******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Implementation of Section 703 ) of the Telecommunications Act ) of 1996 ) ) CS Docket No. 96-166 Amendments and Additions to the ) Commission's Rules Governing Pole ) Attachments ) MEMORANDUM OPINION AND ORDER Adopted: May 20, 1997 Released: May 22, 1997 By the Commission: I. INTRODUCTION 1. In this proceeding, we address a Request for Clarification and Reconsideration ("Request") of the Commission's Order In the Matter of Implementation of Section 703 of the Telecommunications Act of 1996, Amendments and Additions to Commission's Rules Governing Pole Attachments ("Self-Effectuating Order") filed by Delmarva Power and Light ("Delmarva") on September 19, 1996. In its Request, Delmarva contends that the Commission deprived utilities of the opportunity to address concerns related to the impact of the rules promulgated in the Self- Effectuating Order. Delmarva seeks reconsideration and clarification of Sections 1.1402(a)and 1.1416(b) of the Commission's rules. We think the issues raised in Delmarva's Request are best resolved in the pending proceeding addressing access to rights-of-way by telecommunications service providers. We do clarify the text of Section of 1.1416(b). II. BACKGROUND 2. The Telecommunications Act of 1996 ("1996 Act") amended Section 224 in a number of respects. Most prominently, it created a right of access for telecommunications carriers. New Sections 224 (d)(3), (e), (f), (g), (h) and (i) prescribed expanded access and established a new methodology for determining just and reasonable rates for telecommunications carriers. The 1996 Act also amended the definitions of "utility" and "pole attachment" in Sections 224(a)(1) and (a)(4); recognized a State's authority to regulate pole attachments involving telecommunications carriers in Sections 224 (c)(1) and (c)(2)(B); and added Section 224(a)(5) to exempt incumbent local exchange carriers ("LECs") from the definition of telecommunications carriers. The Commission adopted rules relating to the access provisions of the 1996 Act, Sections 224(c)(1), (f) and (h) in Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, First Report and Order ("Local Competition Provisions"). 3. The Self-Effectuating Order amended the Commission's pole attachment rules to reflect the self-effectuating provisions of Sections 224(a)(1), (a)(4) and (c)(2)(B), and new Sections 224(a)(5), (d)(3), (g), and (i) pursuant to Section 703 of the 1996 Act. As we stated, "[W]e are revising these rules without providing prior public notice and an opportunity for comment because the rule modifications do not involve discretionary action on the part of the Commission but rather, simply conform our rules to the applicable provisions of the 1996 Act." The Commission found that notice and comment procedures were unnecessary, and that its actions fell within the "good cause" exception of the Administrative Procedure Act. III. PLEADINGS A. Delmarva's Request 4. In noting that the definition of utility allows a cable operator or a telecommunications service provider to access a utility's right-of-way, even if the right-of-way is undeveloped, Delmarva seeks clarification as to whether it was Congress' or the Commission's intent to require a utility to develop infrastructure on bare rights-of-way for the benefit of cable operators and telecommunications service providers. Delmarva also seeks clarification on when an attaching entity must pay its own costs associated with the rearrangement, modification or replacement of the pole under Section 1.1416(b). In addition, Delmarva states that there are two different versions of Section 1.1416(b): one found in the Self-Effectuating Order and another found in the Local Competition Provisions proceeding. Delmarva seeks clarification as to the correct version of the Commission's rules. B. Supporting Comments of The Edison Electric Institute and UTC, and U S West 5. On October 21, 1996, The Edison Electric Institute and UTC filed joint comments in support of Delmarva's Request ("EEI/UTC Comments"). EEI/UTC also seek reconsideration and clarification of Sections 1.1402(a) and 1.1416(b) of the Commission's rules. In its supporting comments, EEI/UTC raise the same arguments made by Delmarva in its Request. U S West, Inc. ("U S West") also filed comments in support of Delmarva's Request for clarification of Section 1.1416(b). C. The Association for Local Telecommunications Services' Opposition 6. The Association for Local Telecommunications Services ("ALTS") filed an Opposition ("Opposition") to Delmarva's Request. ALTS asserts that the Commission was correct when it implemented Section 224(a) without prior public notice. ALTS contends that it is clear that Section 224(a) required no further interpretation and the Commission correctly adopted the statutory language into its rules. According to ALTS, Delmarva is seeking to have the Commission rewrite the statute. ALTS believes that Congress was aware of the potential for utilities to favor their own telecommunications service providers and provided competing carriers access to utility poles, ducts, conduits and rights-of-way. ALTS asks the Commission to deny Delmarva's Request because it is seeking to restrict access to its utility poles, ducts and rights-of-way, which is clearly inconsistent with the 1996 Act. D. Delmarva's Reply 7. In its Reply comments, Delmarva states that contrary to ALTS' assertion, it is not requesting the Commission to rewrite the statute. Delmarva merely seeks clarification as to when, if ever, a utility must develop infrastructure on bare rights-of-way. According to Delmarva, a utility should not be required to create new infrastructure for the benefit of cable operators and telecommunications service providers. IV. DISCUSSION 8. We do not think that the Self-Effectuating Order is the proper proceeding to consider Delmarva's request to interpret or reconsider Sections 1.1402(a) or 1.1416(b) of the Commission's rules. Accordingly, we deny these requests for clarification as being beyond the scope of this proceeding. Rather, we think that Delmarva's Request relating to Sections 1.1402(a) and 1.1416(b) is more appropriately addressed in the Local Competition Provisions proceeding. We will, therefore, consider Delmarva's Request as a comment in the Local Competition Provisions reconsideration proceeding. 9. With regard to Delmarva's request to clarify what version of Section 1.1416(b) is in effect, a new Section 1.1416(b) was adopted in the Self-Effectuating Order on August 6, 1996, and then amended in the Local Competition Provisions proceeding. A revised rule that appears later in time supersedes an earlier version of that rule. The correct version of Section 1.1416(b), as reflected in the Local Competition Provisions proceeding reads as follows. The costs of modifying a facility shall be borne by all parties that obtain access to the facility as a result of the modification and by all parties that directly benefit from the modification. Each party described in the preceding sentence shall share proportionately in the cost of the modification. A party with a preexisting attachment to the modified facility shall be deemed to directly benefit from a modification if, after receiving notification of such modification as provided in subpart J of this part, it adds to or modifies its attachment. Notwithstanding the foregoing, a party with a preexisting attachment to a pole, conduit, duct or right-of-way shall not be required to bear any of the costs of rearranging or replacing its attachment if such rearrangement or replacement is necessitated solely as a result of an additional attachment or the modification of an existing attachment sought by another party. If a party makes an attachment to the facility after the completion of the modification, such party shall share proportionately in the cost of the modification if such modification rendered possible the added attachment. V. ORDERING CLAUSES 10. Accordingly, IT IS ORDERED that the Delmarva Power and Light Request for Clarification and Reconsideration in CS Docket No. 96-166 IS GRANTED to the extent indicated herein, and IS DENIED in all other respects. 11. IT IS FURTHER ORDERED that the Delmarva Power and Light Request for Clarification and Reconsideration, as it relates to Sections 1.1402(a) and 1.1416(b) of the Commission's rules, shall be treated as comments In Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98. 12. IT IS FURTHER ORDERED that pursuant to Section 703 of the Telecommunications Act of 1996, (Section 224 of the Communications Act of 1934, as amended, 47 U.S.C.  224), and to Sections 4(i) and 303(r) of the Communications Act of 1934 as amended, 47 U.S.C.  154(i), 303(r) Subpart J of Part 1 of the Commission's Rules, that the clarification of Section 1.1416(b) discussed in this Order IS ADOPTED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary