FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,310
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its own interpretation of the meaning of "cost" in Section 224(e), and we do so in a manner that is
consistent with the statutory framework and the broader purposes of the Act.482
160. We reject certain electric utilities' argument that because section 224(e) does not
expressly define "cost" as the "additional costs of providing space" - as was done in defining the lower
limit of reasonable rates under section 224(d) - the Commission is precluded from adopting a definition
of cost that yields a rate more closely approximating the "additional" or incremental cost of a pole
attachment.483 Although section 224(e) does not expressly define cost as "additional" or "incremental"
cost, it also does not otherwise constrain the definition of the ambiguous term "cost," as discussed above.
Likewise, given the Commission's flexibility in interpreting the ambiguous term "cost," we are
unpersuaded by arguments that the "cost of providing space" under section 224(e) must be defined as
fully allocated costs, as was done in defining the upper limit of reasonable rates under section 224(d).4"
161. Nor does the Commission's alternative approach fail togive meaning to the methodology
for allocating costs under sections 224(e)(2) and (e)(3), as some allege. Congress left it up to the
Commission to define "costs" and required that the allocators in section 224(e) be used to allocate the
costs. The Commission's approach does both. As discussed above, in the majority of cases, the relevant
costs will be defined as 66 percent of fully allocated costs in urban areas, and 44 percent in non-urban
areas.486 However, if scenarios arise where those costs would be lower than the 100 percent of
482 See, e.g., Chevron, 467 U.S. at 843-44; see also Iowa Utilities Board, 525 U.S. 366, 397 (1999) (reviewing
Commission statutory interpretations) ("[T]he 1996 Act is not a model of clarity. It is in many important respects a
model of ambiguity or indeed even self-contradiction .... But Congress is well aware that the ambiguities it
chooses to produce in a statute will be resolved by the implementing agency."); Gulf Power, 534 U.S. at 339 ("[T]he
subject matter here is technical, complex and dynamic, and as a general rule, agencies have authority to fill gaps
where the statutes are silent."). Section 224(bX )(1), itself, is framed as a grant of ratemaking authority to the
Commission. It provides a general mandate to set just and reasonable rates for pole attachments. 47 U.S.C.
224(b)(1). Similarly, section 224(e) requires the Commission to prescribe regulations "to govern the charges for
pole attachments used by telecommunications carriers to provide telecommunications services" and to "ensure that a
utility charges just, reasonable, and nondiscriminatory rates." 47 U.S.C. 224(e)(1).
483 See, e.g., EEI/UTC Comments at 65 n. 113. Although EEl and UTC assert that "it makes very little sense to
'apportion' the incremental costs between the amount of space occupied by an attacher or by the number of
attachers," id., that is not how we define "cost" for purposes of the lower end of the range of permissible rates under
section 224(e). Rather, we find that defining "cost" as "incremental cost" is a shortcoming of TWTC's original rate
proposal, and thus define cost in a manner that-once apportioned pursuant to the section 224(e) methodologies--
yields a rate that comes closer to approaching the incremental costs of attachment (although the actual rate charged
under the new telecom rate typically will be higher than that). See supra paras. 142-145; Further Notice, 25 FCC
Rcd at 11916-17, para. 126.
44 See, e.g., EEI/UTC Comments at 65. Similarly, other commenters argue more generally that the Commission
must interpret the "cost of providing space" under section 224(e) to mean the costs associated with the pole itself,
rather than just those costs caused by the presence of a pole attachment. See, e.g., Florida IOUs Comments at 62;
Alliance Reply at 23-24. Moreover, if the provisions of section 224(d) were to bind the Commission's adoption of a
telecom rate under section 224(e) at all, certain cable commenters argue that they should be read to establish the
limits for all pole attachment rates regulated under section 224, effectively capping all rates at the level of the cable
rate. See, e.g., TWC Comments at 13-14 (arguing that section 224(dX)(1) defines the range of"just and reasonable"
pole attachment rates for all attachments regulated under section 224(bX1) and thus constrains the maximum
telecom rate that could be imposed under section 224(e)); Letter from Daniel L. Brenner on behalf of Bright House
to Marlene Dortch, Secretary, FCC, WC Docket No. 07-245, Attach. 2 at 4-5 (same) (filed Dec. 9, 2010) (Bright
House Dec. 9, 2010 Ex Parte Letter). The new telecom rate clearly is more consistent with that interpretation than
either the prior telecom rate or the electric utilities' proposals.
485 See, e.g., Alliance Reply at 23-24.
486 See supra para. 149.
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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/m1/482/: accessed December 16, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.