Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules 43963

FOR FURTHER INFORMATION CONTACT:

Stanley Weintraub, (410) 786–4498.

SUPPLEMENTARY INFORMATION:

Background.

In the Federal Register Document

dated June 18, 1997, there were a

number of technical errors. In

Addendum B of the proposed rule, on

pages 33195 through 33196, the

proposed statistical linking

methodology is discussed. In preparing

the table entitled ‘‘Linking Adjustment

Factors by CPEP,’’ the actual linking

factors were not accurately stated. The

actual factors are shown in the revised

table in this document under the

heading ‘‘Correction of Errors.’’

In addition, in Addendum C, on page

33288, we inadvertently printed

incorrect information for CPT code

92543 (caloric vestibular testing).

The discussion on page 33183 of the

proposed rule indicated that we are

proposing to reduce the relative value

units (RVUs) for CPT code 92543 to 25

percent of what the RVUs would

otherwise have been. As explained in

that material, we are making this

proposal because we plan to permit

physicians and suppliers to bill four

units of service instead of the one until

now permitted. The intent is to reduce

billing confusion regarding these codes

in a budget-neutral way.

In Addendum C of the proposed rule,

the reduction to 25 percent of the RVUs

otherwise applicable was reflected for

the practice expense RVUs, but we

incorrectly published unreduced RVUs

for work and malpractice. The corrected

RVUs appear in this document under

the heading ‘‘Correction of Errors.’’

Correction of Errors

In FR Doc. 97–15817 of June 18, 1997

(62 FR 33158), insert the following

revised table on page 33196:

ADDENDUM B.—LINKING ADJUSTMENT

FACTORS BY CPEP

CPEP

Clinical

labor linking

adjustment

Administrative labor

linking adjustment

CPEP #1 ........... .84 .50

CPEP #2 ........... .40 .36

CPEP #3 ........... .42 .31

CPEP #4 ........... 1.03 .56

CPEP #5 ........... .96 .52

CPEP #6 ........... .80 .46

CPEP #7 ........... 1.00 1.00

CPEP #8 ........... .44 .22

CPEP #9 ........... .54 .35

CPEP #10 ......... .91 .78

CPEP #11 ......... .93 .39

CPEP #12 ......... .55 .24

CPEP #13 ......... .77 .44

CPEP #14 ......... 1.00 1.00

CPEP #15 ......... 1.07 .20

Make the following corrections in

Addendum C for CPT code 92543 on

page 33288:

ADDENDUM C.—RELATIVE VALUE UNITS (RVUS) AND RELATED INFORMATION

CPT 1 /

HCPCS2 MOD Status Description

Physician

work

RVUs 3 4

Direct in

office

practice

expense

RVUs

Direct out

of office

practice

expense

RVUs

Total in

office

practice

expense

RVUs

Total out

of office

practice

expense

RVUs

Malpractice

RVUs

Total in

office

Total out

of office

* * * * * * *

92543 ............ A Caloric vestibular test ........................ 0.10 0.14 0.14 0.20 0.20 0.02 0.32 0.32

92543 26 ....... A Caloric vestibular test ........................ 0.10 0.02 0.02 0.05 0.05 0.01 0.16 0.16

92543 TC ...... A Caloric vestibular test ........................ 0.00 0.12 0.12 0.15 0.15 0.01 0.16 0.16

* * * * * * *

1 CPT codes and descriptions only are copyright 1996 American Medical Association. All rights reserved. Applicable FARS/DFARS apply.

2 Copyright 1994 American Dental Association. All rights reserved.

3 + Indicates RVUs are not for Medicare Payment.

4 * Work RVUs increased in global surgical package.

Section 1848 of the Social Security Act

(42 U.S.C. 1395w–4)

(Catalog of Federal Domestic Assistance

Program No. 93.774, Medicare—

Supplementary Medical Insurance Program)

Dated: August 6, 1997.

Neil J. Stillman,

Deputy Assistant Secretary for Information

Resources Management.

[FR Doc. 97–21730 Filed 8–15–97; 8:45 am]

BILLING CODE 4120–01–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 76

[CS Docket No. 97–151; FCC 97–234]

Pole Attachments

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Commission has adopted

a Notice of Proposed Rulemaking

seeking comment on its continued

implementation of the pole attachment

provisions of the Telecommunications

Act of 1996. We seek comment on a

methodology to ensure just, reasonable,

and nondiscriminatory maximum pole

attachment and conduit rates for

telecommunications carriers, and on

how to ensure that rates charged for use

of rights of way are just, reasonable and

nondiscriminatory. The Commission

explores this issue to fulfill its

obligation under the

Telecommunications Act of 1996 to

adopt rules concerning pole

attachments. The item will help the

Commission create a record on this

issue, which will assist the Commission

in designing new or amending current

regulations concerning pole

attachments.

DATES: Comments are due on or before

September 26, 1997 and reply

comments on or before October 14,

1997.

FOR FURTHER INFORMATION CONTACT:

Larry Walke, Cable Services Bureau,

(202) 418–7200. For additional

information concerning the information

collections contained herein, contact

Judy Boley at 202–418–0217, or via the

Internet at jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Notice of

Proposed Rulemaking in CS Docket No.

97–151, FCC 97–234, adopted July 1,

1997 and released August 12, 1997. The

full text of this decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center (room 239), 1919 M Street, NW,

Washington, DC 20554, and may be
43964 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules

purchased from the Commission’s copy

contractor, International Transcription

Service, (202) 857–3800, 1919 M Street,

NW, Washington, DC 20554.

I. Introduction

1. In this Notice of Proposed

Rulemaking (‘‘NPRM’’), the Commission

continues its implementation of section

703 of the Telecommunications Act of

1996 (‘‘1996 Act’’), Pub. L. 104–104, 110

Stat. 61, 149–151 (February 8, 1996), by

proposing amendments to the

Commission’s rules relating to pole

attachments. The 1996 Act expanded

the scope of section 224 of the

Communications Act of 1934

(‘‘Communications Act’’) to

telecommunications carriers and created

a distinction between pole attachments

used by cable systems solely to provide

cable service and pole attachments used

by cable systems or by

telecommunications carriers to provide

any telecommunications service. In this

NPRM we seek comment on the

implementation of a methodology to

ensure just, reasonable, and

nondiscriminatory maximum pole

attachment and conduit rates for

telecommunications carriers. We also

seek comment on how to ensure that

rates charged for use of rights of way are

just, reasonable and nondiscriminatory. 2. The Commission must prescribe the

new methodology for

telecommunications carriers within two

years of enactment of the 1996 Act, with

these rules becoming effective five years

from enactment. Section 224(d)(3) of the

Communications Act applies the

Commission’s existing pole attachment

methodology to both cable television

systems and telecommunications

carriers until the effective date of the

new formula. We note that section 257

of the Communications Act provides

that the Commission promote policies

that eliminate ‘‘* * * market entry

barriers for entrepreneurs and other

small businesses in the provision and

ownership of telecommunications

services and information services.

* * *’’

II. Background

A. Prior to the 1996 Act

3. It is common practice for

telecommunications carriers to lease

space from utilities on poles or in ducts,

conduits, or rights-of-way, in order to

provide telecommunications services.

The federal government did not regulate

these arrangements until 1978, when

Congress enacted section 224 of the

Communications Act in response to

concerns raised by cable television

operators. Section 224 was enacted to

stop utilities from ‘‘unfair pole

attachment practices * * * and to

minimize the effect of unjust or

unreasonable pole attachment practices

on the wider development of cable

television service to the public.’’

4. Section 224(b)(1) grants the

Commission authority to regulate the

rates, terms, and conditions governing

pole attachments to ensure that they are

just and reasonable. Generally, the

Commission does not have authority

where a state regulates pole attachment

rates, terms, and conditions. Section

224(d)(1) defines a just and reasonable

rate as ranging from the statutory

minimum (incremental costs) to the

statutory maximum (fully allocated

costs). Incremental costs include preconstruction survey, engineering, makeready and change-out costs incurred in

preparing for cable attachments.

Congress expected pole attachment rates

based on incremental costs to be low

because utilities generally recover the

make-ready or change-out charges

directly from cable systems. Fully

allocated costs refer to the portion of

operating expenses and capital costs

that a utility incurs in owning and

maintaining poles that is equal to the

portion of usable pole space that is

occupied by an attacher.

5. In 1978, the Commission

implemented the original section 224 by

issuing rules governing pole attachment

issues and establishing a basic formula

for pole attachment rates. Subsequent

Commission orders have reconsidered,

amended and clarified the

Commission’s methodology for

determining rates, the amount of usable

and unusable space on a pole and the

amount of space occupied by cable

systems. In addition, the Commission

has adjusted complaint procedures,

including the information

accompanying complaints.

B. The 1996 Act

6. The 1996 Act amended section 224

in important respects. Most

prominently, it created a right of access

for telecommunications carriers. New

sections 224 (d)(3), (e), (f), (g), (h) and

(i) proscribed expanded access and

established a new methodology for

determining just and reasonable rates

for telecommunications carriers. The

1996 Act also amended the definitions

of ‘‘utility’’ and ‘‘pole attachment’’ in

sections 224 (a)(1) and (a)(4); recognized

a State’s authority to regulate pole

attachments involving

telecommunications carriers in sections

224 (c)(1) and (c)(2)(B); and added

section 224(a)(5) to exempt incumbent

local exchange carriers (‘‘LECs’’) from

the definition of telecommunications

carriers.

7. Under section 224(d)(3) the

Commission’s existing rules are

applicable to both cable television

systems and to telecommunications

carriers until such time as the new rules

become effective. On March 14, 1997,

the Commission released a Notice of

Proposed Rulemaking, Amendment of

Rules and Policies Governing Pole

Attachments, CS Docket No. 97–98

(‘‘Pole Attachment NPRM’’), 62 FR

18074 (April 14, 1997), relating to the

existing formula for pole attachments.

Parties need not file duplicate

comments to address issues raised in

that proceeding. We have determined

that, to the extent such comments are

relevant in the instant proceeding, they

will be incorporated by reference within

this proceeding. That proceeding

specifically seeks comment on the

Commission’s use of the current

presumptions, on carrying charge and

rate of return elements of the formula,

on the use of gross versus net data, and

on a new conduit methodology.

Commenters to the Pole Attachment

NPRM are encouraged to distinguish

their comments in that proceeding if

they vary from those filed in response

to this NPRM, as well as providing

comment on the new and different

issues raised in this NPRM as a result

of 1996 Act. We invite further comment

in this proceeding to establish a full

record for attachments made by cable

systems offering telecommunications

services. In Implementation of Section

703 of the Telecommunications Act of

1996, CS Docket No. 96–166 (‘‘SelfEffectuating Order’’), 61 FR 43023

(August 20, 1996), the Commission

amended its rules to reflect the selfeffectuating additions and revisions to

section 224. In Implementation of the

Local Competition Provisions in the

Telecommunications Act of 1996

(‘‘Local Competition Provisions Order’’),

61 FR 45476 (August 29, 1996), the

Commission implemented the access

provisions of the 1996 Act, sections 224

(c)(1), (f) and (h).

8. Most significantly for purposes of

this NPRM, the 1996 Act added the

following provisions of section 224(e):

(e)(1) The Commission shall, no later than

2 years after the date of enactment of the

Telecommunications Act of 1996, prescribe

regulations in accordance with this

subsection to govern charges for pole

attachments used by telecommunication

carriers to provide telecommunications

services, when the parties fail to resolve a

dispute over such charges. Such regulations

shall ensure that a utility charges just,

reasonable, and nondiscriminatory rates for

such pole attachments.

(e)(2) A utility shall apportion the cost of

providing space on a pole, duct, conduit, or

right-of-way other than usable space among
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules 43965

entities so that such apportionment equals

two-thirds of the costs of providing space

other than the usable space that would be

allocated to such entity under an equal

apportionment of such costs among all

attaching entities.

(e)(3) A utility shall apportion the cost of

providing usable space among all entities

according to the percentage of usable space

required for each entity.

(e)(4) The regulations required under

paragraph (1) shall become effective five

years after enactment of the

Telecommunications Act of 1996. Any

increase in the rates for pole attachments that

result from the adoption of the regulations

required by this subsection shall be phased

in equal annual increments over a period of

five years beginning on the effective date of

such regulations.

9. This NPRM considers the portion of

the costs of a bare pole to be included

in the pole attachment rate. Currently, a

portion of the total annual cost of a pole

is included in the pole attachment rate

based on the portion of the usable space

occupied by the attaching entity. This

formula will continue to be applicable

to cable systems providing only cable

service. However, for cable systems and

telecommunications carriers providing

telecommunications services, the

portion of the total annual cost included

in the pole attachment rate will be

determined under a more delineated

method. This method differentially

allocates the costs of the portion of the

total pole cost associated with the

usable portion of the pole and the

portion of the total pole cost associated

with the unusable portion of the pole.

Generally, this is expected to result, at

least initially, in the inclusion of greater

portions of the carrying charge

components in the rate. As the number

of attaching entities increases, however,

smaller portions of the carrying charge

will be included in each entity’s rate. As

the carrying charge rate is spread

amongst the attaching entities, the

overall rate may become lower over time

because the total cost will be spread

over all attaching entities.

10. Section 224(e) requires two

discrete steps. First, two-thirds of the

costs relating to the other than usable

space on the pole, duct, conduit or

right-of-way will be apportioned equally

among all attaching telecommunications

carriers. Second, telecommunications

carriers will also be apportioned the

cost of usable space, according to the

amount of usable space the entity

requires.

III. Preference for Negotiated

Agreements

11. In proposing a methodology to

implement section 224(e), we note that

the Commission’s role is limited to

circumstances ‘‘when the parties fail to

resolve a dispute over such charges.’’

Thus, negotiations between a utility and

an attacher should continue to be the

primary means by which pole

attachment issues are resolved. We

believe that an attacher must attempt to

negotiate and resolve its dispute with a

utility before filing a complaint with the

Commission. However, we also note

that in the 1996 Act, Congress

recognized the importance of access in

enhancing competition in

telecommunications markets and that

parties in a pole attachment negotiation

do not have equal bargaining positions.

Congress also recognized that the

potential for significant barriers to

competition emanating from the lack of

access or unreasonable rates is

significant. Accordingly, we propose to

use our current rule, which requires a

complainant to include a brief summary

of all steps taken to resolve its dispute

before filing a complaint. 47 CFR

1.1404(i). ‘‘The complaint shall include

a brief summary of all steps taken to

resolve the problem prior to filing. If no

such steps were taken, the complaint

shall state the reason(s) why it believed

such steps are fruitless.’’ We seek

comment on our tentative conclusions

and on the proposed use of our current

rule.

IV. Attachment Space Use

12. Attachment space use must

conform to the standards of section

224(f)(2) with respect to safety,

reliability and generally applicable

engineering standards. When an

attaching entity conforms to these

standards, the issue remaining is

whether a utility may impose additional

limits on the use of the space. We note,

for example, in the context of a pole

attachment by a cable television system

which also provides nonvideo

communication, the Commission has

determined that a utility may not charge

different pole attachment rates

depending on the type of service

provided by the cable operator. See

Heritage Cablevision Assocs. of Dallas,

L.P. v. Texas Utils. Elec. Co., 6 FCC Rcd.

7099 (1991), aff’d sub nom. Texas Utils.

Elec. Co. v. FCC, 997 F.2d 925 (D.C. Cir.

1993). The Commission found that

‘‘Section 224 protects TCI’s pole

attachments within its franchise service

area which support equipment

employed to provide nonvideo services

in addition to video and other

traditional cable television services’’

and that the ‘‘imposition of a separate

charge for TCI’s cable system pole

attachments for nontraditional services

violates section 224’s prohibition

against unjust and unreasonable pole

attachment rates, terms and conditions.’’

Id. at 7107. We seek comment on

whether our holding in Heritage should

be extended to other circumstances

where utilities attempt to condition or

limit the use of attachment space.

13. Given the pro-competitive intent

of the 1996 Act, we tentatively conclude

that telecommunications carriers should

be permitted to overlash their existing

lines with additional fiber when

building out their system. If a

telecommunications carrier is allowed

to overlash its own lines, should it be

permitted to allow third parties to use

the overlashed facility? Moreover, we

seek comment whether a cable system

or telecommunications carrier may

allow a third party to use dark fiber in

its original lines. Where an attaching

entity has overlashed with fiber, should

it be permitted to allow third parties to

use dark fiber within its overlashed

line? We inquire whether a third party

should be permitted to overlash to an

existing cable system or

telecommunications carriers’

attachment. We also seek information

whether there are inherent differences

between the lines of cable systems and

those of telecommunications carriers

that warrant a difference in treatment

between overlashing by cable systems

and telecommunications carriers.

Similarly, we request that commenters

discuss whether, and to what extent,

overlashing facilitates the provision of

services other than cable service by

cable operators, such as Internet access

and local telephone service. We seek

information on how these situations

should be treated for the purpose of

counting entities in the process of

establishing a just and reasonable rate.

We seek comment on the contractual

obligations that utilities should be

permitted to require of attaching entities

who lease excess dark fiber or allow

overlashing. We inquire how best to

promote the rapid deployment of

competitive telecommunications

services in light of these issues.

V. Charges for Attaching

A. Presumptions

14. In a previous order, the

Commission found that ‘‘the most

commonly used poles are 35 and 40 feet

high, with usable spaces of 11 to 16 feet,

respectively.’’ The Commission

recognized the NESC guideline that 18

feet of the pole space must be reserved

for ground clearance and that six feet of

pole space is for setting the depth of the

pole. To avoid a pole by pole rate

calculation, the Commission adopted

rebuttable presumptions of an average

pole height of 37.5 feet, an average
43966 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules

amount of usable space of 13.5 feet, and

an average amount of 24 feet of

unusable space on a pole.

15. A group of electrical utilities

recently filed a Whitepaper

(‘‘Whitepaper’’) in anticipation of this

NPRM. The Whitepaper suggests that an

increase in the current presumptive pole

height is appropriate. The Whitepaper

asserts that over time, and with

increased demand, the average pole

height has increased to an average of 40

feet. At the same time, the Whitepaper

contends that the usable space

presumption should also be changed

from 13.5 feet to 11 feet. We seek

comment in this proceeding to establish

a full record for attachments made by

telecommunications carriers under the

1996 Act. We also seek comment on an

issue raised by Duquesne Light

Company (‘‘Duquesne’’) in its

reconsideration petition of the

Commission’s decision in the Local

Competition Provisions proceeding.

Specifically, Duquesne advocates that

the number of physical attachments of

an attaching entity is not necessarily

reflective of the burden, and therefore

the costs, relating to the attachment.

Duquesne states that varying

attachments place different burdens on

the pole and proposes that any

presumption include factors addressing

weight and wind loads.

16. The presumptions were

established because developing a data

base for each utility is impractical. We

seek comment on the need for

presumptions and whether attachments

by telecommunications carriers are

sufficiently different or unique to cause

us to reevaluate our presumptions.

Specifically, we seek comment on the

amount of usable space occupied by

telecommunications carriers and on

whether the presumptive one foot used

for cable is applicable to

telecommunications carriers generally.

17. We also propose that the

Commission’s approach to the safety

space required to be maintained

between power lines and

communications lines should also apply

to telecommunications carriers. The

Commission has always recognized the

NESC requirement that a 40 inch safety

space must exist between electric lines

and communication lines. The NESC

requires a 40 inch safety space to

minimize the possibility of physical

contact by employees working on cable

television or telecommunications

attachments with the potentially lethal

electric power lines. We tentatively

conclude that the safety space emanates

from a utility’s requirement to comply

with the NESC and should properly be

assigned to the utility as part of its

usable space.

B. Allocating the Cost of Other Than

Usable Space

18. Section 224(e)(2) states that ‘‘[a]

utility shall apportion the cost of

providing space on a pole, duct,

conduit, or right-of-way other than the

usable space among entities so that such

apportionment equals two-thirds of the

costs of providing space other than

usable space that would be allocated to

such entity under an equal

apportionment of such costs among all

attaching entities.’’ This requirement

translates to the following basic

formula:

2 3/ × × × Unusable Space

Pole Height

Net Cost of a Bare Pole

Number of Attachers

Carrying

Charges

19. Under section 224(e)(2), the

number of entities with pole

attachments on each pole affects

directly the rate charged. Defining what

an attacher is and establishing how to

calculate the number of attachers is

critical to formulating a proper cost

allocation method pursuant to section

224(e)(2). The more attaching entities

there are, the more widely the costs

relating to the unusable space are

spread. We propose, consistent with the

statutory language, requiring equal

apportionment of two-thirds of the costs

of providing unusable space among all

attaching entities, that any

telecommunications carrier, or cable

operator or LEC attaching to a pole be

counted as a separate entity for the

purposes of the apportionment of twothirds of the costs of the unusable space.

We also propose that such costs will be

apportioned equally to all such

attaching entities. We seek comment on

these tentative conclusions. We also

note that section 224(g) requires that a

utility providing telecommunications

services impute to its costs of providing

service an amount equal to the rate for

which such company would be liable

under this section. We tentatively

conclude that where a utility is

providing telecommunications services,

such entity would also be counted as an

attaching entity for the purposes of

allocating the costs of unusable space

under section 224(e). We seek comment

on this tentative conclusion.

20. We also tentatively conclude that

an incumbent LEC with attachments on

a pole should be counted for the

purposes of apportionment of the costs

of unusable space. We note that the

definition of telecommunications carrier

excludes incumbent LECs and a pole

attachment is defined as any attachment

by a cable television system or a

provider of telecommunications service,

and seek comment on how these

definitions impact our tentative

conclusion. We also seek comment on

the general premise that counts any

telecommunications carrier as a separate

attaching entity for each foot, or partial

increment of a foot, it occupies on the

pole and on such a methodology’s

consistency with the statutory

requirement in section 224(e)(2) for

equal apportionment among all

attaching entities. We also seek

information on alternative

methodologies to apportion costs, such

as on a proportion of space occupied

basis.

21. Similarly, we propose that

attachments made by a government

agency be included. A utility may be

required under its franchise or statutory

authorization to provide certain

attachments for public use. These

include traffic signals, festoon lighting,

or specific pedestrian lighting. Often,

the agency does not directly pay for the

attachment. Since the government

agency is using space on the pole, we

propose that its attachments be counted

for purposes of allocating the cost of the

unusable space. This cost would be

borne by the pole owner, since it relates

to a responsibility under its franchise or

statutory authorization. We seek

comment on this tentative conclusion.

22. We seek comment on how entities

that have either overlashed to an

existing attachment or are using dark

fiber within the initial attachment of

another entity should be counted for the

purpose of allocation of costs of

unusable space. Should they be

considered as separate attachers for

purposes of counting the number of

entities on a pole?

23. We believe a pole-by-pole

inventory of the number of entities on

each pole would be too costly. We

propose that each utility develop,

through the information it possesses, a

presumptive average number of

attachers on one of its poles. We also
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules 43967

propose that telecommunications

carriers be provided the methodology

and information by which a utility’s

presumption was determined. We seek

comment on this proposal and whether

any parameters should be established

for a utility to develop its presumptive

average. We also seek comment on

whether a utility should develop

averages for areas that share similar

characteristics relating to pole

attachments and whether different

presumptions should exist for urban,

suburban, and rural areas. We seek

comment on the criteria to develop and

evaluate any presumption. As an

alternative to a pole by pole inventory

by the facility owner, we seek comment

on whether the Commission should

determine the average number of

attachments. We inquire whether the

Commission should initiate a survey to

gain the necessary data to develop a

rebuttable presumption regarding the

number of attachments. We seek

comment on the difficulties of

administrating a survey, any additional

data required, and parameters of

accuracy and reliability required for fair

rate determination.

24. Where a presumptive number of

attachers is developed by the

Commission and used to determine

attachment rates, we believe that a

utility, telecommunications carrier or

cable operator may challenge the

presumption. The challenging party

must initially establish that the

presumption is not proper under the

circumstances by identifying and

calculating the number of attachments

on the poles and submitting what it

believes to be an appropriate average.

Where the number of poles is large, and

complete inspection impractical, a

statistically sound survey should be

submitted. Where a presumption is

challenged, the challenged party will be

afforded an opportunity to justify the

presumption. Where a presumption is

overcome either by submission of actual

data or by survey, the resulting figures

would be used as the factor (number of

attachers) within the formula to

calculate the rate. We seek comment on

these issues.

C. Allocating the Cost of Usable Space

25. The Commission has adopted the

following generally applicable formula

for calculating the maximum rate:

Maximum Rate = Space Occupied by Attachment

Total Usable Space Net Cost of a 

Carrying

Charge

Rate

× × Bare Pole

26. The first component of the

formula, space occupied by attachment

divided by the total usable space on a

pole, is used to calculate the percentage

of usable space that the attachment

occupies on an average pole. The

Commission’s rules define usable space

as the space on a utility pole above the

minimum grade level that can be used

for the attachment of wires, cables and

associated equipment. As discussed, for

cable television system attachments, the

Commission’s Petition to Adopt Rules

Concerning Usable Space on Utility

Poles assigned one foot of usable space

per pole to cable systems.

27. The second component of the

overall formula is the net cost of a bare

pole. The component is derived from

the gross investment in poles less

accumulated depreciation and

accumulated deferred income taxes. An

adjustment is made to a utility’s net

pole investment to eliminate the

investment in crossarms and other nonpole related items. To accomplish this,

the Commission decided to reduce net

pole investment by 15% for electric

utilities and 5% for telephone

companies. The two factors reflect the

differences between telephone

companies’ and electric utilities’

investment in crossarms and other nonpole investment that is recorded in the

pole accounts. Electric utilities typically

have more investment in crossarms than

telephone companies. The 0.85 factor

for electric utilities recognizes this

difference. To arrive at the net cost of a

bare pole, a factor, 0.85 for electric

utilities or 0.95 for telephone

companies, is multiplied by the net

investment per pole, as shown in the

following formula:

Net Cost of a

Bare Pole

Factor Net Pole Investment

Number of Poles = ×

This formula rearranges the Pole

Attachment Order’s net cost of a bare

pole formula for presentation purposes.

Net pole investment is defined as the

gross investment in poles less

accumulated depreciation and

accumulated deferred income taxes with

respect to pole investment. We seek

comment on the use of these factors for

arriving at the net cost of bare pole.

28. The final component of the overall

pole attachment formula is the carrying

charge rate. Carrying charges are the

costs incurred by the utility in owning

and maintaining poles regardless of the

presence of pole attachments. The

carrying charges include the utility’s

administrative, maintenance, and

depreciation expenses, a return on

investment, and taxes. To help calculate

the carrying charge rate, we developed

a formula that relates each of these

components to the utility’s net

investment.

29. Section 224(e)(3) states that: ‘‘[A]

utility shall apportion the cost of

providing usable space among all

entities according to the percentage of

usable space required for each entity.’’

This is the allocation methodology

developed by the Commission as

applicable to cable systems—except that

under the Commission’s method the

allocation rate is applied to the full cost

of the pole. As noted, in the Pole

Attachment NPRM, we are seeking

comment on various aspects of the

current formula including the current

space presumptions. We propose to

continue using our current rate

methodology, modified to reflect only

the cost associated with the usable

space, because we believe this

methodology to be as applicable to

telecommunications carriers as to cable

systems. Thus, we would apply the

following formula:
43968 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules

Space Occupied by Attachment

Total Usable Space Usable SpacePole Height Net Cost of a

Bare Pole Carrying

Charges × × ×

30. Alternatively, as we did in the

Pole Attachment NPRM, we seek

additional comment in the context of

this proceeding on calculating a

telecommunications carrier pole

attachment rate using gross book costs

instead of net book costs. Under this

approach the cost of a bare pole and

most carrying charges are computed

using gross book costs. The rate of

return and the income tax carrying

charges must continue to be computed

using net book costs because utility

prices are generally set to allow them to

earn an authorized rate of return on

their net book costs. We currently

compute the carrying charge elements

for maintenance, depreciation and

administrative expenses, as well as for

return on investment and taxes, using

net book costs. Under the proposed

alternative, the carrying charge elements

for maintenance, depreciation and

administrative expenses would be

calculated using gross book costs for

both total plant investment and pole

investment. For example, the

administrative expense element is

currently calculated by dividing total

administrative and general expenses by

net book cost. This yields a percentage

that is applied to the net book cost of

a bare pole. In contrast, a gross book

cost approach to allocation would

divide total administrative and general

expenses by gross book costs. The

resulting percentage would then be

applied to the gross book cost of the

bare pole. Prior to the Pole Attachment

Order, the Commission had decided

certain cases using gross book costs to

calculate maximum reasonable pole

attachment rates. In addition, the

Commission has stated that if both

parties to a pole attachment complaint

agree, the pole attachment rates may be

computed using gross book costs. The

use of gross book costs appears

consistent with the legislative history

supporting section 224, which indicates

that the Commission has significant

discretion in selecting a methodology

for determining just and reasonable pole

attachment rates. We seek comment on

this alternative to ensure a complete

record in order to create a reasonable

telecommunications carrier pole

attachment rate methodology. We note,

however, that because of the way

administrative costs are allocated, the

application of gross book costs may

produce a slightly higher rate. We seek

comment on whether this assumption is

true and if so what the impact of this

change would be.

31. We also seek comment on the

applicability of the above formula when

an entity either has overlashed to an

existing attachment or is using dark

fiber within the initial attachment of

another entity. Should we still continue

to apply the presumptive one foot of

space occupied by the attacher when

allocating the cost of the usable space or

should the entity overlashing or using

dark fiber be considered a separate

attacher, with each using one foot of

usable space? As noted previously, if

the presumptive one foot is not

appropriate, we inquire as to what

presumption should be used?

VI. Conduit Attachment Issues

A. Application of the Pole Attachment

Formula to Conduits

32. Conduit systems are structures

that provide physical protection for

cables and also allow new cables to be

added inexpensively along a route, over

a long period of time, without having to

dig up the streets each time a new cable

is placed. Conduit systems are usually

multiple-duct structures with

standardized duct diameters. The duct

diameter is the principle factor for

determining the maximum number of

cables that can be placed in a duct. We

seek additional comment on the

differences between conduit owned

and/or used by cable operators and

telecommunications carriers and

conduit owned and or used by electric

or other utilities. We understand that

there are inherent differences in the

safety aspects of the latter conduits and

ducts, and we seek comment on

physical limitations that would affect

the rate for such facilities. Where such

conduit is shared, we seek information

on the mechanism for establishing a just

and reasonable rate. We seek comment

on the distribution of usable and

unusable space within the conduit or

duct and how the determination for

such space is made. In this NPRM we

are not addressing the access or safety

provisions, as those issues are more

appropriately addressed in the context

of the Local Competition Provisions

Order. Rather, we are interested in the

application of our formula for the

purpose of setting just and reasonable

rates. Our present formula does not

appear to take such differences into

consideration, and our experience in

resolving disputes relating to electric or

other utility conduit has been limited.

33. Usable space is based on the

number of ducts and the diameter of the

ducts. Section 224(e)(3) states that the

cost of providing usable space shall be

apportioned according to the percentage

of usable space required for the entity

using the conduit. In the Pole

Attachment NPRM, the Commission has

sought comment on a proposed conduit

methodology. Moreover, we propose a

half-duct methodology as the amount of

space used by a cable system or

telecommunications carrier that is, the

space occupied by a cable system was

generally a half-duct.

34. The proposed usable space

formula for users of conduits would

thus be represented as follows:

1 Duct

Average Number of Ducts less

Adjustments for maintenance ducts 

 1

2

 Net Linear Cost of

Usable Conduit Space CarryingCharges

× × ×

We seek comment on this

presumption’s applicability in

determining usable space and allocating

cost to the telecommunications carrier.

35. As discussed above, section

224(e)(2) requires that two-thirds of the

cost of the unusable space be

apportioned equally among all attaching

entities. The unusable space formula

would then be represented as follows:
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules 43969

2 3/ Net Linear Cost of Unusable Conduit Space

Number of Attachers Carrying

Charges × ×

We seek comment on what portions of

duct or conduit are ‘‘unusable’’ within

the terms of the 1996 Act. We propose

that a presumptive ratio of usable ducts

to maintenance ducts be adopted to

establish the amount of unusable space.

We seek comment on how this proposal

impacts determining an appropriate

ratio of usable to unusable space within

a duct or conduit.

36. As with poles, defining what an

attaching entity is and establishing how

to calculate the number of attaching

entities is critical. We also seek

comment on the use an attaching entity

may make of its assigned space,

including allowing others to use its dark

fiber. Consistent with the half-duct

convention proposed in the Pole

Attachment NPRM, we believe that each

entity using one half-duct be counted as

a separate attaching entity. We seek

comment on this method of counting

attaching entities for the purpose of

allocating the cost of the unusable space

consistent with section 224(e).

VII. Rights-of-Way Issues

37. The access and reasonable rate

provisions of section 224 are applicable

where a cable operator or

telecommunications carrier seeks to

install facilities in a right-of-way but

does not make a physical attachment to

any pole, duct or conduit. The

Commission’s proceedings and cases

generally have addressed issues

involving physical attachments to poles,

ducts, or conduits. Our experience

relating to solely rights-of-way

circumstances is limited. We seek

information regarding the degree rightsof-way access issues will arise and the

range of circumstances that will be

involved. We ask whether the

Commission should adopt rules

reflecting a methodology and/or formula

to determine a just and reasonable rate,

or whether rights-of-way complaints

should be addressed on a case-by-case

basis. We seek comment on whether

rights-of-way cases will be of such

number that a methodology is

necessary, and whether the range of

circumstances involving rights-of-way

can be discerned into a generic

methodology. If a methodology is

appropriate, we seek comment on the

elements, including any presumptions,

that will calculate the costs relating to

usable and unusable space. We also seek

information regarding whether

information necessary for any formula is

available through a utility’s accounting

structure, as costs relating to rights-ofway may be different than poles, ducts

and conduit.

VIII. Implementation

38. Section 224(e)(4) requires the

Commission to implement the

telecommunications carrier rate

methodology on February 8, 2001.

Section 224(e)(4) states that ‘‘The

regulations required under paragraph

one shall become effective five years

after enactment of the

Telecommunications Act of 1996. Any

increase in the rates for pole

attachments that result from the

adoption of the regulations required by

this subsection shall be phased in equal

annual increments over a period of five

years beginning on the effective date of

such regulations.’’ The statutory

language of section 224(e)(4) requires

that any rate increase be phased in over

five years in equal annual increments

beginning on that date. We propose that

the amount of increase should be

phased in at the beginning of the five

years and one-fifth of that amount

should be added to the rate in each of

the subsequent five years. We seek

comment on this proposed five year

phase in of the telecommunications

carrier rate. We also seek comment on

any other proposals that would

equitably phase in the

telecommunication carrier rate within

the five years allotted by section

224(e)(4).

IX. Initial Regulatory Flexibility Act

Analyses

39. As required by the Regulatory

Flexibility Act (RFA), the Commission

has prepared an Initial Regulatory

Flexibility Analysis (IRFA) of the

expected significant economic impact

on small entities by the policies and

rules proposed in this Notice of

Proposed Rulemaking (NPRM). Written

public comments are requested on the

IRFA. Comments must be identified as

responses to the IRFA and must be filed

by the deadlines established in

paragraph 76 of this NPRM. The

Secretary shall send a copy of this

NPRM, including the IRFA, to the Chief

Counsel for Advocacy of the Small

Business Administration (SBA) in

accordance with the RFA.

40. Need for Action and Objectives of

the Proposed Rule. In 1987, the

Commission adopted its current pole

attachment formula for calculating the

maximum just and reasonable rates

utilities may charge cable systems for

pole attachments. In this NPRM, we

seek comment as to whether the current

pole attachment formula should be

modified or adjusted to eliminate

certain anomalies and rate instabilities

particular parties assert have occurred.

We have also tentatively proposed such

possible modifications to the formula,

should altering the formula become

necessary, that would improve the

accuracy of the formula. In addition, we

propose changes to the formula to

reflect the present part 32 accounting

system that replaced the former part 31

rules in 1988. Finally, we propose a new

conduit methodology that will

determine the maximum just and

reasonable rates utilities may charge

cable systems and telecommunications

carriers for their attachments to conduit

systems.

41. Legal Basis. The authority for the

action proposed for this rulemaking is

contained in sections 1, 4(i), 4(j), 224,

303 and 403 of the Communications Act

of 1934, as amended, 47 U.S.C. 151,

154(i), 154(j), 224, 303 and 403.

42. Description and Estimate of the

Number of Small Entities Impacted. The

RFA generally defines a ‘‘small entity’’

as having the same meaning as the terms

‘‘small business,’’ ‘‘small organization,’’

‘‘small governmental jurisdiction.’’ In

addition, the term ‘‘small business’’ has

the same meaning as the term small

business concern under the Small

Business Act. A ‘‘small business

concern’’ is one that: (1) Is

independently owned and operated; (2)

is not dominant in its field of operation;

and (3) satisfies any additional criteria

established by the Small Business

Administration (SBA). For many of the

entities described below, the SBA has

defined small business categories

through Standard Industrial

Classification (SIC) codes.

43. Total Number of Utilities Affected.

Many of the decisions and rules

proposed herein may have a significant

effect on a substantial number of utility

companies. Section 224 of the Statue

defines a ‘‘utility’’ as ‘‘any person who

is a local exchange carrier or an electric,

gas, water, steam, or other public utility,

and who owns or controls poles, ducts,

conduits, or rights-of-way used, in

whole or in part, for any wire

communications. Such term does not

include any railroad, any person who is

cooperatively organized, or any person

owned by the Federal Government or

any State.’’ The SBA has provided the
43970 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules

Commission with a list of utility firms

which may be affected by this

rulemaking. Based upon the SBA’s list,

the Commission seeks comment as to

whether all of the following utility firms

are relevant to section 224.

44. Electric Services (SIC 4911). The

SBA has developed a definition for

small electric utility firms. The Census

Bureau reported that 447 of the 1,379

firms listed had total revenues below

five million dollars. The Census Bureau

reports that a total of 1,379 electric

utilities were in operation for at least

one year at the end of 1992. According

to SBA, a small electric utility is an

entity whose gross revenues did not

exceed five million dollars in 1992.

Electric and Other Services Combined

(SIC 4931). The SBA has classified this

entity as a utility whose business is less

than 95% electric in combination with

some other type of service. The Census

Bureau reports that a total of 135 such

firms were in operation for at least one

year at the end of 1992. The SBA’s

definition of a small electric and other

services combined utility is a firm

whose gross revenues did not exceed

five million dollars in 1992. The Census

Bureau reported that 45 of the 135 firms

listed had total revenues below five

million dollars. Combination Utilities,

Not Elsewhere Classified (SIC 4939).

The SBA defines this utility as

providing a combination of electric, gas,

and other services which are not

otherwise classified. The Census Bureau

reports that a total of 79 such utilities

were in operation for at least one year

at the end of 1992. According to SBA’s

definition, a small combination utility is

a firm whose gross revenues did not

exceed five million dollars in 1992. The

Census Bureau reported that 63 of the

79 firms listed had total revenues below

five million dollars.

45. Natural Gas Transmission (SIC

4922). The SBA’s definition of a natural

gas transmitter is an entity that is

engaged in the transmission and storage

of natural gas. The Census Bureau

reports that a total of 144 such firms

were in operation for at least one year

at the end of 1992. According to SBA’s

definition, a small natural gas

transmitter is an entity whose gross

revenues did not exceed five million

dollars in 1992. The Census Bureau

reported that 70 of the 144 firms listed

had total revenues below five million

dollars. Natural Gas Transmission and

Distribution (SIC 4923). The SBA has

classified this entity as a utility that

transmits and distributes natural gas for

sale. The Census Bureau reports that a

total of 126 such entities were in

operation for at least one year at the end

of 1992. The SBA’s definition of a small

natural gas transmitter and distributer is

a firm whose gross revenues did not

exceed five million dollars. The Census

Bureau reported that 43 of the 126 firms

listed had total revenues below five

million dollars. Natural Gas

Distribution (SIC 4924). The SBA

defines a natural gas distributor as an

entity that distributes natural gas for

sale. The Census Bureau reports that a

total of 478 such firms were in operation

for at least one year at the end of 1992.

According to the SBA, a small natural

gas distributor is an entity whose gross

revenues did not exceed five million

dollars in 1992. The Census Bureau

reported that 267 of the 478 firms listed

had total revenues below five million

dollars. Mixed, Manufactured, or

Liquefied Petroleum Gas Production

and/or Distribution (SIC 4925). The SBA

has classified this entity as a utility that

engages in the manufacturing and/or

distribution of the sale of gas. These

mixtures may include natural gas. The

Census Bureau reports that a total of 43

such firms were in operation for at least

one year at the end of 1992. The SBA’s

definition of a small mixed,

manufactured or liquefied petroleum

gas producer or distributor is a firm

whose gross revenues did not exceed

five million dollars in 1992. The Census

Bureau reported that 31 of the 43 firms

listed had total revenues below five

million dollars. Gas and Other Services

Combined (SIC 4932). The SBA has

classified this entity as a gas company

whose business is less than 95% gas, in

combination with other services. The

Census Bureau reports that a total of 43

such firms were in operation for at least

one year at the end of 1992. According

to the SBA, a small gas and other

services combined utility is a firm

whose gross revenues did not exceed

five million dollars in 1992. The Census

Bureau reported that 24 of the 43 firms

listed had total revenues below five

million dollars.

46. Water Supply (SIC 4941). The SBA

defines a water utility as a firm who

distributes and sells water for domestic,

commercial and industrial use. The

Census Bureau reports that a total of

3,169 water utilities were in operation

for at least one year at the end of 1992.

According to SBA’s definition, a small

water utility is a firm whose gross

revenues did not exceed five million

dollars in 1992. The Census Bureau

reported that 3,065 of the 3,169 firms

listed had total revenues below five

million dollars.

47. Sewage Systems (SIC 4952). The

SBA defines a sewage firm as a utility

whose business is the collection and

disposal of waste using sewage systems.

The Census Bureau reports that a total

of 410 such firms were in operation for

at least one year at the end of 1992.

According to SBA’s definition, a small

sewerage system is a firm whose gross

revenues did not exceed five million

dollars. The Census Bureau reported

that 369 of the 410 firms listed had total

revenues below five million dollars.

Refuse Systems (SIC 4953). The SBA

defines a firm in the business of refuse

as an establishment whose business is

the collection and disposal of refuse ‘‘by

processing or destruction or in the

operation of incinerators, waste

treatment plants, landfills, or other sites

for disposal of such materials.’’ The

Census Bureau reports that a total of

2,287 such firms were in operation for

at least one year at the end of 1992.

According to SBA’s definition, a small

refuse system is a firm whose gross

revenues did not exceed six million

dollars. The Census Bureau reported

that 1,908 of the 2,287 firms listed had

total revenues below six million dollars.

Sanitary Services, Not Elsewhere

Classified (SIC 4959). The SBA defines

these firms as engaged in sanitary

services. The Census Bureau reports that

a total of 1,214 such firms were in

operation for at least one year at the end

of 1992. According to SBA’s definition,

a small sanitary service firms gross

revenues did not exceed five million

dollars. The Census Bureau reported

that 1,173 of the 1,214 firms listed had

total revenues below five million

dollars.

48. Steam and Air Conditioning

Supply (SIC 4961). The SBA defines a

steam and air conditioning supply

utility as a firm who produces and/or

sells steam and heated or cooled air.

The Census Bureau reports that a total

of 55 such firms were in operation for

at least one year at the end of 1992.

According to SBA’s definition, a steam

and air conditioning supply utility is a

firm whose gross revenues did not

exceed nine million dollars. The Census

Bureau reported that 30 of the 55 firms

listed had total revenues below nine

million dollars.

49. Irrigation Systems (SIC 4971). The

SBA defines irrigation systems as firms

who operate water supply systems for

the purpose of irrigation. The Census

Bureau reports that a total of 297 firms

were in operation for at least one year

at the end of 1992. According to SBA’s

definition, an irrigation service is a firm

whose gross revenues did not exceed

five million dollars. The Census Bureau

reported that 286 of the 297 firms listed

had total revenues below five million

dollars.

50. Total Number of Telephone

Companies Affected (SIC 4813). Many of

the decisions and rules proposed herein
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules 43971

may have a significant effect on a

substantial number of small telephone

companies. The SBA has defined a

small business for Standard Industrial

Classification (SIC) category 4813

(Telephone Communications, except

Radiotelephone) to be a small entity

when it has no more than 1500

employees. The Census Bureau reports

that, at the end of 1992, there were

3,497 firms engaged in providing

telephone services, as defined therein,

for at least one year. This number

contains a variety of different categories

of carriers, including local exchange

carriers (LECs), interexchange carriers,

competitive access providers, cellular

carriers, mobile service carriers,

operator service providers, pay

telephone operators, PCS providers,

covered SMR providers, and resellers. It

seems certain that some of those 3,497

telephone service firms may not qualify

as small entities or small incumbent

LECs because they are not

‘‘independently owned and operated.’’

It seems reasonable to conclude,

therefore, that fewer than 3,497

telephone service firms are small entity

telephone service firms or small

incumbent LECs that may be affected by

this NPRM. Below, we estimate the

potential number of small entity

telephone service firms or small

incumbent LEC’s that may be affected

by this service category.

51. Wireline Carriers and Service

Providers. The SBA has developed a

definition of small entities for telephone

communications companies other than

radiotelephone (wireless) companies.

The Census Bureau reports that, there

were 2,321 such telephone companies

in operation for at least one year at the

end of 1992. According to SBA’s

definition, a small business telephone

company other than a radiotelephone

company is one employing no more

than 1,500 persons. Of the 2,321 nonradiotelephone companies listed by the

Census Bureau 2,295 were reported to

have fewer than 1,000 employees. Thus,

at least 2,295 non-radiotelephone

companies that might qualify as small

entities or small incumbent LECs, or

small entities based on these

employment statistics. Although it

seems certain that some of these carriers

are not independently owned and

operated, we are unable at this time to

estimate with greater precision the

number of wireline carriers and service

providers that would qualify as small

business concerns under SBA’s

definition. Consequently, we estimate

that there are fewer than 2,295 small

entity telephone communications

companies other than radiotelephone

companies that may be affected by the

decisions or rules that come about from

this NPRM.

52. Local Exchange Carriers. Neither

the Commission nor SBA has developed

a definition of small providers of local

exchange services (LECs). The closest

applicable definition under SBA rules is

for telephone communications

companies other than radiotelephone

(wireless) companies. The most reliable

source of information regarding the

number of LECs nationwide of which

we are aware appears to be the data that

we collect annually in connection with

the Telecommunications Relay Service

(TRS Worksheet). According to our most

recent data, 1,347 companies reported

that they were engaged in the provision

of local exchange services. Although it

seems certain that some of these carriers

are not independently owned and

operated, or have more than 1,500

employees, we are unable at this time to

estimate with greater precision the

number of LECs that would qualify as

small business concerns under SBA’s

definition. Consequently, we estimate

that there are fewer than 1,347 small

incumbent LECs that may be affected by

this NPRM.

53. Interexchange Carriers. Neither

the Commission nor SBA has developed

a definition of small entities specifically

applicable to providers of interexchange

services (IXCs). The closest applicable

definition under SBA rules is for

telephone communications companies

other than radiotelephone (wireless)

companies (SIC 4813). The most reliable

source of information regarding the

number of IXCs nationwide of which we

are aware appears to be the data that we

collect annually in connection with

TRS. According to our most recent data,

130 companies reported that they were

engaged in the provision of

interexchange services. Although it

seems certain that some of these carriers

are not independently owned and

operated, or have more than 1,500

employees, we are unable at this time to

estimate with greater precision the

number of IXCs that would qualify as

small business concerns under SBA’s

definition. Consequently, we estimate

that there are fewer than 130 small

entity IXCs that may be affected by the

decisions and rules proposed in this

NPRM.

54. Competitive Access Providers.

Neither the Commission nor SBA has

developed a definition of small entities

specifically applicable to providers of

competitive access services (CAPs). The

closest applicable definition under SBA

rules is for telephone communications

companies other than radiotelephone

(wireless) companies (SIC 4813). The

most reliable source of information

regarding the number of CAPs

nationwide of which we are aware

appears to be the data that we collect

annually in connection with the TRS

Worksheet. According to our most

recent data, 57 companies reported that

they were engaged in the provision of

competitive access services. Although it

seems certain that some of these carriers

are not independently owned and

operated, or have more than 1,500

employees, we are unable at this time to

estimate with greater precision the

number of CAPs that would qualify as

small business concerns under SBA’s

definition. Consequently, we estimate

that there are fewer than 57 small entity

CAPs that may be affected by the

decisions and rules proposed in this

NPRM.

55. Wireless (Radiotelephone)

Carriers. Although wireless carriers

have not historically affixed their

equipment to utility poles, pursuant to

the terms of the 1996 Act, such entities

are entitled to do so with rates

consistent with the Commission’s rules

discussed herein. SBA has developed a

definition of small entities for

radiotelephone (wireless) companies.

The Census Bureau reports that there

were 1,176 such companies in operation

for at least one year at the end of 1992.

According to SBA’s definition, a small

business radiotelephone company is one

employing no more than 1,500 persons.

The Census Bureau also reported that

1,164 of those radiotelephone

companies had fewer than 1,000

employees. Thus, even if all of the

remaining 12 companies had more than

1,500 employees, there would still be

1,164 radiotelephone companies that

might qualify as small entities if they

are independently owned and operated.

Although it seems certain that some of

these carriers are not independently

owned and operated, we are unable at

this time to estimate with greater

precision the number of radiotelephone

carriers and service providers that

would qualify as small business

concerns under SBA’s definition.

Consequently, we estimate that there are

fewer than 1,164 small entity

radiotelephone companies that may be

affected by this NPRM.

56. Cellular Service Carriers. Neither

the Commission nor SBA has developed

a definition of small entities specifically

applicable to providers of cellular

services. The closest applicable

definition under SBA rules is for

telephone communications companies

other than radiotelephone (wireless)

companies (SIC 4812). The most reliable

source of information regarding the

number of cellular service carriers
43972 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules

nationwide of which we are aware

appears to be the data that we collect

annually in connection with the TRS

Worksheet. According to our most

recent data, 792 companies reported

that they were engaged in the provision

of cellular services. Although it seems

certain that some of these carriers are

not independently owned and operated,

or have more than 1,500 employees, we

are unable at this time to estimate with

greater precision the number of cellular

service carriers that would qualify as

small business concerns under SBA’s

definition. Consequently, we estimate

that there are fewer than 792 small

entity cellular service carriers that may

be affected by the decisions and rules

proposed in this NPRM.

57. Mobile Service Carriers. Neither

the Commission nor SBA has developed

a definition of small entities specifically

applicable to mobile service carriers,

such as paging companies. The closest

applicable definition under SBA rules is

for telephone communications

companies other than radiotelephone

(wireless) companies. The most reliable

source of information regarding the

number of mobile service carriers

nationwide of which we are aware

appears to be the data that we collect

annually in connection with the TRS

Worksheet. According to our most

recent data, 117 companies reported

that they were engaged in the provision

of mobile services. Although it seems

certain that some of these carriers are

not independently owned and operated,

or have more than 1,500 employees, we

are unable at this time to estimate with

greater precision the number of mobile

service carriers that would qualify

under SBA’s definition. Consequently,

we estimate that there are fewer than

117 small entity mobile service carriers

that may be affected by the decisions

and rules proposed in this NPRM.

58. Broadband Personal

Communications Services (PCS)

Licensees. The broadband PCS spectrum

is divided into six frequency blocks

designated A through F and the

Commission has held auctions for each

block. The Commission has defined

‘‘small entity’’ for Blocks C and F as an

entity that has average gross revenues of

less than $40 million in the three

previous calendar years. For Block F, an

additional classification for ‘‘very small

business’’ was added and is defined as

an entity that, together with their

affiliates, has average gross revenues of

not more than $15 million for the

preceding three calendar years. These

regulations defining ‘‘small entity’’ in

the context of broadband PCS auctions

has been approved by the SBA. No

small businesses within the SBAapproved definition bid successfully for

licenses in Blocks A and B. There were

90 winning bidders that qualified as

small entities in the Block C auction. A

total of 93 small and very small business

bidders won approximately 40% of the

1,479 licenses for Blocks D, E, and F.

However, licenses for blocks C through

F have not been awarded fully, therefore

there are few, if any, small businesses

currently providing PCS services. Based

on this information, we conclude that

the number of broadband PCS licensees

will include the 90 winning C Block

bidders and the 93 qualifying bidders in

the D, E, and F blocks, for a total of 183

small PCS providers as defined by the

SBA and the Commission’s auction

rules.

59. Specialized Mobile Radio (SMR)

Licensees. Pursuant to 47 CFR

90.814(b)(1), the Commission has

defined ‘‘small entity’’ in auctions for

geographic area 800 MHz and 900 MHz

SMR licenses as a firm that had average

annual gross revenues of less than $15

million in the three previous calendar

years. This definition of a ‘‘small entity’’

in the context of 800 MHz and 900 MHz

SMR has been approved by the SBA.

The rules adopted in this NPRM may

apply to SMR providers in the 800 MHz

and 900 MHz bands that either hold

geographic area licenses or have

obtained extended implementation

authorizations. We do not know how

many firms provide 800 MHz or 900

MHz geographic area SMR service

pursuant to extended implementation

authorizations, nor how many of these

providers have annual revenues of less

than $15 million. We assume, for

purposes of this FRFA, that all of the

extended implementation

authorizations may be held by small

entities, which may be affected by the

decisions and rules adopted in this

NPRM.

60. The Commission recently held

auctions for geographic area licenses in

the 900 MHz SMR band. There were 60

winning bidders who qualified as small

entities in the 900 MHz auction. Based

on this information, we conclude that

the number of geographic area SMR

licensees affected by the rule adopted in

this Order includes these 60 small

entities. No auctions have been held for

800 MHz geographic area SMR licenses.

Therefore, no small entities currently

hold these licenses. A total of 525

licenses will be awarded for the upper

200 channels in the 800 MHz

geographic area SMR auction. However,

the Commission has not yet determined

how many licenses will be awarded for

the lower 230 channels in the 800 MHz

geographic area SMR auction. There is

no basis, moreover, on which to

estimate how many small entities will

win these licenses. Given that nearly all

radiotelephone companies have fewer

than 1,000 employees and that no

reliable estimate of the number of

prospective 800 MHz licensees can be

made, we assume, for purposes of this

IRFA, that all of the licenses may be

awarded to small entities who, thus,

may be affected by the decisions

proposed in this NPRM.

61. Resellers. Neither the Commission

nor SBA has developed a definition of

small entities specifically applicable to

resellers. The closest applicable

definition under SBA rules is for all

telephone communications companies

(SIC 4812 and 4813). The most reliable

source of information regarding the

number of resellers nationwide of which

we are aware appears to be the data that

we collect annually in connection with

the TRS Worksheet. According to our

most recent data, 260 companies

reported that they were engaged in the

resale of telephone services. Although it

seems certain that some of these carriers

are not independently owned and

operated, or have more than 1,500

employees, we are unable at this time to

estimate with greater precision the

number of resellers that would qualify

as small business concerns under SBA’s

definition. Consequently, we estimate

that there are fewer than 260 small

entity resellers that may be affected by

the decisions and rules adopted in this

NPRM.

62. Cable Systems (SIC 4841). The

SBA has developed a definition of small

entities for cable and other pay

television services, which includes all

such companies generating less than

$11 million in revenue annually. This

definition includes cable systems

operators, closed circuit television

services, direct broadcast satellite

services, multipoint distribution

systems, satellite master antenna

systems and subscription television

services. According to the Census

Bureau, there were 1,423 such cable and

other pay television services generating

less than $11 million in revenue.

63. The Commission has developed

its own definition of a small cable

system operator for the purposes of rate

regulation. Under the Commission’s

rules, a ‘‘small cable company,’’ is one

serving fewer than 400,000 subscribers

nationwide. Based on our most recent

information, we estimate that there were

1,439 cable systems that qualified as

small cable system operators at the end

of 1995. Since then, some of those

companies may have grown to serve

over 400,000 subscribers, and others

may have been involved in transactions

that caused them to be combined with
Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules 43973

other cable systems. Consequently, we

estimate that there are fewer than 1,439

small entity cable system operators that

may be affected by the decisions and

rules proposed in this NPRM.

64. The Communications Act also

contains a definition of a small cable

system operator, which is ‘‘a cable

operator that, directly or through an

affiliate, serves in the aggregate fewer

than 1 percent of all subscribers in the

United States and is not affiliated with

any entity or entities whose gross

annual revenues in the aggregate exceed

$250,000,000.’’ The Commission has

determined that there are 61,700,000

subscribers in the United States.

Therefore, we found that an operator

serving fewer than 617,000 subscribers

shall be deemed a small operator, if its

annual revenues, when combined with

the total annual revenues of all of its

affiliates, do not exceed $250 million in

the aggregate. Based on available data,

we find that the number of cable

systems serving 617,000 subscribers or

less totals 1,450. Although it seems

certain that some of these cable system

operators are affiliated with entities

whose gross annual revenues exceed

$250,000,000, we are unable at this time

to estimate with greater precision the

number of cable system operators that

would qualify as small cable systems

under the definition in the

Communications Act.

65. Municipalities: The term ‘‘small

governmental jurisdiction’’ is defined as

‘‘governments of . . . districts, with a

population of less than fifty thousand.’’

There are 85,006 governmental entities

in the United States. This number

includes such entities as states,

counties, cities, utility districts and

school districts. We note that section

224 of the Act specifically excludes any

utility which is cooperatively organized,

or any person owned by the Federal

Government or any State. For this

reason, we believe that section 224 will

have minimal if any affect upon small

municipalities. Further, there are 18

States and the District of Columbia that

regulate pole attachments pursuant to

section 224(c)(1). Of the 85,006

governmental entities, 38,978 are

counties, cities and towns. The

remainder are primarily utility districts,

school districts, and states. Of the

38,978 counties, cities and towns,

37,566 or 96%, have populations of

fewer than 50,000.

66. Reporting, Recordkeeping, and

other Compliance Requirements: The

rules proposed in this NPRM will

require a change in certain record

keeping requirements. A pole owner

will now have to maintain specific

records relating to the number of

attachers for purposes of computing the

usable and unusable space calculation

for the telecommunications carrier rate

formula. We seek comment on whether

small entities may be required to hire

additional staff and expend additional

time and money to comply with the

proposals set forth in this NPRM. In

addition, we seek comment as to

whether there will be a disproportionate

burden placed on small entities in

complying with the proposals set forth

in this NPRM.

67. Significant Alternatives Which

Minimize the Impact on Small Entities

and Which Are Consistent With State

Objectives: The 1996 Act requires the

Commission to propose a

telecommunications carrier

methodology within two years of the

enactment of the 1996 Act. We seek

comment on various alternative ways of

implementing the statutory

requirements and any other potential

impact of these proposals on small

business entities. We seek comment on

the implementation of a methodology to

ensure just, reasonable and

nondiscriminatory pole attachment and

conduit rates for telecommunications

carriers. We also seek comment on how

to develop a rights-of-way rate

methodology for telecommunications

carriers.

68. Federal Rules which Overlap,

Duplicate, or Conflict with the

Commission’s Proposal: None.

X. Initial Paperwork Reduction Act of

1995 Analysis

69. This NPRM contains either

proposed or modified information

collections. The Commission, as part of

its continuing effort to reduce

paperwork burdens and to obtain

regular Office of Management and

Budget (‘‘OMB’’) approval of the

information collections, invites the

general public and OMB to comment on

the information collections contained in

this rulemaking, as required by the

Paperwork Reduction Act of 1995.

Public and agency comments are due at

the same time as other comments

relating to this NPRM; OMB notification

of action is due 60 days from date of

publication of this NPRM in the Federal

Register. Comments should address: (a)

Whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Commission, including whether the

information shall have practical utility;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

XI. Procedural Provisions

70. Ex parte Rules—Non-Restricted

Proceeding. This is a non-restricted

notice and comment rulemaking

proceeding. Ex parte presentations are

permitted, except during the Sunshine

Agenda period, provided that they are

disclosed as provided in Commission’s

rules. See generally 47 CFR 1.1202,

1.1203, and 1.1206(a).

71. Pursuant to applicable procedures

set forth in §§ 1.415 and 1.419 of the

Commission’s rules, 47 CFR 1.415,

1.419, interested parties may file

comments on or before September 26,

1997 and reply comments on or before

October 14, 1997. To file formally in

this proceeding, you must file an

original and six copies of all comments,

reply comments, and supporting

comments. Parties are also asked to

submit, if possible, draft rules that

reflect their positions. If you want each

Commissioner to receive a personal

copy of your comments, you must file

an original and eleven copies.

Comments and reply comments should

be sent to Office of the Secretary,

Federal Communications Commission,

1919 M Street, NW., Room 222,

Washington, DC 20554, with a copy to

Larry Walke of the Cable Services

Bureau, 2033 M Street, NW., Room

408A, Washington, DC 20554. Parties

should also file one copy of any

documents filed in this docket with the

Commission’s copy contractor,

International Transcription Services,

Inc., 2100 M Street, NW., Suite 140,

Washington, DC 20037. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center, 1919 M Street, NW., Room 239,

Washington, DC 20554.

72. Parties are also asked to submit

comments and reply comments on

diskette, where possible. Such diskette

submissions would be in addition to

and not a substitute for the formal filing

requirements addressed above. Parties

submitting diskettes should submit

them to Larry Walke of the Cable

Services Bureau, 2033 M Street, NW.,

Room 408A, Washington, DC 20554.

Such a submission must be on a 3.5

inch diskette formatted in an IBM

compatible form using MS DOS 5.0 and

WordPerfect 5.1 software. The diskette

should be submitted in ‘‘read only’’

mode. The diskette should be clearly

labelled with the party’s name,

proceeding, type of pleading (comment

or reply comments) and date of
43974 Federal Register / Vol. 62, No. 159 / Monday, August 18, 1997 / Proposed Rules

submission. The diskette should be

accompanied by a cover letter.

73. Written comments by the public

must be submitted at the same time as

those of the Office of Management and

Budget (OMB) on the proposed and/or

modified information collections on or

before 60 days after publication of the

NPRM in the Federal Register. In

addition to filing comments with the

Secretary, a copy of any comments on

the information collections contained

herein should be submitted to Judy

Boley, Federal Communications

Commission, Room 234, 1919 M Street,

NW., Washington, DC 20554, or via the

Internet to jboley@fcc.gov, and to

Timothy Fain, OMB Desk Officer, 10236

NEOB, 725–17th Street, NW.,

Washington, DC 20503 or via the

Internet to fainlt@al.eop.gov.

XII. Ordering Clauses

74. It is ordered that pursuant to

sections 1, 4(i), 4(j), 224, 303 and 403 of

the Communications Act of 1934, as

amended, 47 U.S.C. 151, 154(i), 154(j),

224, 303 and 403, notice is hereby given

of the proposals described in this Notice

of Proposed Rulemaking.

75. It is further ordered that the

Secretary shall send a copy of this

NPRM, including the IRFA, to the Chief

Counsel for Advocacy of the Small

Business Administration in accordance

with the Regulatory Flexibility Act, 5

U.S.C. 603 (2).

76. For additional information

regarding this proceeding, contact Larry

Walke, Policy and Rules Division, Cable

Services Bureau (202) 418–7200.

List of Subjects in 47 CFR Part 76

Cable television.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Note: This attachment will not be

published in the Code of Federal Regulations.

Attachment—Pole Attachment

Formulas (Modified as Proposed)

Telecommunications Companies:

Maximum Rate = (Space Occupied by

Attachment × Carrying Charge Rate

× Net Pole Investment × .95) ÷ Total

# of Poles

Total Carrying Charge Rate =

Administrative + Maintenance +

Depreciation + Taxes + Return

Administrative Carrying Charge Rate =

(Total Administrative and General

(Accounts 6710+6720 + 6110+6120

+ 6534+6535)) ÷ (Gross Plant

Investment ¥ Accum. Depreciation,

Account 3100 ¥ Accum. Deferred

Taxes, Plant)

Maintenance Carrying Charge Rate =

(Account 6411 ¥ Rental Expense,

Poles) ÷ Net Pole Investment

Depreciation Carrying Charge Rate =

Depreciation Rate, Poles

Tax Carrying Charge Rate = Operating

Taxes, Account 7200 ÷ (Gross Plant

Investment ¥ Accum. Depreciation,

Account 3100 ¥ Accum. Deferred

Taxes, Plant)

Return Carrying Charge Rate =

Applicable Rate of Return

Space Occupied by Attachment = 1 foot

Total Usable Space = 13.5 feet (Subject

to Rebuttal)

Gross Plan Investment = Account 2001

Gross Pole Investment = Account 2411

Net Pole Investment = Account 2411 ¥

Accum. Depreciation, Poles ¥

Accum. Deferred Income Taxes,

Poles

[FR Doc. 97–21818 Filed 8–15–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 227

[Docket No. 960730210–7194–03; I.D.

012595A]

RIN 0648–XX65

Endangered and Threatened Species:

Notice of Partial 6-Month Extension on

the Final Listing Determination for

Several Evolutionarily Significant Units

(ESUs) of West Coast Steelhead

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; partial extension

of final determination.

SUMMARY: NMFS has made final listing

determinations for five Evolutionarily

Significant Units (ESUs) of west coast

steelhead under the Endangered Species

Act (ESA). The ESUs listed as

threatened or endangered species are

the Upper Columbia River (endangered),

Snake River Basin (threatened), Central

California Coast (threatened), SouthCentral California Coast (threatened)

and Southern California (endangered).

NMFS has also determined that

substantial scientific disagreement

exists regarding the sufficiency and

accuracy of data relevant to listing five

other west coast steelhead ESUs.

Specifically, NMFS has determined that

substantial scientific disagreements

exist regarding the sufficiency and

accuracy of data relevant to final listing

determinations for the Lower Columbia

River, Oregon Coast, Klamath

Mountains Province, Northern

California, and California’s Central

Valley ESUs. These scientific

disagreements concern the data needed

to determine the status of these species,

the threats to their continued existence,

and the geographic boundaries of

certain ESUs. Consequently, NMFS

extends the deadline for a final listing

determination for these ESUs for 6

months to solicit, collect, and analyze

additional information from NMFS

scientists, co-management scientists,

and scientific experts on this species

enabling NMFS to make the final listing

determination based on the best

available data.

Several efforts are underway that may

resolve scientific disagreement

regarding the sufficiency and accuracy

of data relevant to these listings. NMFS

has undertaken an intensive effort to

analyze data received during and after

the comment period on the proposed

ESUs from the States of Washington,

Oregon, and California, as well as from

peer reviewers. This work will include

evaluating new population models,

analyzing population abundance trends

where new data are available, and

examining new genetic data relative to

the relationship between winter and

summer steelhead and between

hatchery and wild fish. Results of these

analyses are anticipated within the next

two to three months. NMFS will also

receive and analyze additional genetic

samples for California’s Central Valley

ESU as well as rigorously evaluate

ecological characteristics to determine if

further subdivision of this ESU is

warranted.

During the 90-day comment period

following the published proposed

listings rule on August 9, 1996, NMFS

held sixteen public hearings at which

testimony was heard from 188

commenters. Additionally, NMFS

received and continues to analyze 939

written comments.

DATES: The new deadline for final action

on the deferred ESUs of west coast

steelhead is February 9, 1998.

ADDRESSES: Protected Resources

Division, NMFS, Northwest Region, 525

NE Oregon Street, Suite 500, Portland,

OR 97232–2737.

FOR FURTHER INFORMATION CONTACT:

Garth Griffin, 503–231–2005, Craig

Wingert, 310–980–4021, or Joe Blum,

301–713–1401.

SUPPLEMENTARY INFORMATION:

Background

Historically, steelhead likely

inhabited most coastal streams in