FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,289
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processes experienced by attachers, and if our expectations regarding improvements are unmet, we may
revisit the propriety of amending rule 1.1410 to allow compensatory damages.
110. In the Further Notice, the Commission proposed to modify rule 1.1410(c), which permits
a monetary award in the form of a "refund or payment," measured "from the date that the complaint, as
acceptable, was filed, plus interest."339 The proposed modification to the rule would allow monetary
recovery in a pole attachment action to extend back as far as the applicable statute of limitations allows.340
We reasoned that the current rule fails to make injured attachers whole, and is inconsistent with the way
that claims for monetary recovery are generally treated under the law.34' The Commission expressed a
concern that, by allowing monetary recovery only from the date the complaint is filed, the current rule
discourages pre-complaint negotiations between the parties to resolve disputes about rates, terms and
conditions of attachment.342
111. A number of commenters favored the proposed modification, and generally supported the
rationale for the rule change described in the order.343 Several commenters, however, oppose the rule
modification. We find the arguments offered by these opponents to be unpersuasive. Specifically, we
reject the contention that the proposed rule change creates an incentive for attaching entities to attempt to
maximize their monetary recovery by waiting until shortly before the statute of limitations has expired to
bring a dispute over rates to the Commission.4" We see no basis to conclude that an attacher injured by
pole attachment rate over-charges would be any more likely than any other injured plaintiff to wait the
full length of the limitations period before bringing a claim. An injured pole attacher has no more
incentive than any other plaintiff to delay filing a complaint in order to make additional over-payments
that will later need to be refunded.345
339 Further Notice, 25 FCC Rcd at 11901-02, para. 88 (quoting 47 C.F.R. 1.1410(C).
340 Id. at 11901-02, para. 88, 11932-33, App. B, para. 6 (proposed amendment to rule 1.1410). Elsewhere in this
Order, we address a proposal to expand the relief available under rule 1.1410 to include the recovery of
compensatory damages in pole attachment complaint proceedings. See supra paras. 107-109.
341 Further Notice, 25 FCC Rcd at 11901-02, para. 88.
343 See, e.g., TWC Comments at 26-28 (allowing recovery consistent with the applicable statute of limitations,
rather than from the date a complaint is filed, will facilitate informal dispute resolution and reduce litigation before
the Commission, because attachers will not be compelled immediately to file a complaint in order to preserve their
claims); Charter Comments at 25 (the existing refund rule provides no incentive for pole owners to charge just and
reasonable rates because even when an attacher prevails in a complaint proceeding, the current remedy--a refund
back to the day of the complaint-rarely makes the complainant whole); NCTA Comments at 53 (attachers typically
are reimbursed only to the date on which an error is discovered and reported to the utility--or, if a complaint is filed,
to the date of the complaint; requiring pole owners to compensate attachers from the date of wrongful conduct
would encourage pole owners to comply with the Commission's rules).
344 See EEI/UTC comments at 50-52. See also Alliance Comments at 67-69 (the proposed rule change would
discourage timely filing of complaints); Coalition Comments at 93 (permitting attachers to recover refunds dating
back years before a complaint is filed would eliminate any incentive for them to resolve rate issues in a timely
manner. Rate disputes would drag on indefinitely, and the amount potentially to be refunded will grow
proportionately). EEIUTC also complained that our order "does not specify exactly what statute of limitations it
believes may be relevant." EEIUTC Comments at 51.
34s One commenter noted that, in the 1978 First Report and Order, the Commission specifically rejected a
suggestion that refunds be calculated from the date the disputed rate was first paid, and expressed the view that
allowing refunds from the date of complaint is "entirely appropriate in a complainant form of regulation" in order to
"avoid abuse and encourage early filing when rates are considered objectionable." Alliance Comments at 68 (citing
the First Report and Order)). In the more than 30 years since that order issued, we have had the opportunity to
weigh this concern about potential abuse against our experience that the rule, as currently written, creates a
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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/m1/461/: accessed February 27, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.