FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,307
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carriers also provide services, such as VoIP, that have not been classified.4" We agree that this outcome
would be contrary to our policy goals, discussed below, of reducing the disparity in pole rental rates
among providers of competing services and of minimizing disputes.465 Consequently, we make clear that
the use of pole attachments by providers of telecommunications services or cable operators to provide
commingled services does not remove them from the pole attachment rate regulation framework under
section 224. Rather, we will not consider rates for pole attachments by telecommunications carriers or
cable operators providing commingled services to be "just and reasonable" if they exceed the new
telecom rate.46 This action does not disturb prior Commission decisions addressing particular scenarios
regarding commingled services.467
2. The New Telecom Rate Is Consistent with the Act and Congressional Intent
155. We believe that section 224(e) provides the Commission sufficient latitude to adopt our
definition of costs underlying the new telecom rate, as discussed in greater detail below. We note that
from the earliest days of pole attachment regulation, Congress intended to give the Commission
considerable flexibility in determining just and reasonable rates.468 Indeed, Congress instructed the
Commission to develop a "simple and expeditious" pole attachment program consistent with fair and
efficient regulation, and "afford[ed] the Commission discretion to select the regulatory tools necessary to
carry out" its responsibilities."69 The Commission's revised telecom rate formula gives full effect to the
4" The Commission only has addressed two situations regarding the statutory classification of IP-enabled services.
Petition for Declaratory Ruling that Pulver.com's Free World Dialup is Neither Telecommunications nor a
Telecommunications Service, WC Docket No. 03-45, Memorandum Order and Opinion, 19 FCC Rcd 3307 (2004)
(Pulver.com Order) (classifying as an "information service" Pulver.com's free service that did not provide
transmission and offers a number of computing capabilities); Petition for Declaratory Ruling that AT&T's Phone-to-
Phone IP Telephony Services are Exempt from Access Charges, WC Docket No. 02-361, Order, 19 FCC Red 7457
(2004) (IP-in-the-Middle Order) (finding certain "IP-in-the-middle" services to be "telecommunications services");
Regulation ofPrepaid Calling Card Services, WC Docket No. 05-68, Declaratory Ruling and Report and Order, 21
FCC Red 7290 (2006) (Prepaid Calling Card Order) (same). Otherwise, the Commission thus far has expressly
declined to address the statutory classification of VoIP services. See, e.g., Connect America Fund et al., WC Docket
Nos. 10-90, 07-135, 05-337, 03-109; CC Docket No. 01-92; GN Docket No. 09-51, Notice of Proposed Rulemaking
and Further Notice of Proposed Rulemaking, FCC 11-13, para. 73 (rel. Feb. 9, 2011).
465 See infra paras. 173-174.
466 To the extent that a telecommunications carrier or cable operator provides particular services that the
Commission has not expressly classified, but which ultimately are telecommunications services, the attachments
would be subject to section 224(e) and the new telecom rate adopted in this order. Except as discussed below, see
infra note 467 and accompanying text, we do not determine more precisely the specific rate (new telecom rate or
cable rate) that should apply in the context of any particular commingled services scenario.
467 See, e.g., Comcast Comments at 4 (noting that the Commission previously specified that the cable rate would
apply to commingled video and Internet access services); ACA Reply at 3-6 (noting the same and arguing that the
Commission should not increase the rates that apply in such circumstances). See also Gulf Power, 534 U.S. at 339.
To the extent that there are disputes about the application of pre-existing law to particular scenarios regarding
commingled services that were not already addressed by the Commission, we do not address them here.
** See 1978 Pole Attachment NPRM, 68 FCC 2d at 1 , para. 20 (referring to Congress's approach to using the best
estimate of less readily identifiable costs) ("Novelty, however, is not reason enough to find an approach
incompatible with determining just and reasonable rates. In this regard, we also note that the considerable flexibility
which Congress intended to give us in determining just and reasonable pole attachment rates also carries with it an
element of imprecision.").
469 1977 Senate Report at 21, reprinted in 1978 U.S.C.C.A.N. at 129; see also 1978 Pole Attachment NPRM, 68
FCC 2d at 4, para. 4 ("The supplemental regulation envisioned by the [Senate Committee] Report is to be simple and
expeditious, necessitating a minimum of staff, paperwork and procedures consistent with fair and efficient
regulations. That regulation could be uniquely applicable to pole attachment matters .... Tariff filings and other
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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/m1/479/: accessed May 29, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.