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($$#"'+,,,94/6...2-64&3?$/$,,,,$0,44,,,,,,,,/,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,33331111111111>>'',,,,,,00,,&&&&44,,++++,,((4(&&&&&,,"i~'K2^18PSS888S8888SSSSSSSSSS88Sffoxf`xx8Jo]oxfxfS]xff]]888SS8SSJSJ.SS..J.xSSSSAA.SJoJJAJSJS8SSSSS8SSSSSSSSS.fSfSfSfSfSooJfJfJfJfJ8.8.8.8.oSxSxSxSxSxSxSxSxS]JfSxSxSxS]JxSfSgSfSgSnInIoSoSxdgIfSfSgIxSxSxSxSxSxSxS9.SSSS8SSSSoS]/]<]S].].nSfnSoSxSxSog?g?fSS?SAS?SS]<]/]SxSxSxSxSxSxSo]S]?]A]?xS]SoSSS]S]Sd8SS888WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNxxxSSS8SMMSSSSSS;SSSS;88SSS..SSffSSxSYSS8SS;"xxSxSxxS唔0S88xfxxxxxxxxxx8SfS]SxoS8SxJS`xlxxxxxxxxxxMxxxxxxofxGcxxxxxxxSxxxxxxxJxxxxJxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx8xxx8xxx8xxx8xxxxxxxxxxxxxfff]f]oJfA]JxSxJ8.oJo]]oJoSxJxffSfSS]J]Joff]fffffx8Sx]]fJffffz88SSSSfxSSS]]]f8`SJ8x_lpKf&ZK__bbxx\p::K/2ZNZNKKKKKK0C99NN--KFFF]7DXHH5C<<:9AHIII_WNZMMMSKZW?Ui"  |$attachments on the facility to be modified at least 60 days prior to the commencement of the physical  S'modification itself.0($ {O@' |$ #X\  P6G;QwP#э Local Competition Order at para. 1209. The notice should be sufficiently specific to apprise the recipient  |$ of the nature and scope of the planned modification. If the contemplated modification involves an emergency  |$ situation for which advanced written notice would prove impracticable, the 60 day notice requirement does not apply.  {O'Rather, notice should be given as soon as practicable. Id.0  S'  k15.` ` Allocation of Modification Costs. To the extent the cost of a modification is incurred for  |$gthe specific benefit of any particular party, the benefitting party will be obligated to assume the cost of  |$Mthe modification, or to bear its proportionate share of cost with all other attaching entities participating  |$in the modification. If a user's modification affects the attachments of others who do not initiate or  |$request the modification, such as the movement of other attachments as part of a primary modification,  |$ the modification cost will be covered by the initiating or requesting party. Where multiple parties join  |$&in the modification, each party's proportionate share of the total cost shall be based on the ratio of the  |$amount of new space occupied by that party to the total amount of new space occupied by all of the  SJ 'parties joining in the modification.V)J  {O'ԍ Local Competition Order at para. 1211.V  S '  k16.` ` In addition, the Local Competition Order found that if a party uses a proposed  |$modification as an opportunity to adjust its existing attachment, the party should share in the overall cost  |$gof the modification to reflect its contribution to the resulting structural change. A utility or other party  |$that uses a modification as an opportunity to bring its facilities into compliance with applicable safety or  |$other requirements will be deemed to be sharing in the modification and will be responsible for its share  S4' |$of the modification cost.m*\4F {O' |$^ ԍ Id. at para. 1212. On the other hand, the Commission stated that an attaching party, incidentally benefitting  |$o from a modification, but not initiating or affirmatively participating in one, should not be responsible for the resulting  {O'cost. Id. at para. 1213.m To protect the initiators of modifications from absorbing costs that should be  S ' |$shared by others, the Local Competition Order permitted the modifying party or parties to recover a  |$proportionate share of the modification costs from parties that later are able to obtain access as a result of the modification.  Sn'  k17.` ` Dispute Resolution. Under the procedures adopted in the order, a utility must grant or  |$7deny a request for access within 45 days of a written request. If the utility denies the request, it must do  |$so in writing, and the reasons given for the denial must relate to the permissible grounds for denying  S'access (e.g., lack of capacity, safety, reliability, or engineering concerns).}+j  {O!'#X\  P6G;QwP#э Local Competition Order at para. 1224.}  S'  k~18.` `  Just and Reasonable Rates. Section 224(b)(1) states that "the Commission shall regulate  |$Qthe rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are  S\' |$just and reasonable."j,\  yO%'#X\  P6G;QwP#э 47 U.S.C.  224(b)(1).j Section 224 was adopted by Congress in 1978 to ensure that cable operators are  |$charged just and reasonable rates for attachments to utility poles, ducts, conduits, or rightsofway. In the  |$71996 Act, Congress added telecommunications carriers as beneficiaries of the Commission's oversight of"  ,,p(p(88A"  |$pole attachments. Section 224(e)(1) governs the rates for pole attachments used in the provision of  |$telecommunications services, including single attachments used jointly to provide both cable and  |$telecommunications service. Under this section, the Commission must prescribe regulations to "ensure  |$that a utility charges just, reasonable, and nondiscriminatory rates for8pole attachments" used by  |$telecommunication carriers to provide telecommunications services, when the parties fail to resolve a  S8'dispute over such charges.- 8 yO' |$ #X\  P6G;QwP#э The section also sets forth a transition schedule for implementation of the new rate formula for  |$b telecommunications carriers. Until the effective date of the new formula governing telecommunications attachments,  |$ the existing pole attachment rate methodology of cable services is applicable to both cable television systems and to telecommunications carriers.  S'  k19.` ` Pursuant to the directive in section 224(e)(1), the Commission adopted, in the Pole  S' |$Attachment Telecommunications Rate Order, regulations establishing the formula for rates governed by  |$section 224(e). Until these requirements become effective on February 8, 2001 (five years after the  St' |$7enactment of the 1996 Act),. t yO' |$D #X\  P6G;QwP#э Section 224(e)(4) states that "[t]he regulations under [section 224(e)(1)] shall become effective 5 years after  |$ the date of enactment of the [1996 Act]." 47 U.S.C.  224(e)(4). Because the 1996 Act was enacted on February  |$Q 8, 1996, section 224(e)(4) requires the Commission to implement the telecommunications carrier rate methodology beginning February 8, 2001. Congress has directed that the cable operator rate methodology set forth in  |$section 224(d)(1) shall also govern pole attachments used by a telecommunications carrier, to the extent  S$ 'such carrier is not a party to a pole attachment agreement, to provide any telecommunications service.j/$  yO\'#X\  P6G;QwP#э 47 U.S.C.  224(d)(3).j  S '  k20.` ` Section 224(d)(1) specifically provides that a rate is "just and reasonable if it assures a  |$utility the recovery of not less than the additional costs of providing pole attachments, nor more than an  |$amount determined by multiplying the percentage of the total usable space, or the percentage of the total  |$Dduct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses  S4'and actual capital costs of the utility attributable to the entire pole, duct, conduit, or rightofway."j04(  yO'#X\  P6G;QwP#э 47 U.S.C.  224(d)(1).j  S'  k=21.` ` Currently, application of the section 224(d)(1) formula results in a rate that ranges from  S' |$the statutory minimum ("additional" costs) to the statutory maximum (fully allocated costs).1  {O'#X\  P6G;QwP#э See Pole Attachment Fee Order, 2 FCC Rcd 4387 (1987) at para. 6. Additional  |$costs include preconstruction survey, engineering, makeready and changeout costs incurred in preparing  Sl' |$for pole attachments.2\lJ  yOV"' |$ #X\  P6G;QwP#э "Makeready" generally refers to the modification of poles or lines or the installation of guys and anchors to  {O#' |$! accommodate additional facilities. See Pole Attachment Fee Order at n.22. A pole "changeout" is the replacement  {O#'of a pole to accommodate additional users. Id.Į Fully allocated costs refer to the portion of operating expenses and capital costs  |$that a utility incurs in owning and maintaining poles that is equal to the portion of usable pole space that  S' |$is occupied by an attacher. In the Local Competition Order, the Commission stated that, "except as  |$*specifically provided herein, the utility must charge all parties an attachment rate that does not exceed the"n2,p(p(88n"  |$maximum amount permitted by the formula we have devised for such use, and that we will revise from  S'time to time as necessary."x3 {O@'ԍ Local Competition Order at para. 1156. See 47 C.F.R.  1.1404.x  S' B.` ` Petitions  S8'  k22.` ` Twelve petitions for reconsideration or clarification of the Local Competition Order raising  S' |$*issues with respect to the "Access to RightsofWay" portion of the Order are addressed in this Order on  S' |$Reconsideration.4ZZ yO ' |$ ԍ Appendix A contains a list of the parties filing petitions for reconsideration considered herein, as well as a  |$ list of those parties filing responsive pleadings. As noted above, the issues raised in WinStar's petition are being  {Ov 'addressed in a seperate proceeding (see note 5, supra).  The issues raised fall into seven major areas: (1) the scope of the right of access to  |$tutilities' poles, ducts, conduits and rightsofway; (2) the scope of the utilities' obligations with respect  |$to expansion and reservation of space; (3) the question of when a utility may be deemed to be providing  |$"communications" over its facilities so as to trigger the access obligation; (4) worker qualifications; (5)  |$timing and manner of notification of modifications; (6) allocation of modification costs; and (7) the need  |$for States to certify their regulation of access in order to assert jurisdiction pursuant to section 224(c). We address these issues below sequentially.  S '  S ' III.DISCUSSION  S '  S^' A. ` ` Access to Rights of Way  S6'  S'` ` 1. Access to Transmission Facilities  S'` `  a.GBackground  S'  Sn'  k23.` ` Section 224(f)(1) provides that a utility "shall provide a cable television system or any  |$3telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or rightofway  S' |$owned or controlled by it." Several electric utilities had asserted that high voltage transmission facilities  |$should not be accessible by telecommunications carriers or cable operators under section 224(f)(1), arguing  S' |$that permitting attachments to transmission facilities involves heightened safety and reliability concerns.`5| {O'ԍ See Local Competition Order at para. 1183.`  S' |$In the Local Competition Order, we rejected these claims, stating that the breadth of the language  |$contained in section 224(f)(1) precludes a blanket determination that Congress did not intend to include  SX' |$Qtransmission facilities.C6X {O"'ԍ Id. at 1184.C To the extent safety and reliability concerns are greater at a transmission facility,  |$the statute permits a utility to impose stricter conditions on any grant of access or, in appropriate  |$circumstances, to deny access if legitimate safety or reliability concerns cannot be reasonably  S'accommodated.37 {O &'ԍ Id.3 " 2 7,p(p(88V"Ԍ S'` `  b.G Positions of the Parties  S'  kW24.` ` On reconsideration, several utilities contend that the Commission's decision with respect  S' |$to electric transmission facilities is contrary to the intent of Congress and the plain language of the Act.8 yO' |$ ԍ FP&L Comments at 3336; AEP Comments at 3740; ConEd Comments at 11; EEI Reply Comments at 46; GTE Comments at 3940.  |$&These utilities argue that if Congress had intended to include transmission facilities in the scope of the  |$infrastructure covered by section 224(f), it would have specifically included "transmissions facilities" in  S' |$the precise language it used.59  {O 'ԍ  Id.. 5 Several utilities contend that the use of the term "poles" refers only to  S' |$_distribution poles.h: {O: 'ԍ AEP at 3940; FP&L at 3536; EEI/UTC reply at 56.h They argue the legislative history of the 1978 Pole Attachment Act triggers  |$Commission jurisdiction over pole attachments only where space on a utility pole is actually being used  |$kfor communications services by wire or cable. Thus, transmission poles, which are not used for stringing  Sp'communications wires, are not within the scope of the Act.3;pD {OT'ԍ Id.3  SH '  S '  k25.` ` In its response, ALTS maintains that the utilities ignore the purpose of section 224, which  |$@is to permit cable operators and telecommunications carriers to piggyback along distribution networks  S ' |$xowned or controlled by the utilities.?<  yOF'ԍ ALTS reply at 2627. ? ALTS states that the Commission was aware of the technical issues  |$involved in access to transmission facilities and simply declined to exempt them from the access  S 'requirements.4= f  {O'ԍ  Id. 4  S0'  k26.` ` The Joint Cable Parties assert that there is no engineering, safety or any other reason that  |$would justify a blanket prohibition on transmission structure access. According to the Joint Cable Parties,  |$it is not uncommon for utilities to place both transmission circuits and distribution circuits on the same  S' |$pole, "underbuilding" the transmission lines with electric secondary distribution service lines.M>  yOP'ԍ Joint Cable Parties reply at 1011.M In  S' |$7addition, several parties argued, in ex parte presentations, that it is technically feasible to attach to electric  Sj' |$transmission tower facilities and conduit.?&j  {O!' |$/ ԍ Ex Parte Written Presentation of WinStar, May 13, 1997 to Mr. William F. Caton, Secretary, Federal  {O\"' |$ Communications Commission, CC Docket No. 9698, Interconnection; Ex Parte Letter of MCI, May 16, 1998 to Mr.  |$l William F. Caton, CC Docket No. 9698, Re: Implementation of the Local Competition Provisions of the  {O#'Telecommunications Act of 1996 ("MCI May 16, 1997 Ex Parte"). MCI argues that it presently has agreements with a number  |$of electric utility companies to attach either fiber optic ground wire (FOGWIRE) or alldielectric self S'supporting (ADSS) cable to their high kilovolt transmission facilities.[@v {O0''ԍ MCI May 16, 1997 Ex Parte, Attachment at 1.[" @,p(p(88"Ԍ S'ԙ` `  c.GDiscussion  S'  k27.` ` We reaffirm our decision in the Local Competition Order that electric transmission  |$facilities are not exempted from the pole attachment provisions of section 224. We reject the argument  |$that, because a transmission pole is not used by the utility for stringing communications wires, it would  S:' |$not fall within the access obligations of section 224(f)(1). As discussed in paragraphs 7980, infra, we  |$reaffirm our conclusion that use of any utility pole, duct, conduit, or rightofway for wire communications  |$triggers access to all poles, ducts, conduits, and rightsofway owned or controlled by the utility, including  |$those not currently used for wire communications. We do not believe that commenters have demonstrated  |$*why electric transmission facilities should be entitled to an automatic exemption from a utility's obligation  |$under section 224. To the extent an electric transmission facility is a 'pole, duct, conduit or rightofway,'  |$the facility would be subject to the access provisions of section 224. The utilities' arguments regarding  S$ ' |$safety were made and adequately considered in the Local Competition Order.]A$  {O 'ԍ Local Competition Order at paras. 11831184. ] Moreover, the record on  |$reconsideration indicates a finding that electric transmission facilities are currently used for communications attachments.  S '  k28.` ` We are mindful of the potential technical issues, including heightened safety and reliability  S^' |$concerns, involved in access to electric transmission facilities.BB^Z {OX'ԍ Id. at para. 1184.B We reiterate that, as with any facility to  |$kwhich access is sought, section 224(f)(2) permits a utility to impose conditions on access to transmission  |$facilities, if necessary, for reasons of safety and reliability. To the extent safety and reliability concerns  |$Zare greater at a transmission facility, the statute permits a utility to impose conditions on access due to  S'safety and reliability concerns, or to deny access if those concerns cannot reasonably be accommodated.4C {OJ'ԍ Id. 4  S'  Sn'` ` 2. Exercise of Eminent Domain to Accommodate a Request for Access  S'` `  a.GBackground  S'  S'  k29.` ` The Local Competition Order stated that a utility should be expected to exercise its  |$eminent domain authority to expand an existing rightofway over private property in order to  |$accommodate a request for access. The order noted that Congress seems to have contemplated an exercise  |$of eminent domain authority in such cases when it made provisions for an owner of a rightofway that  S0' |$"intends to modify or alter such . . . rightofway . . . ."BD0~ {ON!'ԍ Id. at para. 1181.B In addition, the Local Competition Order,  |$recognizing that the scope of a utility's ownership or control of an easement or rightofway is a matter  |$of state law, determined that the access obligations of section 224(f) apply when, as a matter of state law,  S'the utility owns or controls the rightofway to the extent necessary to permit such access.NE {Oj%'ԍ Id. at para. 1179.N " E,p(p(88"Ԍ S'`` `   b.G Positions of the Parties  S'  k30.` ` Several utilities urge the Commission to reconsider its decision requiring utilities to  |$exercise their authority of eminent domain on behalf of third parties. They argue it is not within the`  S`' |$ jurisdiction of the Commission to regulate or mandate the exercise of eminent domain.F` yO' |$ ԍ LECC; EEI/UTC; PP&L; Duquesne; AEP (Wisconsin P&L does not join in this part of AEP's petition); FP&L; CP&L; Delmarva; ConEd; Bellsouth; Nynex; US West; GTE. Rather, they  |$Qargue that the right to exercise eminent domain is a matter of state law, and in many instances under state  S' |$law eminent domain can only be exercised by a utility for very limited purposes.G  yO 'ԍ EEI/UTC comments at 34. Con Ed at 6; GTE at 42; FP&L at 15; AEP at 16. Delmarva comments at 45. ConEd asserts the  |$Commission is overstepping its jurisdiction as there is no mention of eminent domain in either the law  S' |$^or the corresponding conference report.>H yO 'ԍ ConEd reply at 56. > FP&L states that Congress expressly and clearly preserved the  |$states' jurisdiction to determine who will exercise eminent domain authority and the circumstances under  Sp' |$Zwhich it will be exercised.AIp@ yOP'ԍ FP&L comments at 1718.A GTE asserts the Commission has no authority under the Act, and has not  |$articulated a statutory policy justifying preemption of state law in requiring utility to use eminent domain  S ' |$for an attaching entity.>J  yO'ԍ GTE reply at 4142. > Duquesne contends the portion of section 224(h) that the Commission relies upon  |$gestablishes only notice requirements pertaining to an intended modification, and thus the Commission's  |$tinterpretation fails for not being a permissible construction of the statute to which Congress would not  |$object. Duquesne argues that the Commission's action is based on an interpretation of statutory silence  S 'rather than on an explicit grant of authority.CK `  yO'ԍ Duquesne comments at 56.C  S0'  k31.` ` In addition, several utilities assert that state law precludes them from using eminent  |$domain powers for other than their core electric utility business operations. The utilities argue that they  S' |$would therefore be precluded from using eminent domain authority on behalf of third parties.sL  yOp'ԍ Con Ed at 6; GTE at 42; FP&L at 15; AEP at 16; Duquesne at 3.s According  |$to EEI/UTC, in some states, condemnation must be preceded by a corporate resolution based on the  |$utilities' "planning power." Thus, condemnation for a third party would require access to that party's  Sh' |$planning process.BMh  yO!'ԍ EEI/UTC comments at 34.B Delmarva states that in Delaware a utility can condemn property for transmitting  |$electricity only in limited circumstances, such as along a public highway. Therefore, Delmarva argues,  |$the Commission's assumption that all electric utilities are authorized to exercise general eminent domain  S' |$creates expectations that utilities may not be able to satisfy.CN yO%'ԍ Delmarva comments at 45.C EEI/UTC contends that the exercise of" N,p(p(88"  |$eminent domain under most state laws is premised on an exclusive franchise. Where there is no longer  S'such a franchise, exercise is expensive and lengthy.@O yO@'ԍ EEI/UTC comments at 5.@  S'  k32.` ` EEI/UTC argue it would not be discriminatory to withhold the exercise of the right of  |$eminent domain for the benefit of third party telecommunications carriers or cable TV operators where  |$an electric utility has the right of eminent domain but uses it sparingly or not at all in connection with its  S' |$electric operations.QPX {O 'ԍ EEI/UTC at 5; See Duquesne at 3. Q According to Duquesne, if the nondiscrimination principle is applied, the result  |$ would be that the use of eminent domain for third parties should not be required if the utility does not  S' |$exercise it for its own business purposes.AQ yOJ 'ԍ Duquesne comments at 3.A Duquesne states that, at a minimum, the Commission should  |$}create a "safe haven" for utilities that have an established corporate practice not to exercise eminent  Sp'domain.3Rpz {O'ԍ  Id.3  S '  k 33.` ` Duquesne argues that the forced exercise of eminent domain creates a taking of  |$Duquesne's intangible property, such as the direct costs of maintaining the takings action and the loss of  S ' |$goodwill.:S  {O|'ԍ Id. at 4. : Duquesne states that the loss of goodwill could result in a loss of market share in the  |$emerging competitive market for electric services. Margaretville asks the Commission to adopt a just  |$Dcompensation process that will allow ILECs to recover the economic value of the competitive advantages  SX' |$pthat will be lost.HTX yO'ԍ Margaretville comments at 25.H Duquesne also requests that the Commission tailor its ruling to apply only where  |$existing state law gives a utility taking power on behalf of a third party nonutility. Duquesne further  |$states that a utility should not be required to exercise eminent domain for a third party attacher who has  S' |$3taking power in its own right under state law.GU.  yO'ԍ Duquesne comments at 910. G Similarly, LECC opposes the rule on the grounds that  |$in many states, new entrants will enjoy the same rights as the incumbent LEC, once they are certified, and  S'can therefore exercise their own rights of condemnation.oV  yO'ԍ LECC comments at 2324; CP&L comments at 18; Bellsouth reply at 14. o  S@'  k!34.` ` AEP asserts that the issue of condemning new properties through eminent domain should  |$Zbe left between the carrier and the state, subject to the provisions of Section 253 of the Act. AEP and  |$7FP&L emphasize that eminent domain is a drastic remedy which is not casually exercised by utilities, and  |$kthat they exercise the right, if at all, as a last resort because of the company time and resources that could  S'be expended on the complex regulatory approval processes and litigation over property valuation.RWN  yO&'ԍ AEP comments at 15; FP&L comments at 16.R "x W,p(p(88"Ԍ S'  kq"35.` ` Joint Cable Parties respond that utilities' discomfort with exercise of eminent domain has  S' |$gmore to do with a misunderstanding of cable's easement rights than with agency overreaching.JX yO@'ԍ Joint Cable Parties reply at 10.J Joint  |$3Cable Parties state that historically, common law permitted cable operators to make use of compatible  |$utility easements. According to Joint Cable Parties, some utilities nonetheless attempted to insert clauses  S`' |$in pole agreements purporting to require cable to obtain their own easements.3Y`X {OX'ԍ  Id.3 After Congress codified  S8' |$Mthe common law doctrine in 1984, many utilities continued to ignore the law.3Z8 {O 'ԍ Id.3 According to the Joint  |$Cable Parties, if the utilities would obey existing law, there would almost never be cause to exercise  |$eminent domain for an attaching party because parties can only attach to facilities which the utilities  S' |$themselves have placed in compatible easements.=[| {O 'ԍ Id. at 1719.= If there is ever an occasion which departs from this  |$common sense analysis, it is better addressed on a casebycase basis, rather than by blanket  Sp'reconsideration.9\p {O'ԍ Id.9  S '  k#36.` ` NCTA argues that the Commission should uphold its decision to compel utilities to use  |$their eminent domain powers on behalf of telecommunications providers to the extent permitted under state  |$law pursuant to the right of access created by section 224(f)(1), which would be meaningless if utilities  |$^were permitted to deny attachment requests based on space limitations while selectively using their power  S 'to condemn additional space for their own purposes.;]  yO'ԍ NCTA reply at 27.;  S0'  k$37.` ` Similarly, AT&T and MCI argue that where a utility can use eminent domain authority  |$to gain capacity for itself, the nondiscrimination principle of section 224(f)(1) requires that the utility use  S' |$that authority to gain capacity for others.S^0  yO'ԍ AT&T reply at 35. MCI reply at 38.S MCI argues that if utilities were not required to use their  |$authority on behalf of third parties in the same manner they use it for themselves, they could fill their  |$&existing facilities with their own competing telecommunications or cable wires. This would allow the  |$utilities to claim lack of capacity for competitors seeking access, while also allowing them to obtain  S@' |$kadditional rightsofway to serve electric customers using their eminent domain power.:_@  yO!'ԍ MCI reply at 38.: MCI states that  |$the Commission recognized that state law governs some of these issues, and that if state law precludes the  |$&use of eminent domain power, a utility clearly cannot exercise it on its own behalf or on other parties'  S' |$*behalf.3`P  {O%'ԍ Id.3 AT&T asserts that the Commission can decide whether a state law restricts eminent domain on"`,p(p(88X"  |$*a casebycase basis in response to complaints filed under 47 C.F.R. Section 1.1414, or in the context of  S'petitions for a declaratory ruling or Section 253 preemption proceedings.=a yO@'ԍ AT&T reply at 35. =  S'` `   c.GDiscussion  S8'  k4%38.` ` Based upon the record before us, we agree with those commenters that argue that the right  |$to exercise eminent domain is generally a matter of state law, exercised according to the varying  |$climitations imposed by particular states. We are persuaded that neither the statute nor its legislative  |$history offers convincing evidence that Congress intended for section 224 to compel a utility to exercise  |$eminent domain. Accordingly, on reconsideration, we find that section 224 does not create a federal requirement that a utility be forced to exercise eminent domain on behalf of third party attachers.  S ' ` ` 3.  Access for Wireless Equipment to "Poles, Ducts, Conduits, and Rightsof S 'Way." (#  S '` `   a.GBackground  SX'  k&39.` ` Section 224(a)(4) states that the term "'pole attachment' means any attachment by a cable  |$television system or provider of telecommunications service to a pole, duct, conduit, or rightofway  S' |$<owned or controlled by a utility." The Local Competition Order observed that the statute does not  |$describe the specific types of telecommunications or cable equipment that may be attached when access  |$Dto utility facilities is mandated, and that establishing an exhaustive list of such equipment would be neither  S' |$advisable, nor possible.PbX {O'ԍ Local Competition Order at 1183.P Instead, the Local Competition Order stated that the question of access should  |$@be decided, in accordance with the statute, on the basis of capacity, safety, reliability, and engineering  SD'principles. 3cD {O'ԍ Id.3  S'` `  b.GPositions of the Parties  S'  k'40.` ` Utilities generally seek to limit the nature of equipment that can be attached to utility  S|' |$kfacilities.d|| yO' |$ ԍ ConEd comments at 1112; Duquesne comments at 1718; AEP comments at 2629; FP&L comments at 2426. Several argue that the only type of telecommunications equipment that may be attached under  ST' |$section 224(f) is coaxial and fiber optic wire facilities.teT yO"'ԍ AEP comments at 2629; FP&L comments at 2426; ConEd comments at 1112. t They assert that the 1978 Pole Attachment Act  |$kwas intended to encompass pole attachments for wire communications, and that if Congress had intended  S'to expand the type of attachment covered under the 1996 Act, it would have done so explicitly.3fd  {O&'ԍ Id.3 " f,p(p(88_"Ԍ S'  k(41.` ` For example, ConEd argues that wire cables are the only type of equipment that should  |$be attached to utility facilities because the intent of the law was to allow entities to attach wires along  S' |$^distribution networks, and neither the 1996 Act nor the Local Competition Order discuss other equipment  S' |$that can be attached.Bg yO'ԍ ConEd comments at 1112.B Duquesne maintains that wireless antenna and microwave dish attachments are  |$more burdensome than coaxial cable attachments, and could preclude the facility owner from permitting  S:'later attachments.Eh:X yO2'ԍ Duquesne comments at 1718.E  S'  kW)42.` ` AT&T responds that the utilities' argument ignores Congress' change to the definition of  S' |$"pole attachment" to include any attachment of a "provider of telecommunications service."<i yOJ 'ԍ AT&T reply at 32. < Comcast  |$states that by expanding the pole attachment provisions to all telecommunications carriers, Congress  Sr' |$refused to favor one type of technology over another.Fjrx yO'ԍ Comcast reply comments at 9.F According to Comcast, there is no basis for the  |$&Commission to narrow the application of pole access rules when these rules require only "reasonable"  |$efforts to accommodate attachment requests. Comcast notes that currently, coaxial cable is not the only  S 'equipment found on utility poles.ik  yO'ԍ Comcast reply comments at 10 (see Duquesne comments at 1718).i  S '  k *43.` ` Paging Network contends that CMRS carriers face siting obstacles due to local ordinances  |$@that limit the ability of wireless carriers to site antennas. Allowing access to existing utility sites could  SZ' |$help alleviate this problem.RlZ yO'ԍ Paging Network reply comments at 2324. R Joint Cable Parties contend that a utility that bars wireless access to its  S2'facilities may be attempting to reduce competition for its own commercial communications ventures.Vm2(  yO'ԍ Joint Cable Parties reply comments at 1113.V  S'` `  c.GDiscussion  S'  k+44.` ` At the outset, we note that we have, since the record closed in this reconsideration  Sj' |$proceeding, addressed this issue in our recent Pole Attachments Telecommunications Rate Order, where  SD' |$twe stated that "wireless carriers are entitled to the benefits and protection of section 224.knD  {O!'ԍ  Pole Attachments Telecommunications Rate Order at para. 39.k We found  |$gthat statutory definitions and amendments by the 1996 Act demonstrate Congress' intent to expand the  |$7pole attachment provisions beyond their 1978 origins. In particular, we found that use of the word "any"  |$in several portions of section 224(d) and (e) "precludes a position that Congress intended to distinguish  S' |$Qbetween wire and wireless attachments."@oJ  {O&'ԍ Id. at para. 40.@ The Pole Attachments Telecommunications Rate Order noted  |$that wireless attachments may include "an antenna or antenna clusters, a communications cabinet at the"~o,p(p(88"  |$base of the pole, coaxial cables connecting antennas to the cabinet, concrete pads to support the cabinet,  |$ground wires and trenching, and wires for telephone and electric service," but that there was no reason  |$why the Commission's rules could not accommodate wireless attachers' use of poles when negotiations  S' |$fail.Dp {O'ԍ Id. at paras. 4142.D We committed to examine issues on a casebycase basis where parties are unable to modify or  |$Vadjust the rate formula to deal with the unique nature of these attachments, and are unable to reach  S8'agreement through good faith negotiations.@q8Z {O2'ԍ Id. at para. 42.@  S'  kO,45.` ` We are presented with no new facts or arguments on the record before us in this  S' |$proceeding that warrant reconsideration of the decision in the Local Competition Order not to categorically  |$restrict the types of "pole attachments" that may be attached to utility poles and conduits pursuant to  Sr' |$section 224(a)(4).Vrr {O 'ԍ Local Competition Order at para. 1184.V Rather, as we stated in the Local Competition Order, when evaluating any attachment  |$xrequest, including a wireless attachment, access determinations are to be based on the statutory factors of  |$capacity, safety, reliability, and engineering principles, which would presumably take into account such  S 'factors as the size and weight of attaching equipment.3s ~ {O'ԍ Id.3   S ' ` ` 4. Clarification of the Definition of "Attachment"  S\'  k-46.` ` Duquesne seeks clarification of the definition of "attachment" and proposes that the  |$&number of attachments a given attaching entity makes is not necessarily determined by the number of  S ' |$7physical attachments made to the pole, but by determining the equivalent burden.Et  yO'ԍ Duquesne petition at 1718.E We sought comment  S' |$on the issue Duquesne raises in the Pole Attachments Telecommunications Rate proceeding, but determined  |$that we would instead address whether any of our existing pole attachment rate formulas should reflect  S' |$Dfactors such as weight and wind load burdens in our Pole Attachment Fee rulemaking.u( {O' |$^ ԍ Pole Attachments Telecommunications Rate Order at para. 25, citing Notice of Proposed Rulemaking, CS  {O' |$p Docket No. 97151, 12 FCC Rcd 11725, 11733. See also Amendment of Rules and Policies Governing Pole  {Oj' |$* Attachments, Notice of Proposed Rulemaking, CS Docket No. 9798, 12 FCC Rcd 7449 (1997) ("Pole Attachment  {O4'Fee Notice"). We again defer consideration of this issue to that proceeding.  SH' "H u,p(p(88"Ԍ S'B.` ` Capacity Expansions and Reservation of Space  S'  S'X` ` 1. Expansion of Capacity for the Benefit of Attaching parties. (#  S`'` `  a.GBackground  S8'  S'  k.47.` ` In the Local Competition Order, we recognized thatXI.C.2.3.A. a utility is able to take the steps  |$necessary to expand capacity if its own needs required such expansion, and that the principle of  |$Dnondiscrimination established by section 224(f)(1) would require it to do likewise for telecommunications  S' |$carriers and cable operators.Vv {O 'ԍ Local Competition Order at para. 1162.V However, we also recognized that the complexity of an expansion can vary  |$given the particular circumstances of an attachment request. Accordingly, we declined to adopt a specific  |$rule that would prescribe when a utility could reasonably deny access based on difficulties posed by the  S" ' |$expansion. In the Local Competition Order, we interpreted sections 224(f)(1) and (f)(2) to require utilities  |$Qto take all reasonable steps to accommodate requests for access and to explore potential accommodations  |$in good faith with the party seeking access. In reaching these conclusions, the Commission rejected  |$}utilities' arguments that the failure of section 224 to explicitly impose this requirement indicates that  S 'utilities need not expand or alter their facilities to accommodate entities seeking to lease space.Bw Z {O~'ԍ Id. at para. 1161.B  S4'` `   b.G Positions of the Parties  S'  k/48.` ` FP&L and AEP contend the Commission exceeded its statutory authority in its decision  |$7requiring a utility to take all reasonable steps to expand capacity to accommodate requests for access just  S' |$as it would expand capacity to meet its own needs. They assert the Commission's decision is contrary to  Sl' |$}the plain language of the statute.Uxl yO'ԍ FP&L comments at 69; AEP comments at 811.U They argue further that the Commission failed to recognize that  |$section 224(f)(2) gives utilities the right to deny access based on insufficient capacity. While Congress  |$specified that such denials must be made on a nondiscriminatory basis, it did not further qualify that  S' |$section.Uy| yO'ԍ FP&L comments at 69; AEP comments at 811.U According to ConEd, that a particular expansion may be technically possible should not compel  S'a utility to jeopardize its operations by actually performing the work.@z  yOx'ԍ ConEd comments at 4. @  S|' G6!+049. In response, AT&T states that there is no legal or practical basis for utilities' arguments on  |$reconsideration. AT&T notes that although section 224(f)(2) permits electric utilities to deny access based  |$on insufficient capacity, the Act does not define that term, and the Commission properly adopted the  S'interpretation that is most consistent with the nondiscriminatory provisions of the statute.n{ {O@%'ԍ AT&T reply comments at 33.  See also NCTA opposition at 2627.n ". {,p(p(88l"Ԍ S'  k150.` ` NCTA argues that section 224(f) creates a right of access to rightsofway, and the absence  |$of spare capacity on a physical facility does not necessarily mean the rightofway is full. According to  |$NCTA, the amount of available space in a monopoly telecommunications environment should not  S'constrain access in a competitive environment.G| yO'ԍ NCTA reply comments at 2627.G  S8'` `   c.GDiscussion  S'  k251.` ` We are presented with no new facts or legal arguments to support the utilities' request for  S' |$<reconsideration of the Local Competition Order's interpretation of the utilities' obligation to expand  |$capacity to accommodate telecommunications carriers and cable operator's requests to attach to the  Sr' |$&utilities' poles, ducts, conduits and rightsofway.  We reiterate that the principle of nondiscrimination  |$established by section 224(f)(1) requires a utility to take all reasonable steps to expand capacity to  |$accommodate requests for attachment just as it would expand capacity to meet its own needs.  |$lFurthermore, before denying access based on a lack of capacity, a utility must explore potential  |$accommodations in good faith with the party seeking access. Again, because modification costs will be  |$tborne only by the parties directly benefitting from the modification, neither the utility nor its ratepayers  S 'will be harmed by the requirement that capacity expansions be undertaken on a nondiscriminatory basis.j} X {Oz'Ѝ See Local Competition Order at paras. 11621163.j  S2'  kJ352.` ` In the Local Competition Order, we recognized that a utility may deny access on a non |$discriminatory basis "where there is insufficient capacity and for reasons of safety, reliability and generally  |$xapplicable engineering purposes." That a utility could ultimately find that it cannot grant an access request  |$*based on capacity and safety concerns does not exempt it from the overall access requirement of section  |$224(f). When a utility denies access, as an exception to the access requirement of section 224, it must  |$be able to establish a prima facie case for the denial in the context of an access complaint. As we stated  SD' |$in the Local Competition Order, a utility that denies access to, for example, a 40 foot pole due to lack of  |$capacity should be able to demonstrate why there is no capacity and enumerate the specific reasons for declining to replace the pole with a 45 foot pole.  S'  k453.` ` It is worth noting in this regard, that utilities subject to pole attachment regulation have  |$been expected, since the beginning of pole attachment regulation to take steps to rearrange or change out  |$existing facilities at the expense of attaching parties in order to facilitate access. The legislative history  |$of the 1978 law that first included direct pole attachment regulation within the Communications Act makes  |$@specific reference to the fact that it may be necessary for the utility to replace an existing pole with a  |$klarger facility in order to accommodate the CATV user and discusses the rate treatment to be given these  S' |$g changeout replacement costs.V~ yO@"'ԍ S. Rep. No. 580, 95th Cong., 1st Sess. 1977.V This capacity expansion process then became a critical part of the  |$Commissions regulatory practice and there is no indication the legislative changes adopted in 1996,  |$*designed to expand the scope of pole attachment access, reflected any intention to withdraw this existing  S>'process. #Xj\  P6G;XP#  X 4 #&a\  P6G;r&P#" z~,p(p(88"Ԍ S' ` ` 2.  Use of Utility's Reserve Space by Attaching Parties Until Utility has an Actual Need for the Space. (#  S'` `  a.GBackground(#`  S`'  S8'  k554.` ` The Local Competition Order carved out a limited exception to the principle of  |$nondiscriminatory access, allowing a utility to reserve for itself some capacity, if such reservation is  |$gconsistent with a "bona fide development plan" that reasonably and specifically projects a need for that  S' |$/space in the provision of its core utility service."9 {O* 'ԍ Id.9 However, a utility may not reserve or recover  |$reserved capacity to provide competing telecommunications or video programming service, and then force  |$an attaching party to incur the cost of modifying the facility to increase capacity, even if the reservation  |$of capacity were pursuant to a reasonable development plan. A utility that reserves capacity must permit  |$use of its reserved capacity by cable operators and telecommunication carriers until such time as the utility  |$has an actual need for the capacity. At that time, the utility may "recapture" the reserved capacity for its  |$Qown use. The utility shall give the displaced cable operator or telecommunications carrier the opportunity  |$to pay for the cost of any modifications needed to expand capacity and to continue to maintain its  S 'attachment.4 Z {O|'ԍ Id. 4  SZ'  S2'` `  b.GPositions of the Parties  S '  S'  k655.` ` Many of the parties' arguments regarding capacity expansions are also applied to the issue  |$of reserve space. AEP and FP&L argue that requiring a utility to allow the use of its reserve space until  S' |$^it has an actual need for the space is contrary to the intent of Congress.X yO'ԍ FP&L comments at 1013; AEP comments at 1114.X They argue that Congress was  |$aware of a utility's need to reserve capacity when it gave them the right to deny access based on  |$cinsufficient capacity, and would have included specific language limiting this utility practice if such  |$limitation was intended. They contend that Congress plainly and unambiguously gave electric utilities the  S'right to make capacity determinations when considering requests for access.3| {O'ԍ Id.3  S'  k756.` ` AEP and FP&L further argue that the Commission's decision to limit a utility's right to  |$use its reserve capacity where such reservation is consistent with a bona fide development plan that  |$Zreasonably and specifically projects a need for that capacity is vague, ambiguous and unworkable, and  S*' |$7ignores the realities of a utility's core business of providing electric service.4* {O"'ԍ  Id. 4 AEP maintains that utilities  |$3routinely allocate certain space to be used in the event of an emergency, and that this space cannot be  |$Zconsidered "reserve." For example, AEP states, if certain ducts collapse, the utility's contingency plan  |$twill call for the immediate substitution of other ducts. AEP urges that, at a minimum, the Commission",p(p(88<"  |$must clarify that the obligation to provide access does not extend to space that is needed for emergency  S'purposes.= yO@'ԍ AEP comments at 13.=  S'  k857.` ` EEI/UTC and CP&L argue that being allowed to reserve space only as part of a "bona  |$&fide development plan" is too restrictive, and that it is beyond the Commission's ability to establish the  S8' |$Dreasonableness of such forecasts.V8X yO0'ԍ EEI/UTC comments at 89; CP&L comments at 15V They contend that utilities have not generally been required to create  |$and submit for public scrutiny development plans respecting facility expansion. EEI/UTC and CP&L  |$argue it is difficult to specify the amount of space that a utility could reserve, and that utilities would be  |$Erequired to spend millions of dollars they might not recover to develop speculative polebypole  S' |$3development plans, or face repeated complaints from attaching entities disputing requests to vacate. {O ' |$c ԍ Id. Accord FP&L comments at 1013 ( FP&L's expansion plans for transmission lines have radically changed in the recent past, and are likely to change radically again due to deregulation); AEP comments at 1114.  |$IPG&E requests that utilities be given the right to reserve capacity not specifically incorporated in a  SH ' |$7utility's bona fide development plans.6H B yO*'ԍ PG&E at 56.6 FP&L argues that by restricting its right to reserve capacity, the  |$Commission is forcing FP&L to either expand its business based on sheer speculation of load growth, or  S 'to face repeated complaints by entities seeking access to reserve capacity.U  yOj'ԍ FP&L comments at 1013; AEP comments at 12.U  S '  k958.` ` FP&L and AEP contend that the use of space by a party on an interim basis is impractical  S ' |$Qand unworkable.3 b  {O'ԍ Id.3 According to FP&L and AEP, once entities are using a utility's infrastructure, a utility  |$ would not be able to recapture such reserved space in the time necessary to effectively serve its core  |$business. FP&L and AEP assert that telecommunications carriers will not vacate a utility's facility short  |$of litigation if the withdrawal will likely result in interruption of service to telecommunications  S' |$customers.3  {Ot'ԍ Id.3 FP&L and AEP state that the Commission's requirement that a utility provide the attaching  |$entity an "opportunity to . . . maintain its attachment" by expanding capacity when the utility seeks to  |$recapture its reserve space would obligate the utility to allow the user to stay on or in the facility until the  Sh' |$utility constructed additional capacity for itself.3h  {O!'ԍ Id.3 FP&L and AEP assert that a utility's ability to provide  |$dependable service would be severely threatened by such an obligation because of the significant  S' |$engineering and construction time involved in expanding capacity.Y yO$'ԍ FP&L comments at 1013; AEP comments at 1114. Y PG&E states that the Commission",p(p(88"  |$should recognize the realities of electric distribution utility facility planning, and allow electric utilities  S'greater reserve capacity callback authority for future core electric service.? yO@'ԍ PG&E comments at 56.?  S'  S'  kJ:59.` ` CP&L states the Commission must define procedures by which utility companies define  |$reserved capacity and notify entities with attachments on their poles that they are occupying reserve  S8' |$space.>8X yO0'ԍ CP&L comments at 16.> CP&L urges the Commission to grant a presumption that any available capacity be deemed  |$^reserve capacity so utilities could avoid constructing new space a second or third time for future capacity  |$because pole attachers have taken all of the capacity. According to CP&L, entities wanting to continue  |$attachment to a particular pole would pay the costs of capacity expansion to accommodate their pole  |$attachments after accommodation of the utility's core needs. Any other result, CP&L argues, would force  Sp'the utility to pay for new capacity when existing capacity is taken by attaching entities.3p {O 'ԍ Id.3  S '  k=;60.` ` EEI/UTC also seeks clarification of the policy of permitting a utility to recapture reserve  |$space, "if such reservation is consistent with a bona fide development plan that reasonably and specifically  |$@projects a need for that space in the provision of its core utility service," when the utility has an actual  S ' |$need for the space.E z yO'ԍ EEI/UTC comments at 78. E According to EEI/UTC, this policy must also be read in conjunction with section  |$224(i) regarding the reimbursement of expenses when an attaching party requires a modification that  SX' |$causes other attaching entities or the pole owner to rearrange their facilities.3X  {O'ԍ Id.3 EEI/UTC requests  |$clarification that reimbursement policy of section 224(i), as embodied in section 1.1416(b), applies to an  |$Zattaching entity in the reserve space who exercises the option of modifying the facility when the utility  S'recovers the reserve space for its own use.3 {O'ԍ  Id.3  S'  k<61.` ` CP&L argues that the Commission should provide the same manner of preference for lines  Sh' |$which carry core business communications as is provided for electric lines. CP&L claims the  |$communications capacity used by utilities is, in many ways, essential to the proper operations of the utility  S' |$system.O.  yO 'ԍ CP&L comments at 1417. O CP&L avers that much of the traffic carried over these lines is essential to the monitoring of  S' |$load and demand conditions, line breaks, and the integration of both utility and third party generators.3  {ON#'ԍ Id.3  S' |$MEEI/UTC asks the Commission to clarify that a utility's installation of its own internal communications  |$cables within the "electric" space on the pole is consistent with the reservation of this space for utility use,  |$and that denial of access to unused space in order to accommodate a utility's nearterm expected use of"xP ,p(p(88"  S' |$that space for its internal communications needs would not be unreasonable.B yOh'ԍ EEI/UTC comments at 9. B EEI/UTC argues the  |$tCommission should establish a presumption that it would be reasonable for an electric utility to reserve  S'any space above what has been traditionally referred to as "communications space."BX yO'ԍ EEI/UTC comments at 89.B xx  S`'  k =62.` ` Teleport responds that the rules merely implement the plain language of statute, and the  S8' |$Commission cannot change the statutory language.K8 yO 'ԍ Teleport reply comments at 1214.K Teleport argues the Commission has crafted a fair  |$Mapproach that complies with the Act by permitting utilities to reserve space that they can reclaim from  |$cable operators and telecommunications carriers once they have a need for the space for core utility  S'purposes. The attaching party will pay for the cost of expanded capacity and continued attachment.3x {O 'ԍ Id.3  Sp'  k>63.` ` Similarly, NCTA maintains that the Local Competition Order strikes a fair balance  |$between the needs of utilities to expand to serve additional customers and the rights of cable operators and  |$telecommunications carriers to obtain space in the face of warehousing by pole owners. NCTA argues  |$that the amount of rightofway space that was available in a monopoly telecommunications environment  S ' |$should not be expected to set the outer limit of space under a procompetitive regulatory scheme.G  yO|'ԍ NCTA reply comments at 2728.G  |$Rather, rightofway space must be sufficient to accommodate the access needs generated by the  S ' |$proliferation of new competitors envisioned by the 1996 Act.3  {O'ԍ  Id.3 NCTA urges the Commission to reject  |$efforts to broaden circumstances allowing utilities to exclude attaching parties from reserve space. NCTA  S2' |$notes that the arrangement mandated in the Local Competition Order ensures that attaching parties will  |$Qpay an equitable share of the costs associated with their attachments, including the costs of relocating the  S' |$attachments as the needs of both the owner and attaching party change.3,  {O'ԍ Id.3 Joint Cable Parties note that  |$cwhen a utility needs pole space under a bona fide development plan that reasonably and specifically  |$projects a need for that space in the provision of its core utility service, it then can request that attaching  |$third parties pay the costs associated with the expansion of that capacity to remain on the poles. Joint  |$Cable Parties state the Commission's decision on this point is generous, because it allows "recapture" of  S' |$Qreserved space when the statute, on its face, does not.9  {Oz"'ԍ Id. at 4.9 They contend it will require concerted vigilance  |$by the Commission to make certain that a utility does not recapture space for competitive purpose under  S'the guise that such recapture is for the utility's "core" business.3P  {O%'ԍ Id.3 ",p(p(885"Ԍ S'  kW?64.` ` MCI asserts that the utilities' objections are merely an attempt to fend off competition.C yOh'ԍ MCI reply comments at 36.C  |$MMCI argues that the utilities are actually seeking an exclusive right to determine whether or not excess  |$Mpole attachment capacity exists, and priority access to any such capacity. But, according to MCI, the  |$Commission's determination that utilities may reserve space for future electric service pursuant to a bona  |$Zfide development plan allows the utilities to make an initial calculation and representation as to both the  |$amount of space available and that which is necessary to hold in reserve. MCI states that this allows a  |$meaningful determination of the amount of space available and prevents utilities from simply foreclosing  |$competitive access by reserving more space than is actually needed. MCI further states that the  |$Commission's determination that utilities allow competitors access to reserve space until it is actually  |$3needed is similarly reasonable because it provides a check on potential anticompetitive behavior while  Sp'imposing no harm on the utility.=pX {Oh 'ԍ Id. at 3637.=  S '` `   c.GDiscussion  S '  k@65.` ` The Local Competition Order struck a balance between the utilities' right to reserve  |$capacity to meet anticipated future demand for their "core utility services," necessary if those utilities are  |$to meet public demand for their services, and the nondiscrimination requirement of section 224(f)(1),  |$ which prohibits a utility from favoring itself or its affiliates with respect to the provision of  S2' |$telecommunications and video programming services.Z2 {O'ԍ See Local Competition Order at para. 1169.Z The Local Competition Order qualifies the  |$cutilities' ability to reserve capacity for their own uses pursuant to a bona fide development plan that  S' |$t"reasonably and specifically projects a need for that space in the provision of its core utility service."3| {O'ԍ Id.3  |$The Commission specifically found these arrangements to be consistent with the intent of the statute,  |$stating that "allowing space to go unused when a cable operator or telecommunications carrier could make  Sl'use of it is directly contrary to the goals of Congress."3l {O'ԍ Id.3  S'  kA66.` ` The utilities' challenges and requests for clarification fall into several categories. First,  |$tthey argue that requiring a utility to allow attaching parties the use of its unused, reserved space until it  |$has an actual need for the space is contrary to Congressional intent. Second, they argue that the  |$"requirement that space reservations must be made pursuant to a "bona fide development plan" that  |$^reasonably and specifically projects a need for the space in the provision of the utility's core utility service  |$is unworkable, unduly restrictive, and beyond the Commission's jurisdiction to administer. Third, the  |$^utilities request further definition of the procedures by which utilities are to define "reserved capacity" and  |$cnotify entities with pole attachments that they are occupying reserve space. Fourth, clarification is requested regarding the treatment of a utility's own internal communications attachments.  S'  kOB67.` ` Use of Unused, Reserved Space. We do not find sufficient basis in the record on  Sf' |$reconsideration to alter the balance struck in the Local Competition Order between the needs of the"f,p(p(88"  |$}utilities to reserve unused space for future core utility service needs, and the statutory mandate that  |$attaching entities be afforded nondiscriminatory access to a utility's poles, ducts, conduits and rightsof |$way. The rules permit attaching entities to use the utility's unused, reserved space only until such time  |$as the utility has an actual need for that space. At that point, the utility may seek to recover the reserved  |$Mspace for its own use, based upon its actual need for the reserved space. The reasonableness of such  |$recapture of reserved space currently in use by a telecommunications carriers or cable operator will depend  |$upon the factual circumstances at the time of the request. We therefore decline to grant CP&L's request  |$3that we grant a general presumption that any available capacity on a utility company's pole attachment  |$}infrastructure is reserved capacity. In the usual case, we believe that the question of what space is  |$@"reserved" and what space "available" will only arise if a request for access is denied. Any unresolved  |$disputes over recapture of reserved space will need to be resolved on a casebycase basis. We believe  |$these rules represent a fair allocation of use of a valuable resource, that unduly favors neither party, and is consistent with the express terms of section 224(f)(1).  S '  kC68.` ` We will clarify several aspects of the Local Competition Order. First, section 224(i)  |$Zstates that an "entity that obtains an attachment to a pole, conduit or rightofway shall not be required  |$to bear any of the costs of rearranging or replacing its attachment, if such rearrangement or replacement  |$is required as a result of an additional attachment or the modification of an existing attachment sought by  S2' |$any other entity (including the owner of such pole, conduit, or rightofway)." In the Local Competition  S ' |$^Order we stated that those parties who do not initiate or request the modification are not required to share  S' |$in the cost of the modification.` {ON'ԍ See Local Competition Order at para. 1211.` We clarify that in the instance of a utility's recapture of reserve space  |$occupied by an attaching entity, the utility is not required to share in the modification costs the attaching  |$Zentity may incur as a result of the need to modify the facilities incident to the utilities' recapture of that  |$Zspace. In such cases, an attacher should not be relieved of its obligation to pay for modification costs  |$merely because, for a time, the attacher was able to use a utilities' reserve space, as opposed to initiating  |$and bearing the cost of modifications that would otherwise have been needed in the absence of the reserve space.  S'  kD69.` ` In addition, we are persuaded that utilities are entitled to reserve capacity for the provision  |$of emergency service. We therefore clarify that space that is allocated or planned for emergency purposes  |$Din a utility's contingency plan should not be subject to the access obligations of reserved space in general.  |$This allocation of space for emergency service purposes is distinct from, and does not include, any  |$xreservation for projected growth pursuant to a bona fide development plan that reasonably and specifically  S'projects a need for space in the provision of its core utility service.Z {O' |$ ԍ We address the designation, in terms of rates, of reserve capacity in conduit in our Pole Attachment proceeding.  S'  kE70.` ` Bona Fide Development Plans. Consistent with the foregoing, a utility may reserve space  |$if such reservation is consistent with a bona fide development plan that reasonably and specifically projects  |$a need for that space in the provision of its core utility, as opposed to telecommunications or video,  S ' |$xservice. We clarify that if a need arose for a utility to retrieve reserve capacity in order to provide its core  |$Mutility services, but the exact circumstance was not laid out in the utility's bona fide development plan,  |$3such recapture of reserve space is permitted so long as it is consistent with the company's reasonable  |$projections for growth as reported in the utility's bona fide development plan. The purpose of these"",p(p(88j!"  |$Isafeguards is to ensure that utilities are not permitted to recapture space for their own provision of  |$competitive telecommunications and video programming distribution purposes under the guise that such recapture is for the utility's "core" business.  S`'  kF71.` ` Definitions of Reserve Capacity. The record does not contain sufficient data for us to  |$establish a presumptively reasonable amount of pole, duct, conduit or rightofway space that an utility  S' |$&may reserve, as requested by several utilities. As we stated in the Local Competition Order, if parties  |$tcannot agree, disputes will be resolved on a casebycase approach based on the reasonableness of the  |$utility's forecast of its future needs and any additional information that is relevant under the  S'circumstances.] {O 'ԍ Local Competition Order at para. 1169. ]  SL '  kG72.` ` Treatment of Utility Communications Attachments. As requested by CP&L and EEI/UTC,  |$we clarify that a utility may reserve capacity to carry core utility communications capacity that is essential  |$to the proper operations of the utility system. A utility's installation of its own internal communications  |$cables within the "electric" space on a pole is consistent with the reservation of this space for utility use.  |$A utility's denial of access to reserved capacity in order to accommodate the utility's nearterm expected  |$need for that space for its own internal communications needs would not be unreasonable. We caution  |$that, as with all reservations of space for a utility's core functions, denials of access may not be made to  |$accommodate a utility's provision of competitive telecommunications or video programming distribution  |$Dservices. We decline, however, to grant EEI/UTC's request that we establish a presumption that it would  |$be reasonable for an electric utility to reserve any space above what has traditionally been referred to as  |$"communications space" on a pole. In light of our clarification of the ability of utilities to reserve space  |$for internal communications functions needed to support the utility's "core" service functions, we do not perceive the need for such a presumption.  S' C.` ` When Utility is Subject to Access Obligations   S' ` ` 1. Use of a Utilities' Facilities for Wire Communications (#`  S~'` `  a.GBackground  S.'  kH73.` ` The access obligations of section 224(f) apply to any "utility," defined as: "any person who  |$is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns of  |$'controls poles, ducts, conduits, or other rightsofway used, in whole or part, for any wire  S' |$communications."Z yO ' |$& ԍ 47 U.S.C.  224(a)(1). The term utility "does not include any railroad, any person who is cooperatively  {Ox!'organized, or any person owned by the Federal Government or any State." Id. The Local Competition Order concluded that use of any pole, duct, conduit, or right |$ofway for wire communications triggers access obligations for all poles, ducts, conduits, and rightsof Sh' |$gway owned or controlled by the utility, including those not currently used for wire communications.\h {O$'ԍ Local Competition Order at paras. 11721174.\  S@' |$The Local Competition Order specifically rejected utility arguments that they should be permitted to  |$devote a portion of their poles, ducts, conduits, and rightsofway to wire communications without  |$subjecting all such property to the access obligations of section 224(f) on the ground that this" F,p(p(88 "  |$&interpretation was at odds with the plain language of the statute. The Commission further stated that,  |$D"[a]lthough internal communications are used solely to promote the efficient distribution of electricity, the  |$definition of 'wire communications' is broad and clearly encompasses an electric utility's internal  S'communications."< {O'ԍ Id. at 1174.<   S8'`` `  b.G Positions of the Parties  S'  kI74.` ` AEP and FP&L seek clarification that the use of one pole for wire communications should  |$<not trigger access to other ducts and conduits that are not now and never have been used` for wire  S' |$communications.XZ yO 'ԍ AEP comments at 4045; FP&L comments at 3642.X They argue that the Local Competition Order's interpretation of section 224(f) violates  |$the plain language of the Act by concluding that the use of any utility pole, duct, conduit or right of way  |$Qfor wire communications triggers access to all utility poles, ducts, conduits or rights of way. They claim  S" ' |$'the Commission has misinterpreted the statutory phrase "used, in whole or in part, for wire  |$communications." AEP asserts that Congress intended that Commission jurisdiction be invoked on a pole |$xbypole basis, not a systemwide basis. In support, AEP and FP&L cite the legislative history of the 1978  |$}Pole Attachments Act, and assert that Congress identified two conditions precedent to Commission  |$jurisdiction over pole attachments: 1) that communications space be designated on the pole; and 2) that  |$a CATV system use the communications space, either alone or in conjunction with another  S4' |$communications entity. 4 {O' |$ ԍ AEP comments at 42, citing S. Rep. No. 95580, 95th Cong., 1st Sess. 16 (1977); In the Matter of Adoption  {O'of Rules for the Regulation of Cable Television Pole Attachments, 68 F.C.C.2d 1585, 1588 (1978).  They further argue that this interpretation is consistent with the nature of access  |$requests which are made on a specific route or segment basis, depending on the needs of the requesting  |$party. These access requests may be granted consistent with existing capacity, safety, reliability and  S'generally applicable engineering purposes on a polebypole basis.XF yO'ԍ AEP comments at 4045; FP&L comments at 3642.X  Sl'  kdJ75.` ` AEP and FP&L also maintain that the use of part of a utility's infrastructure for a private  |$communications network designed to support a safe and reliable electric service cannot be deemed to  |$trigger the nondiscriminatory access provisions of the 1996 Act. They assert that the term, "wire  |$Acommunications," as used in this context, clearly refers to the provision of common carrier  |$*communications by telecommunications carriers and cable service operators, and not to communications  |$by wholly private carriers and private networks. According to these utilities, a utility using a private  |$^network to support its electric operations is not a communications entity, and is not treated as such under  ST'the other provisions of section 224.VT yO"'ԍ AEP comments at 44; FP&L comments at 3940.V  S'  kFK76.` ` Delmarva requests clarification "of the lengths to which a utility must go" in order to  |$comply with the Commission's statutory interpretation. Delmarva questions whether a cable operator or  |$gtelecommunications carrier could demand that a utility install poles, ducts, or conduits on a completely  |$unimproved utility rightofway in order to accommodate the needs of such providers solely on the basis"f ,p(p(88"  |$&that the utility may own poles with wire communications attachments somewhere in its electric utility  S'system.A yO@'ԍ Delmarva comments at 7.A  S'  k L77.` ` In response, AT&T and MCI argue that section 224(a)(4) provides that if a company's  |$poles, ducts, conduits, or rights of way are used in whole or in part for wire communications, then it is  S8' |$Za utility for purposes of section 224.X8X yO0'ԍ AT&T reply comments at 3637; MCI reply at 39.X According to AT&T, a utility's duties under section 224(f) are  |$gbroad. Specifically, the utility must grant access to any pole, duct, conduit, or rightofway owned or  |$^controlled by it. MCI agrees that the statute expressly states that the use of any part of a utility's facilities  |$for the provision of any type of wire communications brings an entity within the definition of utility, and  |$thus within the nondiscriminatory access requirement in section 224(f). AT&T states that AEP's statutory  |$argument that section 224 applies to a given utility on a polebypole basis is therefore without merit, as  |$is AEP's further argument that an internal communications network would not qualify as wire  |$Dcommunications under the statute. According to AT&T, the statutory definition of wire communications  |$is not limited to communication sold to the public. Therefore, argues AT&T, a utility with a private  |$communications network clearly has facilities that are being used to provide wire communications under  S ' |$7the statute and thus the utility is subject to the duty to provide access.H  yO0'ԍ AT&T reply comments at 3637. H MCI asserts that this is the only  |$result compelled by the plain language of the statute and it is also the only equitable result. If it is  |$ptechnically feasible for the facilities at issue to support telecommunications attachments for internal  |$purposes, argues MCI, it must be technically feasible to permit others to attach to provide  S'telecommunications services as well.;x yO 'ԍ MCI reply at 39. ;  S'  k`M78.` ` Airtouch also argues that the Commission's interpretation of the statutory language is  |$consistent with the intent and purpose of the 1996 revisions to the Communications Act. According to  |$Airtouch, section 224(f) provides all telecommunications carriers additional options for facility  S@' |$placement.B@ yO'ԍ Airtouch reply at 2123.B Increased facilities presence within the local marketplace serves to enhance competition in  S' |$ that market.3 {OP'ԍ  Id.3 This is especially true since the number of CMRS providers seeking site locations has  S' |$skyrocketed with the licensing of the broadband PCS and narrowband PCS spectrum.3*  {O!'ԍ  Id.3 Airtouch further  |$states that there has been an increasing amount of opposition to new CMRS facilities. Therefore, Airtouch  S'argues, the use of utility facilities may be necessary for the quick deployment of these services.3  {O$'ԍ Id.3 "xN ,p(p(88"Ԍ S' `` `   c.GDiscussion  S'  S'  kN79.` ` FP&L and AEP have presented no new facts or arguments on reconsideration to support  |$their contention that the access provisions of section 224(f) should be invoked on a pole`ũbypole rather  |$Vthan a system-wide basis. We continue to believe the better statutory reading does not support the  |$argument made by some utilities that they should be permitted to devote a portion of their poles, ducts,  |$conduits, and rightsofway to wire communications without subjecting all such property to the access  |$7obligations of section 224(f)(1). Those obligations apply to any "utility," which section 224(a)(1) defines  |$to include an entity that controls "poles, ducts, conduits, or rightsofway used, in whole or in part, for  S' |$gany wire communications." We reaffirm the Local Competition Order's conclusion that the use of the  |$ phrase "in whole or in part" is best read to indicate that Congress did not intend for a utility to be able  |$Dto restrict access to the exact path used by the utility for wire communications. Further, we reaffirm the  |$conclusion that use of any utility pole, duct, conduit, or rightofway for wire communications triggers  |$access to all poles, ducts, conduits, and rightsofway owned or controlled by the utility, including those not currently used for wire communications.  S '  kO80.` ` We also decline to modify our conclusion in the Local Competition Order with respect  |$to an electric utility's internal communications. We continue to reject the contention that, because an  |$electric utility's internal communications do not pose a competitive threat to thirdparty cable operators  |$7or telecommunications carriers, such internal communications are not "wire communications" and do not  |$Dtrigger access obligations. Although internal communications may be used solely to promote the efficient  |$3distribution of electricity, the definition of "wire communication" is broad and clearly encompasses an  S'electric utility's internal communications.` {O'ԍ See Local Competition Order at para. 1174.`  SD' D.` ` Qualifications of Workers  S'X` ` 1. Use of NonUtility Employees.(#  S'X` `  Ga.hh}Background(#  S|'  ST'  kP81.` ` The Local Competition Order stated that utilities should be able to require that only  |$gproperly trained persons perform work in the proximity of the utilities' lines, but did not require parties  |$seeking to make attachments to use either the utility's own employees or the contractors or predesignated  S' |$by the utility.CZ {O'ԍ Id. at para. 1182. C A utility may require that individuals who will work in the proximity of electric lines  |$have the same qualifications, in terms of training, as the utility's own workers, but the party seeking  |$access will be able to use any individual workers who meet these criteria. Permitting a utility to dictate  |$Mthat only specific employees or contractors be used would impede the access that Congress sought to  |$bestow on telecommunications carriers and cable operators and could lead to disputes over rates to be paid  S 'to the workers.4  {O%'ԍ Id. 4  X(#" ~,p(p(88% "Ԍ S'` `  G b.hh}Positions of the Parties  S'  kQ82.` ` Several utilities seek reconsideration of the decision to permit nonutility workers to  S' |$perform work in proximity to the utility's electric lines. yO'ԍ AEP Petition at 2932; Duquesne Petition at 1517; CP&L Petition at 1819; Delmarva Petition at 34. AEP argues that the Commission's  |$3determination in this regard is not supported by the statute, is arbitrary and capricious and reflects the  |$Commission's failure to comprehend fully the danger associated with such work. AEP and CP&L argue  |$that access by persons not employed by the utilities creates hazards and exposes the utilities to  |$7uncontrollable risk for damage caused by those acting on behalf of the attaching entities. This is an issue  |$pboth with respect to the workers themselves, and with respect to the high costs associated with an  |$&electrical outage when accidents occur as a result of work being performed by inadequately skilled or  Sp' |$Dtrained workers.XpX yOh 'ԍ AEP Petition at 2932; CP&L Petition at 1819.X Duquesne also argues that permitting nonutility workers in proximity of electric lines  |$knot only compromises worker safety, but also has the potential to affect reliability of utilities' transmission  |$3and distribution systems. If system reliability is degraded, Duquesne states, it is the utility that will be  S 'blamed.B  yO'ԍ Duquesne comments at 16.B  S '  kR83.` ` If the Commission declines to reconsider the thirdparty worker requirements, Duquesne  |$7seeks clarification that a utility has reasonable discretion to establish training requirements so long as they  |$Zare applied without discrimination. According to Duquesne, that training also means actual experience  |$performing required work; a utility should be able to ask for demonstration of qualifications; and a utility  |$must be able to insist on indemnity from carrier, or post a bond, against damage to system and personal  S' |$injury suits by workers.Fx {O'ԍ Id. at 1517. F Similarly, CP&L maintains that the Commission must adopt rules to control  |$Zrisk, including minimum skills and performance requirements for the technicians to perform work and  |$Qrequirement that parties provide minimum insurance for risks. CP&L also seeks authority to bar workers  |$gwho do not meet the same safety standards, training and safety culture that their own employees must  S@'meet.A@  yO'ԍ CP&L comments at 1819.A  S'  kS84.` ` Delmarva also seeks clarification that utilities can establish and enforce reasonable worker  |$qualifications. Delmarva suggests that the most efficient means for a utility to ensure that only qualified  |$workers gain access to underground ducts and conduits is for the utility to designate contractors  Sx' |$csufficiently skilled and knowledgeable about the utility's system.Cx yO"'ԍ Delmarva comments at 34.C An attaching entity may use the designated workers, with supervision from the utility, for equipment installation.  S('  S' G6!T85. In response, MCI defends the Commission's rules on "qualified workers" as sound. MCI  |$characterizes AEP as arguing that anything less than complete control over electrical contractors and  |$installers would eliminate the electric utility's ability to take certain measures to minimize the risk and"* ,p(p(88"  |$&liability this mandatory access may cause. According to MCI, the argument that the Commission has  |$/completely eliminated a utility's ability to minimize installation risk is specious. MCI states that the  |$Commission expressly allowed the imposition of safety requirements, such as the ability of the utility to  S'require that the attaching party's workers have the same training as do the utility's workers.I yO'ԍ MCI reply comments at 41.I  S`'  S8'` `  c.GDiscussion  S'  kdU86.` ` We have been presented with no facts or arguments that necessitate modification of the  |$ZCommission's decision that otherwise qualified, thirdparty workers may perform pole attachment and  S' |$Qrelated activities, such as makeready work, in the proximity of electric lines. X yO ' |$* ԍ "Makeready" generally refers to the modification of poles or lines or the installation of guys and anchors  {OX 'to accommodate additional facilities. See Pole Attachment Fee Order at n.22.  In the alternative, several  |$of the utilities have sought clarification that a utility has reasonable discretion to establish training  SH ' |$requirements. We also find that clarification on this point is unnecessary. The Local Competition Order  |$gexpressly gives a utility the ability to require the same qualifications and training of individuals working  |$in proximity to utility facilities as a utility would impose on its own employees. We reiterate that a utility  |$Qmay require that individuals who will work attaching or making ready attachments of telecommunications  |$gor cable system facilities to utility poles, in the proximity of electric lines, have the same qualifications,  |$in terms of training, as the utility's own workers, but the party seeking access will be able to use any  SZ' |$&individual workers who meet these criteria.\Z {O'ԍ  Local Competition Order at para. 1182.\ Thus, utilities may ensure that individuals who work in  |$proximity to electric lines to perform pole attachments and related activities meet utility standards for the  |$performance of such work, but the utilities may not dictate the identity of the workers who will perform  S' |$Ithe work itself. As we stated in the Local Competition Order, allowing a utility to dictate that only  |$^specific employees or contractors be used would impede access and lead to disputes over rates to be paid  S'to the workers.4D {Ox'ԍ Id. 4  SD'  kFV87.` ` We recognize that utilities' requirements with respect to qualifications and training of  |$individuals working in proximity to utility facilities flow from such codes and requirements as the NESC  |$and OSHA. Some utilities have training programs and qualifications that are more strict than the NESC  |$7or OSHA would require. We therefore disagree with CP&L that the Commission should adopt rules with  |$7respect to minimum skills and performance requirements for technicians or that parties provide minimum insurance for risks.  S,' E.` ` Modifications  S' ` ` a. Background  S'  S'W88.` `  XI.C.4. Section 224(h) provides: ` ` "d,p(p(88"Ԍ Gx=XWhenever the owner of a pole, duct, conduit, or rightofway intends to modify or alter  Gxdsuch pole, duct, conduit, or rightofway, the owner shall provide written notification of  Gxsuch action to any entity that has obtained an attachment to such conduit or rightofway  Gxzso that such entity may have a reasonable opportunity to add to or modify its existing  Gxattachment. Any entity that adds to or modifies its existing attachment after receiving  Gxsuch notification shall bear a proportionate share of the costs incurred by the owner in  S'making such pole, duct, conduit, or rightofway accessible.@ yOx'ԍ 47 U.S.C.  224(h).@   S'  k=X89.` ` The Local Competition Order established requirements regarding the manner and timing  |$of the notice that must be provided to thirdparty attachers to ensure a reasonable opportunity to add to  |$or modify an attachment. In general we concluded that, absent a private agreement establishing  |$notification procedures, written notification of a modification must be provided to parties holding  |$attachments on the facility to be modified at least 60 days prior to the commencement of the physical  S ' |$modification.V X {O'ԍ Local Competition Order at para.1209.V In emergency situations in which a 60 day notice would be impractical, we require that  S ' |$notice be given as soon as reasonably practicable.3  {O\'ԍ  Id.3 The 60 day notice is not required for routine  S 'maintenance activities.3 | {O'ԍ Id.3  SZ'  k0Y90.` ` In addition, the Local Competition Order established requirements apportioning the cost  |$of a modification among the various users of the modified facility. Generally, we concluded that, to the  |$extent the cost of a modification is incurred for the specific benefit of any particular party, the benefiting  |$party will be obligated to assume the cost of the modification, or to bear its proportionate share of cost  S'with all other attaching entities participating in the modification.< {Oj'ԍ Id. at 1211.<  Sl'` ` b.  Positions of the Parties   S'` `  (1)GManner and timing of notice  S'  k Z91.` ` EEI and UTC seek clarification that a utility's ability to promptly serve new customers  |$^is not constrained by the requirement that written notification of a modification be given to parties holding  S|' |$<attachments on a facility 60 days prior to the commencement of the modification.D| yO"'ԍ EEI/UTC comments at 1011.D For example,  ST' |$kaccording to EEI and UTC, some states require utility service to new customers within three days.3T0  {O$%'ԍ Id.3 EEI  |$and UTC contend that the utility would therefore be unable to comply with the state law if it were forced", ,p(p(88"  S' |$to delay work for 60 days in order to comply with the notice requirement.3 {Oh'ԍ Id.3 Additionally, according to  S'EEI and UTC, the 60 day notification should only apply to major rebuilds.3Z {O'ԍ Id.3  S'  k[92.` ` Similarly, Duquesne states that, in the case of modifications of facilities required by  S`' |$Mgovernments and governmental agencies, the Commission should only require utilities to give as much  |$notice as practical under circumstances. While some suggest simply shortening the 60 day notice period  S' |$Mto one or two weeks, {O ' |$ ԍ See Con Edison comments at 9; AEP reply comments at 1415; FP&L comments; GTE comments at 4243; CP&L comments. others contend that the 60 day notice period is reasonable and reflects current  S'industry practices.F {O 'ԍ  See NCTA comments at 3031; MCI comments at 4142; Joint Cable Parties comments at 14.  S'  S' ` ` (2)GAllocation of costs   SH '  kJ\93.` ` MCI requests that attaching entities be able to seek compensation for modification costs  |$that create excess capacity which is later sold to other entrants by the incumbent utility. MCI contends  |$that the Commission's statement that the 1996 Act ". . . does not give that party any interest in the pole  S ' |$or conduit other than access," is inconsistent with other statements contained within the same Local  S ' |$Competition Order.=  yO"'ԍ MCI comments at 33.= According to MCI, examples of this inconsistency are found in the portion of the  S ' |$Local Competition Order that states that the Commission "will allow the modifying party or parties to  |$7recover a proportionate share of the modification costs from parties that later are able to obtain access as  S6' |$a result of the modification" and in the portion of the Local Competition Order that states that parties  |$joining in a modification will be "responsible for the resulting costs to maintain the facility on an ongoing  S'basis."rh  {O'ԍ See Local Competition Order at para. 1216; MCI comments at 3334.r    S'  k]94.` ` MCI asserts that the Commission's contention that it would be a "disincentive to add new  |$competitors" to not permit utilities to earn future revenues from excess capacity, is tantamount to asserting  SH' |$that competition is promoted by disincenting actual entrants in order to incent potential entrants.=H  yO 'ԍ MCI comments at 34.= MCI  |$proposes that a utility be required to establish an escrow account for revenues earned from this excess  |$capacity or, alternatively, to require new entrants requesting additional capacity to compensate the utility  S' |$for the average incremental cost of the addition, rather than the total incremental cost.3  {O$'ԍ Id.3 New entrants  |$would therefore be responsible for paying the annual depreciated value of their share of the additional"!,p(p(885"  S' |$facilities.3 {Oh'ԍ Id.3 Finally, MCI avers that, given the potential the utilities have for double recovering additional  |$Qrights of way cost, the Commission should require utilities to meet the same burdens of proof concerning  S'claims of space exhaustion for rights of way as it had adopted for collocation.:Z {O'ԍ Id. at 35.:  S`'  k#^95.` ` Bellsouth responds that compelling utilities to compensate modifiers for future revenues  |$the utility may earn as a result of the modification would necessarily result in complicated formulas and  S' |$3"rebate mechanisms."C yO 'ԍ Bellsouth Reply at 1112.C Likewise, EEI and UTC object to the creation of escrow accounts for future  S' |$revenues resulting from modifications.C| yO 'ԍ EEI and UTC Reply at 67.C EEI and UTC contend that the future revenues a utility may earn  |$/from added capacity as a result of modifications for making facility accessible are irrelevant under  S' |$statute.3  {OD'ԍ Id.3 Duquesne states that because of burden of record keeping on hundreds of thousands of poles  |$Mand other facilities, Commission should clarify that it is the entity seeking reimbursements from future  SH 'attaching entities, and not the utility, that is required to maintain pertinent records for this purpose.3H  {O'ԍ Id.3  S '  k_96.` ` EEI and UTC state that modifications arising from compliance with the NESC should not  |$obligate the utility to share in the cost of a proposed facility changeout where the only modifications are  |$those necessitated by changes in the NESC since the existing facilities were installed. According to EEI  |$and UTC, the "grandfathering" provisions of the NESC allow utilities to delay modifications to meet code  SX' |$}changes until "more than a minimal amount of other work is done."DX0  yO('ԍ EEI/UTC comments at 1113.D EEI and UTC contend that it  |$3would be unfair for utilities to bear the cost of a safety compliance upgrade if the upgrade is triggered  S'solely because of modifications arising from utilities' obligations to allow attachments.3  {Oh'ԍ  Id.3  S'  k0`97.` ` Similarly, Duquesne states that a "grandfathered" facility is required to bring its facilities  |$into compliance with changes in the NESC only if it rebuilds its facilities, and therefore the facilities  Sh' |$gwould not be in violation of the NESC absent a change out.EhR  yOZ"'ԍ Duquesne comments at 1415.E According to Duquesne, a utility should  |$not have to share in the modification costs unless an actual violation exists, such as noncompliance with  S' |$tNESC at the time the utility built its facility.3 {O%'ԍ Id.3 If such a violation exists, Duquesne asserts that a utility""t,p(p(88"  |$should likewise not be required to share in costs of the modification if the violation could have been  S'corrected on the old facility without expanding the capacity used by the utility.3 {O@'ԍ Id.3  S'  ka98.` ` EEI and UTC seek clarification that agreements between utilities and attaching entities  |$regarding rearrangement of facilities and notifications of proposed facility modifications supersede FCC  |$trules. Specifically, EEI and UTC seek clarification that parties may enter private agreements regarding  S' |$allocation of costs that may vary from the policies adopted in this proceeding.DZ yO 'ԍ EEI/UTC comments at 1213.D In addition, EEI and  |$UTC seek clarification that a utility be able to recoup labor and administrative expenses incident to  S' |$providing maps, plats, and other data from entities making legitimate inquiries regarding access.: {OJ 'ԍ Id. at 15.:  |$According to EEI and UTC, these costs are expenses which traditionally are borne directly by beneficiaries  |$of costs. EEI and UTC also ask that requesting party be required to sign a confidentiality agreement as  SH 'a precondition of a utility providing such information.=H | {Od'ԍ  Id. at 1314.=  S '  kqb99.` ` Duquesne states that, with respect to modifications of facilities required by governments  |$xand governmental agencies (such as due to a road widening), attaching entities will claim they do not have  S ' |$3to share costs here because these modifications are not for their special benefit or initiated by them.E  yOV'ԍ Duquesne comments at 1112.E  |$Duquesne seeks clarification that attaching entities should share in cost of governmentally mandated pole  |$movement because the attachers should assume the same business risk as utilities that the government may  S0' |$require poles to be moved.30 {On'ԍ Id.3 GTE also requests clarification of cost sharing rules with respect to  S'modifications to facilities caused by government agencies.@0  yO'ԍ GTE comments at 4041.@  S'  S' b` ` c. Discussion  Sh'  k c100.` ` We decline to modify our decision in the Local Competition Order that requires, absent  |$pa private agreement establishing notification procedures, written notification of ab modification to be  |$provided to parties holding attachments on the facility to be modified at least 60 days prior to the  S' |$commencement of the physical modification itself.V  {OR#'ԍ Local Competition Order at para. 1209.V We continue to believe that under most  |$circumstances, a utility should be able to comply with the 60 day notice requirement, even in instances  S' |$where a government or a government agency requires service to new customers in less that 60 days.R  {O&' |$* ԍ See NCTA opposition at 14 ("[i]ndustry practice makes 60 days a common period for joint coordination of projects requiring facilities modification"). "#,p(p(885"  |$8A utility would in most cases be aware well in advance of, for example, a new building or road  |$development planned in its service area. In the unusual case of a utility that did not know of, and could  |$not reasonably be expected to have known of a governmentally required facility modification 60 days  |$before the governmentally mandated modification deadline, the utility must give notice to attachers at the time it becomes aware of its obligation to modify the facility.  S'  kzd101.` ` We continue to believe that a 60 day notification period strikes an appropriate balance  |$between avoiding unnecessary delays of modifications that would expedite competition in  |$telecommunications services, and providing parties with preexisting attachments to a pole or conduit  |$tsufficient time to evaluate the effects of the proposed modification, including whether the modification  Sp' |$presents an opportunity to adjust the attachment.<p {O 'ԍ Id. at 1207.< As stated in the Local Competition Order, if the  |$contemplated modification involves an emergency situation for which advanced written notice would prove  S" ' |$impractical, notice should be given as soon as reasonably practicable.<" Z {O'ԍ Id. at 1209.< We also continue to believe that  |$the burden of requiring specific written notice of routine maintenance activities would not produce a  S ' |$commensurate benefit.3  {O^'ԍ  Id.3 Rather, as we stated in the Local Competition Order, utilities and parties with  |$attachments are expected to exchange maintenance handbooks or other written descriptions of their  |$standard maintenance practices, and this information exchange should be sufficient to apprise all parties of the status of their facilities.  S '  ke102.` ` We also decline to specifically limit the 60 day notice requirement to "major rebuilds,"  S' |$as EEI and UTC suggest.h~ {O'ԍ EEI/UTC comments at 1011; see also CP&L comments at 15.h We believe that the parties themselves are best able to determine when and  S' |$under what circumstances notice would be reasonable and sufficient. As we stated in the Local  S' |$Competition Order, the owner of a facility and parties with attachments are encouraged to negotiate  Sp' |$acceptable notification terms.3p {O 'ԍ  Id.3 For example, smaller entities that are attaching parties and attaching  |$Qparties in rural markets may need more time to study facilities than larger facility users and those in urban  S 'markets.3  {Ob'ԍ Id.3  S'  kf103.` ` We decline to reconsider the Local Competition Order's decision that, in the case of  |$xfacility modifications initiated by thirdparty attachers that create excess capacity, the facility owner is not  |$obligated to use any laterearned revenues from that capacity to compensate the parties who paid for the  |$7modification, even in cases in which the owner did not share in the costs of the modification. Petitioners  |$have presented no new evidence or arguments that would cause us to change this conclusion on  S ' |$Ereconsideration. As the Local Competition Order notes, section 224(h) limits responsibility for  |$modification costs to any party that "adds to or modifies its existing attachment after receiving notice" of"$4 ,p(p(88"  S' |$a proposed modification.@ yOh'ԍ 47 U.S.C.  224(h).@ The statute does not confer any interest to that party in the pole or conduit  |$tother than access. We reiterate that creating a right for that party to share in future revenues from the  S' |$modification would be tantamount to bestowing an interest that the statute withholds.VX {O'ԍ Local Competition Order at para. 1216.V We continue to  |$ believe that a requirement that utilities pass additional attachment fees back to parties with preexisting  |$attachments may be a disincentive to add new competitors to modified facilities, in direct contravention  S8'of the general intent of Congress.48 {O 'ԍ  Id. 4    S'  kzg104.` ` We also disagree with MCI that our finding runs contrary to the decision to allow the  |$modifying party or parties to recover a proportionate share of the modification costs from parties that later  S' |$are able to obtain access as a result of the modification. We likewise do not agree that the Commission's  |$decision to require parties requesting or joining in a modification to be responsible for resulting costs to  SH ' |$Mmaintain the facility on an ongoing basis contradicts this policy. The Local Competition Order merely  |$Ddeclined, in the absence of a congressional directive, to add facility owners to the category of responsible  |$parties. Because we have declined to hold facility owners responsible for passing these additional  |$xattachment fees back to parties with preexisting attachments, we strongly encourage those parties seeking  |$compensation from future attaching parties to maintain the records necessary to facilitate the collection  S ' |$of such compensation.# | yO' |$* ԍ A modifying party or parties may recover a proportionate share of the modification costs from parties that  {Of'later are able to obtain access as a result of the modification. Local Competition Order at para. 1214.# These records should utilize generally accepted accounting procedures and, as  SZ' |$Zstated in the Local Competition Order, should take into account depreciation to the pole or facility that  S4' |$has occurred since the modification.B4 {O'ԍ  Id. at para. 1214.B We will not, however, require the facility owner to maintain records regarding modification costs for the benefit of attaching entities.  S'  kqh105.` ` Pursuant to the Local Competition Order, a utility or other party that uses a modification  |$as an opportunity to bring its facilities into compliance with applicable safety or other requirements will  |$}be deemed to be sharing in the modification and will be responsible for its share of the modification  SF' |$cost.BFh  {ON'ԍ Id. at para. 1212.B In this context, our rule would require a utility that alters its facilities in accordance with the  |$NESC at the time of a modification to share in the costs of the modification. EEI, UTC, and Duquesne  |$Dseek clarification of this requirement in the context of changes to the NESC since the facilities were built.  |$ A utility must alter its facilities in response to changes to the NESC at the time the NESC so requires.  |$This is a matter that we expect to be wellestablished under current practices, and is in any case beyond the scope of this proceeding.  S.'  ki106.` ` We also clarify that attaching entities will not be responsible for sharing in the cost of  |$kgovernmentally mandated pole or other facility modification. In the case of a road widening, for example,  |$ka utility would be required to move the pole or other facility even in the absence of attaching entities; such"% ,p(p(88"  |$expenses are not caused by the attaching party and would occur in any event. The reasonably projected  |$3incremental costs associated with movement of attaching entities' facilities should be factored into the standard rent that attaching entities pay a utility, rather than be treated as a separate cost to be recovered. Y'%l  Y'%l   S`'  kj107.` ` We further clarify that a utility may require an inquiring entity to reimburse the utility,  |$kon an actual cost basis, for the actual labor and administrative costs incident to providing maps, plats, and  |$other data to entities making inquiries regarding access, because such onetime expenses would not  |$3typically be provided for in an attaching entities' rent. However, we would expect that utilities would  |$Dhave a standard quote for ascertaining the availability of pole or conduit capacity. Only in the case where  |$Za particular request for access involves highly unusual expenses associated with evaluating a proposal,  |$would cost recovery overandabove the standard rate be permissible. With respect to the confidentiality  |$of such information, we reiterate that we expect a utility to make its maps, plats and other relevant data  |$available for inspection and copying by the requesting party, subject to reasonable conditions to protect  S 'proprietary information.B  {O` 'ԍ Id. at para. 1223.B  S ' F.` ` State Certification  SX' ` ` a. Background  S'  k0k108.` `  XI.C.6. Prior to enactment of the 1996 Act, section 224(b)(1) gave the Commission jurisdiction  S' |$to "regulate the rates, terms, and conditions for pole attachments...."CZ yO'ԍ 47 U.S.C.  224(b)(1).C Under former section 224(c)(1),  |$Zthat jurisdiction was preempted where a state regulated such matters. Such "reverse preemption" was  |$conditioned upon the state following a certification procedure and meeting certain compliance requirements  Sh' |$set forth in sections 224(c)(2) and (3).h {O' |$! ԍ See States That Have Certified That They Regulate Pole Attachments, DA 92201, Public Notice, 7 FCC Rcd 1498 (1992). The 1996 Act expanded the Commission's jurisdiction to include  |$^not just rates, terms, and conditions, but also the authority to regulate nondiscriminatory access to poles,  S' |$ducts, conduits and rightsofway under section 224(f).@D yO'ԍ 47 U.S.C.  224(f).@ At the same time, the 1996 Act expanded the  |$Mpreemptive authority of states to match the expanded scope of the Commission's jurisdiction. Section 224(c)(1) now provides:   LXX` ` Nothing in this section shall be construed to apply to, or to give the   jCommission jurisdiction with respect to rates, terms and conditions, or   access to poles, ducts, conduits, and rightsofway as provided in   subsection (f), for pole attachments in any case where such matters are  S'regulated by the State.C yOL%'ԍ 47 U.S.C.  224(c)(1).Cx` "&d ,p(p(88"Ԍ S'  kl109.` ` The Local Competition Order noted that Congress did not amend section 224(c)(2) to  |$prescribe a certification procedure with respect to access (as distinct from the rates, terms, and conditions  S' |$"of access).3 {O'ԍ Id.3 The Local Competition Order stated that, upon the filing of a section 224(f) access  |$xcomplaint with the Commission, the defending party or the state itself should come forward to apprise the  Sd' |$Commission whether the state is regulating such matters.dZ yO^' |$Z ԍ Our rules require service of a pole attachment complaint on both the defending utility and the state. 47 C.F.R.  1.1404(b). If so, the Commission shall dismiss the  S<' |$complaint without prejudice to it being brought in the appropriate state forum.V< {O 'ԍ Local Competition Order at para. 1240.V Pursuant to the Local  S' |$Competition Order, a party seeking to show that a state regulates access issues should cite to state laws  |$and regulations governing access and establishing a procedure for resolving access complaints in a state  S'forum.3D {O'ԍ Id.3  Sx' ` ` b. Positions of the Parties  S( '  k m110.` ` NCTA requests that the Commission reconsider its decision and require states to utilize  |$the same procedural mechanism for assuming jurisdiction over access that they must use to assume  |$jurisdiction over pole attachment rates, terms and conditions. NCTA claims that not requiring a state to  |$pcertify that it regulates access in advance of a complaint will create uncertainty and will waste time  S ' |$determining the proper forum to file a complaint.A  yO'ԍ NCTA comments at 2122.A NCTA also claims that the lack of state certification  |$could undermine the choice of a potential attaching party to vindicate rights as part of an overall Section  S8'252 arbitration or as an independent complaint under Section 224.:8f  {O>'ԍ Id. at 22.:  S'  k~n111.` ` NCTA notes that the Local Competition Order recognizes that "time is of the essence" in  |$resolving access disputes, and that the Act and the Commission's rules make clear that "denial of access  S' |$y. . . is an exception to the general mandate of section 224(f).":  {O2'ԍ Id. at 21.: According to NCTA, since the  |$Commission has already determined a state's pole attachment access rules ultimately could be subject to  |$Qpreemption under section 253(a), it should reduce uncertainty, transaction costs and potential litigation by  |$requiring states to certify they have actually adopted access rules in conformity with the strong Federal  S'presumption favoring access and the access guidelines adopted in the Local Competition Order.=  {O$$'ԍ Id. at 2122.=  S'  ko112.` ` CompTel, along with EEI, UTC and PG&E request clarification that where a state has  |$certified that it regulates rates, terms and conditions for pole attachments, its regulations in this area are  |$not only entitled to deference but have preemptive effect to the extent they do not directly violate section"\',p(p(88"  |$M253, which invalidates all state or local requirements that "prohibit or have the effect of prohibiting the  S' |$ability of any entity to provide any interstate or intrastate telecommunications service."A yO@'ԍ EEI/UTC comments at 16.A CCTA  S' |$disagrees, arguing that such a clarification would run contrary to the 1996 Act.AX yO'ԍ CCTA opposition at 16.A EEI, UTC and PG&E  |$ask the Commission to revise section 1.1414(a)(2) to conform with revised section 224(c)(2)(B) which  |$requires states wishing to exercise preemption authority to certify that they "consider the interest of the  S8'subscribers of the services offered via such attachments."98 {O 'ԍ  Id.9  S'  kp113.` ` EEI, UTC, and AEP urge rejection of NCTA's request to require states to certify, as a  |$precondition to regulating access, that they preempt FCC authority over rates, terms and conditions for  S' |$attachments.`z {O'ԍ Id. at 8. See also AEP comments at 1112.` According to AEP, the Commission properly held that the states are not required to certify  |$as to access matters because the Commission has no statutory authority to require states to certify as to  |$access. AEP also opposes NCTA's request that if a state does preempt federal jurisdiction it should follow  S 'the federal lead with respect to access to poles, ducts, conduits, and rightsofway.@  yO'ԍ AEP comments at 1112.@  S '` ` c. Discussion  S '  kq114.` ` In the Local Competition Order, we noted that the authority of a state is clear under  SZ' |$section 224(c)(1) to preempt federal regulation for access requests arising solely under section 224(f)(1).VZ {O'ԍ Local Competition Order at para. 1236.V  |$When a telecommunications carrier seeks access to LEC facilities or property under section 251(b)(4), the  |$reference in section 251(b)(4) to section 224 incorporates all aspects of the latter section, including the  S' |$state reverse preemption authority of section 224(c)(1).B.  {O'ԍ  Id. at para. 1237.B Thus, when a state has exercised its preemptive  |$tauthority under section 224(c)(1), a LEC satisfies its duty under section 251(b)(4) to afford access by  S' |$*complying with the state's regulations.B  {O'ԍ  Id. at para. 1239.B If a state has not exercised such preemptive authority, the LEC  Sj' |$must comply with the federal rules.3jR  {O\"'ԍ  Id.3 The Local Competition Order noted that Congress did not amend  |$Qsection 224(c)(2) to prescribe a certification procedure with respect to access (as distinct from the rates,  S' |$pterms, and conditions of access).B {O%'ԍ  Id. at para. 1240.B Parties seeking reconsideration have provided no new facts or  |$Iarguments to justify their requested rule changes. We note that, in a separate proceeding, we seek  |$*comment on whether additional certification is needed to ascertain whether a State is regulating the rates,"(v,p(p(88"  S' |$terms and conditions of access to facilities and rightsofway on multiple unit premises. {Oh' |$ ԍ See Notice of Proposed Rulemaking, Notice of Inquiry, and Third Further Notice of Proposed Rulemaking, FCC 99141, WT Docket No. 99217. The issue of State certification of such jurisdiction was not raised in this proceeding and is not decided herein.  S'  k,r115.` ` Rather than requiring states to undertake formal certification procedures that are not  |$supported by the text of section 224(c)(2), we determined that the burden of informing this Commission  |$when a state has exercised its reverse preemption authority should rest with the party seeking to rely upon  |$such authority in defending an access complaint filed before us. Although we decline to reconsider this  |$decision, we clarify that this applies to those states that have previously certified their regulation of rates,  |$terms and conditions of pole attachments. Our rule does not require such states to formally recertify in  |$order to assert their jurisdiction over access. However, if a state that has not previously certified its  |$authority over rates, terms and conditions wishes to begin to assert such jurisdiction, including jurisdiction  |$tover access pursuant to section 224(f), the state must certify its jurisdiction, as required under section  |$224(c)(2). We are mindful of the potential confusion and lack of certainty that could result in the absence of any certification, and do not believe that Congress intended such a result.  S '  ks116.` ` We reiterate that, upon the filing of an access complaint with this Commission, the  |$defending party or the state itself should come forward to apprise us whether the state is regulating such  SX' |$cmatters.UX" {O'ԍ  Local Competition Order at para. 240.U If so, pursuant to the Local Competition Order, we shall dismiss the complaint without  S2' |$prejudice to it being brought in the appropriate state forum.3 2 {O'ԍ  Id.3 We require any party seeking to  |$demonstrate that a state regulates access issues to cite the state laws and regulations governing access and  S' |$establishing a procedure for resolving access complaints in a state forum.3 F {O'ԍ  Id.3 We continue to believe that  |$*these procedures are consistent with the language and intent of the statute, and unduly burden neither the parties to an access complaint, nor the state entities responsible for pole attachment regulation.  SB' G.` ` Other Issues  S' ` ` a. 45 DayTime Limit on Utility Evaluation of Attachment Request  S'  kh t117.` ` The Local Competition Order stated that, because time is of the essence in access requests,  S|' |$xa utility must respond to a written request for access within 45 days.B | {O!'ԍ  Id. at para. 1224.B If access is not granted within 45  ST' |$days of the request, the utility must confirm the denial in writing by the 45th day. EEI and UTC request  |$that we clarify that an entity requesting access to utility facilities must provide clear and sufficient  |$Qinformation in order for the utility to evaluate the request, and the Commission should specify that 45day  S' |$&time period to respond to request does not start until all the necessary information is provided.A j  yO&'ԍ EEI/UTC comments at 14.A The") ,p(p(88+"  |$kJoint Cable Parties and NCTA respond that giving more than 45 days would be unreasonable and contrary  S' |$to industry practice.b  yO@'ԍ Joint Cable Parties comments at 13; NCTA comments at 30.b According to the Joint Cable Parties and NCTA, in the event a utility were to find  |$Qthat a particular request for access would take longer than 45 days to evaluate, the utility should apply for a waiver of the 45 day limit.  S8'  kzu118.` ` Based upon the record before us, we decline to reconsider the procedural rules under  |$discussion. We expect that access requests would contain all pertinent and reasonably necessary  |$information for the utility's consideration of the request, and would follow established industry practices.  |$If the information in the request is incomplete, a utility may require a second access request. In such a  |$case, we would also expect the utility to notify the applicant of all pertinent defects in its application  |$promptly. It would not be acceptable to object, in a piecemeal fashion, to an access request containing multiple defects.  S '  kv119.` ` As we stated in the Local Competition Order, a telecommunications carrier or cable  S ' |$poperator filing a complaint with the Commission must establish a prima facie case.V X {O'ԍ  Local Competition Order. at para 1223.V A petitioner's  |$complaint, in addition to showing that it is timely filed, must state the grounds given for the denial of  S ' |$access, the reasons those grounds are unjust or unreasonable, and the remedy sought.3  {O 'ԍ  Id.3 The complaint  |$Qmust be supported by the written request for access, the utility's response, and information supporting its  S2' |$Eposition.32| {ON'ԍ  Id.3 We believe that an entity requesting access would provide the utility with sufficient  |$Minformation in its request, and this request will be part of the record in the Commission's evaluation of  S' |$a complaint regarding a denial of access. We reiterate that, "time is of the essence," and that by  |$@implementing specific complaint procedures for denial of access cases, we have established swift and  S'specific enforcement procedures that will allow for competition where access can be provided.B {O@'ԍ  Id. at para. 1224.B  SB' ` ` b.  Identification of Attachments  S'  kw120.` ` Several commenters ask that the Commission require attaching entities to "tag" their  S' |$attachments, in order to facilitate easy identification of attachers lines. {O !'ԍ See EEG/UTC comments at 13; Duquesne comments at 19; Carolina Power and Light comments at 21. We believe that, on a prospective  |$ basis, reasonable tagging requirements may be included in agreements between utilities and attachers.  |$This would help prevent confusion during modifications, would aid safety measures, and would help  |$*insure that notice of modifications are sent to the correct parties. Thus, we will permit utilities to require  |$tagging in their attachment agreements, as easy identification of attachers lines is in the best interests of the facility owner, the attaching entity, and the consumers of all of these services. "*2 ,p(p(88+"  S' IV. ORDERING CLAUSES  S'  kFx121.` ` Accordingly, IT IS ORDERED that, pursuant to sections 224, 251 and 303(r) of the  |$uCommunications Act of 1934, as amended, 47 U.S.C.  224, 251 and 303(r), the Order on Reconsideration is ADOPTED.  S'  kmy122.` ` IT IS FURTHER ORDERED, pursuant to section 405 of the Communications Act of  |$ 1934, as amended, 47 U.S.C.  405, and section 1.106 of the Commission's rules, 47 C.F.R.  1.106  |$(1995), that the petitions for reconsideration or clarification are DENIED IN PART and GRANTED IN PART to the extent indicated above.  S ' ` `  Ghh}FEDERAL COMMUNICATIONS COMMISSION ` `  Ghh}Magalie Roman Salas  S0'` `  Ghh}Secretary#Xj\  P6G;XP#"0+,p(p(88"  X' APPENDIX A Parties Filing Petitions and/or Oppositions and Comments on Petitions N~CC Docket No. 9698 zCC Docket No. 95185   W_4Petitions for Reconsideration and/or Clarification Regarding Access to Rightsof Way American Electric Power Service Corporation, Commonwealth Edison Company, Duke Power XCompany, Energy Services, Inc., Northern States Power Company, The Southern Company and Wisconsin Electric Power Company (AEP)  Carolina Power & Light (CP&L) Consolidated Edison Company of New York, Inc. (Con Edison) Delmarva Power & Light Company (Delmarva) Duquesne Light Company (Duquesne) Edison Electric Institute and UTC, The Telecommunications Association (EEI/UTC) (joined and supported by letter by Pennsylvania Power & Light Company (PP&L)) Florida Power & Light Company (FP&L) The Local Exchange Carrier Coalition (LECC) MCI Communications Corporation (MCI) Margaretville Telephone Company, Inc. (Margaretville) National Cable Television Association, Inc. (NCTA) Pacific Gas and Electric Company (PG&E)  W4 Oppositions and Comments in Response to Petitions for Reconsideration and/or  W4Clarification  AirTouch Communications, Inc. (AirTouch) (Comments) American Electric Power Service Corporation, Commonwealth Edison Company, Duke Power XCompany, Energy Services, Inc., Northern States Power Company, The Southern Company and Wisconsin Electric Power Company (AEP) (Opposition)  Ameritech (Opposition) Association for Local Telecommunications Services (ALTS) (Reply) AT&T Corporation (AT&T) (Opposition and Comments) BellSouth Corporation, BellSouth Enterprises, Inc., and BellSouth Telecommunications, Inc. (BellSouth) (Opposition and Comments) California Cable Television Association (CCTA) (Opposition) Cellular Telecommunications Industry Association (CTIA) (Opposition) Comcast Cellular Communications, Inc., and Vanguard Cellular Systems, Inc. (Comcast) (Comments) Competitive Telecommunications Association (CompTel) (Comments)"#',,p(p(88F%"ԌContinental Cablevision, Inc., Jones Intercable, Inc., Century Communications Corp., Charter XCommunications Group, Prime Cable, InterMedia Partners, TCA Cable TV, Inc., Greater Media, Inc., Cable TV Association of Maryland, Delaware & the District of Columbia, Inc., Montana Cable TV Association, South Carolina Cable Television Association, Texas Cable & Telecommunications Association (Joint Cable Parties) (Opposition)  Cox Communications, Inc. (Cox) (Opposition and Response) Duquesne Light Company (Duquesne) (Opposition) Edison Electric Institute and UTC, The Telecommunications Association (EEI/UTC) X(Comments)  GTE Service Corporation (GTE) (Opposition and Comments) MCI Communications Corporation (MCI) (Response) Margaretville Telephone Company, Inc. (Margaretville)(Reply) National Cable Television Association, Inc. (NCTA) (Opposition) NYNEX Telephone Companies (NYNEX) (Comments) Paging Network, Inc. (Paging Network) (Comments) Sprint Corporation (Sprint) (Opposition) Teleport Communications Group, Inc. (Teleport) (Comments and Opposition) United States Telephone Association (USTA) (Opposition) US WEST, Inc. (US WEST) (Comments) "-,p(p(88!"  X4E  Statement of Commissioner Harold W. FurchtgottRoth, 4Concurring in Part and Dissenting in Part d Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 9698.  X4  Xv4 G6!Today we reconsider various aspects of the 1997 Local Competition Order, which  |$implemented section 224 of the Telecommunications Act of 1996. I respectfully dissent from the  |$affirmation of these rules to the extent that they require utilities to expand capacity for the benefit  |$Vof attaching parties; limit utilities' ability to reserve space for themselves; and regulate labor and  |$Remployment practices with respect to attachments. In these regards, I think the rules go far  |$beyond the dictates of the statute. I concur in the rest of the Order, however especially in the decision not to require the exercise of eminent domain on behalf of wouldbe attachers.  V 4Capacity Expansions  X 4  X4 G6!I would not require any capacity expansions, as does today's decision. See supra Part  |$III.B. To be sure, section 224(f)(1) clearly requires nondiscriminatory access, but to what?  Xf4 |$Vto "any pole, duct, conduit, or rightofway owned or controlled by" a utility, not to some future  |$pole that the utility could install, a duct that it theoretically could build, or a rightofway  |$different from the one that exists at the time the request is made. The latter type of facilities are  |$not owned or controlled by the utility; they are wholly imaginary facilities that simply do not  |$exist. Moreover, nothing in this section speaks of a duty to build out, construct, or expand  |$infrastructure. It requires nondiscriminatory access, at regulated rates, but imposes no  |$"construction or expansion duties upon utilities. If Congress had meant to impose such a drastic  |$requirement on utilities (forced access being serious enough), I would think Congress would have  |$Edone so expressly. Given the lack of such language in section 224(f)(1), I would not read a capacity expansion requirement into the statute for utilities, electric or otherwise.  G6!If there were any reasonable doubt whether the plain language of 224(f)(1) requires  |$ccapacity expansions (and I do not think there is), the very next provision of the Act conclusively  |$/resolves it, as far as electric utilities are concerned. Mandating capacity expansions across the  X&4 |$board seems flatly contrary to section 224(f)(2), which provides that: "Notwithstanding [the access  X4 |$provision], a utility providing electric service may deny a cable television system or any other  |$telecommunications carrier access to its poles, ducts, conduits, or rightsofway, on a non X4 |$Sdiscriminatory basis where there is insufficient capacity. . .". 47 U.S.C. section  |$224(f)(2)(emphasis added). Where there is not enough room for the access requester, this  |$_language makes clear that an electric utility is fully within its rights to simply deny access, so long as it denies access to all other similarlysituated requesters.  G6!The Commission never deals with the express language of 224(f)(1). Instead, it points  |$lto the nondiscrimination "principle" of 224(f)(1) (this is all it can point to, since nothing in the  |$text of 224(f)(1) mentions expansions), arguing that this section prohibits all utilities (electric or otherwise) from refusing to build out for others if it would build out for itself. "/'.,p(p(88,%"Ԍ G6!ԙI believe that the Commission misapprehends the group that is protected from  |$discrimination, and as against whom. To my mind, "nondiscrimination" is not about  |$discrimination as between the utility itself and the requesters, but discrimination by the utility as  |$<among requesters. That is, nondiscrimination does not mean that the utility must treat all cable  |$ctelevision systems and telecommunications carriers just as it treats itself, but that the utility must  |$treat all cable televisions systems and telecommunications carriers just as it treats other cable  |$television systems and telecommunications carriers. Simply put, cable television systems and  |$telecommunications carriers all have a federal right of access to the enumerated facilities, and the  |$utility must grant that access on a fair and equal basis, without favoring one requester over another. But it does not require the utility to give requesters the same treatment it gives itself.  G6!Significantly, where Congress meant to require that companies treat others as they treat  |$lthemselves as opposed to treating other parties similarly it said so directly, in addition to,  |$cand independently of language mandating nondiscrimination. For example, in Title II, Congress  |$prequired that ILECS provide interconnection on "nondiscriminatory" rates, terms, and conditions,  X 4 |$47 U.S.C. section 251(c)(2)(C), and then went on to say in the next provision that they must also  X4 |$provide interconnection "that is at least equal in quality to that provided by the local exchange  X{4 |$/carrier to itself," id. section 251(c)(2)(D). If "nondiscrimination" already included the principle  |$Iof equal treatment as between the regulated entity and others, however, the additional language  |$Vin subsection (D) would be mere surplusage, adding nothing to subsection (C). Here, there is no  |$language requiring equal treatment with respect to a utility's treatment of itself, and we should not read it into the "nondiscrimination" duty.  G6!qThe Commission also attempts to justify its creation of the capacity expansion duty by  |$noting that it had a "regulatory practice" of requiring expansion and arguing that nothing in the  X4 |$1996 Telecommunications Act reflects an intent to eliminate that practice. See supra at para.  |$52.5. The question here is not whether the Act reflects an intent to change administrative  |$practices in effect at the time of passage. Any number of practices statutorily authorized or  |$not could be in effect when Congress legislates in an area; Congress is not required to make  |$@clear that those practices should be stopped before one can conclude that the practice is statutorily  |$unauthorized. The question is whether the Act reflects an intent to create a duty to expand  |$capacity, above and beyond the existing duty of nondiscriminatory access to existing facilities. The text of section 224 yields no such conclusion, past regulatory practice notwithstanding.  V4Reservation of Space  G6!I also would not compel utilities to present to the Commission "bona fide" development  X!4 |$plans in order to reserve capacity for themselves.  Supra Part III.B. Again, I do not think the  |$R"nondiscrimination principle" mandates this scheme, since the issue is not whether the utility  |$does things for itself that it does not do for others, but whether it does things for some requesters  |$that it does not do for other requesters. So, if a utility wants to reserve space for itself, that does  |$not constitute discrimination among wouldbe attachers. Moreover, these "reservation" regulations  |$places the Commission in the position of reviewing state utilities' business plans for legitimacy.  |$<This is federal micromanagement, conducted by an agency wholly outside its area of expertise"+'/,p(p(88%"  |$8(we know little to nothing about planning for the provision of utility services), and it is simply not required by the statute.  V4Exercise of Eminent Domain to Accommodate a Request for Access  Xv4 G6!AThe abovediscussed capacity expansion requirement is not only outside the terms of the  |$8statute, but its implementation creates wrinkles in state law, making it all the more clear that  |$RCongress probably never intended such an obligation. Specifically, because the Commission  |$crequires expansions of existing rightsofway, it must face the consequent issue whether utilities  |$can be required to exercise statecreated, stategranted, and stategoverned rights of eminent domain in order to effectuate the perceived purposes of section 224.  G6!Fortunately, the Commission reverses on reconsideration its original decision to mandate  X 4 |$such action, supra at Part III.A.2, for that decision represented an extraordinary assertion of  |$federal authority over the most traditional of state powers in order to advance a federal program.  X4 |$As such, I believe that the eminent domain requirement caused Tenth Amendment problems. See  X}4 |$U.S. Const. Amdt. X "(The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").  G6!Under the old rules, the Commission would have pressed into service the core state power  X!4 |$of eminent domain, as delegated to its utilities. Cf. Alden v. Maine, 119 S. Ct. 2240, 2264 (1999)  |$}("A power to press a State's own courts into federal service to coerce the other branches of the  |$State . . is the power first to turn the State against itself and ultimately to commandeer the entire  |$_political machinery of the State against its will and at the behest of individuals. Such plenary  |$federal control of state governmental processes denigrates the separate sovereignty of the States.")  X4 |$(citation omitted); see also Printz v. United States 521 U.S. 898 (1997) (Brady Act violated the  |$Tenth Amendment because it imposed unconstitutional obligation on state officers to execute  X4 |$federal laws). The mandatory exercise of this power was considered necessary in order to  |$achieve the goals of purely federal regulatory program, not in order to effectuate any possible state interest.  G6!Eminent domain is a core and traditional power of sovereign States, one that was never  |$cdelegated by the Constitution to the federal government. As such, it rests exclusively within the  |$pprovince of the States, and I do not see how the Commission could have compelled the exercise  X4 |$of such power. As the Supreme Court has explained, "federal action [that] would 'commandeer'  |$state governments into the service of federal regulatory purposes" is "inconsistent with the  X!4 |$Constitution's division of authority between federal and state governments." New York v. United  X"4 |$States, 505 U.S. 144, 175 (1992). The Commission thus does well to reconsider this aspect of pole attachment regulations.  G6!4(Of course, the statute evinces no more proof "that Congress intended for section 224 to  XF&4 |$compel a utility to exercise eminent domain," supra at para. 38, than it does that Congress meant  |$for the statute to force a utility to build out its plant in the first place. If the Commission stuck"1'0,p(p(88%"  |$to this approach to statutory construction, it would not find a capacity expansion requirement in the statute either.)  V4Qualifications of Workers  G6!WThe Commission on reconsideration keeps intact its regulations regarding the types of  Xv4 |$Zworkers that can be used for the installation of requested attachments. See supra at paras. 8687.  |$The Commission thus bars utilities from designating the workers that should be used to attach  |$'equipment to their own facilities. Put directly, I see nothing in section 224 that gives this  |$Commission authority to regulate the labor and employment practices of electric utilities. This is simply not a case of statutory ambiguity.  X 4` `  G*hh}*pp"*  G6!For the reasons discussed above, it seems to me that these pole attachment regulations,  |$lby requiring capacity expansions, limiting reservations of space by utilities, and regulating the  |$qualifications of workers who install pole attachments, go much further than the statute requires.  |$<I expressly support, however, the decision to repeal the regulations requiring utilities to exercise eminent domain rights on behalf of third parties. "61,p(p(88D"  a46#^\  P6Q CP# SEPARATE STATEMENT OF COMMISSIONER MICHAEL POWELL,  a 4 CONCURRING IN PART, DISSENTING IN PART  X4l# XP\  P6QXP#  X4XX` ` Re:` ` Implementation of the Local Competition Provisions in the Telecommunications  X4Act of 1996 (CC Docket No. 9698) heading 1(#`    4Gheading 1 ۃ  X 4 G6!W As I have articulated on many occasions, I fully support taking the steps necessary to  X 4 |$Ipromote and insure local competition. To this end, our Local Competition Order, among other  X4 |$"things, implemented the pole attachment provisions of the Telecommunications Act of 1996#+footnote reference#X01Í ÍX01ÍÍ + {O 'footnote text#`+footnote reference##C\  P6QQwP#э)S`+`footnote reference)See 47 U.S.C.  224(f). + so  |$that cable television systems and telecommunications carriers have nondiscriminatory access to  X 4 |$poles, ducts, conduits, and rightsofway owned by utilities or local exchange carriers.)+footnote reference)#+footnote reference#g\ " {O ' x #X\  P6G;QwP#эSee Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CCDocket  {OK'No. 9698, First Report and Order, 11 FCC Rcd 15499, 16058107 (1996) (Local Competition Order).  g Many  X 4 |$Eof the decisions in the Order we adopt today reaffirm and recognize the importance of non |$"discriminatory access to the development of competition, and, in turn, the provision of choice to  X 4 |$consumers. That said, I must respectfully dissent to the extent that the Order requires a utility  |$providing electric service to expand the capacity of its poles, ducts, conduits, and rightsofway  |$in order to accommodate a request for attachment. I believe that such a requirement is contrary to the plain language of the statutory mandate.  X4 G6!This Order addresses petitions for reconsideration or clarification of the access  X4 |$requirements of the Local Competition Order. Specifically, my concern lies in the portion of the  |$item that relates to capacity expansion. Section 224(f)(1) of the Act, one of the provisions  X4 |$implemented in the Local Competition Order, mandates that a utility)+footnote reference)#+footnote reference#U~ yO' x8 #X\  P6G;QwP#эSection 224 (a)(1) defines a utility as any person who is a local exchange carrier or an electric, gas,  ! water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rightsofway used, in whole  ! or in part, for any wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State. 47 U.S.C.  224 (a)(1). U provide either a  |$telecommunications carrier or cable television system with nondiscriminatory access to any  X4 |$pole, duct, conduit, or rightofway owned or controlled by it.)_+footnote reference)#+footnote reference#tf  yO'ԍ#X\  P6G;QwP#47 U.S.C.  224(f)(1).t This Order reaffirms the finding  X4 |$of the Local Competition Order that requires a utility to expand capacity at the request of a  X{4 |$telecommunications carrier or cable television system, just as it would to meet its own needs.)+footnote reference)#+footnote reference#{.   {O"' "_ Ѝ#X\  P6G;QwP#See Order  52 ( We reiterate that the principle of nondiscrimination established by section 224 (f)(1)  x requires a utility to take all reasonable steps to expand capacity to accommodate requests for attachment just as it would expand capacity to meet its own needs).   |$}Generally I agree that the nondiscrimination principle requires a utility to expand capacity at the  |$request of a telecommunications carrier or cable television system. My specific disagreement is"M2 ,p(p(88"  X4 |$that this Order ignores that Congress explicitly excepted electric utilities from this general obligation.  G6!Although I concur in that the nondiscrimination provision discussed in section 224(f)(1)  |$can be read to require that certain utilities expand capacity for a request of attachment, I believe  X4 |$that the Order fails to sufficiently recognize the exemption discussed in section 224(f)(2), and  |$lincorrectly requires that electric utilities provide for this capacity expansion against their will. Section 224(f)(2) states that:  G6!X [n]otwithstanding paragraph [(f)] (1), a utility providing electric service may deny a  G6!cable television system or any telecommunications carrier access to its poles, ducts,  G6!conduits, or rightsofway, on a nondiscriminatory basis where there is insufficient  G6!capacity and for reasons of safety, reliability and generally applicable engineering  X 4purposes.)0+footnote reference)#+footnote reference#v)   yO'ԍ#X\  P6G;QwP#47 U.S.C.  224(f)(2). v (#  |$The language unambiguously reserves to electric utilities the right to deny access if there is not  |$sufficient capacity on its poles, or in its ducts or conduits, or in its rightsofway. There is  |$'nothing in the statute from which to draw the conclusion that Congress meant the words  Xf4 |$ insufficient capacity to mean insufficient expanded capacity, nor does this Order cite to any legislative history to support such a position.  G6!Indeed, it is hard to see how you can give section 224(f)(2) any meaning at all if an  |$}electric utility is required to expand its poles, ducts or conduits, or even expand its rightsofway,  |$cto accommodate requests for attachment. There is no apparent point at which an electric utility  |$could actually deny a request. Thus, the better reading is that upon a request for attachment, the  |$electric utility is not mandated to expand capacity of its poles under the nondiscrimination  |$lprinciple drawn from section 224(f)(1). Instead, the electric utility must only ensure that any denials of such requests are done so on a nondiscriminatory basis.  Xk4For the aforementioned reasons, I concur in part and dissent in part from this Order.