FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,277
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below, the standard for attachment by a contractor in the communications space remains that of the "same
qualifications" as the utility, but any attachment in the electric space must be at the higher utility-
79. The Commission has long guaranteed attachers the right to choose the workers they hire to
attach their facilities to poles. With regard to contractors, the Commission in 1996 "agree[d] that utilities
should be able to require that only properly trained persons work in the proximity of the utilities' lines,"
but held that "we will not require parties seeking to make attachments to use the individual employees or
contractors hired or pre-designated by the utility."232 Rather, "[a] utility may require that individuals who
will work in the proximity of electric lines have the same qualifications, in terms of training, as the
utility's own workers, but the party seeking access will be able to use any individual workers who meet
these criteria.""' The Commission reasoned that "[a]llowing a utility to dictate that only specific
employees or contractors be used would impede the access that Congress sought to bestow on
telecommunications providers and cable operators and would inevitably lead to disputes over rates to be
paid to the workers."34 In the Further Notice, we recognized that the word "proximity" is ambiguous,
and could mean either "up to the electric lines" or "among the electric lines." " We proposed that the
former reading was the more reasonable choice, and sought comment from interested parties.
80. We find that the phrase "proximity of electric lines" where attachers may engage
contractors for attachment means up to and including the safety space, but not among the electric lines,
for historical, statutory, and safety reasons. The NESC requires 40 inches of clearance between electric
power lines and communications cable on the same pole.236 Because the Local Competition Order does
not discuss attachment of facilities above the communications space or endorse in any way attachers'
contractors entering the electric space, we read "proximity of electric lines" to refer to the 40-inch "safety
space," and not to the region above it. Also, as we discuss above, the statute provides electric utilities the
right to deny access where there is insufficient capacity or for reasons of safety, reliability, and generally
applicable engineering purposes. The Local Competition Order considered this provision of the statute to
reflect congressional acknowledgment that capacity, safety, reliability and engineering issues raise
heightened concerns when electricity is involved, because electricity is inherently more dangerous than
communications services.237 We affirm this interpretation today, and likewise maintain that safety
concerns must take priority when communications equipment is installed among or above potentially
lethal electric lines. Therefore, we clarify that the longstanding right of attachers to use attachment
contractors solely of their own choosing is confined to the communications space and associated safety
232 Local Competition Order, 11 FCC Red at 16083, para. 1182.
234 Id. On reconsideration, the Commission reaffirmed this approach. Local Competition Reconsideration Order,
14 FCC Rcd at 18079, para. 86.
235 Further Notice, 11 FCC Red at 11894-95, para. 69. In the Further Notice, the Commission explained that
generally, attachments on a pole, from the bottom up, include traditional communications attachments (including
space for attachments by incumbent LECs, cable service providers, and other telecommunications service
providers), followed by several feet of safety space separating the communications space from the upper space on a
pole, traditionally used for the attachment of energized electrical lines. Id. at 11894 n. 187.
236 See, e.g., Adoption of Rules for the Regulation of Cable Television Pole Attachments, CC Docket No. 78-144,
Memorandum Opinion and Second Report and Order, 72 FCC 2d 59, 69-71 (1979) (Second Report and Order)
(discussing cost allocation of safety space).
237 Local Competition Order, 1I FCC Rcd at 16081, para. 1177.
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/m1/449/: accessed March 29, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.