Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 6879 

Commodity Parts per 

million 

Poultry, meat byproducts .......... 2.0 

Radish, tops .............................. 4.5 

Rapeseed, meal ....................... 40 

Rapeseed, seed ....................... 35 

Safflower, seed ......................... 15 

Salal .......................................... 5.0 

Sheep, fat ................................. 0.2 

Sheep, meat ............................. 0.2 

Sheep, meat byproducts .......... 1.0 

Soybean, hay ............................ 10 

Soybean, seed .......................... 16 

Spearmint, tops ........................ 30 

Strawberry ................................ 10 

Sunflower, meal ........................ 20 

Sunflower, seed ........................ 7.0 

Turnip, tops ............................... 5.0 

Vegetable, brassica, leafy, 

group 5 .................................. 5.0 

Vegetable, bulb, group 3 .......... 1.0 

Vegetable, cucurbit, group 9 .... 4.0 

Vegetable, fruiting, group 8 ...... 4.0 

Vegetable, leafy, except brassica, group 4 ......................... 4.0 

Vegetable, root and tuber, 

group 1 .................................. 4.0 

* * * * * 

[FR Doc. E8–2094 Filed 2–5–08; 8:45 am] 

BILLING CODE 6560–50–S 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WC Docket No. 07–245; FCC 07–187] 

Implementation of Section 224 of the 

Act; Amendment of the Commission’s 

Rules and Policies Governing Pole 

Attachments 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission seeks comment on whether 

to amend its rules governing pole 

attachments, which are designed to 

ensure the attachment of facilities of 

cable television systems and 

telecommunications carriers to utility 

poles, ducts, conduits, or rights-of-way 

(collectively, ‘‘pole attachments’’) at just 

and reasonable rates, terms and 

conditions. The Commission has 

received petitions for rulemaking from 

Fibertech Networks, LLC and United 

States Telecom Association seeking 

review of the current pole attachment 

rules, which petitioners and 

commenters claim are inadequate in 

scope or no longer accord with 

developing technology and business 

models. The Commission seeks to 

resolve questions regarding appropriate 

regulation of pole attachment rates, 

terms, and conditions of access. 

DATES: Comments are due March 7, 

2008 and Reply Comments are due 

March 24, 2008. Written comments on 

the Paperwork Reduction Act proposed 

information collection requirements 

must be submitted by the public, Office 

of Management and Budget (OMB), and 

other interested parties on or before 

April 7, 2008. 

ADDRESSES: You may submit comments, 

identified by WC Docket No. 07–245, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• E-mail: ecfs@fcc.gov, and include 

the following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

Include the docket number in the 

subject line of the message. 

• Mail: Secretary, Federal 

Communications Commission, 445 12th 

Street SW., Washington, DC 20554. 

• People with Disabilities: Contact the 

FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202–

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. In addition to 

filing comments with the Secretary, a 

copy of any comments on the 

Paperwork Reduction Act information 

collection requirements contained 

herein should be submitted to the 

Federal Communications Commission 

via e-mail to PRA@fcc.gov and to 

Nicholas A. Fraser, Office of 

Management and Budget, via e-mail to 

Nicholas_A._Fraser@omb.eop.gov or via 

fax at 202–395–5167. 

FOR FURTHER INFORMATION CONTACT: 

Jonathan Reel, Wireline Competition 

Bureau, (202) 418–1580. For additional 

information concerning the Paperwork 

Reduction Act information collection 

requirements contained in this 

document, contact Jerry R. Cowden at 

(202) 418–0447, or via the Internet at 

PRA@fcc.gov. 

SUPPLEMENTARY INFORMATION: Pursuant 

to §§ 1.415 and 1.419 of the 

Commission’s rules, 47 CFR 1.415 and 

1.419, interested parties may file 

Comments on or before March 7, 2008 

and Reply Comments on or before 

March 24, 2008. Comments may be filed 

using: (1) The Commission’s Electronic 

Comment Filing System (ECFS), (2) the 

Federal Government’s eRulemaking 

Portal, or (3) by filing paper copies. See 

Electronic Filing of Documents in 

Rulemaking Proceedings, 63 FR 24121, 

May 1, 1998. 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• For ECFS filers, if multiple docket 

or rulemaking numbers appear in the 

caption of this proceeding, filers must 

transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing 

instructions, filers should send an email to ecfs@fcc.gov, and include the 

following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although we continue to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

• The Commission’s contractor will 

receive hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 


rwilkins on PROD1PC63 with PROPOSALS
6880 Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202–

418–0432 (TTY). 

Initial Paperwork Reduction Act of 

1995 Analysis 

This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104–

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Synopsis of the Notice of Proposed 

Rulemaking 

Implementation of Section 224 of the 

Act; Amendment of the Commission’s 

Rules and Policies Governing Pole 

Attachments 

1. In this Notice of Proposed 

Rulemaking (NPRM), the Commission 

seeks comment with regard to 

implementation of section 224 of the 

Communications Act of 1934, as 

amended (Act). Section 224 confers on 

cable television systems and 

telecommunications carriers the right to 

pole attachments at just and reasonable 

rates, terms and conditions. In the 

Telecommunications Act of 1996 (1996 

Act), Congress expanded the definition 

of a ‘‘pole attachment’’ for purposes of 

section 224 to include not only poles 

but also ‘‘any attachment’’ to a ‘‘duct, 

conduit, or right-of-way owned or 

controlled by a utility.’’ The 

Commission seeks to ensure that its 

regulatory framework remains current 

and faithful to the pro-competitive, 

market-opening provisions of the Act in 

light of experience over the last decade, 

advances in technology, and 

developments in the markets for 

telecommunications and video services. 

2. Rate Regulation. Congress first 

directed the Commission to ensure that 

the rates, terms, and conditions for pole 

attachments by cable television systems 

were just and reasonable in 1978 when 

it added section 224 to the Act. Then, 

as now, the statute provided that the 

Commission will regulate pole 

attachments except where such matters 

are regulated by a state. Eighteen states 

and the District of Columbia have 

certified that they regulate pole 

attachments, and thus the Commission 

does not regulate pole attachments in 

those states. In a series of orders, the 

Commission implemented a formula 

that cable television system attachers 

and utilities could use to determine a 

just and reasonable rate, and procedures 

for resolving rate complaints. In 1987, 

the U.S. Supreme Court found that the 

formula the Commission devised for 

pole attachments by cable television 

systems (the cable rate) did not result in 

an unconstitutional ‘‘taking.’’ Congress 

expanded the reach of section 224 in 

several notable ways in the 1996 Act. 

Congress granted attachers an 

affirmative right to access utility poles. 

The 1996 Act also added ducts, 

conduits, and rights-of-way to the 

facilities covered by section 224. 

Congress included a proviso, however, 

that utilities providing electric service 

may deny access, on a 

nondiscriminatory basis, where there is 

insufficient capacity and for reasons of 

safety, reliability and generally 

applicable engineering purposes. 

Further, Congress added 

‘‘telecommunications carrier’’ as a 

category of attacher under section 224. 

Congress established two separate 

provisions governing the maximum 

rates for pole attachments—one for 

attachments used by 

‘‘telecommunications carriers’’ to 

provide telecommunications services 

(the telecommunications rate), and 

another for attachments used ‘‘solely to 

provide cable service.’’ For purposes of 

section 224, Congress excluded 

incumbent local exchange carriers 

(LECs) from the definition of 

‘‘telecommunications carriers.’’

3. Access Regulation. To implement 

the new section 224 access requirements 

of the 1996 Act, the Commission 

adopted five rules of general 

applicability and several broad policy 

guidelines addressing such issues as 

capacity expansion, reservation of space 

by utilities for their own use, and the 

right of non-electric utilities to deny 

access for capacity or safety reasons. 

The Commission declined at that time 

to mandate specific access 

requirements, concluding instead that 

the reasonableness of particular 

conditions of access imposed by a 

utility should be resolved on a casespecific basis. The Commission stated 

that it would monitor the effect of the 

case-specific approach, and would 

propose specific rules at a later date if 

conditions warranted. The Commission 

also concluded that section 224’s 

principle of nondiscrimination required 

utilities to expand capacity for attachers 

as they would for themselves. In 

Southern Co. v. FCC, 293 F.3d 1338, 

1346–47 (11th Cir. 2002), the U.S. Court 

of Appeals for the Eleventh Circuit 

rejected the Commission’s requirement 

that utilities expand capacity for 

attachers, holding that, under the plain 

language of section 224 of the Act, 

‘‘[w]hen it is agreed that capacity is 

insufficient, there is no obligation to 

provide third parties with access’’ to 

poles. The Eleventh Circuit also held, 

however, that the term ‘‘insufficient 

capacity’’ is not defined by statute and 

is ambiguous, and that utilities do not 

‘‘enjoy the unfettered discretion to 

determine when capacity is 

insufficient.’’ Southern, 293 F.3d at 

1348. 

4. Petitions for Rulemaking. On 

December 7, 2005, Fibertech Networks, 

LLC (Fibertech) petitioned the 

Commission to conduct a rulemaking to 

adopt seven ‘‘standard practices’’ for 

pole and conduit access. On October 11, 

2005, United States Telecom 

Association (USTelecom) petitioned the 

Commission to conduct a rulemaking to 

consider whether, as providers of 

telecommunications services, 

incumbent LECs are entitled to 

regulated pole attachment rates. Among 

the numerous ex parte filings submitted 

in these dockets, Time Warner Telecom, 

Inc. (TWTC) filed a White Paper seeking 

adoption of a single pole attachment 

rate for both cable television systems 

and telecommunications carriers in 

order to remove regulatory bias from 

investment decisions regarding 

deployment of broadband and other 

services. 

5. Market Forces and Change. The 

Commission inquires about the current 

state of pole attachments, ducts, 

conduits, and rights-of-way, and the 

relationship between these facilities and 

the competitive telecommunications 

market. It seeks data on the nature and 

scope of pole attachments by the various 

types of providers, and inquires about 

the difference in pole attachment prices 

paid by cable systems, incumbent LECs, 

and competing telecommunications 

carriers that provide the same or similar 

services. The Commission asks, for 

example, in what ways do pole 

attachments affect the expansion of 

broadband Internet access service and 

how do pole attachments by cable 

systems and providers of 

telecommunications services affect 

competition to deliver services. Over the 

last few years, the Commission has 

recognized that the once-clear 

distinction between ‘‘cable television 

systems’’ and ‘‘telecommunications 

carriers’’ has blurred as each type of 

company enters markets for the delivery 


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Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 6881 

of services historically associated with 

the other. 

6. The Commission also seeks 

comment regarding possible changes in 

bargaining power between electric 

utilities and incumbent LECs, and 

whether pole attachment rates paid by 

incumbent LECs could affect the vitality 

of competition to deliver 

telecommunications, video services, and 

broadband Internet access service. The 

Commission seeks comment on 

developments related to rates, costs, and 

bargaining power between electric 

utilities and incumbent LECs. The 

Commission seeks comment regarding 

‘‘joint use agreements,’’ including the 

number and percentage of poles that are 

owned or managed jointly, and how to 

evaluate when ownership and control of 

poles is truly ‘‘joint.’’ The Commission 

also seeks comment on claims that small 

and rural incumbent LECs are 

particularly at a disadvantage. 

7. Authority To Regulate Pole 

Attachments. The Commission seeks 

general comment regarding the contours 

of the Commission’s flexibility to 

interpret section 224. Section 224(b)(1) 

states that ‘‘the Commission shall 

regulate the rates, terms, and conditions 

for pole attachments to provide that 

such rates, terms, and conditions are 

just and reasonable’’ and section 

224(a)(4) states that ‘‘[t]he term ‘pole 

attachment’ means any attachment by a 

cable television system or provider of 

telecommunications service to a pole, 

duct, conduit, or right-of-way owned or 

controlled by a utility.’’ In addition to 

this broad mandate, and as noted above, 

section 224 also provides two separate 

and explicit rate formulas. One rate—

the cable rate—applies to cable 

television systems’ attachments used 

solely to provide cable service; the 

other—the telecommunications rate—

applies to both cable systems and 

telecommunications carriers’

attachments used to provide 

telecommunications services. 

8. The statute does not specify which 

of these rates, if either, should apply to 

transmission of information access 

services. The Commission seeks 

comment on the extent to which the 

current cable rate formula, whose space 

factor does not include unusable space, 

results in a subsidized rate, and, if so, 

whether cable operators should 

continue to receive such subsidized 

pole attachment rate at the expense of 

electric consumers. The Commission 

seeks comment on whether cable 

operators should continue to qualify for 

the cable rate where they offer multiple 

services in addition to cable service, and 

whether all telecommunications carriers 

must pay the telecommunications rate, 

regardless of what other services they 

may provide over their attachments. The 

Commission asks under what 

circumstances the Commission may 

adopt another rate, what is the extent of 

the Commission’s ability to modify how 

the cable and telecommunications rates 

are applied. The Commission further 

asks whether wireless carriers are 

entitled to attach equipment at the 

subsection (e) telecommunications rate, 

or whether their attachments differ to 

such an extent that another rate would 

be more reasonable. The Commission 

seeks comment on the reach of its 

general authority to regulate pole 

attachments pursuant to section 224(b), 

asking whether it has the authority 

under section 224 to regulate pole 

attachment rates for all providers of 

telecommunications services, including 

incumbent LECs. 

9. A Unified Pole Attachment Rate 

and the Existing Cable and 

Telecommunications Rates. The 

Commission seeks comment on the 

statutory limits, if any, to unifying the 

pole attachment rate paid by both cable 

systems and telecommunications 

carriers when their pole attachments are 

used to provide broadband Internet 

access service. TWTC proposes that the 

Commission should eliminate the 

telecommunications rate and apply the 

cable rate to all pole attachments, and 

argues that the Commission should use 

its broad authority to apply the cable 

rate to all pole attachments. TWTC 

further argues that section 224(e)(1) 

mandates that rates must be 

nondiscriminatory, and that where cost 

allocation guidelines yield 

discriminatory rates, that the 

nondiscrimination mandate trumps the 

cost allocation guidelines. The 

Commission questions TWTC’s 

assertion that the cable rate should 

apply to all pole attachments, 

particularly because the cable rate does 

not include an allocation of the cost of 

unusable space. The Commission seeks 

comment on the advantages and 

disadvantages of a unitary rate for all 

providers of broadband Internet access 

service, and the appropriate level of 

such rate. 

10. The Rights of Incumbent LECs 

under Section 224. The Commission 

seeks comment on the extent of its 

authority to regulate pole attachment 

rates for incumbent LECs. In the Local 

Competition Order and succeeding 

orders, and in the rules implementing 

section 224, the Commission interpreted 

the exclusion of incumbent LECs from 

the term ‘‘telecommunications carrier’’

(and from the corresponding right to 

attach to utility poles) to mean that 

section 224 does not apply to 

attachment rates paid by incumbent 

LECs. USTelecom asks the Commission 

to revisit that interpretation. USTelecom 

acknowledges that incumbent LECs are 

excluded from the section 224 

definition of ‘‘telecommunications 

carrier.’’ USTelecom argues, however, 

that sections 224(b)(1) and 224(a)(4) 

provide an independent right to 

reasonable rates, terms, and conditions 

for any pole attachment by a provider of 

telecommunications service, and that 

the statute thus mandates the 

Commission to apply the ‘‘just and 

reasonable’’ standard to pole 

attachments for all such providers, 

including incumbent LECs. USTelecom 

asks the Commission to revise any pole 

attachment rule that conflates ‘‘right of 

access’’ with ‘‘just and reasonable rates, 

terms, and conditions.’’ USTelecom 

argues that Congress could have 

required just and reasonable rates only 

for ‘‘a cable television system or any 

telecommunications carrier’’—the 

phrase used to specify the right of 

access—but Congress chose instead to 

afford such protection to ‘‘any 

attachment by a cable television system 

or provider of telecommunications 

service.’’ Therefore, according to 

USTelecom, because the Commission’s 

current rules ignore this distinction, 

they only partially implement section 

224. Under USTelecom’s proposal, 

although only cable television systems 

and ‘‘telecommunications carriers’’

would be assured of access to poles, all 

attaching ‘‘providers of 

telecommunications service,’’ including 

incumbent LECs, would be assured of 

just and reasonable rates. The 

Commission seeks comment on the view 

that, under section 224, ‘‘access’’ and 

‘‘rates, terms, and conditions’’ are 

severable rights that should be 

implemented separately. 

11. Rate Level. The Commission seeks 

comment on whether it should move 

toward a single rate for pole attachments 

used for the same or similar services, 

and whether adopting a single pole 

attachment rate would promote the 

goals of the Act with regard to 

competition, deregulation, and the 

deployment of advanced 

telecommunications capability. TWTC 

maintains that adopting a single 

attachment rate for both cable television 

systems and telecommunication carriers 

would remove regulatory bias from 

investment decisions regarding 

deployment of broadband and other 

services. TWTC also notes that both 

cable television systems and 

telecommunications carriers pay a 

single rate for using conduit, which 

suggests that having two different rates 


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6882 Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 

for pole attachments is inherently 

baseless and discriminatory. TWTC 

further claims having two rates 

discourages investment in broadband 

networks, and for these reasons 

proposes that the Commission eliminate 

the telecommunications rate and apply 

the cable rate to all wire and cable pole 

attachments. The Commission seeks 

comment on whether having a single 

pole attachment rate better achieves the 

goals of the Act than having two 

separate rates, and asks whether the 

current pole attachment rate structure 

unreasonably discriminates between 

similarly situated entities or otherwise 

distorts the market. 

12. The Commission also seeks 

comment regarding whether having two 

rates leads to recurring disputes over 

which rate to apply, and solicits general 

comment on whether the current system 

is clear, certain, and enforceable, and to 

what extent there is a perceived 

uncertainty about which rate to apply. 

The Commission adopted specific 

formulas implementing the cable rate 

and telecommunications rate, which 

differ only in the manner in which the 

costs associated with the unusable 

portion of the pole are allocated. Both 

of these formulas include a component 

for the net costs of a bare pole and 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. TWTC argues that the 

similarities in the Commission’s cable 

rate and telecommunications rate 

formulas are inappropriate, in light of 

textual differences between section 

224(d) and section 224(e) regarding 

costs. In particular, TWTC contends that 

the telecommunications rate includes 

elements not mentioned in section 

224(e), citing (1) the ‘‘carrying charges’’

and (2) the ‘‘rate of return’’ element. 

TWTC alleges that such costs ‘‘bear no 

relation’’ to the cost of providing space 

for attachment and should be eliminated 

from the telecommunications rate. The 

Commission seeks comment on the 

desirability of moving to a single pole 

attachment rate and also on the 

appropriate level of such a single rate. 

The Commission invites comment on 

the possible effect on small entities from 

adopting a single rate. 

13. The Commission seeks comment 

on USTelecom’s suggestion that the 

default ‘‘just and reasonable’’

attachment rate for incumbent LECs 

should be the telecommunications rate. 

The Commission asks if it adopts rules 

or guidelines for jointly owned poles 

how it should consider variables such as 

the proportion of poles owned, the 

division of maintenance costs and 

responsibilities, the income each party 

receives from other attachers, and 

similar variables. The Commission also 

seeks comment regarding whether, 

given the historical and continuing 

relationship regarding pole ownership 

between electric utilities and incumbent 

LECs, a ‘‘just and reasonable’’ rate for 

incumbent LECs should be determined 

by a method other than by applying a 

rate formula, and seeks comment on 

alternative approaches. The 

Commission further seeks comment on 

whether the historical relationship 

between incumbent LECs and power 

companies suggests that it should adopt 

a purely procedural solution instead of 

applying a rate formula, such as 

requiring parties to engage in mediated 

negotiation or arbitration subject to 

Commission review. 

14. Wireless telecommunications 

carriers urge the Commission to adopt 

rules explicitly stating that the 

Commission’s telecommunications rate 

formula applies to the attachment of 

wireless devices. The Commission has 

found no clear indication that the rules 

could not accommodate wireless 

attachers’ use of poles. The Commission 

now seeks comment on whether, when 

they are ‘‘telecommunications carriers,’’

wireless providers are entitled to the 

telecommunications rate as a matter of 

law, or whether the Commission should 

adopt a rate specifically for wireless 

pole attachments. The Commission asks 

whether, if a wireless facility uses more 

than the presumptive one foot of space, 

the per-foot rate could simply be 

doubled, trebled, or otherwise 

multiplied as required. The Commission 

also asks whether, if wireless providers 

are permitted to attach facilities to pole 

tops, pole owners should receive a 

higher rate of compensation, because 

unlike lateral space, each pole has only 

one top. The Commission also seeks 

comment on the extent to which 

municipalities lease pole attachments 

for municipal broadband purposes or 

other services such as 

telecommunications services, and seeks 

comment on the impact that the 

tentative conclusion below might have 

on municipalities seeking to provide 

their residents municipal broadband or 

other services like telecommunications 

services. 

15. Tentative Conclusion for 

Broadband Internet Access Service. Due 

to the importance of promoting 

broadband deployment and the 

importance of technological neutrality, 

the Commission tentatively concludes 

that all categories of providers should 

pay the same pole attachment rate for all 

attachments used for broadband Internet 

access service, and the Commission 

seeks comment on that tentative 

conclusion. Section 706 of the Act 

directs the Commission to promote the 

deployment of broadband infrastructure, 

and this directive leads the Commission 

to separate out those pole attachments 

that are used to offer broadband Internet 

access service from those used for other 

services. As a policy matter, the 

Commission tentatively concludes that 

the critical need to create even-handed 

treatment and incentives for broadband 

deployment would warrant the adoption 

of a uniform rate for all pole 

attachments used for broadband Internet 

access service. Additionally, the 

Commission concludes that the rate 

should be higher than the current cable 

rate, yet no greater than the 

telecommunications rate; seeks 

comment on these tentative 

conclusions; and seeks comment on the 

possible economic effect on small 

entities of adopting this tentative 

conclusion. 

16. Terms and Conditions of Access. 

When the Commission adopted general 

rules governing requests for access 

pursuant to the 1996 Act, it declined to 

regulate specific techniques for pole and 

conduit modification. Rather, the 

Commission concluded that the 

reasonableness of particular conditions 

of access imposed by a utility should be 

resolved on a case-specific basis. In the 

record developed in response to the 

Fibertech Petition, a number of concerns 

have been expressed regarding terms 

and conditions of access to pole 

attachments, and the Commission seeks 

comment on these concerns. For 

example, commenters raised concerns 

regarding searches and surveys of both 

poles and conduit, including related 

information management practices. 

Parties also expressed concerns 

regarding performance of make-ready 

work, including timeliness, safety, 

capacity, and the use of boxing and 

extension arms. Sunesys supports 

Fibertech’s position, but also submits its 

own plan to limit survey and makeready work to six months, proposing 

that utility-approved contractors could 

perform the work if they were required 

to meet the deadline. Other commenters 

also recommended the use of qualified 

third-party contract workers. Certain 

commenters raised additional issues 

regarding access to in-building ducts, 

conduit, and rights-of-way, including 

access to incumbent LEC central offices. 

Parties also express concern regarding 

practices relating to drop lines and 

poles. These are illustrative categories of 

access concerns, and the Commission 

seeks comment on these and any other 

pole attachment access concerns, such 


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Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 6883 

as concerns about the process for 

obtaining access. 

17. The Commission also seeks 

comment on allegations or concerns 

regarding unauthorized attachments, or 

attachments that have been installed 

without a lawful attachment agreement. 

The Commission seeks comment on the 

prevalence of this practice, and whether 

the Commission’s existing enforcement 

mechanisms are sufficient to address 

any unlawful practices by attachers and 

ensure the safety and reliability of 

critical electric infrastructure. 

Commenters are asked to address 

whether, in addition to the right, under 

section 224(f)(2) of the Act, of a utility 

to deny access to poles on a 

nondiscriminatory basis for reasons of 

safety, reliability and generally 

applicable engineering purposes, 

specific enforceable safety requirements 

should be adopted. For example, 

commenters are asked to address to 

what extent safety codes, such as the 

National Electrical Safety Code, should 

apply to all attachers, and whether the 

Commission’s enforcement authority 

can or should be used to address alleged 

violations of such codes. Finally, the 

Commission seeks comment on the 

general usefulness of rules, 

presumptions, or guidelines, as opposed 

to case-specific adjudication, and seeks 

comment on how these alternative 

approaches to resolving access issues 

may affect small entities. 

Ex Parte Presentations 

18. The rulemaking this NPRM 

initiates shall be treated as a ‘‘permitbut-disclose’’ proceeding in accordance 

with the Commission’s ex parte rules. 

Persons making oral ex parte 

presentations are reminded that 

memoranda summarizing the 

presentations must contain summaries 

of the substance of the presentations 

and not merely a listing of the subjects 

discussed. More than a one or two 

sentence description of the views and 

arguments presented generally is 

required. Other requirements pertaining 

to oral and written presentations are set 

forth in § 1.1206(b) of the Commission’s 

rules. 

Initial Regulatory Flexibility Analysis 

19. As required by the Regulatory 

Flexibility Act of 1980, the Commission 

has prepared an Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

small entities of the policies and rules 

addressed in this document. The IRFA 

is set forth separately below. Written 

public comments are requested on this 

IRFA. Comments must be identified as 

responses to the IRFA. Comments are 

due on March 7, 2008 and Reply 

Comments are due on March 24, 2008. 

Paperwork Reduction Act 

20. This document contains proposed 

new or modified information collection 

requirements. The Commission, as part 

of its continuing effort to reduce 

paperwork burdens, invites the general 

public and the Office of Management 

and Budget (OMB) to comment on the 

information collection requirements 

contained in this document, as required 

by the Paperwork Reduction Act of 

1995, Public Law 104–13. In addition, 

pursuant to the Small Business 

Paperwork Relief Act of 2002, Public 

Law 107–198, the Commission seeks 

specific comment on how it might 

further reduce the information 

collection burden for small business 

concerns with fewer than 25 employees. 

Initial Regulatory Flexibility Analysis 

21. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), the Commission has prepared 

this present Initial Regulatory 

Flexibility Analysis (IRFA) of the 

possible significant economic impact on 

a substantial number of small entities by 

the policies and rules proposed in this 

NPRM. Written public comments are 

requested on this IRFA. Comments must 

be identified as responses to the IRFA. 

Comments are due March 7, 2008 and 

Reply Comments are due March 24, 

2008. The Commission will send a copy 

of the NPRM, including this IRFA, to the 

Chief Counsel for Advocacy of the Small 

Business Administration (SBA). In 

addition, the NPRM and IRFA (or 

summaries thereof) will be published in 

the Federal Register. 

A. Need for, and Objectives of, the 

Proposed Rules 

22. The NPRM seeks comment on a 

variety of issues relating to 

implementation of section 224 pole 

attachment rules in light of increasing 

intermodal competition in the decade 

since the Commission began to 

implement the 1996 Act. Specifically, 

the NPRM asks whether existing rules 

governing pole attachment rates remain 

appropriate in light of competition in 

the marketplace today; whether section 

224 confers rights on incumbent local 

exchange carriers (LECs), including 

regulation of the rates they pay for pole 

attachments; and whether it would be 

appropriate to adopt specific rules 

regarding certain non-price terms and 

conditions associated with section 224 

access rights. With regard to rates, the 

NPRM tentatively concludes that all 

attachments used for broadband Internet 

access service should be subject to a 

single rate, regardless of the platform 

over which those services are provided. 

B. Legal Basis 

23. The legal basis for any action that 

may be taken pursuant to the NPRM 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. 154(i)–

(j), 224, 303, 403. 

C. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules May Apply 

24. The RFA directs agencies to 

provide a description of and, where 

feasible, an estimate of the number of 

small entities that may be affected by 

the proposed rules. The RFA generally 

defines the term ‘‘small entity’’ as 

having the same meaning as the terms 

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

and ‘‘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 which: (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). 

25. Small Businesses. Nationwide, 

there are a total of approximately 22.4 

million small businesses, according to 

SBA data. 

26. Small Organizations. Nationwide, 

there are approximately 1.6 million 

small organizations. 

27. Small Governmental Jurisdictions. 

The term ‘‘small governmental 

jurisdiction’’ is defined generally as 

‘‘governments of cities, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than fifty thousand.’’ Census 

Bureau data for 2002 indicate that there 

were 87,525 local governmental 

jurisdictions in the United States. The 

Commission estimates that, of this total, 

84,377 entities were ‘‘small 

governmental jurisdictions.’’ Thus, the 

Commission estimates that most 

governmental jurisdictions are small. 

1. Telecommunications Service Entities 

a. Wireline Carriers and Service 

Providers 

28. We have included small 

incumbent LECs in this present RFA 

analysis. As noted above, a ‘‘small 

business’’ under the RFA is one that, 

inter alia, meets the pertinent small 

business size standard (e.g., a telephone 

communications business having 1,500 

or fewer employees), and ‘‘is not 

dominant in its field of operation.’’ The 

SBA’s Office of Advocacy contends that, 


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for RFA purposes, small incumbent 

LECs are not dominant in their field of 

operation because any such dominance 

is not ‘‘national’’ in scope. The 

Commission has therefore included 

small incumbent LECs in this RFA 

analysis, although the Commission 

emphasizes that this RFA action has no 

effect on Commission analyses and 

determinations in other, non-RFA 

contexts. 

29. Incumbent LECs. Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for incumbent LECs. The 

appropriate size standard under SBA 

rules is for the category Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 1,303 

carriers have reported that they are 

engaged in the provision of incumbent 

local exchange services. Of these 1,303 

carriers, an estimated 1,020 have 1,500 

or fewer employees and 283 have more 

than 1,500 employees. Consequently, 

the Commission estimates that most 

providers of incumbent local exchange 

service are small businesses that may be 

affected by the Commission’s action. 

30. Competitive LECs, Competitive 

Access Providers (CAPs), ‘‘SharedTenant Service Providers,’’ and ‘‘Other 

Local Service Providers.’’ Neither the 

Commission nor the SBA has developed 

a small business size standard 

specifically for these service providers. 

The appropriate size standard under 

SBA rules is for the category Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 859 

carriers have reported that they are 

engaged in the provision of either 

competitive access provider services or 

competitive LEC services. Of these 859 

carriers, an estimated 741 have 1,500 or 

fewer employees and 118 have more 

than 1,500 employees. In addition, 16 

carriers have reported that they are 

‘‘Shared-Tenant Service Providers,’’ and 

all 16 are estimated to have 1,500 or 

fewer employees. In addition, 44 

carriers have reported that they are 

‘‘Other Local Service Providers.’’ Of the 

44, an estimated 43 have 1,500 or fewer 

employees and one has more than 1,500 

employees. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

‘‘Shared-Tenant Service Providers,’’ and 

‘‘Other Local Service Providers’’ are 

small entities. 

31. Interexchange Carriers (IXCs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for providers of 

interexchange services. The appropriate 

size standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 330 carriers have 

reported that they are engaged in the 

provision of interexchange service. Of 

these, an estimated 309 have 1,500 or 

fewer employees and 21 have more than 

1,500 employees. Consequently, the 

Commission estimates that the majority 

of IXCs are small entities that may be 

affected by Commission action. 

b. Wireless Telecommunications Service 

Providers 

32. Below, for those services subject 

to auctions, the Commission notes that, 

as a general matter, the number of 

winning bidders that qualify as small 

businesses at the close of an auction 

does not necessarily represent the 

number of small businesses currently in 

service. Also, the Commission does not 

generally track subsequent business size 

unless, in the context of assignments or 

transfers, unjust enrichment issues are 

implicated. 

33. Wireless Service Providers. The 

SBA has developed a small business 

size standard for wireless firms within 

the two broad economic census 

categories of ‘‘Paging’’ and ‘‘Cellular and 

Other Wireless Telecommunications.’’

Under both SBA categories, a wireless 

business is small if it has 1,500 or fewer 

employees. For the census category of 

Paging, Census Bureau data for 2002 

show that there were 807 firms in this 

category that operated for the entire 

year. Of this total, 804 firms had 

employment of 999 or fewer employees, 

and three firms had employment of 

1,000 employees or more. Thus, under 

this category and associated small 

business size standard, the majority of 

firms can be considered small. For the 

census category of Cellular and Other 

Wireless Telecommunications, Census 

Bureau data for 2002 show that there 

were 1,397 firms in this category that 

operated for the entire year. Of this 

total, 1,378 firms had employment of 

999 or fewer employees, and 19 firms 

had employment of 1,000 employees or 

more. Thus, under this second category 

and size standard, the majority of firms 

can, again, be considered small. 

34. Cellular Licensees. The SBA has 

developed a small business size 

standard for wireless firms within the 

broad economic census category 

‘‘Cellular and Other Wireless 

Telecommunications.’’ Under this SBA 

category, a wireless business is small if 

it has 1,500 or fewer employees. For the 

census category of Cellular and Other 

Wireless Telecommunications, Census 

Bureau data for 2002 show that there 

were 1,397 firms in this category that 

operated for the entire year. Of this 

total, 1,378 firms had employment of 

999 or fewer employees, and 19 firms 

had employment of 1,000 employees or 

more. Thus, under this category and size 

standard, the majority of firms can be 

considered small. Also, according to 

Commission data, 437 carriers reported 

that they were engaged in the provision 

of cellular service, Personal 

Communications Service (PCS), or 

Specialized Mobile Radio (SMR) 

Telephony services, which are placed 

together in the data. The Commission 

has estimated that 260 of these are small 

under the SBA small business size 

standard. 

35. Paging. The SBA has developed a 

small business size standard for the 

broad economic census category of 

‘‘Paging.’’ Under this category, the SBA 

deems a wireless business to be small if 

it has 1,500 or fewer employees. Census 

Bureau data for 2002 show that there 

were 807 firms in this category that 

operated for the entire year. Of this 

total, 804 firms had employment of 999 

or fewer employees, and three firms had 

employment of 1,000 employees or 

more. In addition, according to 

Commission data, 365 carriers have 

reported that they are engaged in the 

provision of ‘‘Paging and Messaging 

Service.’’ Of this total, the Commission 

estimates that 360 have 1,500 or fewer 

employees, and five have more than 

1,500 employees. Thus, in this category 

the majority of firms can be considered 

small. 

36. We also note that, in the Paging 

Second Report and Order, the 

Commission adopted a size standard for 

‘‘small businesses’’ for purposes of 

determining their eligibility for special 

provisions such as bidding credits and 

installment payments. In this context, a 

small business is an entity that, together 

with its affiliates and controlling 

principals, has average gross revenues 

not exceeding $15 million for the 

preceding three years. The SBA has 

approved this definition. An auction of 

Metropolitan Economic Area (MEA) 

licenses commenced on February 24, 

2000, and closed on March 2, 2000. Of 

the 2,499 licenses auctioned, 985 were 

sold. Fifty-seven companies claiming 

small business status won 440 licenses. 

An auction of MEA and Economic Area 

(EA) licenses commenced on October 

30, 2001, and closed on December 5, 

2001. Of the 15,514 licenses auctioned, 

5,323 were sold. One hundred thirtytwo companies claiming small business 

status purchased 3,724 licenses. A third 


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auction, consisting of 8,874 licenses in 

each of 175 EAs and 1,328 licenses in 

all but three of the 51 MEAs 

commenced on May 13, 2003, and 

closed on May 28, 2003. Seventy-seven 

bidders claiming small or very small 

business status won 2,093 licenses. The 

Commission also notes that, currently, 

there are approximately 74,000 

Common Carrier Paging licenses. 

37. Wireless Telephony. Wireless 

telephony includes cellular, personal 

communications services (PCS), and 

specialized mobile radio (SMR) 

telephony carriers. As noted earlier, the 

SBA has developed a small business 

size standard for ‘‘Cellular and Other 

Wireless Telecommunications’’ services. 

Under that SBA small business size 

standard, a business is small if it has 

1,500 or fewer employees. According to 

Commission data, 432 carriers reported 

that they were engaged in the provision 

of wireless telephony. The Commission 

has estimated that 221 of these are small 

under the SBA small business size 

standard. 

38. Broadband Personal 

Communications Service. The 

broadband Personal Communications 

Service (PCS) spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission defined ‘‘small entity’’ for 

Blocks C and F as an entity that has 

average gross revenues of $40 million or 

less 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 its affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years.’’ These standards 

defining ‘‘small entity’’ in the context of 

broadband PCS auctions have been 

approved by the SBA. No small 

businesses, within the SBA-approved 

small business size standards bid 

successfully for licenses in Blocks A 

and B. There were 90 winning bidders 

that qualified as small entities in the 

Block C auctions. A total of 93 small 

and very small business bidders won 

approximately 40 percent of the 1,479 

licenses for Blocks D, E, and F. On 

March 23, 1999, the Commission reauctioned 347 C, D, E, and F Block 

licenses. There were 48 small business 

winning bidders. On January 26, 2001, 

the Commission completed the auction 

of 422 C and F Broadband PCS licenses 

in Auction No. 35. Of the 35 winning 

bidders in this auction, 29 qualified as 

‘‘small’’ or ‘‘very small’’ businesses. 

Subsequent events, concerning Auction 

35, including judicial and agency 

determinations, resulted in a total of 163 

C and F Block licenses being available 

for grant. 

39. Narrowband Personal 

Communications Services. To date, two 

auctions of narrowband personal 

communications services (PCS) licenses 

have been conducted. For purposes of 

the two auctions that have already been 

held, ‘‘small businesses’’ were entities 

with average gross revenues for the prior 

three calendar years of $40 million or 

less. Through these auctions, the 

Commission has awarded a total of 41 

licenses, out of which 11 were obtained 

by small businesses. To ensure 

meaningful participation of small 

business entities in future auctions, the 

Commission has adopted a two-tiered 

small business size standard in the 

Narrowband PCS Second Report and 

Order. A ‘‘small business’’ is an entity 

that, together with affiliates and 

controlling interests, has average gross 

revenues for the three preceding years of 

not more than $40 million. A ‘‘very 

small business’’ is an entity that, 

together with affiliates and controlling 

interests, has average gross revenues for 

the three preceding years of not more 

than $15 million. The SBA has 

approved these small business size 

standards. In the future, the 

Commission will auction 459 licenses to 

serve Metropolitan Trading Areas 

(MTAs) and 408 response channel 

licenses. There is also one megahertz of 

narrowband PCS spectrum that has been 

held in reserve and that the Commission 

has not yet decided to release for 

licensing. The Commission cannot 

predict accurately the number of 

licenses that will be awarded to small 

entities in future auctions. However, 

four of the 16 winning bidders in the 

two previous narrowband PCS auctions 

were small businesses, as that term was 

defined. The Commission assumes, for 

purposes of this analysis that a large 

portion of the remaining narrowband 

PCS licenses will be awarded to small 

entities. The Commission also assumes 

that at least some small businesses will 

acquire narrowband PCS licenses by 

means of the Commission’s partitioning 

and disaggregation rules. 

40. Rural Radiotelephone Service. The 

Commission has not adopted a size 

standard for small businesses specific to 

the Rural Radiotelephone Service. A 

significant subset of the Rural 

Radiotelephone Service is the Basic 

Exchange Telephone Radio System 

(BETRS). The Commission uses the 

SBA’s small business size standard 

applicable to ‘‘Cellular and Other 

Wireless Telecommunications,’’ i.e., an 

entity employing no more than 1,500 

persons. There are approximately 1,000 

licensees in the Rural Radiotelephone 

Service, and the Commission estimates 

that there are 1,000 or fewer small entity 

licensees in the Rural Radiotelephone 

Service that may be affected by the rules 

and policies adopted herein. 

41. Air-Ground Radiotelephone 

Service. The Commission has not 

adopted a small business size standard 

specific to the Air-Ground 

Radiotelephone Service. The 

Commission will use SBA’s small 

business size standard applicable to 

‘‘Cellular and Other Wireless 

Telecommunications,’’ i.e., an entity 

employing no more than 1,500 persons. 

There are approximately 100 licensees 

in the Air-Ground Radiotelephone 

Service, and the Commission estimates 

that almost all of them qualify as small 

under the SBA small business size 

standard. 

42. Offshore Radiotelephone Service. 

This service operates on several UHF 

television broadcast channels that are 

not used for television broadcasting in 

the coastal areas of states bordering the 

Gulf of Mexico. There are presently 

approximately 55 licensees in this 

service. The Commission is unable to 

estimate at this time the number of 

licensees that would qualify as small 

under the SBA’s small business size 

standard for ‘‘Cellular and Other 

Wireless Telecommunications’’ services. 

Under that SBA small business size 

standard, a business is small if it has 

1,500 or fewer employees. 

2. Cable and OVS Operators 

43. Cable Television Distribution 

Services. Since 2007, these services 

have been defined within the broad 

economic census category of Wired 

Telecommunications Carriers; that 

category is defined as follows: ‘‘This 

industry comprises establishments 

primarily engaged in operating and/or 

providing access to transmission 

facilities and infrastructure that they 

own and/or lease for the transmission of 

voice, data, text, sound, and video using 

wired telecommunications networks. 

Transmission facilities may be based on 

a single technology or a combination of 

technologies.’’ The SBA has developed 

a small business size standard for this 

category, which is: all such firms having 

1,500 or fewer employees. To gauge 

small business prevalence for these 

cable services the Commission must, 

however, use current census data that 

are based on the previous category of 

Cable and Other Program Distribution 

and its associated size standard; that 

size standard was: all such firms having 

$13.5 million or less in annual receipts. 

According to Census Bureau data for 

2002, there were a total of 1,191 firms 

in this previous category that operated 


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for the entire year. Of this total, 1,087 

firms had annual receipts of under $10 

million, and 43 firms had receipts of 

$10 million or more but less than $25 

million. Thus, the majority of these 

firms can be considered small. 

44. Cable Companies and Systems. 

The Commission has also developed its 

own small business size standards, for 

the purpose of cable rate regulation. 

Under the Commission’s rules, a ‘‘small 

cable company’’ is one serving 400,000 

or fewer subscribers, nationwide. 

Industry data indicate that, of 1,076 

cable operators nationwide, all but 

eleven are small under this size 

standard. In addition, under the 

Commission’s rules, a ‘‘small system’’ is 

a cable system serving 15,000 or fewer 

subscribers. Industry data indicate that, 

of 7,208 systems nationwide, 6,139 

systems have under 10,000 subscribers, 

and an additional 379 systems have 

10,000–19,999 subscribers. Thus, under 

this second size standard, most cable 

systems are small. 

45. Cable System Operators. The 

Communications Act of 1934, as 

amended, also contains a size standard 

for small cable system operators, 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 an 

operator serving fewer than 677,000 

subscribers shall be deemed a small 

operator, if its annual revenues, when 

combined with the total annual 

revenues of all its affiliates, do not 

exceed $250 million in the aggregate. 

Industry data indicate that, of 1,076 

cable operators nationwide, all but ten 

are small under this size standard. The 

Commission neither requests nor 

collects information on whether cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250 million, and therefore the 

Commission is unable to estimate more 

accurately the number of cable system 

operators that would qualify as small 

under this size standard. 

46. Open Video Systems (OVS). In 

1996, Congress established the open 

video system (OVS) framework, one of 

four statutorily recognized options for 

the provision of video programming 

services by local exchange carriers 

(LECs). The OVS framework provides 

opportunities for the distribution of 

video programming other than through 

cable systems. Because OVS operators 

provide subscription services, OVS falls 

within the SBA small business size 

standard of Cable and Other Program 

Distribution Services, which consists of 

such entities having $13.5 million or 

less in annual receipts. The Commission 

has certified 25 OVS operators, with 

some now providing service. Broadband 

service providers (BSPs) are currently 

the only significant holders of OVS 

certifications or local OVS franchises. 

As of June 2005, BSPs served 

approximately 1.4 million subscribers, 

representing 1.5 percent of all MVPD 

households. Affiliates of Residential 

Communications Network, Inc. (RCN), 

which serves about 371,000 subscribers 

as of June 2005, is currently the largest 

BSP and 14th largest MVPD. RCN 

received approval to operate OVS 

systems in New York City, Boston, 

Washington, DC and other areas. The 

Commission does not have financial 

information regarding the entities 

authorized to provide OVS, some of 

which may not yet be operational. The 

Commission thus believes that at least 

some of the OVS operators may qualify 

as small entities. 

3. Internet Service Providers 

47. Internet Service Providers. The 

SBA has developed a small business 

size standard for Internet Service 

Providers (ISPs). ISPs ‘‘provide clients 

access to the Internet and generally 

provide related services such as web 

hosting, web page designing, and 

hardware or software consulting related 

to Internet connectivity.’’ Under the 

SBA size standard, such a business is 

small if it has average annual receipts of 

$23 million or less. According to Census 

Bureau data for 2002, there were 2,529 

firms in this category that operated for 

the entire year. Of these, 2,437 firms had 

annual receipts of under $10 million, 

and an additional 47 firms had receipts 

of between $10 million and 

$24,999,999. Consequently, the 

Commission estimates that the majority 

of these firms are small entities that may 

be affected by Commission action. 

48. All Other Information Services. 

‘‘This industry comprises 

establishments primarily engaged in 

providing other information services 

(except new syndicates and libraries 

and archives).’’ The SBA has developed 

a small business size standard for this 

category; that size standard is $6.5 

million or less in average annual 

receipts. According to Census Bureau 

data for 2002, there were 155 firms in 

this category that operated for the entire 

year. Of these, 138 had annual receipts 

of under $5 million, and an additional 

four firms had receipts of between $5 

million and $9,999,999. Consequently, 

the Commission estimates that the 

majority of these firms are small entities 

that may be affected by its action. 

4. Public Utilities 

49. Electric Power Generation, 

Transmission and Distribution. The 

Census Bureau defines this category as 

follows: ‘‘This industry group comprises 

establishments primarily engaged in 

generating, transmitting, and/or 

distributing electric power. 

Establishments in this industry group 

may perform one or more of the 

following activities: (1) Operate 

generation facilities that produce 

electric energy; (2) operate transmission 

systems that convey the electricity from 

the generation facility to the distribution 

system; and (3) operate distribution 

systems that convey electric power 

received from the generation facility or 

the transmission system to the final 

consumer.’’ This category includes 

Electric Power Distribution, 

Hydroelectric Power Generation, Fossil 

Fuel Power Generation, Nuclear Electric 

Power Generation, and Other Electric 

Power Generation. The SBA has 

developed a small business size 

standard for firms in this category: ‘‘A 

firm is small if, including its affiliates, 

it is primarily engaged in the generation, 

transmission, and/or distribution of 

electric energy for sale and its total 

electric output for the preceding fiscal 

year did not exceed 4 million megawatt 

hours.’’ According to Census Bureau 

data for 2002, there were 1,644 firms in 

this category that operated for the entire 

year. Census data do not track electric 

output and the Commission has not 

determined how many of these firms fit 

the SBA size standard for small, with no 

more than 4 million megawatt hours of 

electric output. Consequently, the 

Commission estimates that 1,644 or 

fewer firms may be considered small 

under the SBA small business size 

standard. 

50. Natural Gas Distribution. This 

economic census category comprises: 

‘‘(1) Establishments primarily engaged 

in operating gas distribution systems 

(e.g., mains, meters); (2) establishments 

known as gas marketers that buy gas 

from the well and sell it to a distribution 

system; (3) establishments known as gas 

brokers or agents that arrange the sale of 

gas over gas distribution systems 

operated by others; and (4) 

establishments primarily engaged in 

transmitting and distributing gas to final 

consumers.’’ The SBA has developed a 

small business size standard for this 

industry, which is: All such firms 

having 500 or fewer employees. 

According to Census Bureau data for 

2002, there were 468 firms in this 

category that operated for the entire 

year. Of this total, 424 firms had 

employment of fewer than 500 


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employees, and 18 firms had 

employment of 500 to 999 employees. 

Thus, the majority of firms in this 

category can be considered small. 

51. Water Supply and Irrigation 

Systems. This economic census category 

‘‘comprises establishments primarily 

engaged in operating water treatment 

plants and/or operating water supply 

systems.’’ The SBA has developed a 

small business size standard for this 

industry, which is: All such firms 

having $6.5 million or less in annual 

receipts. According to Census Bureau 

data for 2002, there were 3,830 firms in 

this category that operated for the entire 

year. Of this total, 3,757 firms had 

annual sales of less than $5 million, and 

37 firms had sales of $5 million or more 

but less than $10 million. Thus, the 

majority of firms in this category can be 

considered small. 

D. Description of Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements 

52. Should the Commission alter the 

pole attachment rate structure, such 

action could result in increased, 

reduced, or otherwise altered reporting, 

recordkeeping or other compliance 

requirements for pole owners and 

attaching entities. For example, if the 

Commission were to adopt a uniform 

rate for all pole attachments used for 

broadband Internet access service, 

providers of such services might be 

required to record and report where 

such service is offered. If the 

Commission were to adopt a uniform 

rate for all pole attachments, such action 

could eliminate the need for cable 

television systems to record and report 

to utilities where they or their lessees 

offer telecommunications services. 

Changes to reporting, recordkeeping or 

other compliance requirements could 

either be new (e.g., if 

telecommunications carriers begin to 

record or report where they offer 

broadband Internet access service) or 

could reconfigure existing requirements 

(e.g., if cable television systems begin to 

record and report where they or their 

lessees offer broadband Internet access 

service, but cease to record and report 

where they or their lessees offer 

telecommunications services). If the 

Commission initiates regulation of the 

rates, terms, and conditions of pole 

attachment by incumbent LECs, such 

regulation could increase reporting, 

recordkeeping or other compliance 

requirements for pole owners and 

incumbent LECs where incumbent LECs 

attach to poles owned by other utilities. 

53. Should the Commission adopt 

regulations concerning access to poles, 

ducts, conduits, and rights-of-way, such 

action could result in increased, 

reduced, or otherwise altered reporting, 

recordkeeping or other compliance 

requirements for pole owners, attaching 

entities, and users of ducts, conduits, 

and rights-of-way. In particular, if the 

Commission adopts rules governing 

specific techniques for pole and conduit 

modification, as opposed to resolution 

on a case-specific complaint basis, 

reporting, recordkeeping or other 

compliance requirements could change. 

Examples of specific topics where 

recordkeeping, reporting, or compliance 

requirements could change by virtue of 

Commission action include: (1) 

Searches and surveys of both poles and 

conduit, including information 

management; (2) performance of makeready work, including timeliness, safety, 

capacity, and the use of boxing and 

extension arms; (3) the use of qualified 

third-party contract workers; (4) access 

to in-building ducts, conduit, and 

rights-of-way, including access to 

incumbent LEC central offices; or (5) 

practices relating to drop lines and 

poles. 

E. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

54. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

(among others) the following four 

alternatives: (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities. 

55. The Commission tentatively 

concludes that it will promote 

broadband deployment and 

technological neutrality by requiring all 

categories of companies to pay the same 

pole attachment rate for all pole 

attachments used for broadband Internet 

access service, and the NPRM seeks 

comment on the possible economic 

effect on small entities of adopting this 

requirement. In coming to this tentative 

conclusion, the Commission first 

assessed the alternative of continuing a 

system of two rates. Another objective is 

to implement overarching policies 

concerning safety, certainty, 

administrability, and 

nondiscrimination. When alternatives 

are discussed, such as whether it would 

be better to choose an existing rate as 

the broadband Internet access services 

rate (and, if so, which rate) or to modify 

existing rates, the NPRM invites small 

entities to discuss the economic 

ramifications of such action. The NPRM 

seeks comment on whether regulation of 

pole attachment rates is particularly 

necessary for small incumbent LECs, 

and asks how incumbent LECs could be 

affected if rates and terms were 

regulated absent a right of access. The 

NPRM also seeks comment on the 

general usefulness of rules, 

presumptions, or guidelines, as opposed 

to case-specific adjudication, and how 

these alternative approaches to 

resolving access issues may affect small 

entities. 

F. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

56. None. Since the enactment of the 

1996 Act, the Commission has 

encouraged disputing parties to 

participate in staff-supervised, precomplaint mediation. Such mediation 

has proven to be very successful, 

including in pole attachment disputes. 

Certain rules regarding pole attachment 

complaints, however, may have had the 

unintended consequence of 

discouraging pre-complaint mediation. 

Thus, the Commission seeks comment 

on whether those rules should be 

amended or eliminated to facilitate 

mediation of disputes. In addition, 

under current Commission rules, an 

attacher may execute a pole attachment 

agreement with a utility, and then later 

file a complaint challenging the 

lawfulness of a provision of that 

agreement. The Commission seeks 

comment on whether it should adopt 

some contours to the rule, such as timeframes for raising written concerns 

about a provision of a pole attachment 

agreement. 

Ordering Clauses 

57. Accordingly, 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)–(j), 224, 303, 403, this Notice of 

Proposed Rulemaking in WC Docket No. 

07–245 is adopted. 

58. It is further ordered that the 

Fibertech Networks, LLC, Petition for 

Rulemaking, RM–11303, and the United 

States Telecom Association Petition for 

Rulemaking, RM–11293, are granted to 

the extent indicated herein and 

otherwise are denied. 

59. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this NPRM, including the Initial 


rwilkins on PROD1PC63 with PROPOSALS
6888 Federal Register / Vol. 73, No. 25 / Wednesday, February 6, 2008 / Proposed Rules 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E8–2177 Filed 2–5–08; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WC Docket No. 07–267; FCC 07–202] 

Petition To Establish Procedural 

Requirements To Govern Proceedings 

for Forbearance Under Section 10 of 

the Communications Act of 1934, as 

Amended 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission seeks comment regarding 

whether to adopt procedural rules to 

govern the Commission’s consideration 

of petitions to forbear from enforcing 

rules that are alleged to be unnecessary 

or inconsistent with the public interest 

(forbearance petitions). The Commission 

is responding to arguments that current 

procedures governing consideration of 

forbearance petitions are unfair, and to 

several proposed new rules that would 

include, for example, requiring 

forbearance petitions to be complete-asfiled, and assigning the burden of proof 

on parties that file forbearance petitions. 

The Commission intends both to solicit 

comment on the proposals before it and 

to encourage suggestions of other rules 

that the Commission should consider 

that would govern the form and content 

of forbearance petitions. 

DATES: Comments are due March 7, 

2008 and Reply Comments are due 

March 24, 2008. Written comments on 

the Paperwork Reduction Act proposed 

information collection requirements 

must be submitted by the public, Office 

of Management and Budget (OMB), and 

other interested parties on or before 

April 7, 2008. 

ADDRESSES: You may submit comments, 

identified by WC Docket No. 07–267, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• E-mail: ecfs@fcc.gov, and include 

the following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

Include the docket number in the 

subject line of the message. 

• Mail: Secretary, Federal 

Communications Commission, 445 12th 

Street, SW., Washington, DC 20554. 

• People with Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202–

418–0432. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. In addition to 

filing comments with the Secretary, a 

copy of any comments on the 

Paperwork Reduction Act information 

collection requirements contained 

herein should be submitted to the 

Federal Communications Commission 

via e-mail to PRA@fcc.gov and to 

Nicholas A. Fraser, Office of 

Management and Budget, via e-mail to 

Nicholas_A._Fraser@omb.eop.gov or via 

fax at 202–395–5167. 

FOR FURTHER INFORMATION CONTACT: 

Jonathan Reel, Wireline Competition 

Bureau, (202) 418–1580. For additional 

information concerning the Paperwork 

Reduction Act information collection 

requirements contained in this 

document, contact Jerry R. Cowden at 

(202) 418–0447, or via the Internet at 

PRA@fcc.gov. 

SUPPLEMENTARY INFORMATION: Pursuant 

to §§ 1.415 and 1.419 of the 

Commission’s rules, 47 CFR 1.415, 

1.419, interested parties may file 

Comments on or before March 7, 2008 

and Reply Comments on or before 

March 24, 2008. Comments may be filed 

using: (1) The Commission’s Electronic 

Comment Filing System (ECFS), (2) the 

Federal Government’s eRulemaking 

Portal, or (3) by filing paper copies. See 

Electronic Filing of Documents in 

Rulemaking Proceedings, 63 FR 24121, 

May 1, 1998. 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• For ECFS filers, if multiple docket 

or rulemaking numbers appear in the 

caption of this proceeding, filers must 

transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing 

instructions, filers should send an email to ecfs@fcc.gov, and include the 

following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although we continue to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

• The Commission’s contractor will 

receive hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street, SW., 

Washington, DC 20554. 

People with Disabilities: To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202–

418–0432 (tty). 

ADDRESSES: You may submit comments, 

identified by WC Docket No. 07–267, by 

any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 


rwilkins on PROD1PC63 with PROPOSALS