FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,282
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rules to carry out the provisions of this section.274 Congress also gave more specific substantive guidance
for access to poles in section 224(f): "just and reasonable" access must also be "nondiscriminatory."275
91. The language and structure of the statute, as well as Commission precedent, support our
conclusion. As we recognized in the Further Notice, the "Commission's expectation that 'swift and
specific enforcement procedures' would satisfy the need for timely access to pole attachments"276 has not
been met. While we affirm that "no single set of rules can take into account all of the issues that can arise
in the context of a single installation or attachment,"'" a set of broadly applicable rules in discrete areas
will help to "ensure that the terms and conditions of access to pole attachments are just, reasonable, and
nondiscriminatory."278 In particular, in relation to the remainder of section 224, the broad language of
section 224(b)(1) and (bX2) indicate a delegation of comprehensive rulemaking authority over all
attachment issues, including access. Where a statute specifically provides for promulgation of rules to
carry out the provisions of the statute, rules that further define and flesh out the content of the statute are
valid exercises of agency authority.279 We interpret section 224(b)(1)'s parallel construction in its first
sentence to contain two separate Congressional directives: to make rules and to adopt procedures for
adjudication.280 Further, section 224(b)(2) specifically mandates that the Commission must "prescribe by
rule regulations to carry out the provisions of this section,"281 evincing Congressional intent to give the
Commission rulemaking authority over the entirety of section 224.282 The relatively narrower scope of
other subsections of section 224 supports our construction. For example, section 224(e)(1) only applies
"when theparties fail to resolve a dispute over such charges," but section 224(b)(1) contains no such
limitation.23 Because section 224(b)(2) applies the Commission's rulemaking authority to the entire
section, the choice necessarily lies with the Commission whether to implement the Congressional
directive in section 224(f) via rulemaking, adjudication, or both. The access rules we adopt today fit
squarely within our statutory authority over terms and conditions for pole attachments pursuant to section
92. This reading of section 224 is consistent with Commission and judicial precedent.
Although the Commission adopted a predominantly adjudicatory model for regulating access to poles in
274 47 U.S.C. 224(b)(2).
275 See 47 U.S.C. 224(b)(1) (just and reasonable rates, terms, and conditions), (f) (nondiscriminatory access to
poles); Local Competition Order, 11 FCC Rcd at 16067, para. 1143 (discussing the "reasonableness of particular
conditions of access").
276 Further Notice, 25 FCC Rcd at 11875, para. 22 (quoting Local Competition Order, 11 FCC Rcd at 16101-02,
277 Local Competition Order, 11 FCC Rcd at 16068, para. 1145; see Further Notice, 25 FCC Rcd at 11875, para. 22.
278 Further Notice, 25 FCC Rcd at 11875, para. 22.
279 See, e.g., Gulf Power, 534 U.S. at 339 ("agencies have authority to fill gaps where the statutes are silent.")
(citation omitted); Shaker Med. Ctr. Hosp. v. Sec 'y of Health and Human Serv., 686 F.2d 1203, 1209 (6th Cir. 1982)
("It is within the power of an agency to promulgate prophylactic regulations which are broad in scope in order to
effectuate the purposes of enabling legislation."); Camp v. Herzog, 104 F. Supp. 134, 137-38 (D.D.C. 1952).
280 See 47 U.S.C. 224(bX1) (The Commission shall regulate the rates, terms, and conditions for pole attachments,
.. and shall adopt procedures necessary and appropriate to hear and resolve complaints ... .").
281 47 U.S.C. 224(b)(2) (emphasis added). The Communications Assistance for Law Enforcement Act struck
"[W]ithin 180 days from the date of enactment of this section the Commission" and inserted "The Commission",
expanding the reach of this particular subsection. Communications Assistance for Law Enforcement Act, Pub. L.
No. 103-414, g 304, 108 Stat. 4279, 4297 (1994).
282 See TWC Reply at 20-21 (arguing that FCC has broad authority pursuant to 224(b)(1)-(2), (f)).
283 Compare 47 U.S.C. 224(bX1), with 47 U.S.C. 224(e)(1).
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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/m1/454/: accessed October 19, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.