FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,306
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However, if scenarios arise where the costs identified above would be lower than the 100 percent of
administrative and operating expenses that serves as a lower bound for the zone of reasonableness, we
adopt the higher definition of cost in those circumstances. In sum, the applicable cost for purposes of
section 224(e) will be the costs identified above or 100 percent of administrative and operating expenses,
whichever is higher.
153. Wireless. We also reaffirm that wireless carriers are entitled to the benefits and
protection of section 224, including the right to the telecom rate under section 224(e). We do so in
response to reports by the wireless industry of cases where wireless providers were not afforded the
regulated rate.457 Specifically, in the 1998 Implementation Order, the Commission explained that it has
authority under section 224(e)(1) to prescribe rules governing wireless attachments used by
telecommunications carriers to provide telecommunications services.458 The Commission also stated that
Congress did not intend to distinguish between wired and wireless attachments and that there was no
basis to limit the definition of telecommunications carriers under the statute only to wireline providers.459
The Commission noted that, despite the "potential difficulties in applying the Commission's rules to
wireless pole attachments, as opponents of attachment rights have argued," it did not see any need for
separate rules.460 Instead, it explained that "[w]hen an attachment requires more than the presumptive
one-foot of usable space on the pole," the presumption can be rebutted."' Accordingly, wireless
attachments are entitled to the telecom rate formula, and where parties are unable to reach agreement
through good faith negotiations, they may bring a complaint before the Commission.462
154. Commingled Services. We also address the role of the new telecom rate in the context of
commingled services. Some cable operators463 express concern that pole owners will seek to impose rates
higher than both the cable rate and the new telecom rate where cable operators or telecommunications
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Georgia Power Co. in the Further Notice, the cable rate still exceeded the lower-bound telecom rate. Id. From top
of the column to bottom in the chart, the correct rates for Georgia Power should be as follows: $5.77, $8.72, $13.15,
$2.68, and $4.04.).
457 DAS Forum Comments at 20 ("DAS Forum members report that they are ... forced to pay monopoly rates for
their attachments with complete disregard for the Commission's formula."); id. at iii, 22 (contending that, "[w]hile a
wireless attachment may occupy more space than a wired attachment[,] ... the wireless attachment rate should be
equal to the telecom rate times that amount of usable space occupied above one foot," and noting that "one DAS
Forum member is paying ... $2,875 per pole per year to a utility" and others are being charged "from two to twenty
times greater than the utility's regulated telecommunications rate"); CTIA Comments at 16 ("To the extent that the
Commission [adjusts] the Telecommunications rate, it should make clear that the adjustments apply to both wireline
and wireless attachments.").
458 1998 Implementation Order, 13 FCC Red at 6798-99, para. 40 (citing 47 U.S.C. 153(43), (44), (46);
224(a)(4), (d)(3), (e)(1)); see also Gulf Power, 534 U.S. 327; Wireless Telecommunications Bureau Reminds Utility
Pole Owners of Their Obligations to Provide Wireless Telecommunications Providers with Access to Utility Poles at
Reasonable Rates, Public Notice, 19 FCC Rcd 24930 (WTB 2004).
459 1998 Implementation Order, 13 FCC Red at 6798-99, para. 40 (citing 47 U.S.C. 153(43), (44), (46);
224(a)(4), (d)(3), (e)(l)). The Commission also noted that it had already recognized that cellular telephone, mobile
radio, and PCS are telecommunications services. 1998 Implementation Order, 13 FCC Red at 6799, para. 40 (citing
Universal Service Order, 12 FCC Rcd at 9175; Local Competition Order, 11 FCC Red at 15997).
460 1998 Implementation Order, 13 FCC Red at 6799, para. 41 (noting that electric utilities argued then that wireless
attachments have different kinds of equipment, which is similar to their arguments in this proceeding).
46"' Id at 6799, para. 42.
463 See, e.g., Bright House Comments at 2, 12-14; Bright House Reply at 3-5.
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/m1/478/: accessed June 27, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.