FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,327
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nor did they demonstrate that any such increase would have a practical impact on property taxes that
should be reflected in pole attachment rates. Moreover, we question whether any taxes incurred on these
could exceed the increased value of the new poles, which the utility now will own.
C. Incumbent LEC Pole Attachments
199. As explained below, historically incumbent LECs owned roughly as many poles as
electric utilities, and it appears that incumbent LECs were generally able to ensure just and reasonable
rates, terms and conditions for pole attachments by negotiating "joint use" agreements.62 The record
demonstrates that incumbent LECs own fewer poles now than in the past, and this relative change in pole
ownership may have left incumbent LECs in an inferior bargaining position to other utilities.603 As a
result, at least in some circumstances, market forces and independent negotiations may not be alone
sufficient to ensure just and reasonable rates, terms and conditions for incumbent LECs pole attachments.
200. The Commission sought comment on the possibility of regulating the rates incumbent
LECs pay for attachments in the 2007 Pole Attachment Notice. In particular, the Commission sought
comment on the extent of the Commission's authority to regulate pole attachment rates for incumbent
LECs, as well as "possible changes in bargaining power between electric utilities and incumbent LECs,
and whether pole attachment rates paid by incumbent LECs could affect the vitality of competition to
deliver telecommunications, video services, and broadband Internet access service."604 The Pole
Attachment Notice tentatively concluded that incumbent LECs (as with other broadband providers) should
pay a regulated rate for pole attachments and "that the rate should be higher than the current cable rate,
yet no greater than the telecommunications rate."65
201. In the 2010 Further Notice, the Commission asked parties to refresh the record on the
issues raised in the Pole Attachment Notice "both in light of the specific telecom rate proposals, as well as
the factual findings of the National Broadband Plan.'" In addition, the Commission sought comment
"on the relationship between the pole rental rates paid by incumbent LECs and any other rights and
responsibilities they have by virtue of their pole access agreements with utilities," such as joint use
agreements, and whether any remedies otherwise were available to incumbent LECs absent the ability to
file complaints with the Commission.67 The Further Notice also sought comment on proposals under
which incumbent LECs' regulated rate would be an existing rate, whether the cable rate, the pre-existing
telecom rate, or any new rate adopted in this proceeding, or an alternative rate, as well as how to balance
the rate paid with the other terms and conditions in incumbent LECs' pole attachment agreements with
202. Based on the record in this proceeding, we find it appropriate to revisit our interpretation
of section 224 with respect to rates, terms and conditions for pole attachments by incumbent LECs.609
602 See, e.g., AT&T Reply at 9; Coalition Reply at 36; Florida IOUs Reply at 27-28; Frontier Mar. 8, 2011 Ex Parte
Letter at I.
603 See infra para. 206 (describing record evidence).
604 Pole Attachment Notice, 22 FCC Rcd at 20201-06, paras. 15-16, 23-25.
605 Id. at 20209, para. 36.
6" Further Notice, 25 FCC Rcd at 11924-25, para. 143.
607 Id. at 11925-27, paras. 145, 148.
6o Id. at paras. 143-47.
609 Given the extensive comment sought on these issues, see, e.g., supra paras. 20&-201, we reject some
commenters' suggestion that the Commission lacks adequate notice. See, e.g., Letter from Scan B. Cunningham,
Counsel for the Alliance for Fair Pole Attachment Rules, to Marlene H. Dortch, Secretary, FCC, WC Docket No.
07-245, GN Docket No. 09-51, Attach. at 1-2 (filed Mar. 31, 2011) (Alliance Mar. 31, 2011 Ex Parte Letter).
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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/m1/499/: accessed October 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.