Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | )  | > File No. EB-06-MD-004      |
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| Salsgiver Communications, Inc.,  | )  |                              |
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| > Complainant,                   | )  |                              |
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| North Pittsburgh Telephone       | )  |                              |
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| > Defendant.                     |    |                              |
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Memorandum opinion and order

Adopted: November 26, 2007 Released: November 26, 2007

By the Enforcement Bureau:

1.  In this Order, we grant in part a pole attachment complaint[^1]
    filed by Salsgiver Communications, Inc. ("Salsgiver") against North
    Pittsburgh Telephone Company ("NPTC") pursuant to section 224 of the
    Communications Act of 1934, as amended ("Act").[^2] We hold that
    section 224 and the Commission's pole attachment rules[^3] require
    NPTC to allow Salsgiver access to NPTC's poles in Buffalo Township,
    the Borough of Freeport, and Harrison Township, Pennsylvania. We
    also find that several terms in the NPTC-Salsgiver pole attachment
    agreement violate section 224 and the Commission's rules. We
    therefore order NPTC to amend the parties' pole attachment agreement
    to eliminate those terms that we have found unlawful, and to process
    promptly Salsgiver's attachment applications.

# Background

2.  Salsgiver describes itself as "a cable television operator, and a
    provider of competitive communications services, including broadband
    services."[^4] NPTC is an incumbent local exchange carrier in
    Pennsylvania,[^5] and is a "utility" within the meaning of section
    224(a)(1) of the Act.[^6] As a utility, NPTC must give "cable
    television systems" nondiscriminatory access to attach their
    facilities to any poles that it controls.[^7]

3.  Salsgiver has been seeking to attach its facilities to NPTC's poles
    since 2004.[^8] In its initial request, Salsgiver indicated that it
    sought attachment for "wiring and equipment necessary to provide
    data communications services."[^9] NPTC denied the request on the
    grounds that, as a provider of only data communications services,
    Salsgiver did not qualify for mandatory access under section
    224.[^10] After much negotiation, during which Salsgiver asserted
    that it was eligible for access as a cable television system,[^11]
    NPTC eventually sent Salsgiver a proposed pole attachment
    agreement.[^12] Salsgiver signed the Agreement in September 2005,
    and then sent NPTC payment and an application requesting access to
    specific poles.[^13]

4.  Salsgiver has never attached its facilities to NPTC's poles,
    however.[^14] In February 2006, NPTC again raised the issue whether
    Salsgiver was entitled to access as a cable television system, in
    light of the fact that Salsgiver had not yet installed a cable
    "headend."[^15] NPTC asserted that the Pole Attachment Agreement
    required Salsgiver to identify the location of its headend, and that
    a headend "is necessary for Salsgiver Communications to be
    considered a cable television system" entitled to pole access under
    the Act.[^16] NPTC returned Salsgiver's application and payment,
    indicating that Salsgiver could resubmit them if and when its
    headend was complete.[^17] Salsgiver then filed its Complaint.[^18]

# Discussion

## Salsgiver Is Entitled to Access to NPTC's Poles in Areas Where It Has a Local Franchise Agreement.

5.  Under section 224(f)(1) of the Act, operators of "cable television
    systems" are entitled to nondiscriminatory access to utility
    poles.[^19] In a complaint proceeding, if a cable operator
    establishes a *prima facie* case that it is entitled to such access,
    the utility has the burden of proving that its denial of access is
    lawful.[^20] As explained below, we find that, by presenting
    evidence of its local franchise agreements, Salsgiver has
    established a *prima facie* case that it is entitled to pole access
    as a cable operator. We also find that NPTC has not rebutted
    Salsgiver's *prima facie* case. We therefore hold that Salsgiver is
    entitled to access to NPTC's poles in the areas covered by the
    franchise agreements.

6.  The dispute in this case centers on whether Salsgiver actually
    intends to provide cable television services \-- which would make it
    eligible for mandatory access to NPTC's poles \-- or only services
    ineligible for mandatory access, such as information services. As
    evidence that it is a cable operator, Salsgiver provides copies of
    an FCC Cable Community Registration Form 322 for the Borough of
    Freeport,[^21] and cable franchise agreements with Buffalo Township,
    the Borough of Freeport, and Harrison Township, Pennsylvania.[^22]
    Salsgiver also provides the declaration of its Chief Executive
    Officer, Loren Salsgiver, stating that the company has entered into
    programming agreements with video content providers, and purchased
    some of the equipment it will need to construct a cable
    headend.[^23]

7.  The FCC Registration Form is not sufficient to establish a *prima
    facie* case that Salsgiver is a cable operator. It does not
    represent an authorization to operate a cable television system, or
    an FCC determination that Salsgiver operates a cable television
    system.[^24] It is merely a necessary, but not sufficient,
    prerequisite to providing cable service. We also find the
    declarations about equipment and programming agreements insufficient
    in themselves to make a *prima facie* case. These declarations fail
    to identify any particular equipment or programming suppliers.

8.  We do, however, find Salsgiver's showing that it has cable franchise
    agreements with a number of municipalities sufficient to create a
    *prima facie* case that it is entitled to pole access as a "cable
    television system" within the meaning of section 224(f)(1) of the
    Act. These franchise grants demonstrate that the municipalities
    involved expect Salsgiver to operate a cable television system. For
    instance, the Harrison Township franchise requires Salsgiver, within
    three years, to construct "an all-digital video system capable of
    offering not less than one hundred seventy-eight (178) channels of
    programming and high speed internet service."[^25] Moreover, in
    three other recent cases involving NPTC, we found that prospective
    pole attachers can rely on decisions by responsible regulatory
    agencies, such as franchise authorities in the case of cable system
    attachers, to establish a *prima facie* showing of their status as
    entities entitled to pole access under section 224(f) of the
    Act.[^26] Furthermore, the Pole Attachment Agreement itself
    recognizes franchise agreements as relevant to assessing Salsgiver's
    status as a cable operator.[^27]

9.  NPTC nevertheless argues that the Freeport and Buffalo franchise
    agreements are inadequate to show that Salsgiver is a cable
    operator, because they do not obligate Salsgiver to initiate service
    at any particular time, or to serve specific areas "as cable
    franchises customarily require."[^28] But NPTC provides no other
    agreements to demonstrate what is "customarily required,"[^29] and
    offers only speculation that Salsgiver will not provide service
    under these franchise agreements. Thus, we find NPTC's argument
    inadequate to counter Salsgiver's *prima facie* showing.[^30]

10. Aside from attacking the franchise agreements, NPTC questions
    Salsgiver's eligibility for pole attachment on four other bases. As
    explained below, we find none of those arguments sufficient to rebut
    Salsgiver's *prima facie* case.

11. NPTC first asserts that because Salsgiver has not yet constructed a
    cable headend, it is not yet eligible to attach to NPTC's poles as a
    cable operator. NPTC's primary support for this assertion is that
    the Pole Attachment Agreement between the parties allegedly requires
    Salsgiver to have a headend already in place.[^31] We disagree, even
    assuming, *arguendo*, that such a contractual requirement would be
    reasonable under section 224 of the Act. The only portion of the
    Agreement that NPTC cites is Sheet 1 of Exhibit 1, "CATV System
    Application for Permit to Attach to NPTC Pole(s)." [^32] This
    application form includes a field for identifying "CATV headend
    street address." Nothing, however, indicates that the application is
    invalid if there is no such address yet.[^33] Moreover, a cable
    operator may have an address where it is building, or plans to
    build, a headend before the construction is complete. Thus, this
    field on the application form is not sufficient to create the
    substantive requirement that NPTC claims.

12. Second, although NPTC accuses Salsgiver of "gloss\[ing\] over" the
    issue of how it could be a cable television system within the
    meaning of Part 76 of the Commission's rules without a fully
    constructed headend,[^34] NPTC offers no legal argument to suggest
    that Salsgiver cannot be. Rule 76.5 defines a cable system as "a
    facility consisting of a set of closed transmission paths and
    associated signal generation, reception, and control equipment that
    is *designed to* provide cable service." [^35] Thus, rule 76.5
    expressly contemplates that a network can qualify as a cable
    television system, even if it is still in the design phase and not
    yet fully operational, if it is intended to provide cable service.
    The fact that Salsgiver's headend has not yet been completed does
    not, in our view, disqualify Salsgiver from pole attachment rights
    as a cable television system.

13. Third, NPTC argues more generally that Salsgiver does not actually
    intend to provide cable services, but rather has "embarked upon a
    staged campaign to dress itself up as an entity entitled to access
    NPTC's poles."[^36] NPTC suggests that Salsgiver actually intends to
    use NPTC's poles only to provide services not eligible for mandatory
    pole attachment, such as information services.[^37] We find,
    however, that Salsgiver's obtaining franchise agreements constitutes
    a strong *prima facie* case that is not countered by mere
    speculation about Salsgiver's motives and intentions. As discussed
    above, the Harrison Township franchise requires Salsgiver to
    construct a cable system within three years. Moreover, the Agreement
    already addresses NPTC's concerns about whether Salsgiver will
    actually provide cable services via its attachments to NPTC's poles.
    Section 9.2 of the Agreement provides that Salsgiver's attachment
    rights will be deemed terminated if Salsgiver fails to initiate
    cable television service to a franchise area within one year after
    completion of make-ready work, or if Salsgiver ceases providing
    cable service in a franchise area.[^38]

14. Finally, NPTC asserts that the franchise agreements "may not
    properly be considered part of Salsgiver's evidence of its claim
    that it is a bona fide 'cable television system,'" because the
    agreements were not filed with the Complaint.[^39] We disagree. Rule
    1.1409 permits the Commission to request additional filings or
    information from the parties in pole attachment cases, and the staff
    made such a request here for the franchise agreements.[^40] NPTC was
    given an opportunity to respond, and was in no way unfairly
    prejudiced by the filing of this additional information.[^41]

15. In sum, we find that Salsgiver has established a *prima facie* case,
    unrebutted by NPTC, that it operates a "cable television system" in
    Buffalo Township, the Borough of Freeport, and Harrison Township,
    Pennsylvania. Therefore, we hold that Salsgiver is entitled, under
    section 224 of the Act, to access NPTC's poles in these areas. We
    order NPTC immediately to provide Salsgiver with nondiscriminatory
    access to NPTC's poles in these areas, and promptly to process
    Salsgiver's attachment applications submitted pursuant to the Pole
    Attachment Agreement.[^42]

## Salsgiver's Claims Regarding Rates, Terms, and Conditions of Attachment are Granted in Part and Denied in Part.

16. Salsgiver attacks numerous terms of the Pole Attachment Agreement as
    unjust, unreasonable, or discriminatory, in violation of section
    224(b)(1) of the Act.[^43] As discussed below, we conclude that
    Salsgiver has met its burden of proving that certain of the
    challenged provisions are unlawful. Salsgiver has failed, however,
    to meet its burden of proving that many other challenged provisions
    are unlawful.

### The Pole Attachment Agreement Unreasonably Restricts Overlashing.

17. Section 3.2 of the Pole Attachment Agreement states that "Salsgiver
    is limited to one attachment per Licensor Pole and one installation
    per conduit, that attachment or installation is to include no more
    than one (1) cable...."[^44] Salsgiver contends that, by limiting
    attachments to one cable per pole, the Agreement unreasonably
    prohibits Salsgiver from overlashing its own attachments.[^45] We
    agree.[^46] The Commission has a long-standing policy against
    unreasonable restrictions on overlashing, including restrictions on
    attachers' ability to overlash their own facilities.[^47] The
    one-cable limitation does appear to ban Salsgiver from overlashing
    its own facilities, and NPTC does not argue otherwise.[^48] NPTC
    also fails to provide any justification for the limitation. Thus, we
    find this blanket limitation to be unreasonable on its face, and
    direct NPTC to eliminate this restriction on overlashing within 60
    days of the release of this order.

18. NPTC's only response is that Salsgiver did not raise this issue
    while the parties were negotiating the Pole Attachment
    Agreement.[^49] NPTC raises this defense in response to a number of
    Salsgiver's other claims as well.[^50] Failure to object to a pole
    attachment provision prior to its adoption, however, does not
    necessarily preclude a subsequent complaint, especially where, as
    here, the Agreement was challenged within several months of its
    adoption.[^51] Thus, we reject NPTC's argument in connection with
    this and all other issues as to which it has been raised.

### The Pole Attachment Agreement Unreasonably Restricts the Number of Salsgiver's Attachments.

19. Salsgiver complains that, independent of its effect on overlashing,
    the blanket prohibition on multiple attachments in section 3.2 of
    the Agreement is facially unreasonable, and that NPTC can deny
    access only on a case-by-case basis, and only when there is
    insufficient capacity, or for reasons of safety, reliability, or
    engineering concerns.[^52] We agree, given that section 224 allows
    exceptions to attachment rights only for reasons of insufficient
    capacity, safety, reliability, and generally applicable engineering
    purposes.[^53] NPTC offers no such justification for this
    limitation, noting only that Salsgiver did not raise the issue
    earlier, does not assert that it has requested multiple attachments,
    and does not prove that it needs multiple attachments.[^54] Under
    the Act, none of these factors permits such a restriction.
    Therefore, we direct NPTC, within 60 days, to revise the Pole
    Attachment Agreement to eliminate this limitation.

### The Pole Attachment Agreement Unlawfully Restricts Salsgiver's Use of "Boxing."

20. As previously indicated, the Act requires utilities to allow cable
    operators to make attachments to utility poles, allowing exceptions
    only "on a *non-discriminatory* basis where there is insufficient
    capacity and for reasons of safety, reliability and generally
    accepted engineering purposes."[^55] Salsgiver asserts that section
    3.2 of the Agreement violates the Act by imposing a discriminatory
    restriction on Salsgiver's attachments. Section 3.2 provides that
    "Salsgiver shall make all attachments on the same side of the
    Licensor Pole as Licensor has done . . . . Two-sided attachments are
    prohibited."[^56] Salsgiver complains that this provision
    discriminatorily prohibits Salsgiver from engaging in the
    "commonly-accepted industry practice" of "boxing," the installation
    of facilities on both sides of a pole at approximately the same
    height.[^57] Salsgiver asserts that NPTC itself uses boxing, and
    allows other attachers to do so as well.[^58] NPTC does not actually
    deny this, but says that Salsgiver "does not aver facts to show that
    NPTC itself uses 'boxing.'"[^59] In reply, however, Salsgiver offers
    photographic evidence of boxing on NPTC poles.[^60]

21. Given the evidence that NPTC does allow boxing on some occasions, we
    find that the Agreement's blanket ban on Salsgiver's doing so is
    discriminatory and thus in violation of section 224 of the Act.
    Moreover, although NPTC states that "boxing creates an unnecessary
    safety hazard and/or encumbrance for NPTC lineman (sic) and
    technicians,"[^61] that statement is unsupported by specific facts
    or analysis, and is undermined by the evidence of some boxing on
    NPTC's poles. Accordingly, we direct NPTC, within 60 days, to revise
    the Pole Attachment Agreement to eliminate this discriminatory
    provision.[^62]

### The Pole Attachment Agreement Unreasonably Requires Salsgiver to Incur Make-Ready Costs With No Assurance That Those Costs Will Be Reasonable.

22. Section 4.1.3 of the Agreement provides that Salsgiver's submission
    of a pole attachment application is deemed to constitute Salsgiver's
    agreement to pay for the cost of the Make-Ready survey. Under the
    Agreement, NPTC is not required to provide, nor is Salsgiver
    apparently permitted to demand, an estimate of those costs before
    Salsgiver is deemed to have agreed to pay them. We find this
    provision to be unreasonable on its face. NPTC argues that it is not
    unreasonable to charge Salsgiver for the cost of the survey.[^63] We
    agree -- the problem with this provision lies only in the fact that
    Salsgiver is committed to costs in an unspecified amount, with no
    opportunity to review them in advance.[^64] We direct NPTC, within
    60 days, to revise the Pole Attachment Agreement to provide
    Salsgiver an opportunity to review a cost estimate before incurring
    Make-Ready costs.

### The Pole Attachment Agreement Unreasonably Requires That Third Parties Overlashing Salsgiver's Attachments Obtain A License From NPTC.

23. Section 5.2.3. of the Agreement prohibits Salsgiver from allowing
    any third party to overlash Salsgiver's attachments without
    obtaining a license to overlash from NPTC. Salsgiver argues that
    this provision is unreasonable on its face, and we agree. The
    Commission has made clear that "neither the host attaching entity
    nor the third party overlasher must obtain additional approval from
    or consent of the utility for overlashing other than the approval
    obtained for the host attachment."[^65] NPTC asserts that Salsgiver
    lacks standing to object on behalf of third parties.[^66] Inasmuch
    as it is a provision of NPTC's agreement with *Salsgiver* that is at
    issue here, that position is meritless. We find this provision to be
    unreasonable on its face, and direct NPTC, within 60 days, to revise
    the Pole Attachment Agreement to eliminate the requirement that
    third party overlashers obtain their own licenses.

### The Pole Attachment Agreement's 30-Day Application Requirement for Service Drops Is Unreasonable.

24. Salsgiver alleges that section 5.6 of the Agreement unreasonably
    requires an application, 30 days in advance, before attaching or
    removing a service drop from NPTC's poles.[^67] Salsgiver argues
    that it is entitled to make service drops on reasonable notice, and
    without prior approval. We agree, and find that section 5.6 is
    unreasonable on its face.

25. The former Cable Services Bureau, now Media Bureau, has previously
    stated that attachments to drop poles are adjuncts to attachments
    that are approved in the normal application process, and thus a
    utility may require notice, but not prior approval.[^68] Salsgiver
    points out that a 30-day notice period would force the company to
    impose a 30-day waiting period on new service requests, and that
    such delays may be inconsistent with its franchises or other legal
    obligations.[^69] NPTC fails to address the substance of Salsgiver's
    allegations, stating in a conclusory fashion only that Salsgiver
    "fail\[s\] to aver facts which would show that such notice in its 30
    day requirement is discriminatory, unjust or unreasonable."[^70] For
    the reasons stated by Salsgiver, we find the 30-day application
    requirement to be unreasonable, and direct NPTC, within 60 days, to
    revise the Pole Attachment Agreement to state a reasonable notice
    provision.

### The Pole Attachment Agreement Provides Insufficient Notice For Removal of Salsgiver's Attachments.

26. Salsgiver challenges sections 5.9 and 9.3[^71] of the Pole
    Attachment Agreement as providing inadequate notice for removal of
    Salsgiver's attachments.[^72] Section 5.9 says that if NPTC decides
    to abandon, remove, or relocate a pole, Salsgiver's right to attach
    to that pole will terminate at the *earlier* of 60 days following
    the date of NPTC's notice to Salsgiver or the scheduled date of
    abandonment, removal, or relocation.[^73] Section 9.3 states that if
    the Pole Attachment Agreement is terminated because of Salsgiver's
    noncompliance or default, NPTC may remove Salsgiver's attachments
    upon 30 days written notice.[^74] Salsgiver alleges that these
    provisions conflict with the Commission's rules, which require
    utilities to provide *no less than* 60 days written notice prior to
    "removal of facilities or termination of any service to those
    facilities, such removal or termination arising out of a rate, term
    or condition of the ... pole attachment agreement."[^75]

27. We agree that the challenged provisions, on their face, patently
    conflict with the plain language of our rules. NPTC's defense seems
    to be that the 60-day minimum notice provision of rule 1.1403
    applies only if NPTC removes the attachments, not if it directs
    Salsgiver to remove them.[^76] NPTC offers no rationale for making
    such a distinction, nor can we find one in the rule or its adopting
    order.[^77] Moreover, such a distinction would make no sense.
    Accordingly, we direct NPTC, within 60 days, to amend the Pole
    Attachment Agreement to provide at least 60 days notice prior to
    removal of attachments.

### The Pole Attachment Agreement Imposes an Unreasonable Penalty For Unauthorized Attachments.

28. Section 5.7.1 of the Agreement imposes a "penalty charge" of \$250
    for each unauthorized attachment, in addition to back attachment
    fees.[^78] We agree with Salsgiver's contention that this penalty
    charge directly conflicts with Commission precedent.[^79] The
    Commission has previously found unlawful a similar \$250
    "unauthorized attachment fee."[^80] In *Mile Hi Cable Partners,* the
    Commission applied general contract principles prohibiting the
    enforcement of unreasonable penalties for breach of contract, and
    limited the utility to compensatory damages, where there was no
    specific record to support punitive damages.[^81] Similarly, here we
    find that it would be unreasonable for NPTC to charge a \$250 per
    attachment penalty, above and beyond compensatory damages, without a
    specific basis to justify such charges. NPTC asserts that the *Mile
    Hi Cable Partners* precedent is irrelevant, but offers no cogent
    basis for its assertion.[^82] NPTC also fails to explain how the
    charge is anything but punitive. We therefore direct NPTC, within 60
    days, to amend the Pole Attachment Agreement to limit the penalty
    for unauthorized attachments to compensatory damages, in accordance
    with *Mile Hi Cable Partners*.

### Salsgiver's Other Facial Challenges to the Pole Attachment Agreement Are Denied.

29. Salsgiver's remaining claims are denied. Contrary to Salsgiver's
    allegations,[^83] we find that sections 2.1, 5.2.1, 5.3, 6.1, 6.4,
    6.7, 9.1, 9.2, and 9.5 of the Pole Attachment Agreement are not
    facially unlawful.[^84] As to its claims regarding sections 2.6,
    3.2, 5.11, 5.5.4, 6.2, 6.6, and 6.16 of the Pole Attachment
    Agreement,[^85] Salsgiver has failed to meet its burden of proving
    the facts necessary to show that those provisions would be unlawful,
    as applied.[^86] Salsgiver has also failed to meet its burden of
    proving that NPTC has imposed unlawful make-ready charges.[^87]
    Finally, we deny as moot Salsgiver's claim that NPTC violated 47
    C.F.R. § 1.1403(b) by failing to grant or deny Salsgiver's November
    8, 2005 attachment application within 45 days,[^88] inasmuch as we
    now grant the access that Salsgiver sought in that application.

# 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), 224, and sections 1.1401-1.1408 of the Commission's
    rules, 47 C.F.R. §§ 1.1401-1.1408, that Salsgiver Communications,
    Inc.'s complaint is GRANTED to the extent that it requests immediate
    access to North Pittsburgh Telephone Company's poles located in
    Buffalo Township, the Borough of Freeport, and Harrison Township,
    Pennsylvania.

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), 224, and sections 1.1401-1.1408 of the Commission's
    rules, 47 C.F.R. §§ 1.1401-1.1408, that the Complaint is GRANTED to
    the extent that we find above that certain provisions of the Pole
    Attachment Agreement are unlawful, and that NPTC SHALL, within 60
    days from the release of this order, amend the Pole Attachment
    Agreement to eliminate or modify those terms that we have found
    unlawful.

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), 224, and sections 1.1401-1.1408 of the Commission's
    rules, 47 C.F.R. §§ 1.1401-1.1408, that the Complaint is otherwise
    DENIED.

33. 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), 224, and sections 1.1401-1.1408 of the Commission's
    rules, 47 C.F.R. §§ 1.1401-1.1408, that Salsgiver's Motion for
    Expedited Action and to Bifurcate Complaint[^89] is DENIED as moot.

    FEDERAL COMMUNICATIONS COMMISSION

    Kris A. Monteith

    Chief, Enforcement Bureau

[^1]: Complaint, File No. EB-06-MD-004 (filed Mar. 20, 2006)
    ("Complaint").

[^2]: 47 U.S.C. § 224.

[^3]: *See* 47 C.F.R. §§ 1.1401--1.1418.

[^4]: Complaint at 2. As discussed below, NPTC challenges that
    characterization of Salsgiver's status.

[^5]: Complaint at 2; NPTC Response, File No. EB-06-MD-004 (filed Apr.
    24, 2006) ("Response") at 4.

[^6]: Complaint at 2; Response at 4. Section 224(a)(1) of the Act
    defines "utility" as including "a local exchange carrier ... who
    owns or controls poles, ducts, conduits, or rights-of-way use, in
    whole or in part, for any wire communications." 47 U.S.C. §
    224(a)(1).

[^7]: 47 U.S.C. § 224(f)(1) ("A utility shall provide a cable television
    system ... with nondiscriminatory access to any pole, duct, conduit,
    or right-of-way owned or controlled by it.") For purposes of this
    Order, we consider "cable television system" under section 224(f)(1)
    of the Act to be synonymous with "cable operator" under section
    602(5) of the Act, 47 U.S.C. § 522(5), and we use these terms
    interchangeably.

[^8]: *See, e.g.*, Complaint at 2; Response at 5.

[^9]: Complaint, Exh. 2.

[^10]: Complaint at 2, Exhs. 3 & 4; Response at 5.

[^11]: Complaint, Exhs. 5-7.

[^12]: Complaint at 7, Exh. 8 ("Pole Attachment Agreement" or
    "Agreement").

[^13]: Complaint at 7, Exhs. 8 & 9.

[^14]: Complaint at 9.

[^15]: The Agreement defines a headend as "\[t\]he control center of a
    cable TV system, whose primary function is to receive via antenna,
    filter, amplify and process local, TV broadcast signals and to
    receive, decrypt, and modulate satellite-delivered video programming
    for distribution from the headend over cable, fiber or wire to, and
    receipt by, cable television subscribers as discrete channels."
    Complaint, Exh. 8, at § 1.5.

[^16]: Complaint, Exh. 14.

[^17]: Complaint, Exhs. 14-15.

[^18]: The Complaint initially requested that the Commission grant
    "extraordinary relief" in the form of penalties and sanctions.
    Complaint at 40-42, ¶¶ 166-169. *See* Reply, File No. EB-06-MD-004
    (filed May 23, 2006) ("Reply") at 26-28. On May 24, 2007, however,
    Salsgiver filed a Notice that it was "withdrawing its request for
    extraordinary relief, penalties, forfeitures, sanctions, and
    damages." Notice, File No. EB-06-MD-004 (filed May 24, 2007).
    Accordingly, we are not ruling on the initial request.

[^19]: 47 U.S.C. § 224(f)(1).

[^20]: 47 C.F.R. § 1.1409(b).

[^21]: Complaint, Exh. 1. FCC Form 322 is a registration statement filed
    pursuant to 47 C.F.R. § 76.1801.

[^22]: Reply in Support of Motion to Expedite and Bifurcate, File No.
    EB-06-MD-004 (filed April 12, 2006) ("Reply in Support of Motion"),
    Exhs. 1-3.

[^23]: Reply, Declaration of Loren Salsgiver ("Salsgiver Declaration")
    at 3. *See* Reply in Support of Motion at 5-7.

[^24]: *See* Sur-Reply of North Pittsburgh Telephone Company, File No.
    EB-06-MD-004 (filed June 20, 2006) ("NPTC Sur-Reply") at 2. *See
    also* 47 C.F.R. § 76.1801 ("a system community unit shall be
    authorized to commence operation only after filing ... FCC Form
    322"). This was the only evidence that Salsgiver initially offered
    to NPTC to demonstrate that Salsgiver was operating a cable
    television system. Complaint at 6. We therefore find no fault with
    NPTC's rejection of that showing.

[^25]: Reply, Exh. 1 at § 3.2.

[^26]: *Fiber Technologies Networks, LLC v. North Pittsburgh Telephone
    Company*, Memorandum Opinion and Order, 22 FCC Rcd 3392, 3397, ¶ 15
    (Enf. Bur. 2007) ("*Fiber Technologies*"); *DQE* *Communications
    Network Services, LLC v. North Pittsburgh Telephone Company*,
    Memorandum Opinion and Order, 22 FCC Rcd 2112, 2116, ¶ 12 (Enf. Bur.
    2007) ("*DQE Communications*"); *Salsgiver Telecom, Inc. v. North
    Pittsburgh Telephone Company*, Memorandum Opinion and Order, 22 FCC
    Rcd 9285 (Enf. Bur. May 24, 2007) ("*Salsgiver*").

[^27]: Section 2.1 of the Agreement provides that pole attachments will
    be permitted only in areas for which Salsgiver has been granted a
    franchise by the applicable authority. Complaint, Exh. 8, § 2.1.

[^28]: NPTC Sur-Reply at 4-5.

[^29]: The single example of the Harrison Township Agreement, with its
    three-year buildout requirement, is insufficient evidence to
    establish an industry standard.

[^30]: *See Paragon Cable Television Inc. v. FCC*, 822 F.2d 152, 153-54
    (D.C. Cir. 1987) (upholding Commission's decision to enforce pole
    attachment agreement's requirement that attacher have a local
    franchise, and to presume validity of franchising authority's
    action). *See also* *Fiber Technologies*, 22 FCC Rcd at 3395-98, ¶¶
    10-16; *DQE* Communications, 22 FCC Rcd at 2116-17, ¶¶ 10-13;
    *Salsgiver*, 22 FCC Rcd at 9281-9291, ¶¶ 9-12. NPTC also objects
    that the Harrison Township agreement post-dates the filing of the
    Complaint, and thus does not support Salsgiver's claim that it was a
    *bona fide* cable system operator in 2004 and 2005. Sur-Reply at 5.
    We agree, but note that the agreement does constitute a *prima
    facie* showing that Salsgiver is a cable operator in Harrison
    Township currently.

[^31]: Response at 17.

[^32]: *See* Response at 2, 17 (citing Sheet 1, Exh. 1 of the Pole
    Attachment Agreement, Complaint Exh. 8).

[^33]: *See* Reply at 9.

[^34]: Response at 17-18.

[^35]: 47 C.F.R. § 76.5 (emphasis added).

[^36]: Response at 1.

[^37]: *E.g.*, Opposition to Motion for Expedited Action, File No.
    EB-06-MD-004 (filed Apr. 3, 2006) ("Opposition to Motion"), at 1-4;
    Response at 1-3.

[^38]: Complaint, Exh. 8 at section 9.2. Similarly, under section 224(f)
    of the Act, if Salsgiver does not use its attachments to provide
    cable service (or telecommunications service), it will lose its
    statutory right to pole access.

[^39]: Sur-Reply at 2 (citing 47 C.F.R. § 1.1404(e)).

[^40]: 47 C.F.R. § 1.1409.

[^41]: Note, however, that had Salsgiver attached the franchise
    agreements to its initial Complaint, the pleading cycle in this case
    could have been more streamlined. Indeed, had Salsgiver provided the
    agreements to NPTC sooner, the parties' negotiations may well have
    been more fruitful.

[^42]: We note that Salsgiver has not made a *prima facie* case as to
    other portions of NPTC's service area, nor has it challenged that
    portion of the Pole Attachment Agreement granting access only in
    those areas in which Salsgiver has been granted a cable franchise by
    the relevant authority. We expect that Salsgiver will provide NPTC
    with evidence of such franchises if Salsgiver seeks to attach to
    poles outside the areas specified above.

[^43]: 47 U.S.C. § 224(b)(1) (providing that "the Commission shall
    regulate the rates, terms, and conditions for pole attachments to
    provide that such rates, terms, and conditions are just and
    reasonable").

[^44]: Complaint, Exh. 8 at 6.

[^45]: *See* Complaint at 19-20. Overlashing, whereby a service provider
    physically ties its wiring to other wiring already secured to the
    pole, is routinely used to accommodate additional strands of fiber
    or coaxial cable on existing pole attachments. *See, e.g.*, *In the
    Matter of Implementation of Section 703(e) of the Telecommunications
    Act of 1996*, Report and Order, 13 FCC Rcd 6777, 6805, ¶ 59 (1998)
    (subsequent history omitted) ("*Telecom Order*").

[^46]: Section 5.2.3. of the Agreement states that "Salsgiver may
    over-lash to its own attachments permitted under this Agreement."
    Complaint, Exh. 8 at 11. We cannot determine whether this provision
    overrides or otherwise affects section 3.2, as neither party has
    explained it. We thus must consider whether section 3.2 is
    reasonable standing alone.

[^47]: *See, e.g.*, *Telecom Order*, 13 FCC Rcd at 6805-10, ¶¶ 59-69
    (citing *Common Carrier Bureau Cautions Owners of Utility* Poles,
    Public Notice, DA 95-35 (Jan. 11, 1995) (cautioning owners of
    utility poles against restricting cable operators from overlashing
    their own pole attachments)).

[^48]: NPTC says that section 3.2 "does not prohibit \[Salsgiver\] from
    overlashing onto third-party facilities," but does not respond to
    the contention that the provision prohibits Salsgiver from
    overlashing its *own* facilities. *See* Response at 25.

[^49]: Response at 24-25.

[^50]: *See* Response at 29-38.

[^51]: *See, e.g.*, *RCN Telecom Services of Philadelphia, Inc. v. PECO
    Energy Co.*, Memorandum Opinion and Order, 17 FCC Rcd 25238,
    25240-41, Phase I Order (Enf. Bur. 2002).

[^52]: Complaint at 20-21, ¶¶ 78-80 (citing 47 U.S.C. § 224(f)(2)).

[^53]: 47 U.S.C. § 224(f).

[^54]: Response at 25-26.

[^55]: 47 U.S.C. § 224(f) (emphasis added).

[^56]: Complaint, Exh. 7 at 6.

[^57]: Complaint at 21-22, ¶¶ 81-85

[^58]: Complaint at 22; Reply at 12-16.

[^59]: Response at 26.

[^60]: Reply at 19-21 and attached Salsgiver Declaration at 12-16.

[^61]: Response at 27.

[^62]: Our decision here is limited to and by the record in this case.
    In some future adjudication or rulemaking, the Commission could, on
    the basis of a different record, decide to allow restrictions on
    boxing.

[^63]: Response at 28-29.

[^64]: *See Cable Texas, Inc. v. Entergy Services, Inc.*, Order, 14 FCC
    Rcd 6647, 6652 ¶ 14 (Cable Serv. Bur. 1999) (stating that pole owner
    must keep costs imposed on attacher reasonable).

[^65]: *Amendment of Commission's Rules and Policies Governing Pole
    Attachments*, Consolidated Partial Order on Reconsideration, 16 FCC
    Rcd 12103, 12141, ¶ 75 (2001).

[^66]: Response at 28.

[^67]: Complaint at 28-30, ¶¶ 115-120; Complaint, Exh. 8 at 14 (section
    5.6. provides that "installing or removing service connections shall
    not require prior authorization or notices, except that when a
    service drop is attached to or removed from a Licensor Pole,
    Salsgiver shall submit an Application at least 30 days prior to the
    attachment or removal"). A "service drop" is an adjunct line to the
    electric supply or communications main line. In cases where a
    service drop must cross a roadway, it is attached to a drop pole on
    the opposite side of the roadway. *See Mile Hi Cable Partners, L.P.
    v. Public Serv. Co. of Colo*., Order, 15 FCC Rcd 11450, 11460, ¶ 19
    (Cable Serv. Bur. 2000) ("*Mile Hi Bureau Order*"), *aff'd on
    review*, Order, 17 FCC Rcd 6268 (2002) ("*Mile Hi Commission
    Order*"), *review denied sub nom. Public Serv. Co. of Colo. v*.
    *FCC*, 328 F.3d 675 (D.C. Cir. 2003).

[^68]: *Mile Hi Bureau Order*, 15 FCC Rcd at 11460, ¶ 19. NPTC asserts
    that this decision is irrelevant because it concerns drop poles, not
    service drops. Response at 33. NPTC is incorrect -- the decision
    addresses the issue of attaching service drops to drop poles. *Id.*

[^69]: Complaint at 29-30, ¶ 118, 120.

[^70]: Response at 33.

[^71]: The Complaint refers to section 9.2, but the language that
    Salsgiver quotes actually appears in section 9.3.

[^72]: Complaint at 31.

[^73]: Complaint, Exh. 8 at 16.

[^74]: Complaint, Exh. 8 at 25.

[^75]: 47 C.F.R. § 1.1403(c) (emphasis added).

[^76]: Response at 35.

[^77]: *Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996*, First Report and Order, 11 FCC Rcd
    15499, 16094-98 (1996) (subsequent history omitted).

[^78]: Complaint, Exh. 8 at 14-15.

[^79]: *See* Complaint at 31-31, ¶¶ 121-25.

[^80]: *Mile Hi Cable Commission Order*, 17 FCC Rcd at 6271-73.

[^81]: *Id.*

[^82]: Response at 34-35.

[^83]: *See* Complaint at 23-39, ¶¶ 89-102, 129-31, 137-41, 149-59.

[^84]: Section 2.1 does not, as Salsgiver asserts, apply to Salsgiver's
    attachments on other utilities' poles. Sections 5.2.1 and 6.1,
    dealing with space reservation, are not facially unreasonable
    because we presume that NPTC will comply with the guidelines for
    space reservation established by the Commission. Section 5.3 charges
    Salsgiver for safety inspections only if Salsgiver is found to be
    out of compliance with the Pole Attachment Agreement's Construction
    standards; this is not facially unlawful, and Salsgiver has not
    shown that NPTC will charge an unreasonable amount for such
    inspections. Section 6.4 does not, as Salsgiver claims, require
    Salsgiver to misrepresent the nature of its access rights. Section
    6.7 does not, as Salsgiver claims, require Salsgiver to accede to
    requests from other utilities for make-ready work. Section 9.1,
    which permits either party to terminate the agreement without cause,
    but only with at least six months' notice, does not vitiate
    Salsgiver's attachment rights. Sections 9.1, 9.2 and 9.5 are not
    facially unlawful, inasmuch as they merely terminate Salsgiver's
    pole attachment rights if Salsgiver ceases to operate a cable
    television system.

[^85]: *See* Complaint at 19-36, ¶¶ 73-74, 86-88, 103-20, 132-36, and
    142-48.

[^86]: As to the confidentiality provision in section 2.6, Salsgiver has
    not explained why it must be permitted to divulge the terms of the
    Pole Attachment Agreement to others, simply so that Salsgiver may
    determine whether it is discriminatory. With respect to Section 3.2,
    Salsgiver has not shown how the requirement to obtain written
    agreement, "which agreement shall not be unreasonably withheld,"
    constitutes an unreasonable burden on its right to attach to
    non-wooden poles. Salsgiver claims that section 5.11 discriminates
    between Salsgiver and other attachers, but provides no evidence of
    what other attachers are required to do. Salsgiver's complaint about
    sections 5.5.4 and 6.2 is merely speculative, and those provisions
    do not on their face suggest that NPTC will disregard its section
    224 obligation to provide Salsgiver with nondiscriminatory access to
    rights of way. With respect to section 6.6, which gives NPTC the
    authority to bump unauthorized Salsgiver attachments off its poles
    in favor of a subsequent attacher, Salsgiver fails to provide any
    rationale for why its *unauthorized* attachments should be entitled
    to priority over other parties' *authorized* attachments. Salsgiver
    claims that under section 6.16, NPTC plans to charge for overhead
    and administrative costs that are already recovered in the annual
    rental rate, but offers inadequate evidence to prove this charge.

[^87]: *See* Complaint at 14-17, ¶¶ 51-66. Salsgiver provides no factual
    basis for its claim that NPTC has attempted to charge Salsgiver for
    remedying other parties' violations. As to the claim that NPTC's
    make-ready charges exceed prevailing market rates, Salsgiver has not
    provided sufficient evidence of comparative rates. And as to the
    claim that NPTC has charged for unnecessary make-ready work,
    Salsgiver does not respond to NPTC's justification for the charges,
    and thus we do not have sufficient basis to rule for Salsgiver at
    this time. We note, however, that costs not required to accommodate
    the attacher may not be imposed on the attacher. *See, e.g.*,
    *Kansas City Cable Partners v. Kansas City Power & Light Co.*,
    Consolidated Order, 14 FCC Rcd 11599 (Cable Serv. Bur. 1999)
    (attacher responsible only for cost of work made necessary because
    of its attachments).

[^88]: *See* Complaint at 13-14, ¶¶ 47-50.

[^89]: Motion for Expedited Action and to Bifurcate Complaint, File No.
    EB-06-MD-004 (filed Mar. 20, 2006).