FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,269
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reliability, including requirements that may exceed NESC standards.169 The utility oversight should
protect against any attacher pressure to cut corners, and mitigates concerns about the contractor's
potential conflict of interest.
59. Consistent with the statutory distinction of section 224(f)(2), we authorize electric
utilities, but not incumbent LECs, to render a final attachment decision. Specifically, if the pole owner is
an electric utility, it retains the statutory right to deny access where there is insufficient capacity or for
reasons of safety, reliability, or generally applicable engineering purposes.'7" We recognize that no
matter how rigorous a survey is carried out, disputes over interpretation or changed circumstances can
arise in the field. Where the attacher and an electric utility's representative disagree, they are obligated to
try to reach an accommodation within a reasonable amount of time, and disputes should be escalated
within the companies when no agreement is reached on the ground.'72 If the electric utility and the
attacher are unable to reach agreement, or to find a suitable alternative, the electric utility may make the
final decision on such a matter, subject to Commission review through our complaint process.
60. Although the Commission has long recognized that incumbent LECs are interested in pole
capacity, safety, reliability, and sound engineering,7"' we find that there are legal and policy reasons to
distinguish between utilities and incumbent LECs. We therefore do not permit incumbent LECs to render
final attachment decisions. First, the statute authorizes only utilities, not incumbent LECs, to deny access
for reasons such as lack of capacity or safety concerns.174 Moreover, the Commission has recognized
that, unlike electric utilities, incumbent LECs may view other attachers as rivals. Since the initial
adoption of access requirements, the Commission has determined that objections from incumbent LECs
based on alleged engineering concerns "will be scrutinized very carefully, particularly when the parties
concerned are in a competitive relationship.""75 We therefore decline to give incumbent LECs veto power
over the engineering judgments of a contractor selected in accordance with our rules.
61. Some utilities support our decision to allow attachers to use contractors under the
circumstances and with the conditions set forth above."76 However, other utilities argue that, even with
169 See Oncor Comments at 47-48 (seeking assurance that contractors will follow its standards when these are more
stringent than the NESC, including Texas-specific stringent specifications); Local Competition Order, 11 FCC Rcd
at 16070-72, paras. 1148-50.
170 See, e.g., Idaho Power Comments at 7 (arguing that contractors will be forced into conflicts between attachers'
interest in timely make-ready work and utilities' interest in safe and reliable service); Oncor Comments at 39
(arguing that Oncor must maintain control over the performance of survey and make-ready on its poles to maintain
quality control, and that attachers' desires for speed to market provide an incentive for "blow and go" construction);
Coalition Comments at 14-15, 48 (arguing that only electric utilities do the surveys and make-ready work safely and
properly, and that attachers' contractors increase safety violations, unauthorized attachments, and shoddy attacher
171 47 U.S.C. 224(0(2) (providing that electric utilities may deny access where there is insufficient capacity or for
reasons of safety, reliability, or generally applicable engineering purposes).
172 See infra Part IV, para. 100.
'73 Local Competition Order, 11 FCC Red at 16081, paras. 1176-77.
174 47 U.S.C. 224(a)(1), (a)(5), (f0)(2).
75 Local Competition Order, 11 FCC Red at 16081, para. 1177.
176 See, e.g., Ameren et al. Comments at 13 (stating that outside contractors should perform make-ready work if and
only if the pole owner has failed to perform such work within the timeline); Florida IOUs Comments at 30-31
(stating that make-ready in communications space is handled without significant involvement from electric utilities).
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/m1/441/: accessed September 26, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.