FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,293
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to require an attacher to provide a utility with written notice of its objections to provisions of a proposed
pole attachment agreement, during contract negotiations, as a prerequisite for later bringing a complaint
challenging those provisions.369 We also sought comment on whether such a notice requirement should
include an exception for circumstances where a challenged provision was not unjust and unreasonable on
its face, but only as later applied, and the attacher could not reasonably have anticipated the unreasonable
120. A few commenters expressed support for the proposed notice requirement.37' A number
of other commenters, however, advocated retaining the "sign and sue" rule without modification, and
raised various objections to the proposed notice requirement.372 After reviewing these comments, we
conclude that the Commission should not amend rule 1.1404(d) to add a notice requirement to the "sign
and sue" rule. As discussed below, we find that such a requirement poses a significant risk of unduly
delaying the negotiation process and adding unnecessary complexity to the adjudication of pole
attachment disputes before the Commission. Moreover, we find that a number of the intended benefits of
the proposed notice provision will be realized through the amendment to rule 1.1404(k) that we adopt
elsewhere in this order.
121. Commenters both for and against the notice requirement raised valid concerns that the
requirement would prompt attachers to be over-inclusive in identifying potentially problematic contract
terms in correspondence with the utility during the negotiation process.73 One commenter opined that
the notice requirement would cause attachers to make "blanket" objections to contract terms that would
provide utilities with no notice of which provisions the attachers actually consider to be objectionable (as
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customer by a certain time frame); Level 3 Comments at 14-16 (attaching parties often do not sign the agreements
because they have reached accord on significant provisions, but because they can no longer delay their construction
while negotiations drag on); TWC Comments at 23-26 (utilities, relying on superior bargaining power, often present
attachers with one-sided boilerplate agreements, and have little or no incentive to make concessions other than
removing facially illegal terms); NCTA Comments at 37-42 (the "sign and sue" rule is virtually the only leverage
attachers have when negotiating contracts with utilities).
369 Further Notice, 25 FCC Rcd at 11905, 1 1908-09, paras. 99, 107-08.
370 Id at 11909, para. 108.
371 See, e.g., Coalition Comments at 104-05; Florida IOUs Comments at 53-55; AT&T Comments at 25; APPA
Comments at 30. Some commenters expressed only weak support for the proposed notice requirement. See, e.g.,
Oncor Comments at 52-54 (Oncor does not oppose the notice requirement); EEI/UTC Reply at 51-54 (although the
proposed revision to the sign and sue rule is a step in the right direction, it does not go far enough in providing
assurance a pole attachment agreement was negotiated in good faith by an attaching entity). One commenter who
advocates eliminating the sign and sue rule in its entirety, opposed the proposed notice requirement. Idaho Power
Comments at 15-16 (the proposed notice requirement is "not likely to remedy or improve the negotiation process
and could increase the potential for adverse impacts for all parties.").
372 See, e.g., NCTA Comments at 37-42; TWC Comments at 23-26; MetroPCS Comments at 22-26; Level 3
Comments at 14-16; Comcast Comments at 25-30; Charter Comments at 16-21; CenturyLink Comments at 35-37;
CTIA Comments at 15-15; ACA Comments at 10-11. The proposed exception to the notice requirement for
circumstances where rates, terms, and conditions are not unjust and unreasonable on their face was criticized by both
supporters and opponents of the notice requirement. See, e.g., AT&T Comments at 26-27; NCTA Comments at 40-
41; Oncor Comments at 53. But see CTIA Comments at 15-16 (supporting the exception); Sunesys Comments at 28
73 See, e.g., Florida IOUs Comments at 53-55 (proposed notice requirement will encourage attachers to word all
correspondence in negotiations to include language that could later be deemed "notice" under the rule). See also
NCTA Comments at 40; Charter Comments at 16-21; Oncor Comments at 53. To address this potential problem,
the Florida IOUs, who support the notice requirement, suggested that the Commission require an attacher to
designate, immediately before the agreement is executed, the specific provisions of the final agreement it contends
are unjust and unreasonable. Florida IOUs Comments at 53-55.
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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/m1/465/: accessed March 18, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.