FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,292
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* The opportunity for resolution of factual disputes via settlement conferences before an
alternative dispute resolution forum.362
116. In a case where an attacher makes unauthorized attachments to a pole at a time when the
attacher has no pole attachment agreement with the utility, but later enters into such an agreement, we
find that it would be reasonable for the utility to apply the unauthorized attachment provisions in that
agreement to attachments that were made before the agreement was executed, as well as to any
unauthorized attachments made following execution. If an attacher who has made unauthorized
attachments without any contract with the utility refuses to enter into a pole attachment agreement, the
utility may seek other remedies including, for example, an action in state court for trespass.
117. The comments evidenced significant support for the Oregon PUC's sanctions.363 The
record shows that the system of fines instituted by the Oregon PUC has been effective in reducing
substantially the incidence of unauthorized attachments in that state.364 The Oregon penalties have been
tested and refined with assistance from the Oregon Joint Use Association.365
118. We do not adopt the Oregon system as federal law, but rather continue to favor
agreements negotiated between utilities and attaching entities.3' We simply conclude that we have
examined Oregon's rules and find them to be reasonable, and that we would expect to find reasonable any
unauthorized attachment provisions contained in agreements that do not exceed the Oregon penalties. As
noted above, however, the Oregon sanctions are part of a larger system that also affords protections to
attachers that operate in good faith. Consequently, we anticipate that, like the Oregon system, a
reasonable pole attachment agreement also will contain provisions that provide notice to attachers, a fair
opportunity to remedy violations, and a reasonable process for resolving factual disputes that may arise.
E. The "Sign and Sue" Rule
119. The Further Notice reviewed the Commission's long-standing "sign and sue" rule, which
allows an attacher to challenge the lawfulness of terms in an executed pole attachment agreement that the
attacher claims it was coerced to accept in order to gain access to utility poles.367 Finding that utilities
continue to have the potential to abuse their monopoly power in negotiating pole attachment agreements,
the Commission proposed to retain the "sign and sue" rule, but sought comment on whether to add a
notice requirement to the rule.3" Specifically, the Commission proposed that rule 1.1404(d) be amended
362 The Oregon rules provide for dispute resolution before a Joint-Use Association, which is comprised of pole
owners, pole occupants, and government entities. Oregon Administrative Rules, Division 28, Pole and Conduit
Attachments, 860-028-0200, 860-028-0220. We encourage stakeholders to develop dispute resolution fora that
would function in a manner similar to the Joint-Use Association in Oregon.
363 Alliant Comments at 7; NRECA Comments at 20; Coalition Comments at 100-01; CPS Energy Comments at 15;
Verizon Comments at 45-46; Alliance Comments at 72-75; APPA Reply at 36. Of course, the comments were not
unanimous. Some believe the Oregon system is not sufficiently stringent. Idaho Power Comments at 15; APPA
Comments at 30-31; Oncor Comments at 51-52. Others believe the Oregon system is unworkable or that it results
in penalties that are too harsh. Charter Comments at 26-32; TWC Comments at 30-36.
364 See Coalition Comments at 101 and Exh. C.
36 Portland General Electric NPRM Comments at 6 (describing the Oregon Joint Use Association as an industry
group in which the interests of both attaching entities and utilities are represented).
366 See 1998 Implementation Order, 13 FCC Red at 6783-84, para. 10 (preference for negotiated agreements).
367 Further Notice, 25 FCC Rcd at 11905--09, paras. 99-108.
368 Some commenters continue to urge the Commission to eliminate the "sign and sue" rule entirely. See, e.g.,
EEI/UTC Comments at 59-63; Idaho Power Comments at 15-16. We decline to do so, for the reasons stated in the
Further Notice, 25 FCC Red at I 1907-08, paragraphs 104-05. See, e.g., AT&T Comments at 25 (attachers might
feel economic pressure to accept a less than satisfactory agreement in order to get into business or to serve a specific
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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/m1/464/: accessed January 17, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.