FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,245
viii, 4843-5761 p. ; 28 cm.View a full description of this book.
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o Enforcement. The Order adopts several measures to encourage negotiated resolution of pole
attachment disputes, including a requirement that the complainant engage or attempt to engage
the other party in good faith "executive-level discussions" prior to the filing of a complaint at the
Commission. The Order declines to amend the "sign and sue" rule, which allows an attacher to
challenge the lawfulness of terms in an executed pole attachment agreement where the attacher
claims it was coerced to accept those terms in order to gain access. The Order also declines to
adopt rules for compensatory damage awards at this time. The Order also removes the cap on
penalties for unauthorized attachments and clarifies that Oregon's approach to penalties for
unauthorized attachments (which includes per-pole penalties, notice requirements, and a "joint
use forum" for resolving disputes) is a reasonable model for contract terms in pole attachment
agreements. Further, this Order encourages pre-planning and coordination among pole owners
and attachers to the greatest extent, and as early in the process, as possible. To encourage such
pre-planning and coordination, any enforcement proceedings will include consideration of such
communication between the parties.
o Reconsideration Issues. The Order resolves multiple petitions for reconsideration and addresses
various points regarding the nondiscriminatory use of attachment techniques. Among other
things, we clarify that a utility's use of an attachment technique in the electric space does not
obligate it to allow the same technique in the communications space; and that there is not
"insufficient capacity" simply because a utility must rearrange its electric facilities to
accommodate an attachment.
o Proposals Not Adopted. The Order declines to adopt proposed requirements regarding the
collection and availability of information about the location and availability of poles, as well as
proposed rules regarding a schedule of charges, phased payment for make-ready work, and the
designation of a single managing utility for jointly owned poles. However, we clarify and
emphasize that we do expect joint owners to coordinate and cooperate with each other and with
requesting attachers in order to meet their independent obligations to successfully implement the
timeline for pole attachments that we adopt today.
II. BACKGROUND
9. In 1978, Congress added section 224 to the Communications Act of 1934, as amended
(Communications Act or Act) thereby directing the Commission to ensure that the rates, terms, and
conditions for pole attachments by cable television systems are just and reasonable.'7 Section 224
provides that the Commission will regulate pole attachments except where such matters are regulated by a
state.'8 Section 224 also withholds from the Commission jurisdiction to regulate attachments where the
utility is a railroad, cooperatively organized, or owned by a government entity.'9
10. The Telecommunications Act of 1996 (1996 Act)20 expanded the definition of pole
attachments to include attachments by providers of telecommunications service,2' and granted both cable
systems and telecommunications carriers22 an affirmative right of nondiscriminatory access to any pole,
'7 Pole Attachment Act of 1978, Pub. L. No. 95-234, 92 Stat. 33 (1978).
1 47 U.S.C. 224(c); see App. C (listing the states that have certified that they regulate pole attachments).
9 47 U.S.C. 224(a)(1).
2o Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified as amended in scattered
sections of 47 U.S.C.).
21 47 U.S.C. 224(a)(4).
22 For purposes of section 224, Congress excluded incumbent LECs from the definition of "telecommunications
carriers." 47 U.S.C. 224(aXS).
5245Federal Communications Commission
FCC 11-50
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc52169/m1/417/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.