FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,299
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capability" by both wired and wireless providers by "remov[ing] barriers to infrastructure investment,"
and the broader pro-competitive goals and policies that Congress directed the Commission to carry out
under the 1996 Act.410 Indeed, the Sixth Broadband Deployment Report identified reform of the
Commission's pole attachment rules as a means to advance the deployment of broadband.41"
Additionally, this rate is readily administrable and consistent with the "simple and expeditious" regulatory
framework Congress intended. Most importantly from a consumer standpoint, the new rate methodology
that we implement will better serve the public interest by making broadband and other advanced services
more widely available.
137. We also find this approach consistent with the specific statutory framework governing
pole attachments. For one, as a matter of law, the new telecom rate reflects a reasonable interpretation of
the ambiguous statutory language of section 224(e) and remains true to the statutory requirements for
allocating cost between attachers and pole owners. The rate is just, reasonable, and fully compensatory,
and our new methodology is grounded in sound economic policies.
1. Description of the New Telecom Rate
138. Overall Approach. The new telecom rate we adopt today originates from an initial
proposal by TWTC.412 Fundamentally, TWTC asserts that the Commission's prior telecom rate included
costs that "bear no relation" to the cost of providing space for an attachment and are not necessitated by
the language of section 224(e). In particular, TWTC contends that "none of these 'costs' has anything to
do with actually providing 'space' on a pole for pole attachments because a utility would incur these costs
'regardless of the presence of pole attachments."""43 Thus, TWTC proposes that those costs should be
eliminated from the telecom rate.414 TWTC suggests instead that utilities should determine "how much
extra a utility must incur to provide non-usable and usable space on poles for pole attachments (in both
construction and maintenance costs) and then fully allocate those costs based on the cost-apportionment
formulas under Section 224(e)(2) and (3).'415 Drawing upon this conceptual framework, the Further
Notice sought comment on a modified proposal designed to ensure consistency with the statutory
framework of section 224. Based upon the record received in response to the Further Notice, we adopt a
revised form of that proposal, as described below.
139. As a threshold matter, we note that the Commission recognizes that ratherhr than insisting
upon a single regulatory method for determining whether rates are just and reasonable, courts and other
federal agencies with rate authority similar to our own evaluate whether an established regulatory scheme
produces rates that fall within a 'zone of reasonableness.' For rates to fall within the zone of
410 47 U.S.C. 1302(a); Telecommunications Act of 1996, Public Law No. 104-104, 110 Stat. 56.
411 See Inquiry Concerning the Deployment ofAdvanced Telecommunications Capability to All Americans in a
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the
Telecommunications Act of 1996, as Amended by the Broadband Data Improvement Act; A National Broadband
Plan for Our Future, GN Docket Nos. 09-51, 09-137, Sixth Broadband Deployment Report, 25 FCC Rcd 9556,
9560-61, 9575, para. 7 & n.26, para. 29 & n. 125 (2010) (Sixth Broadband Deployment Report) (citing the 2010
Further Notice). Such actions also were recommended by the National Broadband Plan. NATIONAL BROADBAND
PLAN at 109-11.
412 Further Notice, 25 FCC Red at 11915-17, paras. 123-128 (discussing Letter from Thomas Jones, Counsel for
Time Warner Telecom Inc., to Marlene H. Dortch, Secretary, FCC, RM-11293, RM-1 1303, Attach. (filed Jan. 16,
2007) (TWTC White Paper)).
413 See TWTC White Paper, RM-11293, at 20 (comparing 47 U.S.C. 224(e)(2)-(3) with Amendment ofthe
Commission's Rules and Policies Governing Pole Attachments, WC Docket No. 07.-245, Report and Order, 15 FCC
Red 6453, 6477-91, paras. 44-76 (2000) (2000 Fee Order)).
4t4 See TWTC White Paper, RM-11293, at 19-20.
4s Id at 20.
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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/m1/471/: accessed April 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.