FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,314

168. These provisions suggest that the telecom rate and cable rate could be different, but not
that they must always be different or that the telecom rate necessarily must be higher.51' For example,
section 224(e) provided for the gradual phase-in of "[a]ny increase" in pole rental rates for telecom
carriers following the implementation of section 224(e), indicating that there might not be such an
increase.512 In fact, the rules originally adopted by the Commission recognized that the telecom rate
could go down as well as up, and thus provided that "[t]he five-year phase-in is to apply to rate increases
only. Rate reductions are to be implemented immediately."513 Likewise, the new telecom rate we adopt
in this order could, in some circumstances, be higher than the cable rate,514 and in other circumstances,
lower.515
169. Further, the use of a transition mechanism to phase-in section 224(e) rates is consistent
with our recognition that section 224(e) is ambiguous and could result in a range of permissible rates
because the "cost" at issue is subject to a range of interpretations.516 In addition, other factors also create
uncertainty regarding the potential difference (if any) between the rates yielded under section 224(d) and
section 224(e), including the number of attachers that might emerge over time (which affects the
allocation of costs under section 224(e))517 and the potential for section 224(d) rates themselves to fall
anywhere within a range (rather than only at the upper bound).s8 By providing that section 224(d) rates
initially be used for telecommunications attachments, section 224 can reasonably be interpreted as
responding to the variability in the Commission's possible implementation of section 224(e) by
minimizing the administrative burden and providing greater certainty during the transition.
5' For the same reasons, we reject assumptions made by utilities that, if Congress had intended for the telecom rate
to be equal to or lower than the cable rate, there would have been no need for Congress in section 224(d)(3) to
provide that the cable formula be used for attachments "solely to provide cable service." See EEIUTC Comments
at 71-74.
s5' 47 U.S.C. 224(eX4) (emphasis added).
5"3 47 C.F.R. 1.1409(f).
514 See supra paras. 146-152.
55 The rate could be lower if, for example, the attacher demonstrated that there were more attachers on the relevant
poles than reflected by the Commission's presumptions.
516 See supra paras. 140-145.
s57 Both pole owners and attachers appear to agree that everyone expected the number of facilities-based competitors
to increase over time. See, e.g., Alliance Reply at 12; Comcast Comments at 7. Although the number of new
facilities-based competitors was uncertain, the clear impact of such entry was that the telecom rate would decline as
the number of attachers increased. 1998 Implementation Order, 13 FCC Rcd at 6800, para. 45 ("Under Section
224(e)(2), the number of attaching entities is significant because the costs of unusable space assessed to each entity
decreases as the number of entities increases."). The Coalition asserts "that the Commission expected no more than
five attaching entities for urbanized areas and three for non-urbanized areas, since these are the presumptions" it
made. Coalition Reply at 26. First, the Commission established these numbers as rebuttable presumptions,
recognizing that they could vary. It did so in large part for administrative reasons to "expedite the process,"
establish a degree of certainty, and give utilities the option of avoiding expenses for studies to develop their own
location-specific averages. 2001 Order on Reconsideration, 16 FCC Rcd at 12134-40, paras. 62-72. The
Commission also established the right of attaching entities to challenge the average number of attaching entities set
by utilities and expected a good faith effort by a utility to modify its presumptive average if the number of attachers
increased. Id. at 12135, para. 63 n.211.
518s The Commission has discretion under section 224(d) to determine the cable rate within a range between the
additional cost and fully allocated cost of an attachment. See 47 U.S.C. 224(d). The difference between the
telecom rate and the cable rate would be impacted by how the Commission exercised its ratemaking discretion in
implementing the two rates.
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Federal Communications Commission

FCC 11-50