FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,294
The following text was automatically extracted from the image on this page using optical character recognition software:
distinguished from those the attacher included merely to ensure it did not waive any rights to later
object).374 This effort to memorialize all conceivably objectionable terms, some feared, would set off
time-consuming exchanges of correspondence between the attacher and the utility, and thus increase the
time and expense involved in negotiating a pole attachment agreement.37"
122. Some commenters also predicted that the proposed notice requirement would prematurely
ignite a host of unnecessary disputes during the negotiation process over contract provisions that may
never be implemented or enforced by the utility.376 Further, some commenters raised credible concerns
that the notice requirement would complicate and prolong complaint proceedings before the Commission
by requiring the Commission, as a threshold matter, to review the parties' negotiating history to determine
whether the attacher provided the utility with notice of its objections to disputed contract terms during
negotiations, and, if not, whether the attacher could have reasonably anticipated that the challenged term
would be applied in an allegedly unreasonable manner.377
123. Comments from both utilities and attachers emphasized the need for parties to engage in
good faith negotiations to resolve disputes over contract terms before claims are raised at the
Commission. " Indeed, we affirm, pursuant to our authority under section 224(b) of the Act, that both
attachers and utilities have a duty to negotiate the rates, terms, and conditions of attachment in good faith,
and to make a good faith effort to resolve disputes prior to seeking relief from the Commission. We thus
reject the position of commenters who contend that the sign and sue rule effectively relieves attachers of
any obligation to negotiate pole agreements in good faith. At the same time, however, we note that the
sign and sue rule was adopted in recognition that in some situations, despite good faith efforts to reach
agreement, an attacher may be forced to execute a pole attachment agreement containingwhat it believes
to be unjust and unreasonable terms in order to gain timely access to the utility's poles.3 Although the
sign and sue rule exists to address these situations, based on the relatively few complaints the
374 Oncor Comments at 53-54.
5 See, e.g., Comcast Comments at 25-30; NCTA Comments at 40; Charter Comments at 16-21; TWC Comments
at 23-26; TWC Reply at 41.
376 See Comcast Comments at 25-30 (although utilities routinely salt their pole agreements with boilerplate terms
that violate numerous provisions of pole attachment law and policy, many of these provisions are never
implemented or enforced by the utility, in part because the provisions are known to be unenforceable); TWC
Comments at 23-26 (the proposed notice requirement may lead attachers to litigate over terms that may never be
enforced by a utility); Charter Comments at 16-21 (memorializing every conceivable basis for complaint, as
attachers will feel compelled to do, will most likely be unnecessary).
377 See Charter Comments at 16-20; Florida IOUs Comments at 53-55.
378 See, e.g., Coalition Comments at 105; EEI/UTC Comments at 59-63; EE/UUTC Reply at 51-54; Comcast
Comments at 25-30; TWC Comments at 23-26.
379 See, e.g., EEI/UTC Reply at 51-54.
380 See Further Notice, 25 FCC Red at 11905-07, paras. 100, 104. Such a coercive situation may arise, for example,
where "the attacher acquiesces in a utility's 'take it or leave it' demand that it pay more than the statutory maximum
or relinquish some other valuable right - without any quidpro quo other than the ability to attach its wires on
unreasonable or discriminatory terms." See Southern Co. Servs., Inc. v. FCC, 313 F.3d 574, 583 (D.C. Cir. 2002)
(Southern Co. If) (quoting the Commission's brief with approval). As we discussed in the Further Notice, a utility
may successfully defend a complaint challenging the reasonableness of a term in a pole attachment agreement by
showing that the term was adopted as part of a quidpro quo for which the utility provided a valuable concession.
See Further Notice, 25 FCC Red at 11908, para. 106. See also NCTA Comments at 41 (if a pole owner wishes to
demonstrate that an attacher bargained away the precise term or condition that it subsequently challenges in a
complaint, it can do so under the existing regulatory regime); Comcast Comments at 25-30 (utilities are protected
by the Commission's policy of not disturbing bargained-for package of provisions where a quidpro quo has been
established). Accord, Level 3 Comments at 14-16; Charter Comments at 16-21.
Federal Communications Commission
Here’s what’s next.
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
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/m1/466/: accessed July 24, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.