FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,247
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Order.3" The Commission also stated that it would monitor the effect of the case-specific approach, and
would propose specific rules at a later date if conditions warranted.32
12. In the 1998 Implementation Order, the Commission adopted rules implementing the 1996
Act's new pole attachment rate formula for telecommunications carriers.33 The Commission also
concluded that cable television systems offering both cable and Internet access service should continue to
pay the cable rate.4 The Commission further held that wireless carriers had a statutory right of
nondiscriminatory access to poles.35 Although the latter two determinations were challenged, both were
ultimately upheld by the Supreme Court.36 In particular, the Court held that section 224 gives the
Commission broad authority to adopt just and reasonable rates.37 The Court also deferred to the
Commission's conclusion that wireless carriers are entitled by section 224 to attach facilities to poles.38
13. On November 20, 2007, the Commission issued the Pole Attachment Notice39 in
recognition of the importance of pole attachments to the deployment of communications networks, in part
in response to petitions for rulemaking from USTelecom and Fibertech Networks.40 USTelecom argued
" Id. at 16071-74, paras. 1151-58. The five specific rules are: (1) a utility may rely on industry codes, such as the
NESC, to prescribe standards with respect to capacity, safety, reliability and general engineering principles; (2) a
utility will still be subject to any federal requirements, such as those imposed by FERC or OSHA, which might
affect pole attachments; (3) state and local requirements will be given deference if not in direct conflict with
Commission rules; (4) rates, terms and conditions of access must be uniformly applied to all attachers on a
nondiscriminatory basis; and (5) a utility may not favor itself over other parties with respect to the provision of
telecommunications or video services. See Implementation of Section 224 of the Act; Amendment of the
Commission's Rules and Policies Governing Pole Attachments, WC Docket No. 07-245; RM-11293; RM-1 1303,
Notice of Proposed Rulemaking, 22 FCC Rcd 20195, 20198-99, para. 9 (2007) (Pole Attachment Notice or NPRM)
(noting the Commission's establishment of access rules in the Local Competition Order and determination to revisit
them if needed).
32 See Local Competition Order, 11 FCC Rcd at 16068, para. 1143 ("We will not enumerate a comprehensive
regime of specific rules, but instead establish a few rules supplemented by certain guidelines and presumptions that
we believe will facilitate the negotiation and mutual performance of fair, pro-competitive access agreements. We
will monitor the effect of this approach and propose more specific rules at a later date if reasonably necessary to
facilitate access and the development of competition in telecommunications and cable services.").
33 Implementation of Section 703(e) of the Telecommunications Act, Amendment of the Commission's Rules and
Policies Governing Pole Attachments, CS Docket No. 97-151, Report and Order, 13 FCC Rcd 6777 (1998) (1998
Implementation Order), aff'd in part, rev 'd in part, Gulf Power v. FCC, 208 F.3d 1263 (11th Cir. 2000) (Gulf Power
v. FCC), rev 'd, Nat '1 Cable & Telecommunications Ass 'n v. Gulf Power, 534 U.S. 327 (2002) (Gulf Power).
34 See 1998 Implementation Order, 13 FCC Rcd at 6796, para. 34.
35 See id. at 6797-99, paras. 36-42 (applying the definitions of "telecommunications carriers," "telecommunications
services," and relevant provisions of section 224 to wireless carriers).
36 See Gulf Power v. FCC, 208 F.3d at 1273-75 (wireless), 1275-78 (cable rate); Gulf Power, 534 U.S. at 333-39
(cable rate), 339-342 (wireless).
37 See Gulf Power, 534 U.S. at 336, 338-89. The Court rejected the view that "the straightforward language of
[section 224's] subsections (d) and (e) establish two specific just and reasonable rates [and] no other rates are
authorized." Id. at 335 (citing Gulf Power v. FCC, 208 F.3d at 1276 n.29).
38 See GulfPower, 534 U.S. at 341.
39 Pole Attachment Notice, 22 FCC Rcd 20195.
SSee United States Telecom Association, Petition for Rulemaking, RM-l 1293 (filed Oct. 11, 2005) (USTelecom
Petition); Fibertech Networks, LLC, Petition for Rulemaking, RM-11303 (filed Dec. 7, 2005) (Fibertech Petition).
The records generated by both petitions were incorporated by reference. Pole Altachment Notice, 22 FCC Red at
20200, para. 12 n.12.
Federal Communications Commission
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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.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/419/: accessed August 19, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.