FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,297
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to provide telecommunications services."'"394 Section 224(e) provides for the determination of pole
attachment rates based on "the cost of providing space on a pole.'"395 The statute explains how the costs
should be divided, or allocated, between the pole owner and attacher.396
131. By virtue of the 1996 Act revisions, section 224 of the Act now sets forth two separate
methodologies to determine the maximum rates for pole attachments - one applies to pole attachments
used by telecommunications carriers (the telecom rate formula), and the other to pole attachments used
"solely to provide cable service" (the cable rate formula).397 Under section 224, pole attachments for
telecommunications carriers initially were established under the cable rate formula, and were transitioned
to the telecom rate formula over a five-year period.398 As the Commission implemented these statutory
formulas, the telecom rate formula generally resulted in higher pole rental rates than the cable rate
132. Subsequent Proceedings. At the same time that the Commission adopted a rule
implementing the telecom rate formula, it addressed the issues of cable attachments used to offer
commingled cable and Internet access services. In particular, the Commission held that cable television
systems that offer commingled cable and Internet access service should continue to pay the cable rate.400
In 2002, the Supreme Court upheld this decision, finding that section 224(b) gives the Commission
authority to adopt just and reasonable rates for attachments within the general scope of section 224 of the
Act, but outside the "self-described scope" of the telecom rate formula or cable rate formula as specified
under sections 224(d) and (e).40'
133. On November 20, 2007, the Commission released the Pole Attachment Notice, which
sought comment on, among other things, the difference in pole attachment rates paid by cable systems,
incumbent LECs, and competing telecommunications carriers that provide the same or similar services.402
The Commission likewise recognized "the importance of promoting broadband deployment and the
' 47 U.S.C. 224(eX)(1H4). For purposes of section 224, however, Congress excluded incumbent LECs from the
definition of"telecommunications carrier." 47 U.S.C. 224(a)(5). We discuss below issues relating to the
treatment of pole attachments by incumbent LECs for purposes of section 224. See infra Part V.C.
395 47 U.S.C. 224(eX2).
96 47 U.S.C. 224(eX2H3).
397 47 U.S.C. 224(d), (e). The difference between the cable and existing telecom rate formulas is the way they
allocate the costs associated with the unusable portion of the pole - the space on a pole that cannot be used for
attachments. Compare 47 C.F.R. 1.1409(e)(1) with 47 C.F.R. 1.1409(e)(2). The cable and telecom rate
formulas both allocate the costs of usable space on a pole based on the fraction of the usable space that an
attachment occupies. Under the cable rate formula, the costs of unusable space are allocated in the same way.
Under the telecom rate formula, however, two-thirds of the costs of the unusable space is allocated equally among
the number of attachers, including the owner, and the remaining one third of these costs is allocated solely to the
39 47 U.S.C. 224(e)(X4).
399 Under the cable formula, each attacher, other than the pole owner, pays about 7.4% of the annual cost of a pole.
See 47 U.S.C. 224(d). Under the telecom rate formula, each attacher, other than the pole owner, pays between
about 11.2% of the annual cost of a pole in urban areas to about 16.9% in non-urban areas. See Further Notice, 25
FCC Rcd at 11913-14, para. 11. These rates are based on the Commission's rebuttable presumptions of 37.5 feet
for the height of a pole, 24 feet for the unusable space on a pole, 13.5 feet for the usable space, 1 foot for the space
occupied by an attachment, 3 attachers in non-urban areas, and 5 attachers in urban areas. See 47 C.F.R. 1.1417-
400 See 1998 Implementation Order, 13 FCC Red at 6796, para. 34.
401 Gulf Power, 534 U.S. at 335-36, 338-39.
42 Pole Attachment Notice, 22 FCC Red at 20200, 20206, paras. 13, 26.
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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/m1/469/: accessed June 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.