FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,284
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authority to utilities to define the terms and conditions of attachment294 would trump the grant of
rulemaking authority to the Commission in section 224(b)(1) and (2), and would render such
determinations effectively unreviewable by the Commission.295 Such a reading of the statute would also
render section 224(b)(2) meaningless.96
94. Similarly, we disagree with certain commenters that the statute precludes the Commission
from regulating because there are joint use or joint ownership agreements between various entities
mentioned in the statute297 or that the presence of non-regulated attachment (such as a municipality's
traffic light) on poles somehow places these poles outside of Commission authority.298 As previously
stated, the Commission has the authority to regulate, by rule, the terms and conditions of pole
attachments;299 a utility cannot escape the Commission's jurisdiction simply by attaching attachments that
are outside the reach of the statute or by entering into a joint use contract.'" A joint use contract gives
the parties to the contract some degree of control over the pole, and "control" is the statutory floor for
Commission jurisdiction, regardless of whether a non-regulated attachment is also located on the pole.30'
95. We also disagree that the location of the term "usable space" in the rates portion of the
statute precludes the Commission from adopting rules regarding wireless attachments,302 or that make-
ready rules are merely capacity expansion under another name. 3 Because section 224(a)(4) defines
"pole attachment" as "any attachment" and does not contain a substantive spatial limitation, the
Commission retains the authority to interpret the types of, and spatial requirements for, pole attachments
under its broad authority in section 224(b).3'" Nor is a rule regarding make-ready an attempt at mandating
capacity expansion. As the court noted in Southern Company, mandating the construction of new
capacity is beyond the Commission's authority.305 Here, however, we merely regulate the process by
which a new attacher may gain access to existing capacity on a pole. The "terms and conditions" of pole
attachment encompass the process by which new attachers gain access to a pole, and setting deadlines and
remedies for that process in no way constitutes a mandate to expand capacity.36
294 See Oncor Comments at 18-19 ("The Commission should leave everyday access issues in the hands of the
electric utility pole owners ... ."); Florida IOUs Reply at 40 (adopting a wireless rule would "unduly constrain an
electric utility's right to implement and enforce non-discriminatory access standards").
295 47 U.S.C. 224(b)(1)-(2).
296 United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("The cardinal principle of statutory construction is to
save and not to destroy. It is our duty to give effect, if possible to every clause and word of a statute rather than to
emasculate an entire section ....").
297 Cf Coalition Comments at 72-73 (arguing that FCC cannot designate managing utility on jointly owned poles).
298 Oncor Comments at 26.
299 See AT&T Comments at 2 (arguing that the FCC has authority to regulate pole attachments by incumbent LECs).
300 See 47 U.S.C. 224(a)(1).
301 See 47 U.S.C. 224(aX)(1) (requiring either ownership or "control" of a pole to fall within the ambit of the
302 See Florida IOUs Reply at 38-40.
303 See Florida IOUs Comments at 13; Oncor Comments at 16-19. See also Further Notice, 25 FCC Red at 11871-
73, paras. 14-16.
34 See 47 U.S.C. 224(aX4), (b).
3o05 See Southern Co. I, 293 F.3d at 1346.
3o6 See 47 U.S.C. 224(b)(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/m1/456/: accessed January 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.