WPC' 2MB<RK Z3|jTimes New RomanTimes New Roman BoldTimes New Roman Italic"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP4Si; PCL; LPT1; Room 201_1HPLA4SA0.PRSXj\  P6G;\QrJXP2  %K3|jTimes New RomanTimes New Roman BoldTimes New Roman Italic"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDdddddd X -ԍ The petition was served on Terrebonne Parish and St. Mary's Parish. It was put on public notice on May 26, 1995. No oppositions or other responsive pleadings were filed by  X-Terrebonne Parish or St. Mary's Parish.  On June 15, 1995, the National Cable Television Association, Inc. ("NCTA") filed comments in support of Helicon's petition.  X7-2.` ` In this Order, we find that Helicon has failed to show that it would suffer significant economic hardship from SLECA's increases in pole attachment fees as required by Section 76.922(d)(3) of the Commission's rules, and we therefore deny Helicon's request to treat SLECA's pole attachment fee increases as external costs.   X - II.Facts  X!-  X"-3.` ` Helicon states that it operates cable systems in 18 communities serving over 83,000 subscribers, and that its cable system serving Terrebonne and St. Mary's Parishes, Louisiana supplies cable television to 10,546 subscribers. SLECA owns utility poles within"j$K0*0*0*F#" these parishes to which Helicon must attach its cable. Helicon notes that its Terrebonne"j$K0*0*0*F#" Parish franchise agreement requires it to use the existing poles erected in the franchise area to"j$K0*0*0*F#" the greatest extent practicable. Helicon states that it could not provide cable television service"j$K0*0*0*F#" to subscribers in Terrebonne and St. Mary's Parishes without the ability to attach its cable to SLECA's poles.  X-4.` ` The pole agreement between Helicon and SLECA provides for increases in the fees paid by Helicon. Helicon states that use of these poles is essential to its cable service, that SLECA's fees are not regulated on the federal or state level, and that it lacks bargaining power with SLECA. Under the agreement, pole attachment fees increased 51 percent from 1993 to 1994. Helicon states that this increase resulted in a 1994 payment that was $10,212 more than its $20,024 1993 payment. From 1994 to 1995, the fees will increase 33 percent and from 1995 to 1996, they will increase 25 percent. Helicon asserts that in total, SLECA's pole attachment fees, under its agreement with Helicon, are to increase 152.5 percent for the threeyear period from 1993 to 1996.  X -5.` ` NCTA states in its comments that it agrees that Helicon should be permitted to treat pole attachment expenses as external costs. It asserts that the Commission's reasons for denying external cost treatment to increases in pole attachment fees are not applicable in this case. Specifically, it argues that because the fees are not regulated, the operator has no recourse to a regulatory agency to demonstrate unreasonableness; the fees are unavoidable expenses beyond the control of the operator; the fees are imposed by a quasigovernmental entity; and Congress has expressed its concern over rate increases of this type. NCTA states that SLECA's rate increase of 152.5 percent over a threeyear period constitutes an exorbitant fee increase for which a waiver was contemplated by the Commission when it adopted Section 76.922(d)(3), and Helicon's petition should be granted. NCTA also urges the Bureau to use this petition "as a vehicle to grant a blanket waiver for cable operators similarly  X|-situated."8| X-ԍ We reject NCTA's suggestion that this petition for special relief, which is specifically provided for in our rules, is a proper "vehicle" for granting a blanket waiver that would  X-amount to a change of our rule designating permitted external costs. 8  XN- III.  Discussion  X -6.` ` Section 76.922(d), 47 C.F.R.  76.922(d), provides that permitted rates for regulated cable programming may be adjusted for inflation, changes in the number of regulated channels and changes in external costs. Section 76.922(d)(3) limits adjustments for  X-changes in external costs to certain designated categories of costs.K X%-#Xj\  P6G;XP#э 47 C.F.R.  76.922(d)(3). Â Changes in pole attachment fees are not among the designated external costs for which adjustments are" 0*((" permitted to subscribers' cable service rates.  X-7.` ` However, in fashioning this rule the Commission considered the impact of pole attachment fee increases on cable operators and provided an instance when such increases may be considered external costs for purposes of section 76.922(d). In the Second Order on Reconsideration, Fourth Report and Order, and Fifth Notice of Proposed Rulemaking, MM  Xv-Docket No. 92266, 9 FCC Rcd 4119 (1994) (Second Order on Reconsideration), the Commission generally denied external cost treatment of pole attachment fees because, unlike franchise fees or taxes, pole attachment fees are not imposed by the government, nor are they  X3-a cost over which the legislative history of the 1992 Cable Act expresses explicit concern.x3 X -ԍ Second Order on Reconsideration, 9 FCC Rcd at 4206. In its comments, NCTA asserts that whether or not the 1992 Cable Act "expresses explicit concern" about pole attachment expenses, courts have recognized that Congress intended to protect cable operators from anti-competitive pricing by utilities in passing the 1978 Pole Attachment Act. However, NCTA's argument is inappropriate as that Act specifically exempts utilities such as SLECA from rate regulation. In denying external cost treatment to pole attachment fees, however, the Commission noted that "some pole attachment fees are regulated under the 1978 Pole Attachment Act, 47 U.S.C.   X -224."^  X-#Xj\  P6G;XP#э Id. ^ The Commission stated that it will consider the need for special relief "in instances of significant hardship resulting from unusually large pole attachment fee increases imposed by  X -utilities or other pole providers not subject to regulation under the Pole Attachment Act."l  X,-#Xj\  P6G;XP#э Id. at 4207 n.243. l The Commission stated that its standard for finding an instance of significant economic hardship in this regard may include, but will not be limited to, "showings regarding both the magnitude of the increases in pole attachment fees and the impact of the increase on the  Xd-operator."]dn  X-#Xj\  P6G;XP#э Id. ]  X6-8.` ` Helicon points out that because SLECA is a cooperative association, it is not  X-subject to regulation under the 1978 Pole Attachment Act.!  X -ԍ See  47 U.S.C.  224 (a)(1) (the term "utility" does not include any entity that is  X!-cooperatively organized.) ÷ It also states that SLECA's pole attachment fees are not subject to regulation by the State of Louisiana. It argues that the fee increases that it must pay under its agreement with SLECA at 152.5 percent over three years are, on their face, extraordinarily high, and that these rates are well above the rates charged"0*(("  X-by investorowned utilities that are regulated.  Xy-ԍ As examples of rates charged by investorowned utilities that are regulated, Helicon cites the rates of South Central Bell which has charged the same pole rate since January 1, 1990, when its rates were increased 15% over 1989 rates, and Louisiana Power and Light which last increased its rates in 1992 by 15% and which previously increased them by .04% over 1991 rates.   X-9.` ` We find that while Helicon has indicated the magnitude of the fee increase, it has not provided any specific evidence regarding the impact of the increase upon Helicon, nor has it provided any other evidence sufficient to show significant economic hardship resulting from SLECA's increases in pole attachment fees. In the absence of such a showing, we do not have grounds to grant the relief sought. Accordingly, we deny Helicon's petition for special relief requesting authority to treat the pole attachment fee increases imposed by SLECA as external costs for purposes of our rules. We note, however, that this finding does not preclude Helicon from recovering these costs under the modified costofservice regulation  X -procedures available to certain small systems   X-ԍ The Small System Order applies to small systems owned by small cable companies.  X-Small System Order 10 FCC Rcd at 7416. A small system is a cable television system that serves 15,000 or fewer subscribers. 47 C.F.R.  76.901(c). A small cable company is a cable television operator that serves a total of 400,000 or fewer subscribers over one or more cable systems. 47 C.F.R.  76.901(e). under the Sixth Report and Order and 11th  X -Order on Reconsideration, MM Docket Nos. 92266 and 93215, 10 FCC Rcd 7393 (1995)  X -("Small System Order").  X - IV.Ordering Clause  X- 10.` ` Accordingly, IT IS ORDERED , pursuant to 47 C.F.R.  76.922(d), that the Helicon Group, L.P.'s Petition for Special Relief requesting authorization to treat pole attachment fee increases imposed by the South Louisiana Electric Cooperative Association as  XQ-external costs for purposes of rate adjustments IS DENIED .   X - ` `  hh,FEDERAL COMMUNICATIONS COMMISSION ` `  hh,Meredith J. Jones  X-` `  hh,Chief, Cable Services Bureau