Editorial Note on Part 1
Editorial Note: Nomenclature changes to part 1 appear at 63 FR 54077, Oct. 8, 1998.

§ 1.1406 Commission consideration of the complaint. ( a ) The complainant shall have the burden of establishing a *prima facie* case that the rate, term, or condition is not just and reasonable or that the denial of access violates 47 U.S.C. 224(f). If, however, a utility argues that the proposed rate is lower than its incremental costs, the utility has the burden of establishing that such rate is below the statutory minimum just and reasonable rate. In a case involving a denial of access, the utility shall have the burden of proving that the denial was lawful, once a *prima facie* case is established by the complainant.
( b ) The Commission shall determine whether the rate, term or condition complained of is just and reasonable. For the purposes of this paragraph, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way. The Commission shall exclude from actual capital costs those reimbursements received by the utility from cable operators and telecommunications carriers for non-recurring costs.
( c ) The Commission shall deny the complaint if it determines that the complainant has not established a *prima facie* case, or that the rate, term or condition is just and reasonable, or that the denial of access was lawful.
( d ) The Commission will apply the following formulas for determining a maximum just and reasonable rate: ( 1 ) The following formula shall apply to attachments to poles by cable operators providing cable services. This formula shall also apply to attachments to poles by any telecommunications carrier (to the extent such carrier is not a party to a pole attachment agreement) or cable operator providing telecommunications services until February 8, 2001:
( 2 ) With respect to attachments to poles by any telecommunications carrier or cable operator providing telecommunications services, the maximum just and reasonable rate shall be the higher of the rate yielded by paragraphs (d)(2)(i) or (d)(2)(ii) of this section. ( i ) The following formula applies to the extent that it yields a rate higher than that yielded by the applicable formula in paragraph (d)(2)(ii) of this section: Rate = Space Factor × Cost Where Cost in Service Areas where the number of Attaching Entities is 5 = 0.66 × (Net Cost of a Bare Pole × Carrying Charge Rate) in Service Areas where the number of Attaching Entities is 4 = 0.56 × (Net Cost of a Bare Pole × Carrying Charge Rate) in Service Areas where the number of Attaching Entities is 3 = 0.44 × (Net Cost of a Bare Pole × Carrying Charge Rate) in Service Areas where the number of Attaching Entities is 2 = 0.31 × (Net Cost of a Bare Pole × Carrying Charge Rate) in Service Areas where the number of Attaching Entities is not a whole number = N × (Net Cost of a Bare Pole × Carrying Charge Rate), where N is interpolated from the cost allocator associated with the nearest whole numbers above and below the number of Attaching Entities.
( ii ) The following formula applies to the extent that it yields a rate higher than that yielded by the applicable formula in paragraph (d)(2)(i) of this section:
( 3 ) The following formula shall apply to attachments to conduit by cable operators and telecommunications carriers: simplified as:
( 4 ) If no inner-duct is installed the fraction, “1 Duct divided by the No. of Inner-Ducts” is presumed to be 1 ⁄ 2.
( e ) A price cap company, or a rate-of-return carrier electing to provide service pursuant to § 61.50 of this chapter, that opts-out of part 32 of this chapter may calculate attachment rates for its poles, ducts, conduits, and rights of way using either part 32 accounting data or GAAP accounting data. A company using GAAP accounting data to compute rates to attach to its poles, ducts, conduits, and rights of way in any of the first twelve years after opting-out must adjust (increase or decrease) its annually computed GAAP-based rates by an Implementation Rate Difference for each of the remaining years in the period. The Implementation Rate Difference means the difference between attachment rates calculated by the carrier under part 32 and under GAAP as of the last full year preceding the carrier's initial opting-out of part 32 USOA accounting requirements.
[83 FR 44840, Sept. 4, 2018, as amended at 83 FR 67121, Dec. 28, 2018]