FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,290
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112. At the same time, we encourage attachers to provide early notice to utilities of any alleged
overcharges so that the parties can attempt to resolve such issues through negotiation rather than litigation
before the Commission. However, we decline the invitation of one commenter to modify our rules to
preclude monetary recovery for any period prior to the time a utility receives actual notice of a disputed
charge.3" Such a rule modification runs counter to the very idea of a statute of limitations, which permits
complaints to be filed up until the last day of the limitations period. We therefore modify rule 1.1410(c)
to allow monetary recovery in a pole attachment action to extend as far back in time as the applicable
statute of limitations allows.
D. Unauthorized Attachments
113. Another issue addressed by the Further Notice was attachments installed on poles without
a lawful agreement with or permit from the pole owner--so-called "unauthorized attachments.""'7 The
Further Notice explained that, under current precedent (i.e., the Mile Hi decisions),34' penalties for
unauthorized attachments may not "exceed an amount approximately equal to the annual pole attachment
fee for the number of years since the most recent inventory or five years, whichever is less, plus
interest.""'9 This standard, the Further Notice observed, amounted to "little more than back rent" and
may be insufficient to encourage compliance with proper authorization processes.350 Consequently, the
Further Notice asked a series of questions about alternatives to the Commission's penalty regime,
including the system adopted by the Oregon Public Utilities Commission ("Oregon PUC").3
114. Commenters continue to disagree about the scope of the problem posed by unauthorized
attachments, with attachers arguing that utilities vastly overstate the numbers,352 and utilities arguing that
the problem is widespread and serious.353 Although the record is insufficient for us to make specific
findings regarding the scope and severity of non-compliance, there appears to be a well-founded concern
that an unauthorized attachment payment amounting to no more than back rent provides little incentive
for attachers to follow authorization processes, and that competitive pressure to bring services to market
(Continued from previous page)
disincentive to engage in pre-complaint negotiation. We find that the benefits of encouraging negotiated resolution
of disputes outweighs any concern that attachers will "abuse" the process by unduly delaying the filing of
346 See Verizon Comments at 45.
347 Further Notice, 25 FCC Recd at 11902-05, paras. 89-98.
348 Mile Hi Cable Partners v. Public Service Company of Colorado, Order, 15 FCC Red 11450 (Cable Serv. Bur.
2000) ("Mile Hi Order"), review denied, 17 FCC Red 6268 (2002) ("Mile Hi Recon Order"), review denied sub
nom. Public Serv. Co. of Colorado v. FCC, 328 F.3d 675 (D.C. Cir. 2003). In the Mile Hi Order, the Cable Services
Bureau concluded that a penalty payment for each unauthorized attachment limited to not more than five times the
annual attachment rent was a sufficient incentive for the attacher to comply with a reasonable application process.
Mile Hi Order, 15 FCC Rcd at 11458, para. 14. On appeal, the Commission declined to adopt the Mile Hi Order as
a standard of general applicability, but found that the record supported the Bureau's determination. Mile Hi Recon
Order, 17 FCC Rcd at 6273, para. i1.
349 Further Notice, 25 FCC Red at 11903, para. 92.
350 Id. at 11904, para. 94.
351 Id. at 11904-05, paras. 95-98.
352 Bright House Comments at 28; NCTA Comments at 42-50; Sunesys Comments at 27-28; Comcast Comments at
33-34; Charter Comments at 26-32; TWC at 30-36; Verizon Reply at 43-44.
3 See, e.g., Coalition Comments at 97.
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/m1/462/: accessed December 15, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.