West Virginia Code of State Rules › Agency 150 - Public Service Commission › Title 150 - EXEMPT LEGISLATIVE RULE PUBLIC SERVICE COMMISSION › Series 150-38 - Rules for the Government of Pole Attachments › Section 150-38-5 - Commission consideration of the complaint

Current through Register Vol. XLI, No. 28, July 12, 2024
5.1. The
				complainant shall have the burden of establishing a prima facie case that the
				rate, term, or condition is not just and reasonable or that the denial of
				access violates
				47 U.S.C. §
										224(f). If, however, a
				utility argues that the proposed rate is lower than its incremental costs, the
				utility has the burden of establishing that such rate is below the statutory
				minimum just and reasonable rate. In a case involving a denial of access, the
				utility shall have the burden of proving that the denial was lawful, once a
				prima facie case is established by the complainant.
5.2. The Commission shall determine whether
				the rate, term or condition complained of is just and reasonable. For the
				purposes of this paragraph, a rate is just and reasonable if it assures a
				utility the recovery of not less than the additional costs of providing pole
				attachments, nor more than an amount determined by multiplying the percentage
				of the total usable space, or the percentage of the total duct or conduit
				capacity, which is occupied by the pole attachment by the sum of the operating
				expenses and actual capital costs of the utility attributable to the entire
				pole, duct, conduit, or right-of-way. The Commission shall exclude from actual
				capital costs, and expense accounts to which the work was charged, those
				reimbursements received by the utility from cable operators and
				telecommunications carriers for non-recurring costs.
5.3. The Commission shall deny the complaint
				if it determines that the complainant has not established a prima facie case,
				or that the rate, term or condition is just and reasonable, or that the denial
				of access was lawful.
5.4. The
				Commission will apply the following formulas for determining a maximum just and
				reasonable rate:
5.4.1. Formula A shown on
				Attachment A shall apply to attachments to poles by cable operators providing
				cable services. This formula shall also apply to attachments to poles by any
				telecommunications carrier (to the extent such carrier is not a party to a pole
				attachment agreement) or cable operator providing telecommunications services
				until February 8, 2001;
5.4.2. With
				respect to attachments to poles by any telecommunications carrier or cable
				operator providing telecommunications services, the maximum just and reasonable
				rate shall be the higher of the rate yielded by Rules 5.4.2.a or 5.4.2.b.
5.4.2.a. Formula B shown on Attachment B
				applies to the extent that it yields a rate higher than that yielded by the
				applicable formula in Rule 5.4.2.b;
5.4.2.b. Formula C shown on Attachment C
				applies to the extent that it yields a rate higher than that yielded by the
				applicable formula in Rule 5.4.2.a; and
5.4.3. Formula D shown on Attachment D shall
				apply to attachments to conduit by cable operators and telecommunications
				carriers.