[Federal Register: February 6, 2008 (Volume 73, Number 25)]
[Proposed Rules]
[Page 6879-6888]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe08-16]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[WC Docket No. 07-245; FCC 07-187]
Implementation of Section 224 of the Act; Amendment of the
Commission's Rules and Policies Governing Pole Attachments
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission seeks comment on whether to
amend its rules governing pole attachments, which are designed to
ensure the attachment of facilities of cable television systems and
telecommunications carriers to utility poles, ducts, conduits, or
rights-of-way (collectively, ``pole attachments'') at just and
reasonable rates, terms and conditions. The Commission has received
petitions for rulemaking from Fibertech Networks, LLC and United States
Telecom Association seeking review of the current pole attachment
rules, which petitioners and commenters claim are inadequate in scope
or no longer accord with developing technology and business models. The
Commission seeks to resolve questions regarding appropriate regulation
of pole attachment rates, terms, and conditions of access.
DATES: Comments are due March 7, 2008 and Reply Comments are due March
24, 2008. Written comments on the Paperwork Reduction Act proposed
information collection requirements must be submitted by the public,
Office of Management and Budget (OMB), and other interested parties on
or before April 7, 2008.
ADDRESSES: You may submit comments, identified by WC Docket No. 07-245,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/.
Follow the instructions for submitting comments. E-mail: ecfs@fcc.gov., and include the following words in
the body of the message, ``get form.'' A sample form and directions
will be sent in response. Include the docket number in the subject line
of the message.
Mail: Secretary, Federal Communications Commission, 445
12th Street SW., Washington, DC 20554.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document. In addition to filing comments
with the Secretary, a copy of any comments on the Paperwork Reduction
Act information collection requirements contained herein should be
submitted to the Federal Communications Commission via e-mail to
PRA@fcc.gov and to Nicholas A. Fraser, Office of Management and Budget,
via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-
5167.
FOR FURTHER INFORMATION CONTACT: Jonathan Reel, Wireline Competition
Bureau, (202) 418-1580. For additional information concerning the
Paperwork Reduction Act information collection requirements contained
in this document, contact Jerry R. Cowden at (202) 418-0447, or via the
Internet at PRA@fcc.gov.
SUPPLEMENTARY INFORMATION: Pursuant to Sec. Sec. 1.415 and 1.419 of
the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may
file Comments on or before March 7, 2008 and Reply Comments on or
before March 24, 2008. Comments may be filed using: (1) The
Commission's Electronic Comment Filing System (ECFS), (2) the Federal
Government's eRulemaking Portal, or (3) by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121,
May 1, 1998.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to ecfs@fcc.gov, and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S.
Postal Service mail). All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be
[[Page 6880]]
addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
Initial Paperwork Reduction Act of 1995 Analysis
This document does not contain proposed information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13. In addition, therefore, it does not contain any proposed
information collection burden ``for small business concerns with fewer
than 25 employees,'' pursuant to the Small Business Paperwork Relief
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Synopsis of the Notice of Proposed Rulemaking
Implementation of Section 224 of the Act; Amendment of the
Commission's Rules and Policies Governing Pole Attachments
1. In this Notice of Proposed Rulemaking (NPRM), the Commission
seeks comment with regard to implementation of section 224 of the
Communications Act of 1934, as amended (Act). Section 224 confers on
cable television systems and telecommunications carriers the right to
pole attachments at just and reasonable rates, terms and conditions. In
the Telecommunications Act of 1996 (1996 Act), Congress expanded the
definition of a ``pole attachment'' for purposes of section 224 to
include not only poles but also ``any attachment'' to a ``duct,
conduit, or right-of-way owned or controlled by a utility.'' The
Commission seeks to ensure that its regulatory framework remains
current and faithful to the pro-competitive, market-opening provisions
of the Act in light of experience over the last decade, advances in
technology, and developments in the markets for telecommunications and
video services.
2. Rate Regulation. Congress first directed the Commission to
ensure that the rates, terms, and conditions for pole attachments by
cable television systems were just and reasonable in 1978 when it added
section 224 to the Act. Then, as now, the statute provided that the
Commission will regulate pole attachments except where such matters are
regulated by a state. Eighteen states and the District of Columbia have
certified that they regulate pole attachments, and thus the Commission
does not regulate pole attachments in those states. In a series of
orders, the Commission implemented a formula that cable television
system attachers and utilities could use to determine a just and
reasonable rate, and procedures for resolving rate complaints. In 1987,
the U.S. Supreme Court found that the formula the Commission devised
for pole attachments by cable television systems (the cable rate) did
not result in an unconstitutional ``taking.'' Congress expanded the
reach of section 224 in several notable ways in the 1996 Act. Congress
granted attachers an affirmative right to access utility poles. The
1996 Act also added ducts, conduits, and rights-of-way to the
facilities covered by section 224. Congress included a proviso,
however, that utilities providing electric service may deny access, on
a nondiscriminatory basis, where there is insufficient capacity and for
reasons of safety, reliability and generally applicable engineering
purposes. Further, Congress added ``telecommunications carrier'' as a
category of attacher under section 224. Congress established two
separate provisions governing the maximum rates for pole attachments--
one for attachments used by ``telecommunications carriers'' to provide
telecommunications services (the telecommunications rate), and another
for attachments used ``solely to provide cable service.'' For purposes
of section 224, Congress excluded incumbent local exchange carriers
(LECs) from the definition of ``telecommunications carriers.''
3. Access Regulation. To implement the new section 224 access
requirements of the 1996 Act, the Commission adopted five rules of
general applicability and several broad policy guidelines addressing
such issues as capacity expansion, reservation of space by utilities
for their own use, and the right of non-electric utilities to deny
access for capacity or safety reasons. The Commission declined at that
time to mandate specific access requirements, concluding instead that
the reasonableness of particular conditions of access imposed by a
utility should be resolved on a case-specific basis. The Commission
stated that it would monitor the effect of the case-specific approach,
and would propose specific rules at a later date if conditions
warranted. The Commission also concluded that section 224's principle
of nondiscrimination required utilities to expand capacity for
attachers as they would for themselves. In Southern Co. v. FCC, 293
F.3d 1338, 1346-47 (11th Cir. 2002), the U.S. Court of Appeals for the
Eleventh Circuit rejected the Commission's requirement that utilities
expand capacity for attachers, holding that, under the plain language
of section 224 of the Act, ``[w]hen it is agreed that capacity is
insufficient, there is no obligation to provide third parties with
access'' to poles. The Eleventh Circuit also held, however, that the
term ``insufficient capacity'' is not defined by statute and is
ambiguous, and that utilities do not ``enjoy the unfettered discretion
to determine when capacity is insufficient.'' Southern, 293 F.3d at
1348.
4. Petitions for Rulemaking. On December 7, 2005, Fibertech
Networks, LLC (Fibertech) petitioned the Commission to conduct a
rulemaking to adopt seven ``standard practices'' for pole and conduit
access. On October 11, 2005, United States Telecom Association
(USTelecom) petitioned the Commission to conduct a rulemaking to
consider whether, as providers of telecommunications services,
incumbent LECs are entitled to regulated pole attachment rates. Among
the numerous ex parte filings submitted in these dockets, Time Warner
Telecom, Inc. (TWTC) filed a White Paper seeking adoption of a single
pole attachment rate for both cable television systems and
telecommunications carriers in order to remove regulatory bias from
investment decisions regarding deployment of broadband and other
services.
5. Market Forces and Change. The Commission inquires about the
current state of pole attachments, ducts, conduits, and rights-of-way,
and the relationship between these facilities and the competitive
telecommunications market. It seeks data on the nature and scope of
pole attachments by the various types of providers, and inquires about
the difference in pole attachment prices paid by cable systems,
incumbent LECs, and competing telecommunications carriers that provide
the same or similar services. The Commission asks, for example, in what
ways do pole attachments affect the expansion of broadband Internet
access service and how do pole attachments by cable systems and
providers of telecommunications services affect competition to deliver
services. Over the last few years, the Commission has recognized that
the once-clear distinction between ``cable television systems'' and
``telecommunications carriers'' has blurred as each type of company
enters markets for the delivery
[[Page 6881]]
of services historically associated with the other.
6. The Commission also seeks comment regarding 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. The Commission seeks comment on
developments related to rates, costs, and bargaining power between
electric utilities and incumbent LECs. The Commission seeks comment
regarding ``joint use agreements,'' including the number and percentage
of poles that are owned or managed jointly, and how to evaluate when
ownership and control of poles is truly ``joint.'' The Commission also
seeks comment on claims that small and rural incumbent LECs are
particularly at a disadvantage.
7. Authority To Regulate Pole Attachments. The Commission seeks
general comment regarding the contours of the Commission's flexibility
to interpret section 224. Section 224(b)(1) states that ``the
Commission shall regulate the rates, terms, and conditions for pole
attachments to provide that such rates, terms, and conditions are just
and reasonable'' and section 224(a)(4) states that ``[t]he term `pole
attachment' means any attachment by a cable television system or
provider of telecommunications service to a pole, duct, conduit, or
right-of-way owned or controlled by a utility.'' In addition to this
broad mandate, and as noted above, section 224 also provides two
separate and explicit rate formulas. One rate--the cable rate--applies
to cable television systems' attachments used solely to provide cable
service; the other--the telecommunications rate--applies to both cable
systems and telecommunications carriers' attachments used to provide
telecommunications services.
8. The statute does not specify which of these rates, if either,
should apply to transmission of information access services. The
Commission seeks comment on the extent to which the current cable rate
formula, whose space factor does not include unusable space, results in
a subsidized rate, and, if so, whether cable operators should continue
to receive such subsidized pole attachment rate at the expense of
electric consumers. The Commission seeks comment on whether cable
operators should continue to qualify for the cable rate where they
offer multiple services in addition to cable service, and whether all
telecommunications carriers must pay the telecommunications rate,
regardless of what other services they may provide over their
attachments. The Commission asks under what circumstances the
Commission may adopt another rate, what is the extent of the
Commission's ability to modify how the cable and telecommunications
rates are applied. The Commission further asks whether wireless
carriers are entitled to attach equipment at the subsection (e)
telecommunications rate, or whether their attachments differ to such an
extent that another rate would be more reasonable. The Commission seeks
comment on the reach of its general authority to regulate pole
attachments pursuant to section 224(b), asking whether it has the
authority under section 224 to regulate pole attachment rates for all
providers of telecommunications services, including incumbent LECs.
9. A Unified Pole Attachment Rate and the Existing Cable and
Telecommunications Rates. The Commission seeks comment on the statutory
limits, if any, to unifying the pole attachment rate paid by both cable
systems and telecommunications carriers when their pole attachments are
used to provide broadband Internet access service. TWTC proposes that
the Commission should eliminate the telecommunications rate and apply
the cable rate to all pole attachments, and argues that the Commission
should use its broad authority to apply the cable rate to all pole
attachments. TWTC further argues that section 224(e)(1) mandates that
rates must be nondiscriminatory, and that where cost allocation
guidelines yield discriminatory rates, that the nondiscrimination
mandate trumps the cost allocation guidelines. The Commission questions
TWTC's assertion that the cable rate should apply to all pole
attachments, particularly because the cable rate does not include an
allocation of the cost of unusable space. The Commission seeks comment
on the advantages and disadvantages of a unitary rate for all providers
of broadband Internet access service, and the appropriate level of such
rate.
10. The Rights of Incumbent LECs under Section 224. The Commission
seeks comment on the extent of its authority to regulate pole
attachment rates for incumbent LECs. In the Local Competition Order and
succeeding orders, and in the rules implementing section 224, the
Commission interpreted the exclusion of incumbent LECs from the term
``telecommunications carrier'' (and from the corresponding right to
attach to utility poles) to mean that section 224 does not apply to
attachment rates paid by incumbent LECs. USTelecom asks the Commission
to revisit that interpretation. USTelecom acknowledges that incumbent
LECs are excluded from the section 224 definition of
``telecommunications carrier.'' USTelecom argues, however, that
sections 224(b)(1) and 224(a)(4) provide an independent right to
reasonable rates, terms, and conditions for any pole attachment by a
provider of telecommunications service, and that the statute thus
mandates the Commission to apply the ``just and reasonable'' standard
to pole attachments for all such providers, including incumbent LECs.
USTelecom asks the Commission to revise any pole attachment rule that
conflates ``right of access'' with ``just and reasonable rates, terms,
and conditions.'' USTelecom argues that Congress could have required
just and reasonable rates only for ``a cable television system or any
telecommunications carrier''--the phrase used to specify the right of
access--but Congress chose instead to afford such protection to ``any
attachment by a cable television system or provider of
telecommunications service.'' Therefore, according to USTelecom,
because the Commission's current rules ignore this distinction, they
only partially implement section 224. Under USTelecom's proposal,
although only cable television systems and ``telecommunications
carriers'' would be assured of access to poles, all attaching
``providers of telecommunications service,'' including incumbent LECs,
would be assured of just and reasonable rates. The Commission seeks
comment on the view that, under section 224, ``access'' and ``rates,
terms, and conditions'' are severable rights that should be implemented
separately.
11. Rate Level. The Commission seeks comment on whether it should
move toward a single rate for pole attachments used for the same or
similar services, and whether adopting a single pole attachment rate
would promote the goals of the Act with regard to competition,
deregulation, and the deployment of advanced telecommunications
capability. TWTC maintains that adopting a single attachment rate for
both cable television systems and telecommunication carriers would
remove regulatory bias from investment decisions regarding deployment
of broadband and other services. TWTC also notes that both cable
television systems and telecommunications carriers pay a single rate
for using conduit, which suggests that having two different rates
[[Page 6882]]
for pole attachments is inherently baseless and discriminatory. TWTC
further claims having two rates discourages investment in broadband
networks, and for these reasons proposes that the Commission eliminate
the telecommunications rate and apply the cable rate to all wire and
cable pole attachments. The Commission seeks comment on whether having
a single pole attachment rate better achieves the goals of the Act than
having two separate rates, and asks whether the current pole attachment
rate structure unreasonably discriminates between similarly situated
entities or otherwise distorts the market.
12. The Commission also seeks comment regarding whether having two
rates leads to recurring disputes over which rate to apply, and
solicits general comment on whether the current system is clear,
certain, and enforceable, and to what extent there is a perceived
uncertainty about which rate to apply. The Commission adopted specific
formulas implementing the cable rate and telecommunications rate, which
differ only in the manner in which the costs associated with the
unusable portion of the pole are allocated. Both of these formulas
include a component for the net costs of a bare pole and the carrying
charge rate. Carrying charges are the costs incurred by the utility in
owning and maintaining poles regardless of the presence of pole
attachments. TWTC argues that the similarities in the Commission's
cable rate and telecommunications rate formulas are inappropriate, in
light of textual differences between section 224(d) and section 224(e)
regarding costs. In particular, TWTC contends that the
telecommunications rate includes elements not mentioned in section
224(e), citing (1) the ``carrying charges'' and (2) the ``rate of
return'' element. TWTC alleges that such costs ``bear no relation'' to
the cost of providing space for attachment and should be eliminated
from the telecommunications rate. The Commission seeks comment on the
desirability of moving to a single pole attachment rate and also on the
appropriate level of such a single rate. The Commission invites comment
on the possible effect on small entities from adopting a single rate.
13. The Commission seeks comment on USTelecom's suggestion that the
default ``just and reasonable'' attachment rate for incumbent LECs
should be the telecommunications rate. The Commission asks if it adopts
rules or guidelines for jointly owned poles how it should consider
variables such as the proportion of poles owned, the division of
maintenance costs and responsibilities, the income each party receives
from other attachers, and similar variables. The Commission also seeks
comment regarding whether, given the historical and continuing
relationship regarding pole ownership between electric utilities and
incumbent LECs, a ``just and reasonable'' rate for incumbent LECs
should be determined by a method other than by applying a rate formula,
and seeks comment on alternative approaches. The Commission further
seeks comment on whether the historical relationship between incumbent
LECs and power companies suggests that it should adopt a purely
procedural solution instead of applying a rate formula, such as
requiring parties to engage in mediated negotiation or arbitration
subject to Commission review.
14. Wireless telecommunications carriers urge the Commission to
adopt rules explicitly stating that the Commission's telecommunications
rate formula applies to the attachment of wireless devices. The
Commission has found no clear indication that the rules could not
accommodate wireless attachers' use of poles. The Commission now seeks
comment on whether, when they are ``telecommunications carriers,''
wireless providers are entitled to the telecommunications rate as a
matter of law, or whether the Commission should adopt a rate
specifically for wireless pole attachments. The Commission asks
whether, if a wireless facility uses more than the presumptive one foot
of space, the per-foot rate could simply be doubled, trebled, or
otherwise multiplied as required. The Commission also asks whether, if
wireless providers are permitted to attach facilities to pole tops,
pole owners should receive a higher rate of compensation, because
unlike lateral space, each pole has only one top. The Commission also
seeks comment on the extent to which municipalities lease pole
attachments for municipal broadband purposes or other services such as
telecommunications services, and seeks comment on the impact that the
tentative conclusion below might have on municipalities seeking to
provide their residents municipal broadband or other services like
telecommunications services.
15. Tentative Conclusion for Broadband Internet Access Service. Due
to the importance of promoting broadband deployment and the importance
of technological neutrality, the Commission tentatively concludes that
all categories of providers should pay the same pole attachment rate
for all attachments used for broadband Internet access service, and the
Commission seeks comment on that tentative conclusion. Section 706 of
the Act directs the Commission to promote the deployment of broadband
infrastructure, and this directive leads the Commission to separate out
those pole attachments that are used to offer broadband Internet access
service from those used for other services. As a policy matter, the
Commission tentatively concludes that the critical need to create even-
handed treatment and incentives for broadband deployment would warrant
the adoption of a uniform rate for all pole attachments used for
broadband Internet access service. Additionally, the Commission
concludes that the rate should be higher than the current cable rate,
yet no greater than the telecommunications rate; seeks comment on these
tentative conclusions; and seeks comment on the possible economic
effect on small entities of adopting this tentative conclusion.
16. Terms and Conditions of Access. When the Commission adopted
general rules governing requests for access pursuant to the 1996 Act,
it declined to regulate specific techniques for pole and conduit
modification. Rather, the Commission concluded that the reasonableness
of particular conditions of access imposed by a utility should be
resolved on a case-specific basis. In the record developed in response
to the Fibertech Petition, a number of concerns have been expressed
regarding terms and conditions of access to pole attachments, and the
Commission seeks comment on these concerns. For example, commenters
raised concerns regarding searches and surveys of both poles and
conduit, including related information management practices. Parties
also expressed concerns regarding performance of make-ready work,
including timeliness, safety, capacity, and the use of boxing and
extension arms. Sunesys supports Fibertech's position, but also submits
its own plan to limit survey and make-ready work to six months,
proposing that utility-approved contractors could perform the work if
they were required to meet the deadline. Other commenters also
recommended the use of qualified third-party contract workers. Certain
commenters raised additional issues regarding access to in-building
ducts, conduit, and rights-of-way, including access to incumbent LEC
central offices. Parties also express concern regarding practices
relating to drop lines and poles. These are illustrative categories of
access concerns, and the Commission seeks comment on these and any
other pole attachment access concerns, such
[[Page 6883]]
as concerns about the process for obtaining access.
17. The Commission also seeks comment on allegations or concerns
regarding unauthorized attachments, or attachments that have been
installed without a lawful attachment agreement. The Commission seeks
comment on the prevalence of this practice, and whether the
Commission's existing enforcement mechanisms are sufficient to address
any unlawful practices by attachers and ensure the safety and
reliability of critical electric infrastructure. Commenters are asked
to address whether, in addition to the right, under section 224(f)(2)
of the Act, of a utility to deny access to poles on a nondiscriminatory
basis for reasons of safety, reliability and generally applicable
engineering purposes, specific enforceable safety requirements should
be adopted. For example, commenters are asked to address to what extent
safety codes, such as the National Electrical Safety Code, should apply
to all attachers, and whether the Commission's enforcement authority
can or should be used to address alleged violations of such codes.
Finally, the Commission seeks comment on the general usefulness of
rules, presumptions, or guidelines, as opposed to case-specific
adjudication, and seeks comment on how these alternative approaches to
resolving access issues may affect small entities.
Ex Parte Presentations
18. The rulemaking this NPRM initiates shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making oral ex parte presentations are reminded
that memoranda summarizing the presentations must contain summaries of
the substance of the presentations and not merely a listing of the
subjects discussed. More than a one or two sentence description of the
views and arguments presented generally is required. Other requirements
pertaining to oral and written presentations are set forth in Sec.
1.1206(b) of the Commission's rules.
Initial Regulatory Flexibility Analysis
19. As required by the Regulatory Flexibility Act of 1980, the
Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities of
the policies and rules addressed in this document. The IRFA is set
forth separately below. Written public comments are requested on this
IRFA. Comments must be identified as responses to the IRFA. Comments
are due on March 7, 2008 and Reply Comments are due on March 24, 2008.
Paperwork Reduction Act
20. This document contains proposed new or modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. In addition,
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, the Commission seeks specific comment on how it might further
reduce the information collection burden for small business concerns
with fewer than 25 employees.
Initial Regulatory Flexibility Analysis
21. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this present Initial
Regulatory Flexibility Analysis (IRFA) of the possible significant
economic impact on a substantial number of small entities by the
policies and rules proposed in this NPRM. Written public comments are
requested on this IRFA. Comments must be identified as responses to the
IRFA. Comments are due March 7, 2008 and Reply Comments are due March
24, 2008. The Commission will send a copy of the NPRM, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (SBA). In addition, the NPRM and IRFA (or summaries
thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
22. The NPRM seeks comment on a variety of issues relating to
implementation of section 224 pole attachment rules in light of
increasing intermodal competition in the decade since the Commission
began to implement the 1996 Act. Specifically, the NPRM asks whether
existing rules governing pole attachment rates remain appropriate in
light of competition in the marketplace today; whether section 224
confers rights on incumbent local exchange carriers (LECs), including
regulation of the rates they pay for pole attachments; and whether it
would be appropriate to adopt specific rules regarding certain non-
price terms and conditions associated with section 224 access rights.
With regard to rates, the NPRM tentatively concludes that all
attachments used for broadband Internet access service should be
subject to a single rate, regardless of the platform over which those
services are provided.
B. Legal Basis
23. The legal basis for any action that may be taken pursuant to
the NPRM is contained in sections 1, 4(i), 4(j), 224, 303 and 403 of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i)-(j), 224,
303, 403.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules May Apply
24. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules. The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) Is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).
25. Small Businesses. Nationwide, there are a total of
approximately 22.4 million small businesses, according to SBA data.
26. Small Organizations. Nationwide, there are approximately 1.6
million small organizations.
27. Small Governmental Jurisdictions. The term ``small governmental
jurisdiction'' is defined generally as ``governments of cities, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand.'' Census Bureau data for 2002
indicate that there were 87,525 local governmental jurisdictions in the
United States. The Commission estimates that, of this total, 84,377
entities were ``small governmental jurisdictions.'' Thus, the
Commission estimates that most governmental jurisdictions are small.
1. Telecommunications Service Entities
a. Wireline Carriers and Service Providers
28. We have included small incumbent LECs in this present RFA
analysis. As noted above, a ``small business'' under the RFA is one
that, inter alia, meets the pertinent small business size standard
(e.g., a telephone communications business having 1,500 or fewer
employees), and ``is not dominant in its field of operation.'' The
SBA's Office of Advocacy contends that,
[[Page 6884]]
for RFA purposes, small incumbent LECs are not dominant in their field
of operation because any such dominance is not ``national'' in scope.
The Commission has therefore included small incumbent LECs in this RFA
analysis, although the Commission emphasizes that this RFA action has
no effect on Commission analyses and determinations in other, non-RFA
contexts.
29. Incumbent LECs. Neither the Commission nor the SBA has
developed a small business size standard specifically for incumbent
LECs. The appropriate size standard under SBA rules is for the category
Wired Telecommunications Carriers. Under that size standard, such a
business is small if it has 1,500 or fewer employees. According to
Commission data, 1,303 carriers have reported that they are engaged in
the provision of incumbent local exchange services. Of these 1,303
carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have
more than 1,500 employees. Consequently, the Commission estimates that
most providers of incumbent local exchange service are small businesses
that may be affected by the Commission's action.
30. Competitive LECs, Competitive Access Providers (CAPs),
``Shared-Tenant Service Providers,'' and ``Other Local Service
Providers.'' Neither the Commission nor the SBA has developed a small
business size standard specifically for these service providers. The
appropriate size standard under SBA rules is for the category Wired
Telecommunications Carriers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. According to Commission
data, 859 carriers have reported that they are engaged in the provision
of either competitive access provider services or competitive LEC
services. Of these 859 carriers, an estimated 741 have 1,500 or fewer
employees and 118 have more than 1,500 employees. In addition, 16
carriers have reported that they are ``Shared-Tenant Service
Providers,'' and all 16 are estimated to have 1,500 or fewer employees.
In addition, 44 carriers have reported that they are ``Other Local
Service Providers.'' Of the 44, an estimated 43 have 1,500 or fewer
employees and one has more than 1,500 employees. Consequently, the
Commission estimates that most providers of competitive local exchange
service, competitive access providers, ``Shared-Tenant Service
Providers,'' and ``Other Local Service Providers'' are small entities.
31. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA has developed a small business size standard specifically for
providers of interexchange services. The appropriate size standard
under SBA rules is for the category Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has 1,500 or
fewer employees. According to Commission data, 330 carriers have
reported that they are engaged in the provision of interexchange
service. Of these, an estimated 309 have 1,500 or fewer employees and
21 have more than 1,500 employees. Consequently, the Commission
estimates that the majority of IXCs are small entities that may be
affected by Commission action.
b. Wireless Telecommunications Service Providers
32. Below, for those services subject to auctions, the Commission
notes that, as a general matter, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily represent the number of small businesses currently in
service. Also, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated.
33. Wireless Service Providers. The SBA has developed a small
business size standard for wireless firms within the two broad economic
census categories of ``Paging'' and ``Cellular and Other Wireless
Telecommunications.'' Under both SBA categories, a wireless business is
small if it has 1,500 or fewer employees. For the census category of
Paging, Census Bureau data for 2002 show that there were 807 firms in
this category that operated for the entire year. Of this total, 804
firms had employment of 999 or fewer employees, and three firms had
employment of 1,000 employees or more. Thus, under this category and
associated small business size standard, the majority of firms can be
considered small. For the census category of Cellular and Other
Wireless Telecommunications, Census Bureau data for 2002 show that
there were 1,397 firms in this category that operated for the entire
year. Of this total, 1,378 firms had employment of 999 or fewer
employees, and 19 firms had employment of 1,000 employees or more.
Thus, under this second category and size standard, the majority of
firms can, again, be considered small.
34. Cellular Licensees. The SBA has developed a small business size
standard for wireless firms within the broad economic census category
``Cellular and Other Wireless Telecommunications.'' Under this SBA
category, a wireless business is small if it has 1,500 or fewer
employees. For the census category of Cellular and Other Wireless
Telecommunications, Census Bureau data for 2002 show that there were
1,397 firms in this category that operated for the entire year. Of this
total, 1,378 firms had employment of 999 or fewer employees, and 19
firms had employment of 1,000 employees or more. Thus, under this
category and size standard, the majority of firms can be considered
small. Also, according to Commission data, 437 carriers reported that
they were engaged in the provision of cellular service, Personal
Communications Service (PCS), or Specialized Mobile Radio (SMR)
Telephony services, which are placed together in the data. The
Commission has estimated that 260 of these are small under the SBA
small business size standard.
35. Paging. The SBA has developed a small business size standard
for the broad economic census category of ``Paging.'' Under this
category, the SBA deems a wireless business to be small if it has 1,500
or fewer employees. Census Bureau data for 2002 show that there were
807 firms in this category that operated for the entire year. Of this
total, 804 firms had employment of 999 or fewer employees, and three
firms had employment of 1,000 employees or more. In addition, according
to Commission data, 365 carriers have reported that they are engaged in
the provision of ``Paging and Messaging Service.'' Of this total, the
Commission estimates that 360 have 1,500 or fewer employees, and five
have more than 1,500 employees. Thus, in this category the majority of
firms can be considered small.
36. We also note that, in the Paging Second Report and Order, the
Commission adopted a size standard for ``small businesses'' for
purposes of determining their eligibility for special provisions such
as bidding credits and installment payments. In this context, a small
business is an entity that, together with its affiliates and
controlling principals, has average gross revenues not exceeding $15
million for the preceding three years. The SBA has approved this
definition. An auction of Metropolitan Economic Area (MEA) licenses
commenced on February 24, 2000, and closed on March 2, 2000. Of the
2,499 licenses auctioned, 985 were sold. Fifty-seven companies claiming
small business status won 440 licenses. An auction of MEA and Economic
Area (EA) licenses commenced on October 30, 2001, and closed on
December 5, 2001. Of the 15,514 licenses auctioned, 5,323 were sold.
One hundred thirty-two companies claiming small business status
purchased 3,724 licenses. A third
[[Page 6885]]
auction, consisting of 8,874 licenses in each of 175 EAs and 1,328
licenses in all but three of the 51 MEAs commenced on May 13, 2003, and
closed on May 28, 2003. Seventy-seven bidders claiming small or very
small business status won 2,093 licenses. The Commission also notes
that, currently, there are approximately 74,000 Common Carrier Paging
licenses.
37. Wireless Telephony. Wireless telephony includes cellular,
personal communications services (PCS), and specialized mobile radio
(SMR) telephony carriers. As noted earlier, the SBA has developed a
small business size standard for ``Cellular and Other Wireless
Telecommunications'' services. Under that SBA small business size
standard, a business is small if it has 1,500 or fewer employees.
According to Commission data, 432 carriers reported that they were
engaged in the provision of wireless telephony. The Commission has
estimated that 221 of these are small under the SBA small business size
standard.
38. Broadband Personal Communications Service. The broadband
Personal Communications Service (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission defined ``small entity'' for
Blocks C and F as an entity that has average gross revenues of $40
million or less in the three previous calendar years. For Block F, an
additional classification for ``very small business'' was added and is
defined as an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding three
calendar years.'' These standards defining ``small entity'' in the
context of broadband PCS auctions have been approved by the SBA. No
small businesses, within the SBA-approved small business size standards
bid successfully for licenses in Blocks A and B. There were 90 winning
bidders that qualified as small entities in the Block C auctions. A
total of 93 small and very small business bidders won approximately 40
percent of the 1,479 licenses for Blocks D, E, and F. On March 23,
1999, the Commission re-auctioned 347 C, D, E, and F Block licenses.
There were 48 small business winning bidders. On January 26, 2001, the
Commission completed the auction of 422 C and F Broadband PCS licenses
in Auction No. 35. Of the 35 winning bidders in this auction, 29
qualified as ``small'' or ``very small'' businesses. Subsequent events,
concerning Auction 35, including judicial and agency determinations,
resulted in a total of 163 C and F Block licenses being available for
grant.
39. Narrowband Personal Communications Services. To date, two
auctions of narrowband personal communications services (PCS) licenses
have been conducted. For purposes of the two auctions that have already
been held, ``small businesses'' were entities with average gross
revenues for the prior three calendar years of $40 million or less.
Through these auctions, the Commission has awarded a total of 41
licenses, out of which 11 were obtained by small businesses. To ensure
meaningful participation of small business entities in future auctions,
the Commission has adopted a two-tiered small business size standard in
the Narrowband PCS Second Report and Order. A ``small business'' is an
entity that, together with affiliates and controlling interests, has
average gross revenues for the three preceding years of not more than
$40 million. A ``very small business'' is an entity that, together with
affiliates and controlling interests, has average gross revenues for
the three preceding years of not more than $15 million. The SBA has
approved these small business size standards. In the future, the
Commission will auction 459 licenses to serve Metropolitan Trading
Areas (MTAs) and 408 response channel licenses. There is also one
megahertz of narrowband PCS spectrum that has been held in reserve and
that the Commission has not yet decided to release for licensing. The
Commission cannot predict accurately the number of licenses that will
be awarded to small entities in future auctions. However, four of the
16 winning bidders in the two previous narrowband PCS auctions were
small businesses, as that term was defined. The Commission assumes, for
purposes of this analysis that a large portion of the remaining
narrowband PCS licenses will be awarded to small entities. The
Commission also assumes that at least some small businesses will
acquire narrowband PCS licenses by means of the Commission's
partitioning and disaggregation rules.
40. Rural Radiotelephone Service. The Commission has not adopted a
size standard for small businesses specific to the Rural Radiotelephone
Service. A significant subset of the Rural Radiotelephone Service is
the Basic Exchange Telephone Radio System (BETRS). The Commission uses
the SBA's small business size standard applicable to ``Cellular and
Other Wireless Telecommunications,'' i.e., an entity employing no more
than 1,500 persons. There are approximately 1,000 licensees in the
Rural Radiotelephone Service, and the Commission estimates that there
are 1,000 or fewer small entity licensees in the Rural Radiotelephone
Service that may be affected by the rules and policies adopted herein.
41. Air-Ground Radiotelephone Service. The Commission has not
adopted a small business size standard specific to the Air-Ground
Radiotelephone Service. The Commission will use SBA's small business
size standard applicable to ``Cellular and Other Wireless
Telecommunications,'' i.e., an entity employing no more than 1,500
persons. There are approximately 100 licensees in the Air-Ground
Radiotelephone Service, and the Commission estimates that almost all of
them qualify as small under the SBA small business size standard.
42. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico. There are presently approximately 55 licensees in this
service. The Commission is unable to estimate at this time the number
of licensees that would qualify as small under the SBA's small business
size standard for ``Cellular and Other Wireless Telecommunications''
services. Under that SBA small business size standard, a business is
small if it has 1,500 or fewer employees.
2. Cable and OVS Operators
43. Cable Television Distribution Services. Since 2007, these
services have been defined within the broad economic census category of
Wired Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' The SBA has developed a small business size standard
for this category, which is: all such firms having 1,500 or fewer
employees. To gauge small business prevalence for these cable services
the Commission must, however, use current census data that are based on
the previous category of Cable and Other Program Distribution and its
associated size standard; that size standard was: all such firms having
$13.5 million or less in annual receipts. According to Census Bureau
data for 2002, there were a total of 1,191 firms in this previous
category that operated
[[Page 6886]]
for the entire year. Of this total, 1,087 firms had annual receipts of
under $10 million, and 43 firms had receipts of $10 million or more but
less than $25 million. Thus, the majority of these firms can be
considered small.
44. Cable Companies and Systems. The Commission has also developed
its own small business size standards, for the purpose of cable rate
regulation. Under the Commission's rules, a ``small cable company'' is
one serving 400,000 or fewer subscribers, nationwide. Industry data
indicate that, of 1,076 cable operators nationwide, all but eleven are
small under this size standard. In addition, under the Commission's
rules, a ``small system'' is a cable system serving 15,000 or fewer
subscribers. Industry data indicate that, of 7,208 systems nationwide,
6,139 systems have under 10,000 subscribers, and an additional 379
systems have 10,000-19,999 subscribers. Thus, under this second size
standard, most cable systems are small.
45. Cable System Operators. The Communications Act of 1934, as
amended, also contains a size standard for small cable system
operators, which is ``a cable operator that, directly or through an
affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' The Commission has determined that an operator serving
fewer than 677,000 subscribers shall be deemed a small operator, if its
annual revenues, when combined with the total annual revenues of all
its affiliates, do not exceed $250 million in the aggregate. Industry
data indicate that, of 1,076 cable operators nationwide, all but ten
are small under this size standard. The Commission neither requests nor
collects information on whether cable system operators are affiliated
with entities whose gross annual revenues exceed $250 million, and
therefore the Commission is unable to estimate more accurately the
number of cable system operators that would qualify as small under this
size standard.
46. Open Video Systems (OVS). In 1996, Congress established the
open video system (OVS) framework, one of four statutorily recognized
options for the provision of video programming services by local
exchange carriers (LECs). The OVS framework provides opportunities for
the distribution of video programming other than through cable systems.
Because OVS operators provide subscription services, OVS falls within
the SBA small business size standard of Cable and Other Program
Distribution Services, which consists of such entities having $13.5
million or less in annual receipts. The Commission has certified 25 OVS
operators, with some now providing service. Broadband service providers
(BSPs) are currently the only significant holders of OVS certifications
or local OVS franchises. As of June 2005, BSPs served approximately 1.4
million subscribers, representing 1.5 percent of all MVPD households.
Affiliates of Residential Communications Network, Inc. (RCN), which
serves about 371,000 subscribers as of June 2005, is currently the
largest BSP and 14th largest MVPD. RCN received approval to operate OVS
systems in New York City, Boston, Washington, DC and other areas. The
Commission does not have financial information regarding the entities
authorized to provide OVS, some of which may not yet be operational.
The Commission thus believes that at least some of the OVS operators
may qualify as small entities.
3. Internet Service Providers
47. Internet Service Providers. The SBA has developed a small
business size standard for Internet Service Providers (ISPs). ISPs
``provide clients access to the Internet and generally provide related
services such as web hosting, web page designing, and hardware or
software consulting related to Internet connectivity.'' Under the SBA
size standard, such a business is small if it has average annual
receipts of $23 million or less. According to Census Bureau data for
2002, there were 2,529 firms in this category that operated for the
entire year. Of these, 2,437 firms had annual receipts of under $10
million, and an additional 47 firms had receipts of between $10 million
and $24,999,999. Consequently, the Commission estimates that the
majority of these firms are small entities that may be affected by
Commission action.
48. All Other Information Services. ``This industry comprises
establishments primarily engaged in providing other information
services (except new syndicates and libraries and archives).'' The SBA
has developed a small business size standard for this category; that
size standard is $6.5 million or less in average annual receipts.
According to Census Bureau data for 2002, there were 155 firms in this
category that operated for the entire year. Of these, 138 had annual
receipts of under $5 million, and an additional four firms had receipts
of between $5 million and $9,999,999. Consequently, the Commission
estimates that the majority of these firms are small entities that may
be affected by its action.
4. Public Utilities
49. Electric Power Generation, Transmission and Distribution. The
Census Bureau defines this category as follows: ``This industry group
comprises establishments primarily engaged in generating, transmitting,
and/or distributing electric power. Establishments in this industry
group may perform one or more of the following activities: (1) Operate
generation facilities that produce electric energy; (2) operate
transmission systems that convey the electricity from the generation
facility to the distribution system; and (3) operate distribution
systems that convey electric power received from the generation
facility or the transmission system to the final consumer.'' This
category includes Electric Power Distribution, Hydroelectric Power
Generation, Fossil Fuel Power Generation, Nuclear Electric Power
Generation, and Other Electric Power Generation. The SBA has developed
a small business size standard for firms in this category: ``A firm is
small if, including its affiliates, it is primarily engaged in the
generation, transmission, and/or distribution of electric energy for
sale and its total electric output for the preceding fiscal year did
not exceed 4 million megawatt hours.'' According to Census Bureau data
for 2002, there were 1,644 firms in this category that operated for the
entire year. Census data do not track electric output and the
Commission has not determined how many of these firms fit the SBA size
standard for small, with no more than 4 million megawatt hours of
electric output. Consequently, the Commission estimates that 1,644 or
fewer firms may be considered small under the SBA small business size
standard.
50. Natural Gas Distribution. This economic census category
comprises: ``(1) Establishments primarily engaged in operating gas
distribution systems (e.g., mains, meters); (2) establishments known as
gas marketers that buy gas from the well and sell it to a distribution
system; (3) establishments known as gas brokers or agents that arrange
the sale of gas over gas distribution systems operated by others; and
(4) establishments primarily engaged in transmitting and distributing
gas to final consumers.'' The SBA has developed a small business size
standard for this industry, which is: All such firms having 500 or
fewer employees. According to Census Bureau data for 2002, there were
468 firms in this category that operated for the entire year. Of this
total, 424 firms had employment of fewer than 500
[[Page 6887]]
employees, and 18 firms had employment of 500 to 999 employees. Thus,
the majority of firms in this category can be considered small.
51. Water Supply and Irrigation Systems. This economic census
category ``comprises establishments primarily engaged in operating
water treatment plants and/or operating water supply systems.'' The SBA
has developed a small business size standard for this industry, which
is: All such firms having $6.5 million or less in annual receipts.
According to Census Bureau data for 2002, there were 3,830 firms in
this category that operated for the entire year. Of this total, 3,757
firms had annual sales of less than $5 million, and 37 firms had sales
of $5 million or more but less than $10 million. Thus, the majority of
firms in this category can be considered small.
D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
52. Should the Commission alter the pole attachment rate structure,
such action could result in increased, reduced, or otherwise altered
reporting, recordkeeping or other compliance requirements for pole
owners and attaching entities. For example, if the Commission were to
adopt a uniform rate for all pole attachments used for broadband
Internet access service, providers of such services might be required
to record and report where such service is offered. If the Commission
were to adopt a uniform rate for all pole attachments, such action
could eliminate the need for cable television systems to record and
report to utilities where they or their lessees offer
telecommunications services. Changes to reporting, recordkeeping or
other compliance requirements could either be new (e.g., if
telecommunications carriers begin to record or report where they offer
broadband Internet access service) or could reconfigure existing
requirements (e.g., if cable television systems begin to record and
report where they or their lessees offer broadband Internet access
service, but cease to record and report where they or their lessees
offer telecommunications services). If the Commission initiates
regulation of the rates, terms, and conditions of pole attachment by
incumbent LECs, such regulation could increase reporting, recordkeeping
or other compliance requirements for pole owners and incumbent LECs
where incumbent LECs attach to poles owned by other utilities.
53. Should the Commission adopt regulations concerning access to
poles, ducts, conduits, and rights-of-way, such action could result in
increased, reduced, or otherwise altered reporting, recordkeeping or
other compliance requirements for pole owners, attaching entities, and
users of ducts, conduits, and rights-of-way. In particular, if the
Commission adopts rules governing specific techniques for pole and
conduit modification, as opposed to resolution on a case-specific
complaint basis, reporting, recordkeeping or other compliance
requirements could change. Examples of specific topics where
recordkeeping, reporting, or compliance requirements could change by
virtue of Commission action include: (1) Searches and surveys of both
poles and conduit, including information management; (2) performance of
make-ready work, including timeliness, safety, capacity, and the use of
boxing and extension arms; (3) the use of qualified third-party
contract workers; (4) access to in-building ducts, conduit, and rights-
of-way, including access to incumbent LEC central offices; or (5)
practices relating to drop lines and poles.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
54. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include (among others) the following four alternatives: (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
55. The Commission tentatively concludes that it will promote
broadband deployment and technological neutrality by requiring all
categories of companies to pay the same pole attachment rate for all
pole attachments used for broadband Internet access service, and the
NPRM seeks comment on the possible economic effect on small entities of
adopting this requirement. In coming to this tentative conclusion, the
Commission first assessed the alternative of continuing a system of two
rates. Another objective is to implement overarching policies
concerning safety, certainty, administrability, and nondiscrimination.
When alternatives are discussed, such as whether it would be better to
choose an existing rate as the broadband Internet access services rate
(and, if so, which rate) or to modify existing rates, the NPRM invites
small entities to discuss the economic ramifications of such action.
The NPRM seeks comment on whether regulation of pole attachment rates
is particularly necessary for small incumbent LECs, and asks how
incumbent LECs could be affected if rates and terms were regulated
absent a right of access. The NPRM also seeks comment on the general
usefulness of rules, presumptions, or guidelines, as opposed to case-
specific adjudication, and how these alternative approaches to
resolving access issues may affect small entities.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
56. None. Since the enactment of the 1996 Act, the Commission has
encouraged disputing parties to participate in staff-supervised, pre-
complaint mediation. Such mediation has proven to be very successful,
including in pole attachment disputes. Certain rules regarding pole
attachment complaints, however, may have had the unintended consequence
of discouraging pre-complaint mediation. Thus, the Commission seeks
comment on whether those rules should be amended or eliminated to
facilitate mediation of disputes. In addition, under current Commission
rules, an attacher may execute a pole attachment agreement with a
utility, and then later file a complaint challenging the lawfulness of
a provision of that agreement. The Commission seeks comment on whether
it should adopt some contours to the rule, such as time-frames for
raising written concerns about a provision of a pole attachment
agreement.
Ordering Clauses
57. Accordingly, it is ordered that pursuant to sections 1, 4(i),
4(j), 224, 303 and 403 of the Communications Act of 1934, as amended,
47 U.S.C. 151, 154(i)-(j), 224, 303, 403, this Notice of Proposed
Rulemaking in WC Docket No. 07-245 is adopted.
58. It is further ordered that the Fibertech Networks, LLC,
Petition for Rulemaking, RM-11303, and the United States Telecom
Association Petition for Rulemaking, RM-11293, are granted to the
extent indicated herein and otherwise are denied.
59. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this NPRM, including the Initial
[[Page 6888]]
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-2177 Filed 2-5-08; 8:45 am]
BILLING CODE 6712-01-P