the stronger case. Make-ready costs clearly fit the definition of
    FERC Account 593, and Respondent fails to demonstrate that
    make-ready costs qualify also as CIAC subject to TERF. Therefore,
    the IRS ruling upon which Respondent relies is irrelevant in the
    immediate case. The IRS ruling to which Complainant refers, on the
    other hand, definitively states that make-ready reimbursements are
    not construction expenditures and, consequently, not CIAC. Instead,
    the reimbursements serve simply to reduce Respondent's net
    maintenance expenses as Complainant claims. Consequently, the
    reimbursements should be reclassified as an offset to expenses on
    Respondent's books for rate-setting purposes. Because Complainant
    demonstrates that it has been harmed by Respondent's accounting
    method and imposition of TERF, we will order Respondent to reimburse
    Complainant for these excess charges.

29. Another issue raised by Complainant is Respondent's assessment of an
    across-the-board "margin of error" surcharge of approximately 10.5%
    on all make-ready bills. Complainant claims that Respondent's
    make-ready bills are insufficiently detailed and it believes, at a
    minimum, that it is being charged a fully loaded labor rate for
    make-ready work through the surcharge. Complainant's argument is
    further fueled by the fact it has never received a make-ready
    overpayment refund from Respondent, and that empirical support for
    the surcharge is lacking. In response, Respondent states that the
    surcharge \"is charged for all 'private work' (*i.e.* work unrelated
    to the provision of electric service) so that electric ratepayers in
    Virginia are not subsidizing such activities. Furthermore, these
    rates are applied in a non-discriminatory manner to all
    CLECs.\"[^111] Although Respondent claims that the surcharge is
    levied in a non-discriminatory manner, the components of the
    surcharge remain a mystery and Respondent fails to provide any
    evidence that justifies the surcharge percentage. Therefore, we will
    order Respondent to calculate its actual make-ready costs and
    reimburse Complainant for any excess charges.

30. In addition to the above request for information for the pole count
    used to calculate rates, we also request Respondent to provide the
    following: (1) the value of make-ready costs to which the 28-30% tax
    surcharge was applied; (2) the FERC account(s) in which the tax
    surcharge is (are) included; (3) any calculations that support the
    10% \"margin of error\" surcharge and (4) the FERC account(s) in
    which the margin of error surcharge is (are) included.

# ordering clauses

31. Accordingly, IT IS 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 the complaint referenced herein IS GRANTED TO
    THE EXTENT INDICATED HEREIN.

32. 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's four motions referenced herein ARE DENIED.

33. 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 our determination of certain issues are reserved pending our
    review of additional information to be provided by Respondent, which
    we request herein.

34. 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 provide to Cable Services Bureau staff, the pole
    count used to calculate annual pole attachment rates for 1999 and
    2000, within 10 days of the release of this Order, as well as any
    additional information requested by Bureau staff.

35. 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 provide to Cable Services Bureau staff, (1) the
    value of make-ready costs to which the 28-30% tax surcharge was
    applied; (2) the FERC account(s) in which the tax surcharge is (are)
    included; (3) any calculations that support the 10% \"margin of
    error\" surcharge and (4) the FERC account(s) in which the margin of
    error surcharge is (are) included, within 30 days of the release of
    this Order.

36. 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 PROVIDE to Complainant (1) an explanation and
    documentation for all invoices for engineering, make-ready and
    similar work performed by Respondent on Complainant's behalf;
    and (2) access to any engineering or other records that will
    facilitate Complainant's access to Respondent's poles, ducts,
    conduit, or right-of-ways.

37. 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 the pole attachment agreements between Respondent and Complaint
    ARE MODIFIED TO THE EXTENT INDICATED HEREIN.

38. 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 PROCEED TO APPROVE WITHOUT DELAY all
    applications by Complainant for access to poles to which attachment
    can be made permanently or temporarily, without causing a safety
    hazard, for which permit applications have been filed with
    Respondent for longer than 45 days.

39. 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 PROCEED to (1) negotiate in good faith terms
    of access for the deployment of larger poles in those instances when
    a larger pole is necessary for Complainant to attach; (2) notify
    attachers of make-ready work and (3) coordinate make-ready work of
    other attachers and perform any necessary make-ready work on its own
    facilities in a timely manner.

40. 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 CEASE AND DESIST from applying discriminatory
    standards forbidding Complainant (1) from using extension arms or
    boxing as methods of attachment; and (2) from utilizing qualified
    workers who are not employed by Respondent for Complainant's
    make-ready work.

41. 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 CEASE AND DESIST from (1) requiring
    Complainant to pay for the correction of safety violations of other
    attachers; (2) selectively enforcing safety standards or changing
    the safety standards to which Complainant must adhere; (3) charging
    application fees; (4) charging a tax or margin of error surcharge on
    make-ready work.

42. 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 REFUND to Complainant, within thirty (30) days
    of release of this Order, (1) excess payments for tax or margin of
    error surcharges, which exceeded the actual costs of make-ready
    work; and (2) payments for make-ready work to correct the safety
    violations of other attachers, with interest.[^112]

43. 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 DETERMINE, within thirty (30) days of release
    of this Order, any overcharges for unproductive engineering work by
    Respondent's engineers and SHALL REFUND any excess charges to
    Complainant, with interest.

44. 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 GRANT Complainant access to all of
    Respondent's transmission structures and conduit, subject to safety
    and reliability conditions, and SHALL NEGOTIATE IN GOOD FAITH, the
    terms of such access.

FEDERAL COMMUNICATIONS COMMISSION

William H. Johnson

Deputy Chief, Cable Services Bureau

[^1]: Communications Act of 1934, *as amended*, 47 U.S.C. § 224.

[^2]: 47 C.F.R. §§ 1.1401-1.1418.

[^3]: *See* Cavalier Telephone, LLC v. Virginia Electric and Power
    Company, 15 FCC Rcd 40 (2000).

[^4]: 47 C.F.R. § 1.1409 (a).

[^5]: *See* letters dated March 13, 2000 to both parties from Kathleen
    F. Costello, Acting Division Chief, Financial Analysis and
    Compliance Division, Cable Services Bureau

[^6]: *See* letter dated March 16, 2000 from Raymond A. Kowalski,
    counsel for Respondent, and letter date March 14, 2000, from J. D.
    Thomas, counsel for Complainant.

[^7]: 47 C.F.R. § 1.1404 (l).

[^8]: Complaint at ¶ 207.

[^9]: 47 U.S.C. §224 (b) (1).

[^10]: 47 U.S.C. § 224(b)(1) and (2). Virginia has not certified that it
    regulates rates, terms and conditions of pole attachments.

[^11]: 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 (released April 3, 2000).

[^12]: 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).

[^13]: Pub. L. No. 104-104, 110 Stat. 56 (1996).

[^14]: 47 U.S.C. § 224 (f) (1).

[^15]: Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996, 11 FCC Rcd 15499 at ¶ 1123 (1996).

[^16]: *Id.*

[^17]: *Id.* at ¶ 1151, *et seq.*

[^18]: *Id*. at ¶¶ 1151-1158.

[^19]: *Id.* at ¶ 1159, et seq.

[^20]: In the Matter of the Local Competition Provisions in the
    Telecommunications Act of 1996, Order on Reconsideration, FCC 99-266
    (released October 26, 1999).

[^21]: Local Competition Order at ¶ 1163.

[^22]: Local Competition Reconsideration Order at ¶ 51.

[^23]: Local Competition Order at ¶ 1176.

[^24]: *Id*. at ¶ 1182.

[^25]: *Id*. at ¶ 1184.

[^26]: *Id.* at ¶1209.

[^27]: Local Competition Reconsideration Order at ¶ 16.

[^28]: *Id*. at ¶ 117.

[^29]: 47 C.F.R. § 1.1404 (n) (1999). *See also* Implementation of the
    Local Competition Provisions in the Telecommunications Act of 1996,
    FCC 96-325, 11 FCC Rcd 15499 (1996).

[^30]: 47 C.F.R. § 1.1407.

[^31]: *See, for example*, In the Matter of Mile Hi Cable Partners, et
    al. v. Public Aervice Company of Colorado, 14 FCC Rcd 3244 (1999) at
    ¶ 12.

[^32]: *See* Adoption of the Rules for the Regulation of Cable
    Television Pole Attachments, 68 F.C.C. 2d 1585 at ¶ 36 (1978).

[^33]: 47 C.F.R. § 1.1411.

[^34]: *Id.*

[^35]: Gulf Power, et al. v. FCC and USA, 208 F. 3d 1263 (11th Cir.,
    released April 11, 2000).

[^36]: Implementation of Section 703(e) of the Telecommunications Act of
    1996, CS Docket No. 97-151, FCC 98-20, 13 FCC Rcd 6777 (1998).

[^37]: Complaint at ¶ 23.

[^38]: Internet caller identification allows a customer to see who is
    calling and decide how to handle a call, without ending an Internet
    session.

[^39]: Response at ¶ 33.

[^40]: Complaint at ¶ 32.

[^41]: Make-ready\" generally refers to the modification of poles or
    lines or the installation of guys and anchors to accommodate
    additional facilities. A pole \"change-out\" is the replacement of a
    pole to accommodate additional users.

[^42]: Complaint at ¶ 13. Complainant set forth a more detailed request
    for relief at the end of its Complaint. Complaint at ¶¶ 209-211.

[^43]: Response at ¶ 19, *et seq*.

[^44]: Section 2 states that \"It is understood by Customer that
    Virginia Power has heretofore entered into, and may in the future
    enter into, contractual agreements with other parties for the joint
    use of its poles. Therefore, an application submitted by Customer
    under the terms of this Agreement and any license granted by
    Virginia Power shall be subject to the attachment rights of other
    parties under joint-use agreements, or otherwise.\" Complaint,
    Exhibit 1.

[^45]: Response at ¶ 90.

[^46]: Local Competition Order at ¶¶ 1151-1158.

[^47]: Section 4a provides that Complainant \"shall, at its own expense,
    make and maintain said attachments in safe condition and good
    repair, and in a manner suitable to Virginia power and so they will
    not conflict with the use of said poles by Virginia Power, or by
    other parties using or having reserved the right to use said poles,
    or interfere with the working use of facilities thereon or which may
    from time to time be placed thereon.\" Complaint, Exhibit 1.

[^48]: Complaint at ¶42.

[^49]: Response at ¶91.

[^50]: Complaint at ¶ 42. Section 7 states that \"Customer shall, on
    demand, pay to Virginia Power, or other party as the case may be,
    the full cost of maintenance, replacement, rearrangement, extension,
    enlargment or operation of the facilities belonging to Virginia
    Power or any other party having pole attachment rights when such
    costs are incurred because of the existence of Customer's facilities
    and would not have been incurred in the absence of Customer's
    attachment to Virginia Power's poles.\" Complaint, Exhibit 1.

[^51]: Response at ¶ 93.

[^52]: We have stated on numerous occasions that the attaching entity
    should not be charged twice for the same costs, once for make-ready
    costs and again for the same costs if the business expense is
    reported in the corresponding pole or conduit capital account.
    Amendment of Rules and Policies Governing Pole Attachments at ¶ 7,
    FCC 00-116 (released April 3, 2000).

[^53]: Section 3 states that \"Customer's cables, wires, and appliances,
    in each and every location, shall be erected and maintained in
    accordance with the requirements and specifications of the latest
    National Electrical Safety Code, the National Electrical Code, and
    other applicable practices and specifications of Virginia Power and
    any amendments or revisions of said Codes, Practices, or
    Specifications and in compliance with any rules or orders now in
    effect or that hereafter may be issued by the State Corporation
    Commission of Virginia or any authority having jurisdiction. *It is
    expressly understood, however, that Virginai power reserves the
    right to refuse to permit or to limit the number and character of
    attachments on any poles or poles*.\" (emphasis added). Complaint,
    Exhibit 1.

[^54]: Complaint at ¶ 47. 47 U.S.C. § 224 (f) (2) states that \"a
    utility providing electric service may deny a cable television
    system or any telecommunications carrier access to its poles, ducts,
    conduits, or rights-of-way, on a non-discriminatory basis where
    there is insufficient capacity and for reasons of safety,
    reliability and generally applicable engineering purposes.\"

[^55]: Response at ¶¶ 99.

[^56]: *Id.*

[^57]: Response at ¶ 26.

[^58]: 47 C.F.R. § 1.1403 (b)

[^59]: Local Competition Order at ¶ 1123.

[^60]: In the Matter of Application of Bellsouth Corporation, FCC
    98-271, 13 FCC Rcd 20599 (1998).

[^61]: We have previously ordered utilities to grant applications for
    permits which have been pending for an excessive length of time.
    *See, for example*, In the Matter of Kansas City Cable Partners
    d/b/a Time Warner Cable of Kansas City v. Kansas City Power & Light
    Company, DA 99-1376, 14 FCC Rcd 11599 (1999).

[^62]: Response at ¶ 72. Respondent acknowledges that Complainant may
    have legitimate concerns about shouldering the burden of safety
    violations, but concludes that Complainant can avoid this expense by
    waiting for the violations to be remedied in the normal course of
    Respondent's surveys for identification and correction of
    violations. Respondent reports that it has established a five year
    plan to survey and correct existing violations.

[^63]: *Id* at ¶ 73.

[^64]: *Id*. at ¶ 74

[^65]: The Complainant asserts that the Respondent must undertake the
    responsibility to coordinate the rearrangement of existing parties
    on the pole to facilitate the Complainant's new attachments.
    Complaint at ¶ 100. The Complainant asserts that it cannot be
    expected to compel these entities, with whom it has no official
    relationship and some of whom are its competitors, to rearrange for
    a pole for the Complainant's benefit. *Id.* at ¶ 102. Respondent
    argues that it is the Complainant's responsibility to perform the
    coordination management function. Response at ¶ 69.

[^66]: 47 U.S.C. § 224 (h).

[^67]: Complaint at ¶ 106, *et seq.*

[^68]: Response at ¶ 114.

[^69]: According to the Complainant, it is a common practice for a new
    attacher to seek to have all make-ready work coordinated through a
    single contractor who is qualified to work on both electrical and
    communications facilities. This is called a multi-party contractor.
    A multi-party contractor can save costs and avoid delays that would
    be incurred when independent crews each do piecemeal work
    consecutively. Complaint, Declaration of Bill Williams at ¶ 44, *et
    seq.*

[^70]: *Id.* at ¶ 115.

[^71]: Local Competition Reconsideration Order at ¶ 86.

[^72]: Extension arms extend from the pole to support communications
    lines at the same level as existing lines which are attached to the
    pole. Response at ¶ 47, n. 13.

[^73]: Boxing refers to the installation of communications lines on both
    sides of the same pole at approximately the same height. Response at
    ¶ 52, n. 15.

[^74]: A guy wire is a cable or wire used for steadying the pole. Guying
    refers to the use of guy wires, extending from the pole to the
    ground, to support the pole, i.e., to offset the stress the pole
    must endure from the attached wires.

[^75]: Response at ¶ 46.

[^76]: Response at ¶ 49; ¶ 53.

[^77]: Respondent can limit the use of less desirable methods of
    attachment, such as boxing, by allowing alternative methods, such as
    extension arms, where appropriate.

[^78]: Local Competition Reconsideration Order at ¶ 51.

[^79]: Local Competition Order at ¶ 1163.

[^80]: Response at ¶¶ 50-51.

[^81]: Complaint at ¶ 191.

[^82]: Response at ¶ 81, *et seq.*

[^83]: Local Competition Order at ¶ 1184.

[^84]: Local Competition Reconsideration Order at ¶ 107.

[^85]: *Id*. Local Competition Order at ¶ 1223.

[^86]: Local Competition Order at ¶ 1163.

[^87]: Complaint at ¶ 8.

[^88]: 47 U.S.C. § 224(d)(3).

[^89]: 47 U.S.C. § 153(44).

[^90]: 47 U.S.C. § 153(8); 47 U.S.C. § 602(5).

[^91]: *See* Implementation of Section 703(e) of the Telecommunications
    Act of 1996, 13 FCC Rcd 6777 at ¶¶ 116-130 (1998).

[^92]: *See* 47 U.S.C. § 224(d)(3) and 47 U.S.C. § 224(e)(4).

[^93]: *See* Amendment of Rules and Policies Governing Pole Attachments,
    FCC 00-116 at ¶ 5 (released April 3, 2000).

[^94]: Complaint at ¶ 49.

[^95]: *Id*. at ¶ 50.

[^96]: Adoption of the Rules for the Regulation of Cable Television Pole
    Attachments, 72 FCC 2d 59 (1979).

[^97]: 47 U.S.C. §224(d)(1).

[^98]: Amendment of Rules and Policies Governing Pole Attachments, 68
    FCC 2d 1585 at ¶ 42 (1978).

[^99]: Adoption of Rules for the Regulation of Cable Television Pole
    Attachments, Second Report and Order, 72 FCC 2d 59 at ¶¶ 28-30
    (1979).

[^100]: *Id*. at ¶ 29.

[^101]: Amendment of Rules and Policies Governing the Attachment of
    Cable Television Hardware to Utility Poles, 2 FCC Rcd 4387 at ¶ 44
    (1987).

[^102]: *Id.* *See also,* In the Matter of Texas Cable &
    Telecommunications Association, et al. v. Entergy Services, Inc. et
    al., File No. PA 97-005, DA 99-1118, 14 FCC Rcd 9138 (1999); *and*
    Teleprompter Corp. v. Houston Lighting and Power Co., 49 Rad. Reg.
    2d 1301 (1981).

[^103]: Response at ¶ 95.

[^104]: Complaint at ¶ 59, *et seq.*

[^105]: Response at ¶ 105.

[^106]: Complaint at ¶ 67.

[^107]: Response at ¶ 105, n. 28.

[^108]: Complaint, Declaration of David O. Whitt at ¶ 27.

[^109]: Response, Declaration of Michael C. Roberts at p. 4.

[^110]: 18 C.F.R. Part 101, Account 593.

[^111]: Response at ¶ 103.

[^112]: The Commission has determined previously that the current
    interest rate for Federal tax refunds and additional tax payments is
    the appropriate rate of interest for overcharges. *See* Teleprompter
    of Fairmont, Inc. v. Chesapeake and Potomac Telephone Co. of West
    Virginia, 79 FCC 2d 232 at ¶ 24 (1980), *order on recon*. 85 FCC 2d
    243 (1981).