[Federal Register Volume 73, Number 25 (Wednesday, February 6, 2008)]
[Proposed Rules]
[Pages 6879-6888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2177]


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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#d1b4b2b7a291b7b2b2ffb6bea7"><span class="__cf_email__" data-cfemail="4326202530032520206d242c35">[email protected]</span></a>, 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.
    <bullet> Mail: Secretary, Federal Communications Commission, 445 
12th Street SW., Washington, DC 20554.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#50161313656064103633337e373f26"><span class="__cf_email__" data-cfemail="084e4b4b3d383c486e6b6b266f677e">[email protected]</span></a> 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 
<a href="/cdn-cgi/l/email-protection#71212330311712125f161e07"><span class="__cf_email__" data-cfemail="96c6c4d7d6f0f5f5b8f1f9e0">[email protected]</span></a> and to Nicholas A. Fraser, Office of Management and Budget, 
via e-mail to <a href="/cdn-cgi/l/email-protection#0d43646e6562616c7e524c23524b7f6c7e687f4d62606f2368627d236a627b"><span class="__cf_email__" data-cfemail="eca2858f8483808d9fb3adc2b3aa9e8d9f899eac83818ec289839cc28b839a">[email protected]</span></a> 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 <a href="/cdn-cgi/l/email-protection#0d5d5f4c4d6b6e6e236a627b"><span class="__cf_email__" data-cfemail="4b1b190a0b2d2828652c243d">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Pursuant to Sec. Sec.  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.
    <bullet> 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.
    <bullet> 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 e-mail to <a href="/cdn-cgi/l/email-protection#5336303520133530307d343c25"><span class="__cf_email__" data-cfemail="b5d0d6d3c6f5d3d6d69bd2dac3">[email protected]</span></a>, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
    <bullet> 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.
    <bullet> The Commission's contractor will receive hand-delivered or 
messenger-delivered 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.
    <bullet> 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.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail must be

[[Page 6880]]

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 <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="dabcb9b9efeaee9abcb9b9f4bdb5ac">[email protected]</a> 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 case-specific 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

[[Page 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

[[Page 6882]]

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 make-ready 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

[[Page 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 
``permit-but-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 Sec.  
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,

[[Page 6884]]

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), 
``Shared-Tenant 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 thirty-two companies claiming small business status 
purchased 3,724 licenses. A third

[[Page 6885]]

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 re-auctioned 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

[[Page 6886]]

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

[[Page 6887]]

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 
make-ready 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, pre-
complaint 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 time-frames 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

[[Page 6888]]

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


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