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FOR RECORD ONLY
$// Order Comcast Cablevision and Continental Cablevision of Michigan, Inc. v.
Consumers Power Company DA 95-1294 //$

$/ 1 Practice and Procedure /$
$/ 1.1400 Pole Attachment Complaint Procedures /$
$/ 1.1406 Dismissal of Complaints /$
$/ 1.1414 State Certification /$

                               Before the
                    Federal Communications Commission
                         Washington, D.C. 20554
    DA 95-1294

In the Matter of        )   
    )
Comcast Cablevision and     )
Continental Cablevision of Michigan, Inc., )
    )
    Complainants            )    
    )
    v.   )         PA 95-0010
    )
Consumers Power Company,         )
    )
    Respondent              )

    
        O                          RDER


Adopted: June 9, 1995       Released: June 12, 1995

By the Chief, Accounting and Audits Division:

    1.   On March 17, 1995, Comcast Cablevision and Continental
Cablevision of Michigan, Inc. (Comcast and Continental) filed a pole attachment
complaint against Consumers Power Company (Consumers Power).  The complaint
concerns pole attachment rates Consumers Power has charged Comcast and
Continental since July 1, 1991.  The complaint states that the Federal
Communications Commission (Commission) has jurisdiction over this matter despite
the fact that the Michigan Public Service Commission (Michigan PSC) is certified to
regulate the rates, terms, and conditions of pole attachments in Michigan.  Comcast
and Continental assert that the Michigan PSC has not adopted a specific methodology
for such regulation and that  Section 1.1414(a)(3) of the Commission's rules requires
that the Michigan PSC have such a methodology before the certification can be
deemed valid.

    2.   On April 17, 1995, Consumers Power filed a response to the
complaint alleging among other things that the Commission lacks jurisdiction to hear
the pole attachment complaint.  Consumers Power states that on November 23, 1994,
it filed an application to modify its pole attachment rate with the Michigan PSC. 
Consumers Power states that the Michigan PSC will determine the lawfulness of
Consumers Power's pole attachment rate in that proceeding.

     3.    On May 8, 1995, Comcast and Continental filed a reply that
reiterates their concerns that the State of Michigan lacks jurisdiction over pole
attachment complaints.  Comcast and Continental state that they filed their complaint
with the Commission to preserve their federally protected pole attachment rights, and
request that the Commission hold their complaint in abeyance pending the resolution
of the Michigan PSC proceedings concerning Consumers Power's pole attachment
rates and pole attachment regulation.

     4.    Without addressing any of the substantive issues raised by the
parties and in the interest of comity with the State of Michigan, we dismiss the
complaint, without prejudice, based on the Commission's lack of jurisdiction.  The
State of Michigan has previously certified to the Commission that it regulates the
rates, terms, and conditions of pole attachments.  That certification is "conclusive
proof of lack of [the Commission's] jurisdiction" regarding Comcast's and
Continental's pole attachment complaint.

     5.    Comcast and Continental, however, would have us ignore
Michigan's certification because the state may not have fulfilled one of the
preconditions for certification, having a specific methodology for regulating pole
attachments.  However, the rule on which Comcast and Continental rely, Section
1.1414(a)(3), makes clear that a failure to certify creates only a rebuttable
presumption that the state is not regulating pole attachments.  The Michigan PSC
appears to engage in such regulation.  Indeed, that agency is presently conducting a
generic proceeding to determine whether it should alter the statewide pole attachment
rate or adopt a specific methodology for determining just and reasonable pole
attachment rates for individual companies.  Comcast and Continental are parties to
that proceeding.  In these circumstances, we believe we should dismiss their
complaint without prejudice to its reinstatement nunc pro tunc if the Michigan PSC
fails to regulate Consumers Power's pole attachment rates.  This procedure should
fully protect any right to refunds Comcast and Continental may have in the event that
either the Michigan PSC or the Commission determines that the pole attachment rates
of Consumers Power are unjust and unreasonable.

     6.    Accordingly, IT IS ORDERED, pursuant to Sections 0.91, 0.291,
and 1.1406(a) of the Commission's rules, 47 C.F.R. 0.91, 0.291, and 1.1406(a),
that the complaint of Comcast Cablevision and Continental Cablevision of Michigan,
Inc. against Consumers Power Company filed March 17, 1995 IS DISMISSED, without
prejudice. 


     FEDERAL COMMUNICATIONS COMMISSION



     Kenneth P. Moran
     Chief, Accounting and Audits Division