FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,283
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the Local Competition Order, the Commission also adopted access rules of general applicability, many of
which were upheld by the court in Southern Company.2 Adopting a case-by-case approach while the
Commission gained greater subject matter expertise in pole attachments hardly precludes adoption of
further substantive rules years later.2s5 In fact, the Commission expressly anticipated the possible need to
revisit its adjudicatory model and impose such regulations: "We will monitor the effect of this
[case-specific] 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."286 For
these reasons, we are not persuaded by commenters who argue that we lack rulemaking authority or
substantive statutory authority under the section 224 to adopt access rules here.287
93. We also reject the argument raised by some commenters that the Commission improperly
applied both the "just and reasonable" and "nondiscriminatory" standards to access in the Further
Notice,288 and that only the latter standard actually applies.289 Section 224(b)(1) applies the "just and
reasonable" standard to all rates, terms, and conditions of pole attachments, including the conditional
access regime set up under section 224(f).290 Section 224(f) is a broad mandate of "nondiscriminatory"
access with a specific carve-out for certain conditions where electric utilities may deny access (i.e.,
insufficient capacity, safety, reliability, and generally applicable engineering purposes).291 While the
Commission continues to accord substantial leeway to electric utilities with regard to the practical
application of this important exception,292 the Commission has not and could not delegate away the
authority to ensure "just and reasonable" and "nondiscriminatory" terms and conditions under which
utilities may grant or deny access.293 Interpreting section 224(f) as a Congressional delegation of
284 See Local Competition Order, 11 FCC Red at 16071-74, paras. 1151-58, aff'd in part, rev 'd in part, Southern
Co. I, 293 F.3d 1338; see also TWTC/COMPTEL Reply at 20-22.
285 See supra note 279.
286 Local Competition Order, 11 FCC Rcd at 16067, para. 1143. As we explain above, the market has changed
significantly since the Local Competition Order and the limitations of the case-specific approach have become
apparent, requiring more substantive guidance from the Commission. See Part II, paras. 19-20. But see Verizon
Comments at 29 (arguing that nothing has changed to warrant a departure from the "guideline" approach").
287 See, e.g., Oncor Comments at 16-19; Coalition Comments at 69, 81-82; EE/UTC Comments at 2, 5, 13, 34-35;
Florida IOUs Comments at 57 (arguing that the Commission's jurisdiction limited to adjudication); Coalition
Comments at 7 ("It is no coincidence that Congress left to electric utilities the sole right to determine whether access
to their poles, ducts, conduits or rights-or-way should be denied 'for reasons of safety, reliability and generally
applicable engineering purposes.' This is the function of utilities, not the FCC."); EEIUTC Comments at 2-5, 13,
34 (arguing that the Commission may not regulate before access is requested or a complaint is filed).
288 Florida IOUs Comments at 12 (citing Further Notice, 25 FCC Red at 11875-76, 11879-80, paras. 22, 25, 30).
289 See, e.g., Florida IOUs Comments at 12 (arguing that section 224(f) is the only portion of the statute that
regulates access); EEIIUTC Comments at 34-35 (stating that the FCC's authority to review engineering practices is
limited to evaluating whether they are nondiscriminatory).
29 NCTA Reply at 2; Sunesys Reply at 6-7. But see Oncor Comments at 33; Alliance Reply at 51 (arguing that the
FCC has no jurisdiction over make-ready timelines).
291 47 U.S.C. 224(f)(2).
292 Local Competition Order, 11 FCC Red at 16070, para. 1148 (recognizing that a utility normally will have its own
operating standards that dictate conditions of access).
293 See Southern Co. I, 293 F.3d at 1348 ("Petitioners' construction of the Act, which claims that the utilities enjoy
the unfettered discretion to determine when capacity is insufficient, is not supported by the Act's text.")
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/m1/455/: accessed September 20, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.