FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,328
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Although incumbent LECs have no right of access to utilities' poles pursuant to section 224(f)(1) of the
Act, we now conclude that where incumbent LECs have such access, they are entitled to rates, terms and
conditions that are "just and reasonable" in accordance with section 224(b)(1).
203. We therefore allow incumbent LECs to file complaints with the Commission challenging
the rates, terms and conditions of pole attachment agreements with other utilities. Given that incumbent
LECs often can be differently situated from other attachers, both due to the terms of existing joint use
agreements and because of their continuing pole ownership, we conclude that it would not be appropriate
to treat them identically to telecommunications carrier6t0 or cable operator attachers in all circumstances.
Instead, we identify a number of factors that the Commission will consider in determining whether a
particular rate, term, or condition is just or reasonable pursuant to section 224(b)(I). This guidance will
provide greater clarity to the industry, improve the administrability of Commission complaint proceedings
involving incumbent LEC attachers, and seek to strike the most appropriate balance in ensuring just and
reasonable rates given the particular terms and conditions of an incumbent LEC's agreement for pole
1. Statutory Analysis
204. Section 224 uses two separate terms to refer to telephone companies that are pole
attachers. The statute uses the term "telecommunications carrier," and contains a definition of that term
that takes as a starting place the definition of the same term in section 3 of the Act.61 The definition in
section 224, however, deviates from the section 3 definition by excluding incumbent LECs.612 In most
places, section 224 uses the term "telecommunications carrier." In one critical place-the definition of a
"pole attachment," the statute refers to "provider of telecommunications service."613 Here, we explain
why we decide to interpret section 224 to authorize the Commission to ensure that the rates, terms and
conditions of incumbent LECs' pole attachments are just and reasonable, and why we believe that the
definition of "pole attachment" leads to an interpretation of section 224(b) that permits the Commission to
205. In implementing section 224, as amended by the 1996 Act, the Commission interpreted
the exclusion of incumbent LECs from the term "telecommunications carrier" to mean that section 224
does not apply to attachment rates paid by incumbent LECs.614 Although these decisions did not consider
alternative interpretations of incumbent LECs' rights under section 224 in detail, the Commission's
interpretation appears to have been based in part on incumbent LECs' status as pole owners and thus
"utilities" under section 224,615 and in part on the view that "Congress' intent" was to "promote
competition by ensuring the availability of access to new telecommunications entrants."'16
206. We find it appropriate to change the Commission's prior interpretation of section 224(b)
with respect to incumbent LECs given the evidence in the record regarding current market realities. Over
610 For purposes of this Part, we use the term "telecommunications carrier" as it is defined in section 224(aX)(5).
611 47 U.S.C. 224(a)(5).
613 Id. 224(a)(4).
614 See, e.g., Local Competition Order, 11 FCC Red at 16059-60, 16103-04, paras. 1123 n.2734, 1231; 1998
Implementation Order, 13 FCC Red at 6781, para. 5; 2001 Order on Reconsideration, 16 FCC Red at 12106, para. 2
6'5 See, e.g., 1998 Implementation Order, 13 FCC Red at 6781, para. 5 (noting that "for purposes of Section 224, an
ILEC is a utility but is not a telecommunications carrier," and thus "the ILEC has no rights under Section 224 with
respect to the poles of other utilities.").
616 1998 Implementation Order, 13 FCC Red at 6781, para. 5 (citing S. Rep. No. 104-230).
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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/m1/500/: accessed May 25, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.