FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,295
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Commission has received challenging the terms of executed pole attachment agreements, it appears that
in most instances, parties are able to achieve an agreement that is acceptable to both sides.38'
124. Our proposal to include a notice requirement in rule 1.1404(d) was designed to promote
efforts by attachers and utilities to negotiate innovative and mutually beneficial solutions to contested
contract issues.382 After reviewing comments on that proposal, however, we have concluded that it
carries a significant risk of unduly complicating and delaying the negotiation of pole attachments
agreements and the adjudication of disputes over such agreements. Moreover, we find that the
modifications to rule 1.1404(k) adopted elsewhere in this order,383 including the requirement for good
faith, executive-level negotiations, will provide a number of the benefits we originally envisioned for the
amendment to rule 1.1404(d). Amended rule 1.1404(k) should encourage the negotiated resolution of
disputes over the terms of pole attachment agreements by providing utilities with notice of those
provisions in a pole attachment agreement that an attacher finds so unreasonable that it is prepared to seek
relief at the Commission. Moreover, because application of amended rule 1.1404(k) - unlike the
proposed amendment to rule 1.1404(d) - carries no risk that an attacher's right to challenge
unreasonable contract provisions will be waived through incomplete notice, attachers will have little
incentive to be over-inclusive in designating issues for pre-complaint resolution. Similarly, relying on a
pre-complaint notice requirement, instead of a requirement for notice during contract negotiations, will
decrease the likelihood that parties will spend valuable time and resources wrangling over terms that a
utility may never seek to enforce.
125. Rule 1.1404(k), as modified, will thus provide a number of the dispute resolution benefits
that the notice requirement was intended to offer. Further, it does not pose the complications and
potential delays to the negotiation and adjudication process that many commenters feared would result
from the proposal addition of a notice requirement to rule 1.1404(d). Accordingly, we decline to amend
rule 1.1404(d) to add a provision requiring 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.
V. POLE RENTAL RATES
126. As discussed below, the record developed in response to the Further Notice persuades us
to adopt a form of the proposed new telecommunications rate formula, which we believe strikes the right
balance between promoting broadband and providing continued incentives for investment by pole owners
consistent with section 224 of the Act.3M In addition, the new formula will minimize the difference in
rental rates paid for attachments that are used to provide voice, data, and video services, and thus will
help remove market distortions that affect attachers' deployment decisions. Removing these barriers to
telecommunications and cable deployment will enable consumers to benefit through increased
competition, affordability, and availability of advanced communications services, including broadband.
Increasing competitive neutrality also improves the ability of different providers to compete with each
other on an equal footing, better enabling efficient competition.
127. 1978 Pole Attachment Act. Congress first directed the Commission to ensure that the
rates, terms and conditions for pole attachments by cable television systems were just and reasonable in
381 See TWC Reply at 40 (noting the "relative dearth of pole attachment complaints filed with the Commission);
NCTA Comments at 37-40 (if attachers were simply signing virtually any pole attachment agreement and filing
complaints later, significantly more complaints would have been filed to date).
382 See Further Notice, 25 FCC Rcd at 11908, para. 107.
3 See supra para. 100.
m Further Notice, 25 FCC Red at 11917-24, paras. 128-41.
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/m1/467/: accessed June 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.