FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,311
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administrative and operating expenses, we adopt the higher definition of cost in those circumstances.487
In each scenario, the section 224(e) allocators are then applied to the Commission's definition of cost. As
a result, the Commission's approach gives meaning to section 224(e) of the Act.
162. Legislative History Does Not Require Fully Allocated Costs. Beyond the terms of section
224 of the Act itself, electric utilities argue that section 224(e) must be read in a manner that mandates use
of a fully allocated cost methodology based on the legislative history of section 224.48 Primarily, they
cite to language in the legislative history of the House bill endorsing a fully allocated cost methodology
and other discussions in the legislative history attempting to link the benefits attachers receive from pole
attachments to pole rental rates. We are not persuaded that the legislative history precludes the
Commission's approach, however. Indeed, commenters here express contradictory interpretations of the
Conference Report's discussion of the provisions amending Section 224 at issue here.489
163. To the extent that we draw any conclusions from the Conference Report, we find that it
undercuts the electric utilities' argument that Congress intended to require the use of fully allocated costs.
As the electric utilities note, the legislative history of the House bill amending section 224 would have
directed "the Commission to regulate pole attachment rates based on a 'fully allocated cost' formula.'""49
The conference agreement did not adopt the House version, however; instead it adopted "the Senate
version with modifications.'49 The formula itself and the basis for Congress' selection of the two-thirds
allocator for unusable space are not explained in the legislative history; rather it appears to be the
unexplained result of a political compromise.492 Moreover, the "fully allocated cost" language, which is
at the heart of the controversy, was not in the summary of the Senate bill, nor in the language of the
conference agreement itself.493 Indeed, most telling is that no express language requiring fully allocated
costs was made part of the final statute.
164. Certain utilities contend that the legislative history of the House bill, although not
adopted, is still relevant in determining Congress's intent because it contains language describing cost
terminology that is similar to that used in the Senate version, and the final statute and "the ultimate
487 See supra para. 152.
"8 See, e.g., APPA Comments at 8-9; Oncor Comments at 62.
489 See, e.g., Florida IOUs Comments at 61, Bright House Comments at 18-19 (both discussing H.R. Rep. No. 104-
458, 104th Cong., 2nd Sess. at 205-0)7 (section on pole attachments) (1996), reprinted in 1996 U.S.C.C.A.N. 10,
220-21 (Conference Report)). The Conference Report, which accompanied S. 652, is identical to S. Rep. No. 104-
490 H.R. Rep. No. 104-458 at 206, reprinted in 1996 U.S.C.C.A.N. at 220 (stating "[t]he new provision directs the
Commission to regulate pole attachment rates based on a 'fully allocated cost' formula.").
491 H.R. Rep. No. 104-458 at 207, reprinted in 1996 U.S.C.C.A.N. at 221 (briefly explaining new subsections
224(e)(1-(2), (g), (h), and (i)) ("The conference agreement adopts the Senate provision with modifications. The
conference agreement amends section 224 of the Communications Act by adding new subsection (e)(l) to allow
parties to negotiate the rates, terms, and conditions for attaching to poles ... New subsection 224(e)(2) establishes a
new rate formula charged to telecommunications carriers for the non-useable space of each pole. Such rate shall be
based upon the number of attaching entities.").
492 Coalition NPRMComments at 35-36 & nn.78-79 (citing Telecommunications Act of 1996 conference report S.
Rep. 104-230 at 89-90 (Feb. 1, 1996) and explaining that the U.S. House of Representatives had voted to adopt a
pole attachment rate methodology but that "it was rejected without explanation by the House-Senate Conference
Committee in favor of the existing FCC Telecom Rate" when the 1996 Act was passed) (citing TCI Cablevision of
Washington, Inc. v. City ofSeattle, No. 97-2-02395-5SEA (May 20, 1998)). The Coalition stated "the court
concluded that Congress's final adoption of the FCC Telecom Rate allocation was 'primarily a political
compromise, and not based on cost accounting issues.'" Coalition NPRMComments at 36 n.79 (citing findings of
493 H.R. Rep. No. 104-458 at 205-07, reprinted in 1996 U.S.C.C.A.N. at 220-21.
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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/m1/483/: accessed April 20, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.