FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,324
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indeed were routine or widespread ,s but nevertheless invited parties to submit studies that isolate and
quantify the effect of third-party attachment demand on pole height and therefore pole investment.582
190. Electric utilities in response to the Further Notice did not provide any cost study, let alone
one that might demonstrate that pole owners incur capital costs outside the make-ready context solely to
accommodate third-party attachers. The utilities are in the best position to develop the most credible
studies because they possess the required data and information regarding the costs of owning, installing,
and maintaining poles. We find it reasonable to conclude, therefore, based on our analysis of rational
firm behavior and the lack of any evidence provided by the utilities to refute it, that pole owners do not
incur such costs.583
191. Maintenance and Administrative Costs. We find, based on the record, that the amount of
maintenance and administrative costs reflected in the lower-bound telecom rate is not subsidized. The
lower-bound rate includes a share of the fully allocated amount of these costs, based on both the usable
and the unusable space allocators in section 224(e)(2) and (3).s" In fact, the lower-bound rate includes a
greater proportion of maintenance and administrative costs than does the existing cable rate. That is
because the allocation of maintenance and administrative costs attributed to unusable space by the lower-
bound rate formula is greater than the allocation of maintenance and administrative costs attributed to
unusable space in the cable rate formula.85 Courts have upheld the existing cable rate, finding it to be a
fully compensatory rate.586 It follows that the amount of maintenance and administrative costs included
in the lower-bound rate also fully compensate the pole owner for costs caused by third-party attachments,
based on the same legal reasoning the courts applied in evaluating the existing cable rate.
192. Unusable Space. The utilities are incorrect in their assertions that the section 224(e)(2)
allocator apportions too little of the cost of unusable space to third-party attachers and creates a
subsidized rate.587 This allocation does not create a subsidized rate because unusable space costs are
5' Further Notice, 25 FCC Rcd at 11920-21, paras. 135-36 & n.365.
582 Further Notice, 25 FCC Rcd at 11921, para. 136 & n.371. The Commission provided specific guidance on how
commenters might demonstrate that investment in taller poles, if any, would not have been made 'but for' the
communications attachers. Id. (requesting cost studies that keep certain variables constant, separately quantify any
additional investment not recovered in make-ready fees, include calculations on a per pole basis and on a per pole
per attacher basis, describe analytical techniques used, and explain what data was sampled).
58s We note that the Coalition provides only an anecdotal assertion of additional capital costs that would not be
incurred "but for" communications attachers. See Coalition Comments at 109-12 (asserting that four Coalition
members install taller poles than would be needed if the electric utility were the only attacher and alleging that pole
replacements can be more frequent and/or more costly when poles have communications attachers). As we stated,
without a cost study, we are unable to find that these represent "substantial incremental capital expenditures" or that
"[c]ommunications attachers demonstrably add significantly to electric utility capital expenditures," as utilities
claim. See Coalition Comments at 109- 11. See also TWTC/Comptel Wood Decl. at 16-23 (refuting each of the
584 47 U.S.C. 224(e)(2)3).
585 See supra note 397. The allocation of unusable space costs in the existing telecom rate exceeds the allocation of
these costs in the cable rate, given the Commission's rebuttable presumptions. The allocation of maintenance and
administrative costs attributed to unusable space is the same in the existing telecom rate and the lower-bound rate
because the formulas for both rates apportion the same fully allocated amount of maintenance and administrative
costs and do so using the same unusable space allocator. Accordingly, the allocation of maintenance and
administrative costs attributed to unusable space in the lower-bound rate exceeds the allocation of these costs in the
586 See generally FCC v. Florida Power Corp., 480 U.S. 245; Alabama Power Co. v. FCC, 311 F.3d 1357.
57 EEI/UTC Chakrabarti Report at 5, 7 n.6.
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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/m1/496/: accessed July 26, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.