### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 29, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-15608

________________________ FCC Docket No. PA 00-005 GEORGIA POWER COMPANY, Petitioner,

versus TELEPORT COMMUNICATIONS ATLANTA, INC., DUKE ENERGY CORP., AMERICAN ELEC TRIC POWER SERVICE CORP., Intervenors, FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA, Respondents.

________________________ Petition for Review of an Order of the Federal Comm

unications Comm

ission

_________________________ (September

29, 2003)* Honorable Donald M. Middlebrooks, United States District Judge for the Southern

District of Florida, sitting by designation. 2 Before BLACK and MARCUS, Circuit Ju dges, and MIDDLEBROOKS * , District Judge. BLACK, Circuit Judge: In this petition for re vi ew, Georgia Power Company challenges the Federal Communica

tions Commission (FCC) order af firming a decision of the

FCC’s Cable Services Bureau w hich reduced Geor gia Power’s $53. 35 annual pole rental rate to between$6.56 and

$8.24. FCC has jurisdiction over utility pole atta

chments for ca

ble and telec ommuni catio ns pro vide rs und er the Pole A ttach me nt A ct of 1978, as amended by the Telec ommu nications Act of 1996, specifically 4 7 U.S.C. § 224. Georgia Power contends in i

ts petition that FCC a

cted arbitrarily

and capriciously

in

numerous ways when it r

uled on the pole attac

hment rate disp

ute between Geor

gia Power and intervenor Tel

eport Comm

unicatio ns Atla

nta, Inc. (Tel eport). We conclude that FCC did not act arbitrarily or capriciously, and we therefore deny the petition for review. I. BACKGROUND The Eleventh Circuit appears to have become a locus for pole attachm ent disputes. A fuller statem

ent of thelegal background for this dis pute may be

found in

our several previous op inions involvi ng pole attachments. See Ala. Power Co. v.3

FCC , 311 F.3d 1357 (11t h Cir. 2002), petition for cert. filed

71 U.S.L.W. 3653 (U.S. Apr. 4, 2003) (No. 02–1474); Gulf Power Co. v. FCC , 208 F.3d 1263, 1266–7 0 (11th Cir. 2000) ( Gulf Power 2 ), rev’d in part sub nom. Nat’l Cable & Te

lecomms. Ass’

n, Inc. v. Gulf Power Co ., 122 S. Ct. 782 (2002) ( Gulf Power 3 ); Gulf Power Co. v . United States , 187 F.3d 1324, 1326–28 (11th Cir. 1999) ( Gulf Power 1 ). To summariz

e br iefly, ca

ble companies ha

ve always atta

ched their cables t

o utility poles of power and t

elephone compan

ies in order to take advant

age of thepreexistingnetwork of poles, conduits , an d rights-of-way . The lack of alt ernatives to these existing poles allowed utilities to charge cable companies monopoly ren ts for their attachments. Congress intervene d in 1978 with

the Pole Attachment Act, which authorized FCC to specify a ra nge of rents that utility companies could charge once they voluntarily decided to allow cable companies to attach to utility poles. With the Telecomm

unications Act of 1996, Congre ss mandated access to utility poles fo r both cable and telecomm

unications services providers. Acce ss for telecom munications companies was an entir ely new devel opme nt in the 1996 Act. Pr ior to that, telecomm unications attach ments to utilit y p oles were governed only by mar ket forces. Under the re gime established by the Telecomm

unications Act, FCC was c harged with creating a new telecom

munications for

mula to set atta

chment rates f

or telecomm unications attachers. The telecomm

unications formula was a new formula,4

different from the cable

formula that F CC had promulga ted under the 1978 Pole Attachment A

ct for cable com

panies. Becauseaccess to utility poles was mandatory an d involved physical occupation

of part of the poles, we concluded that pole atta chments pursuant

to the

new Telecommunications Act effected a taking that requiredjust compensation. See Gulf Power 1 , 187 F.3d at 1328. We left it to FCC to determine in the first instance what just compensation would be. Id . at 1333. Utility companies s

ub sequently challenged, inter alia , the FCC rate f ormula for pole

attachments,

but because no specific FCC determi

natio n w as at issue, we declined to rule on whether the FCC formula provided just compensat ion. See Gulf Power 2 , 208 F.3d at 1272–73. More recent ly, we hav e dete rmined that s ome of the pole attachm ent rates promulga

ted by FCC provide just com

pensation to utility com panies, at least in

the absence of specific evidence to the contrary. See Ala. Power , 311 F.3d at 1370–71. The specific dispute in t

his case takes place a

gainst the background of the evershiftingregulatory regime governing pole attachments. In setting the

pole rental rate, the number of pole a

ttachers is a cruc

ial factor. Thi s is so because rent can be assessed for the unusable space on a utility pole

(essentially the part of the pole near the ground where no

attachments c an be placed) but wh ich is nonetheless

necessary to support the remainder

of the pole, wher

e attachments

can be placed. According to5

the Telecomm

unications Act, the

costs associated wi

th the unusable space must be partly shared on a proporti onal basis by all entit ies with attachments on t he pole. See 47 U.S.C. § 224(e)(2). The higher the numbe

r of attachers, ther

efore, the lowe

r the pole rent will be. In 1998, FCC promulgated the Telecom Order , whichrequired each util ity to develop a presumptive a

verage number

of attaching entit

ies f or its poles, based on their locations. In the Matter of Implementation of Section 703(e) of the Telecommunicati

ons Act of 1996: Amendme nt of the Commission’ s Rules and Policies Governing Pole

Attachments , 13 F.C.C.R. 6777 at ¶¶ 78–79 (1998) ( Telecom Order ). The Telecom Order allo wed for challenges to the util ity’s presum

ptive averagenumber of

atta chers; when an appropriate challenge is filed, the utility can then be required to ju stify its presumption. See id

. Becauseof complaints f

rom utilities ab out

the difficulty

of substantiating thei

r presumptive

average number of attac hers, FCC changed this rul e (via notice and comment rulemaking) so that the FCC itself would set a presumptive average. In the Matter of Amendment of C

ommission’s R ule s and Policies Gove rning Pole Attachments: In the Matter of Im ple mentat ion of Section 703(e) of the Telecommunicati

ons Act of 1996, 16 F.C .C.R. 12 ,103 (2001) ( Recon Order). For non-urban ar eas, FCC set the presumptive average at three attachers; for urbanized1 The Cable Services Bureau is the administrative sub-unit of the FCC responsible for

adjudicating, in

the first instance

, complaints relat

ed to pole attachm

ents. 6 areas, the presum

ption was five attachers. Id . at 12,139–40, ¶¶ 71–72. The presumptions

were based in part

on the near-univers ality of the kinds of attachments found on util ity poles; FCC reasoned, for example, that there would be electric, telephone, and

cable attachm

ents in non-urbanized

areas, yiel

ding a presumptio

n of three attachers. Id . at 12,139–40,¶ 71. In urbanized area s, the presumpt

ion of five attachers included electric , telephone, cabl e, competit

iv e telecomm

unications, and government

agency attachments. Id . at 12,140, ¶ 72. FCC’s presum ptions we re rebuttable by either part y. Id. at 12,139, ¶ 70. On October 10, 2000, before the Recon Order issued, Georgia Power notified Intervenor

Teleport Communications that it was imposing anannual pole attachm ent rate o f $53. 35. Af

ter so me limited negotiations with Georgia Power, Teleport filed

a complaint with

the FCC’s Cable

Services Bureau

, 1 arguin g that Georgia Pow er’s

new rate was in exce ss of the maxim um rate permissible unde

r the Pole Attachm

ent Act. In its reply to the complaint, Georgia Power argued that the FCC formula failed to pro vide just compensation because it relied on historical costs rather than fai r market value. Teleport

filed a reply o

bjecting t o Georgia Power’s market-based calculations. Wh en Georgia Powe r attempted to f

ile a supplement

al response, the7

Cable Services Bureau ordered it stricken from the record . T he Cable S ervices Bureausubsequently

ruled on Tel eport’s compl aint, stri king Georg ia Power’s rates and substituting

lower, incremental rates. In the Matter of Teleport Communic

ations Atlanta, Inc. v. Ga. Power Co ., 16 F.C.C. R. 20,238, 20,243– 44, ¶ 13 (2001) ( Teleport ). Importan tly, the Cable Services Bureau applied the

FCC’s presum

ptions from the Recon Order

when it rul ed on Telep ort’s complaint, even though the Recon Order issued six months

after Teleport filed it

s complaint. T

he Bureau ruled tha

t Georgia Power had failed to justify its lower average number of attachers, an d without adequatejustification, the higher presumptive averages from the Recon Order would apply. See Teleport

, 16 F.C.C.R. at 20,243, ¶ 11. On Decembe

r 14, 2001, one m

onth after the Cabl

e Services Burea

u ruled on the Teleport com

plaint, Georgia

Power filed an a

pplication

for administrative review by the full Commission. While that application was pending, Georgia Po w er filed with the Eleventh Circ

uit the petition for

review at docket n

umber 02-10222 (t

he first petition). Oral argument was scheduled for Octo ber 30, 2002. On October 8, 2002, however, the full FCC issued an order affirm

ing the Cable Services Bureau’s order. See In the Matter of Teleport Communications Atlanta, Inc.

v. G a. Power Co. , 17 F.C.C.R. 19,859 (2002) ( Final Order ). In its order, FCC2 The panel retain ed jurisdiction ove

r the two consolida

ted petitions and wa

ited until briefing was c

omplete to schedul

e oral argumen

t. 8 disavowedthe Cable Se rvices Bur eau’s reliance on the presumptions established in the Recon Order

. Id . a t 19 ,866–67, ¶ 20 Instea d, the full FCC “

independently

a dopt[ed]” the same presu mptions, based i

n part on the rational

e behind the Reco n Order

. Id . According to FC C, the Cable Ser vices B ureau ’s reliance on the Recon Order was harmless error. G eorgia P ower then filed another petition for review (at docket number 02-15605) of the full FCC’s order (the second petition). The panel continued the oral argument on the first petition and con solidated it with the

second petition. 2 On November 14,

2002, another panel of this Court decided Alabama Power , thereby ruling on several im

portant issues extant

in the consolidated pe

titions in this

case. We address one of

those important issues

in our companion o

pinion dismissing the first petition. See Ga. Power Co. v. FCC , No. 02 -1022 2 (11th Cir.

___ _________, 2003). We order ed supplemental

briefing addressing Alaba m a Power prior to oral argum ents on the second petit

ion. On May 1, 2003, the panel heard oral arguments on

the consolidated peti

tions, f ocu sing primarily on the issues presented in the second petition and the supplemental briefing thereto.9 II. DISCUSSION G eorgia Power raises se

veral different i ssues in its attem pt to show th e infirmities of FCC’s final order affirming the Cable Serv ices Bureau’s de cision to reduce Georgia Power’s pole att achment rate s. Those issues ar e as follows: 1. Whether FCC’ s shifting of the burde n of proof to establish

the averagenumber of atta

ching entities and accept an ce of Telepo rt’s proffered number with no factual support was arbitrary an d capricious. 2. Whether FCC a

cted arbitrarily

and capriciously

and o ther wise unlawfully

in “independentl

y adopting” rebut

table presumpt

i ons as to the average numbe

r of attaching entit

ies and applying

them to Georgia Power. 3. Wheth er F CC’s refusal to allow additional evi

dence from G

eorgia Power as to the ave

rage number of

attaching entities w

as arbitrary and capricious. 4. Whether FCC’s definition of “a ttaching entities”

for purposes of the telecomm unications rate violated the pl ain language of the P ole Attachments A

ct. 5. Whether FCC’ s assertion of juri sdiction prior to real negotiations betweenGeorgia

Power and Teleport

violated the plain la

nguage of the Telecomm

unications Act. 6. Whether FCC fai le d to provide Georgia Power with just compens ation for the p hysical taking of its p ropert y. We will address

each of these issue s seriatim

.10

A. Georgia Power’s B

urden in FCC’s Ev

identiary Framewo

rk The starting

point for our analy

sis is the basic

burden of proof that o

btained in the pole attachme

nt rate dispute

between Georgia Power and Teleport. FCC concluded that Georgia Po w er had failed to j ustify its propose d rate using any acceptable

rate formula. See Final

Order , 17 F.C.C.R.at 19,863, ¶ 12. I n its petition for review, Georgia Power

contends it did adequat

ely justify its proposed rate

through its initial submission of an affidavit by Thomas G. Park, and that Pa rk’s affidavit

was sufficient under the then-extant rules of the Telecom Order . Under th e Telecom Order , FCC required eac h utility to develop

a presu mptive a verage number

of attachers and, upon r equest, supply to any attaching e

ntity “the m

ethodology and information by

which a utility’s presumption was determined.” Telecom Order , 13 F.C.C.R. 6777 , ¶ 78. Georgia Power did not com

e close to meet

ing its burden to explai n the methodology

and informatio

n underlying its

pole attachme

nt rate. The Final Order identified two basic deficie ncies in Georgia P ower’s subm issions. First,

it noted that Georgia Power’s ave

rage num

ber of 1.5922 was in

valid because the m

inimum possible numb er of a ttachers was two. Final Order , 17 F.C.C.R.at 19,866, ¶ 17. Under both the Telecom Order

and the Recon Order , Georgia Power was requi

red to3 28.5 feet of common space / 2.5922 average attachers (including Geor gia Power) = 10. 994 5 fee t pe r at tac hin g ent ity. 11 include itself in the avera

ge number of

attachers. Thus, an average number of 1.592

2 would appear to be facially implausible. Georgia Power has made no argument that rebuts this conclusion by FCC. Our independent

review of the

record leads us to su

spect that the

average of 1.5922 may not be quite so impla

usible, however. The calculations i ncluded with the Park affidavit include a line label ed “Avg. # of Attach ments.” The calculations also include a line labeled “Com mon Space/Ave

rage # of Attachme

nts,” with the quant

ity 11. What we find confusing

about this entry,

however, is that a

nother line entry

lists the “comm

on space to allo cate ” as 28.5 feet. I f we divide 28.5 fe

et by Georgia Pow er’ s proffered 1.5922 average number of attachers, we find the comm on space per attacher to be not 11 feet, but

nearly 18 feet . Hypothetica lly, however

, if we add one to Georgia Power’s average of 1.5 922—ther eby adding Georgia Power itself as an attaching entity to whom common space must be alloca ted—the calculation

of

common space per attache

r would then yie

ld 11. 3 If this alternative w

ere the correct calculation, Georgia Power’s presumptive average number of attachers would not

be quite so implausible. Remarkably, Georgia P ower has never explained wh ether this possible interpretation of i ts calculations is

accurate. W

e can at best only

speculate,12

and under the circumstances, we defer to the expertise of the FCC in interpreting the rate calculation. The exact status of Ge

orgia Power’s proffered avera ge number of

attachers is ultimately

beside the

point, however, b ecause of the secon d deficiency ide

ntified in the Fin al Order . Apart from any facial im

plausibility in G

eorgia Pow er’ s calculations,F CC also found that Geor gia Power supplied n

o explanation or documentation

that supported its fig ure of 1.5922 average a ttachers. Final Order , 17 F.C.C.R. at 19,866, ¶ 17. A utility is required to supply

not just an average number of attachers, but al so the methodology and underlying da

ta supporting

the proffered averagenumber. See 47 C.F.R. § 1.1404(j). As FCC ex plained, Georgia Power provided none of theunde rlying data upon w hich its proffered

average numbe

r of att achers was based. Final Order , 17 F.C.C.R. at 19,865, ¶ 1 5. Georgia Po wer’s absolute failure to subm

itits underlying dat

a contrastssignific antly with Tel eport’s submissions

accompany

ing i ts c omplaint; Tele

port substantiated nea

rly all of the da

ta underlying

its rate calculat

ions with inform

ation derived from Georgia Power’s own records. The comparis on of the two sets of r ate calculations thr

ows into specific relief the degree to whi ch Georgia Power’s submissio ns were deficient. In addition, even if G

eorgia Power had provided data to explain how it arrived at its figure, it remains unclear what its figure represents or what methodology was13

used to arrive at its fig ure. The Park A

ffidavit contains onl

y the following parenthetical explanation of how th e average was ca

lculated: “no. of poles with cable attach. & no. of poles with te lecom attach. divided by

the total no. of pole s with both cable and telecom at

tach.” Whatev

er this ratio m

ay actually

represent, it doe s not appea r to represe nt the aver age number of attachments to each of Ge orgia Power ’s poles. Georgia Power h

as done nothing to

explain what it m

ight mean. Th

ere is little wonder that FCC concluded Georgia Power’s explanation of its proffe red average was “meaningless.” Final Order , 17 F.C.C.R. at 19,866, ¶ 15. Finall y, we note that the problems associ ated with Georgia

Power’s rate calculations

were not limited to its

failure to justif

y the average n

umber of attac

hing entities. For example, Te leport’s complaint reli ed on FCC presum

ptions for certain other numbers that figure into the rate calculation, inclu

ding the presume

d height of the pole and the presum ed amount of unusa

bl e spa ce. See 47 C.F.R. § 1.1404(g)(1)(xi)

–(xii); see also id

. § 1.1418. While those presumptions are rebuttable, Georgia Power s imply substi

tu ted different figu

res without any explanation or

justification. M

ore importantl

y, Georgia Power’s subm issions were predicat edon a replacem ent cost methodol

ogy rather than FCC’s historica l cos t methodo logy, despite the fact tha t FCC had rejec

ted th e use of re placements cos ts from the very

beginning of its pole at

tachment regul

ations.14

In short, it appears t

hat, because of its disagr

eements with F CC’s regulations gove rning pole attachment rates, Georgia Power submitted pole attachm en t information

that conforme

d to its own views of the

best methodology

for setting rates. See Final Order , 17 F.C.C.R.at 19,863, ¶ 12 (“[Georgia

Power] substitut

ed its own formula for calculating pole attachment rates.”). As a result, Georgia Power steadfastly

refused to supply

FCC with all of the i nformation it w as required to provide in order

to justify its pole attach ment rate. It can come as little surprise that FCC concluded Georgia Power had failed to mee t its burden of supplying the methodology

and un derlying

data that s ubstanti ated its ra te. We agree wit h FCC’s conclusion. B. FCC’s Independent

Adoption of an Average

Number of Attacher

s With Georgia Power h

aving failed to establish a

n average numbe

r of attachers, FCC faced the problem of calculating a pole attachment rate without this crucial f igure. The Cable Servi

ces Bureau solved th

is problem by

taking the pr

esumptiv e averages established in the Recon Order and applying them

retroactively

to the rate dispute between T ele port and Georgia Power. See Teleport , 16 F.C.C.R. at 20,242–43, ¶ 11. W

hen the full FCC hea

rd the rate dispute, however, it disavowed the Cable Services B

ureau’s retroa

ctive application of

those presumptiv

e averages. See Final Or der , 17 F.C.C.R. at 19,867, ¶ 20 (“Therefore , to the extent the Bureau15

relied on the [ Recon ] Order , it was harm less error . . ..”). The full Commiss io n nonetheless employ ed the same pre sumptive averages from the Recon Order to calculate the pole attachm

ent rate. As FC C put

it, “we her

eby independently ado

pt these presumptions, b ased on the fact that they

were proffere

d by Teleport in

this case and were not refuted

by [Georgia Power]. We also conclu de t hat the rationale set forth in the [ Recon ] Order also applies here.” Id

. In the first petition,

Georgia Power a

rgued that the Cable

Servic es Bureau’s retroactive

application of th

e pres umptions established in the Recon Order was i mpermissible. Georgia Power now argues that FCC ’s decision to “ inde pendentl y adopt” thos e same presumptions based on Teleport’s “proffer” of those numbers was arbitrary and

capricious in that it

amounted to a re

troactive rulem

aking in violation of § 551(4) of the Adminis trative Procedures Act. See 5 U.S.C. § 551(4). As we explained supra , Part II. A, Georgia Power failed to est ablish its own averagenumber of atta

chers in compli

ance with the re gula tory re gime at the start of Teleport’s pole attachme

nt complaint proceeding. See Telecom Order , 13 F.C.C.R. at¶ 78. Had

Georgia Power d

one so, Teleport could have rebutted tha t average only by identifying and calculating the average number of attachm ents on Geo rgia Power’s poles, either by a complete inspec tion of the pol es or wit h a stat istica lly soun d surve y. Id

. ¶ 79. Had Teleport supplied su ch rebuttal inform

ation, FCC could co

nceivably16

have relied on it to

calculate t he rate. Unfo rtunately, Te leport’s “proffer” o f 3 and 5 attacher s for non -urbanized and urba n areas, respec

tively, did not m

eet the requirements

of the Telecom Order . Where Teleport substantiated every other entry in its rate calculat

ions with data provided by

Georgia Power,

Teleport did absolut

ely nothing to substantiate its proffered average number of attachers. A

ll it explained, in a footnote, was th

at its calculations “illu strate[] two different scenarios with respect to the number of a

ttaching entities am

ong which unusable space is a llo cated: 3 entities and 5 entities.” There is nothing to even suggest that Teleport had made an actual calculation

or a statistically significant survey of the average num

ber of attaching entities. What FCC confronted,

therefore, wa

s arate dispute in which neither party had provided sufficient inform ation to establish the a

verage number

of attachment

s, the crucial figure that would have allowed FCC to calculate the p ole a ttachment rate. Under FCC regulations, however, “[ w]here one of t

he parties has fail

ed to provide information

required to be provid

ed by these rules or requested

by the Comm

ission, or where costs, v

alues or amounts

are disputed, the Commis sion may est imate such costs, values or amounts it con siders reasonable . . . .” 47 C.F.R. § 1.1409(a). In the absence of any sufficie

nt information f

rom eith er Ge orgia Power or Teleport, FCC17

had the authority under

§ 1.1409(a) to employ its own estimated ave rage number of attaching entities. In estimating the average nu mber of attaching entiti es, F CC relied upon its expertise and the information it had developed during the rulem

aking that led to

the Recon Order . This was a per fectly reason

able response conside

rin g the lack of essential information FC C had received fr om the parties.FCC did not simpl y apply the presumptions of the Recon O rder to Teleport

because the Recon Order posited the aut horitative rules for deciding such disputes.Rather, the rat ionale behind th e Recon Order

was sufficiently persuasive as to convince FC C, in t he exercise of its regulatory

expertise, that th

e presumpti on s established in that r ulemaking wer

e the best estimates of t

h e average number of attachers. While the ordinary use of a rulemaking

is to establish aut

horit ative regulations,

we see nothing arbit

rary or caprici ous abou

t relying on the in

formation deve

loped in a rulem

aking as a persuasive

reason for following a par

ticular course in th

e resolution of an analogous adjudication. Cf. United States v . Mead Corp. , 533 U.S. 218, 228, 121 S. Ct. 2164, 2172 (2001) (recognizing that administrative actions can possess “power

to persuade, if lacking power to con

trol” (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S. Ct. 161, 164 (1944)). Under the circumstances of t his dis pute, relying on

the18

persuasive

power of the Recon Order ’s rationale wa s a reasonable exer

cise of FCC’s power to estimate the average number of attachers under § 1.1409(a). Even though FCC did not simply apply the Recon Order retroactively

, Georgia Power nonetheless argues t

hat using its presum

ptions to estimate

the average

number of attachers am

ounted to the

same thing and was effective ly retroactive. A statute or administrative

regulation

does not operate retroactively merely because it applies to prior conduct; rather, a statute or regula tion has retroactive

effect if it “

would impair rights a party possessed w hen he acted, incr

ease [his] liabi

lity for past con

duct, o r impose new duties with respect to transactions already completed.” Landgraf v. USI Film Prods. , 511 U.S. 244, 280, 114 S. Ct. 1483, 1505 (1994); see also Resolution Trust Corp. v. Ford Mot

or Credit Corp. , 30 F.3d 1384, 1388(11th Cir. 1994). Given this standa

rd, FCC’ s estimate of t

he average num

ber of attachers b ased on the rationale of the Recon Order

was not retroactive. Although Georgia P ower had the responsibil ity

under the Telecom Order to create its own a

verages, that burd

en of proof is not a right that it pos sessed. Nor did FCC’s estim

ate of the average number of atta chers c reate any liabilities for past conduct. Finally, FCC imposed no new duties upon Georgia Power because both the Telecom Order and the Reco n Ord

er required it to provide

the information and methodology upon which its averages were d eveloped. Compare Telecom Order , 13 F.C.C.R.at ¶ 78 (“A uti lity shall, upon19

request, provide all

attaching entities a

nd all entities seeki

ng access the m

ethodology and information by

which a utility’ s presum ptio n was determined.”) with Recon Order , 16 F.C.C.R. a

t 12,138, ¶ 67 (“

The ut ility shall make available its data, information

and methodolo g y upon which the a verages were de

veloped, unless the default averages are used.”). Therefore, FCC’s reliance on the Recon Order

to estimate the average num

ber of attaching ent

ities on Georgia Po

wer’s poles wa

s not improperly retroactive. C. Georgia Power’s A dditional Evidence of the Average Numbe

r of Attachers Georgia Power also com

plains that FCC did not

al low it to supplem

ent the record to provide

the informatio

n that would have substa

ntiated its pole attachme

nt rate. After Telepor

t filed its reply

brief, Georgia

Power moved the Cable Services Bureauto allow it to file additional exhibits and informat ion related to its rate calculations. The Cable Services Bureau denied Georgia Power’s motion

. See Order Denying Motion: Teleport Co

mmunications Atlant

a, Inc. v. Ga. Power Co. , 16 F.C.C.R. 11,831 (2001) ( Order Denying Mot ion ). In its applicat

ion for review before the full Commission, Georgia Power argued that, in li ght of the Bureau’s reliance on the R econ Order , it should have been permitted to supplement the reco rd wit h additional information related to the Reco n Order . FCC reject ed this argument

, r easoning t hat Georgia Power did not attempt to submit appropriate additional20

materials after the Burea

u denied its initial m

otion. See Final Order

17 F.C.C.R. at 19,864, ¶ 13. Georgia Power now argues that, in light of the central role the Recon Order ’s presumptive number of attachers has played in this dispute, it was arbitrary and capricious for FCC not to allow Georgia Power to s upplement the record wi t h information germane to the Recon Order

. FCC resolves pole attachm ent disputes accordi

ng to a three-part pleading cycle

. 47 C.F.R. §§ 1.140

4, 1.1407. In general, “

no other filings and no m

otions other than for exten sion of time will be considered unless authorized by the Commission. ” 47 C.F.R. § 1.1407(a). Com mission rules do allow

for additional fili ngs, see 47 C.F.R. § 1.1409(a) (“

The Comm

ission may a

lso request that one or

more of the

parties make additional filings or provide additional information.”), but the rules are permissive, not mandatory. FCC may also, “in its discretion,” ord er an evidentiary hearing , see 47 C.F.R . § 1.14 11, but again, that ru le is pe rmissiv e, not man datory. In light of this well-e stablished procedu re, Geo rgia Power’s a

rguments regarding its supplem ental s ubmissions are w ithout merit. First, FCC is ent itled to rely upon its standard three-part pleading mecha nism for resolv

ing pole attachment disputes. With its initial m otion to file supplem

ental evidence, G

eorgia Power sough

t to add an additional round of pleadings to the Teleport dispute. FCC determined that there were no new issues raise d in Teleport’s r

eply that were

relevant to resolving the21

dispute. See Final Order , 17 F.C. C.R. at 19,867–68, ¶ 22; see also Teleport , 16 F.C.C.R. at 20,240, ¶ 6. Georgia Power was given a full and fa ir opportu

nity to respond in its first pleading,

meaning that it h

ad a complete o

pportunity to pres ent its case, and there w

as nothing arbitrary

or capricious in the

denial of its mot

ion. Moreo ver, the supplemental m aterials Georgia

Power sought to file

after the close of the thre e-part plea ding cycle we re primarily rel ated to Geo rgia Power’s continuing

effort to use a

replacement

cost methodology rather than FCC’s historical cost method. Nothing in those materials filled the holes in Georgia Power’s original filings in support of its rate, especia lly Georgia Po

wer’s failure

to provide the methodology

and data under lying its average number of at tachers. See supra Part II.A. Given that the informat ion in Georgia Power’s supplemental materials was largely b eside the point, it is

not surprising that FC C refused to deviate from its established procedures. Ge orgia Power could h

ave atte m pted to supplement

the record with information that was ac tually r elevant to properly calculating the attachment

ra te, but it never attempted to submit appropriate material. As F CC correctly recognized, “[Georgia Power] chose not to file supplemental m at erial in response to the Bureau’s [ Order Denying Mot ion ].” Final Order , 17 F .C. C.R. 19,864, ¶ 13.22

We see nothing arbitrar

y or capricious

in FCC’s decisio

n not to order or authorize Georgia Power to submit additiona l information r

egarding the avera

ge number of attachi

ng ent ities. At every stage of this dispute, Georgia Power has attempted to substitute i ts own pr eferred met hodology for fixing

pole attachme

nts rates for that of FCC. None of its submissions— including the supplem

ental materia

ls the Cable Services Bureau rejected—would have supplied FCC with the

information it neededto calculate the pol e attachment r

ate in accordance wi

th FCC’s governin

g regulations. In light of Geo rgia Po wer’s position, FCC’s decision t

o estimate the averagenumber of attachers in light of the Recon Order

and pursuant to 47 C.F.R. § 1.1409(a) was wh

olly reasonable . We therefor e reject Geor

gia Power’s ar

gument. D. FCC’s Definition

of “Attaching Entit

ies” Next, Georgia Power a

ttacks the manner in which FCC arrived at the average number of attachers. A

t bottom, Geor

gia Power ’s complaint i s that the F CC’s presumptions

include utilit ies and governme nt agencies as possible

“attaching entities” when such a construc tion is c ontraryto the language of the Telecomm

unications Act. By incl

uding ut ilities and governm ent agencies in the group of attaching entitie s, FCC’s presum ption increases the t

otal nu mbe r of attachers, thereby reduc

ing the rent that can be imposed on each individual att

aching entity.23

The term “attaching entity” in 47 U.S.C. § 224(e) is undefined by the statute, but a “pole attachment” i s defined specifica lly as an attac

hment by a cable television system or provider of tele

communica

tions services. 47 U .S.C. § 224(a) (4). Georgia Power reasons that the definition of “pole attachment” l imits the range of possible “attaching

entities” in § 224(e) . Georgia Powe r also notes anoth

er subsect ion distinguishes between entities t hat obtain attachments to

a pole and “other entitie s,”

w here “other entities” include the owner of the pole, i.e. the utility. 47 U.S.C. § 224(i). In reviewing adm

inistrative agency

interpretations of statutes, we m ust apply the familiar tw

o-step analysis

of Chevron, U.S.A., Inc. v. Natural Res. D ef. Council, Inc. , 467 U.S. 837,

842–43, 104 S. Ct. 2778, 2781–82 (1984). Under Chevron step one, the question is “w

hether Congress has directly spoken to the

precise question at issue.” Id. at 842, 104 S. Ct. at 2781. If so, then both the agency and the court must give effect to the intent o f Congress. Id. at 842–43, 104 S. Ct.at 2781. If the sta tute in question is silent or

ambiguous, however, Chevron step two requires the court to defer to the agency so long

as the agency’ s construction of the s tatute is permissible. Id. at 843, 104 S. Ct. at 278 2. Atmost, Georgi

a Power’s eff

orts at sta tu tory interpretation can go only far enough to show that § 224(e) is ambiguous at Chevron ’s step one. Thus , we must24

defer to any reasonabl

e agency inter

pretation of the sta

tute. FCC reason

ed in th e Recon Order

that, had Co ngres s meant to li mi t the te rm “atta ching entity” to on

ly cable and t elecommunications providers, it would have used the terms “cable services syste m” and “telecom

munic ations ca rrier” in § 224(e) rather than the more general term “entity.” Recon Order , 16 F.C.C.R.at 12,13 3–3 4, ¶ 59. This is a more reasonable

interpretation of t

he statute than Geor

gia Power’s attem

ptto interpose the definition of “pole attac

hment” as a def

inition of “atta

ching entity” in § 224(e). See CBS Inc. v. PrimeTime 24 Joint Venture , 245 F.3d 1217, 1225–2 6 (11th Cir. 2001) (“[W]here

Congress includes particular language in one section of a statute but omits it in another section of the sam e Act, it is gener

ally presum

ed that Congress act

s intentionally

and pu rposel y in the disparate inclusion or exclusion.” (internal quotation marks and cita

tion omitted)).At Chevron step two, the Cour t must therefore defer to the agenc y’s interpre

tation. Accord S. Co. Servs., Inc. v. FCC , 313 F.3d 574, 580 (D.C. C

ir. 2002) (finding § 224(e) am biguous and concluding

“FCC’s decision to count utilities am

ong ‘attachi

n g entities’ is an e

minently re

asonable interpretation of the statute”). E. Market Negotiations P rior to FCC’s Reso lution of the Dispute According

to Geo rgia P ower, the pl ain la ngua ge of t he Tel ecommu nicatio ns Act require s parties to negotiate pole rents prior to f

iling a complaint

with the25

Commis sion. 47 U.S.C. § 224(e)(1) (“The Com mission shall . . . pres crib e regulations. . . t o gover n the charges for pol e attachments

used by telec ommu nications carriers to provide telecomm unications serv ices, when the parties fail to resolv e a disput e over such charges.”) . FCC’s regulations simi larly invoke

the Commission’s rates “[w] hen parti es fail to resolve a dispute regarding ch

arges for po le attachments. ” 47 C.F.R. § 1. 1409(e). Georgia Power argues bas ed o n thes e

r ules that, because there had been no real negotiation between Georgia Po wer an d Teleport, the parties had not yet “failed to resolve the dispute” and FCC intervened prematurely by ruling on the Teleport complaint. Georgia Power’s argument fails because its major premise is mistaken. Georgia Power characterizes 47 U.S.C. § 224( e)(1) and the rela

ted FCC regulations

as permitting FCC

to intervene

only after negotiations be t ween the parties h ave broken down. In fact, the stat utory and administrative rule is not so limited. When negotiations fail the FCC rate s will govern, but the statute is not

written to lim

itthe jurisdiction

of the FCC to cases in which extensive rate nego

tiations have failed. At the very least, t

he statute is not so unam biguous that FCC’s int erpr etation of it (as evidencedby its resolving the Teleport complaint) is

contrary to a clearly expressed Congressional intent. Georgia Power therefore cannot prevail with a Chevron step26

one argument, and under Chevron step two, th e agency’s interpretation is r easonable enough to be entitled to deference. Even if Georgia Power were cor rect in claim

ing that FCC can inte

rvene in a pole attachment dispute only after the parties’ negotiations are unable to reach an agree men t, Georgia Power’ s argument that FCC intervened too q

uickly still fail s. FCC concluded that Geor gia Power and Tel eport’s limited discussi ons had failed to resolve their dispute over Georgia Po wer’s new pole attachment rates, and further negotiations between the pa rties wo uld be fruitless. G eorgia Power unila

terally announced that it was raising its pole attachment rate to a relativ ely high $53.35. The parties exchanged some correspondence about the r ate, and then Teleport f iled its comp laint

with the FCC. The Cable Services Bureau concluded that the p arties ’ positions had “jelled.” Teleport , 16 F.C.C.R.at 20,241, ¶ 8; see also Final Order , 17 F.C.C.R. at 19 ,867, ¶ 21 (“We think it was reasonable for Teleport to conclude that further efforts at negotiation were fruitless in the absence of Commission intervention.”). Georgia Power does not challenge the substa

ntive accuracy of this conclusion; instead, it argues that some additional, formal negotiations were required before FCC could conclude that further

negotiations would be f

utile. When Ge

orgia Power announced its new $53. 35 rate, however , it was q uite cl early not attem

pting to open negotiations at that pr ice but was instead attempting to fi x a price u nilate rally.27

Cf. S. Co. , 313 F.3d at 583 (approving related FCC rules authori zing an attacher to file a complaint wh

en a utility m

akes a “ta

ke i t or leave it” dem

and for pole attachment

fees). Georgi

a Power has not suppl

ied a sufficient re

ason to doubt FCC’s conclusion

that it would

have been useless fo

r Teleport to

do any more

than it did to negotiatea better price. FCC therefore did not e rr by resolving Teleport

when it did. F. Just Compensation Pr ovided by FCC’s R

ate In both the first and the second petition, Georgia Power argues FCC ’s rat e denied it just compens ation for the taking manda

ted by the Telecomm

unications Act. As Georgia Power c oncede s, this issue is now controlled by our r ecent decision in Alabama Power . In Alabama Power , FCC rejected the pr ice de manded by Alab ama Power for a cable com

pan y's attachments to its utility poles. Alabama Power petitioned for review of the FCC’s order,

arguing that the cabl

e rate imposed by FCC did n ot provide the constitutionally-required just compensation for the t aking effecte d by the Telecommunications Act. See Ala. Power , 311 F.3d at 1360–61. Chief among Alaba maPower’s com

pl aint s was FCC’s use of historical costs rather than fair market value or replacement cost. See id . at 1367. Alabama Power’s argument for som e alternative to the cable rate established by FCC was “complicated by one known fact, one unknow n fact, and one legal principle.” Id

. at 1368. The known f act is that an attac

her must pay for any “m

ake-28

ready” costs and all other m argina l co sts of using the u tility’s poles. See id . The legal principle is that j ust compensation for a taking is determined by

the loss to the person whose property is taken. Id. at 1369 (citing United States v. Causby , 328 U.S. 256, 261, 66 S. Ct. 1062, 1065 –66 (1946); United States v. Va. Elec. & Power Co. , 365 U.S. 624, 635, 81 S. Ct. 784, 792 (1961)). In the m

ore typical ca

se of rivalrous goods, “the ‘value’ of the thing taken is co ngru ent with the loss to the owner.” Id

. The part of the

utility pole that i s taken for man dated pole attachm

ents is, however, practically

“nonrivalrous”

—use by one entity

does not necessarily

di minish u se by others. Id

. In most cases, there is enough space

on the existing

utility pole network to accommoda

te the attaching entity’s needs without forcing the utilities to sacrifice anything. The only possible loss to the utilities is the lost opportunity to r ent space atmarket price s, but the Court found it irrelevant wheth

er the governme

nt keeps the property it has taken fo r itself or instead tr ansfers it to anoth er entity. Id

. The crucial unknown fa

ct on which Alabama Po wer turned was whethe

r the utility’s poles were at ful l capacity, a

t which point the spac e on which the cable company wanted to attach would become rivalrous. Id . at 1370. Alabam a Power did not establish that its pole network was cr owded, so it could

not claim the c able rate provided insufficien

t compensation. According to the Cou rt,29

before a power compa

ny can seek com

pensation above m

arginal cost, itmust show with r

egard to each pole that (1) the pole is at full capacity and (2) eit her (a ) another buyer

of the space is wai

ting in the wings or (b) the power com

pa ny is able to put the space to a higher-valued us e with its own operations. W

ithout such proof, any

implement

ation of the Cable Rate (wh ic h provides for mu ch more than m

arginal cost) necessarily pr

ovides just com

pensation. Id . at 1370–71. The inst ant ca se doe s not materi ally d iffer from Al abama Po wer . In fact, Georgia Power has even less to com plain about than did

its sister, Alabama Power. Recall that the 1996 Telec ommunicati ons Act mandate s two different formul as for calculating

pole attachme

nt rates: the cable rate fo

r cable compa

ny attachm

ents and th e new t elecom rate for telecommunications a ttachments. Alabama Power was a challenge to

the cable rate, while the rate set by FCC in this case w

as predicated on the same nu

m ber of attachers as is p resumptively set by the telecom rate. As Alabama Power

recognized, however, the telecom rate yields a higher pole attachment r ate for telecom munications atta

chments than the

cable rate yi

elds for cable attachments. Id . a t 1371 n.23. If the cable rate provided more th

an just compensation

in Ala bam a Power , then the higher ra te set by FCC in

this case provides just compensa

tion to Georgia Pow

er. It follows th

at Georgia Powe

r’s claim that FCC has failed to provide just compensation must be reject ed in light of this Circuit’s prec edent.30 III. DespiteGeorgia Power’ s numerous allegations of err

ors, we conclude F CC did not act arbitrarily

or capriciously

in disposing of Telepo rt’s pole atta chment complaint in the manner i t did. This dispute arose at a time when the regulatory regime governing pole attac hments was in a

state of flux

. Unfortunately , Georgia Power exacerbated the situation by attempting to substitute i ts own preferred regulations for the

regime established by FCC. Now that FCC has fully articulated the standards that govern pole attachment dis putes, we would not

expect to see any similarly difficult pole attachment disputes in the future. As far as this adjudication is concerned, howe

ver, FCC exerc

ised its administ

rative expertise

as best it was able, and we find no fault with its conclusions. DENIED.