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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                 )
Nevada  State  Cable  Television )
Association,        Complainant  )    File No. PA 96-001
                                )
                           v.    )
Nevada Bell,                     )
    Respondent/Petitioner       )
                                )


                    ORDER ON RECONSIDERATION

     Adopted:  August 6, 2002                          Released:  
August 8, 2002

By the Chief, Enforcement Bureau:1

     1.   In this Order, we  deny a petition for  reconsideration 
("Petition") of Cable Services Bureau Order, DA 98-1175  ("Bureau 
Order").2 The Bureau  Order granted a  pole attachment  complaint 
filed by  Nevada  State Cable  Television  Association  ("NSCTA") 
against  Nevada   Bell,   pursuant   to  Section   224   of   the 
Communications Act of 1934,  as amended ("Pole Attachment  Act")3 
and Subpart  J of  Part 1  of the  Commission's rules.4   In  the 
Bureau Order, the Cable Services Bureau found Nevada Bell's  pole 
attachment rates to be unjust  and unreasonable and calculated  a 
just  and  reasonable  pole  attachment  rate.   NSCTA  filed  an 
Opposition and Nevada Bell filed  a Reply.  We affirm the  Bureau 
Order.

     2.   Pursuant to the Pole Attachment Act, the Commission has 
the authority to  regulate the rates,  terms, and conditions  for 
attachments  by  a  cable   television  system  or  provider   of 
telecommunications service to a pole, duct, conduit, or right-of-
way owned or controlled by  a utility.5  The Pole Attachment  Act 
grants the Commission general  authority to regulate such  rates, 
terms and conditions, except where such matters are regulated  by 
a  State.6    The  Commission  is  authorized  and  has   adopted 
procedures necessary to resolve complaints concerning such rates, 
terms, and conditions.7  The  Commission has developed a  formula 
methodology to determine maximum allowable pole attachment  rates 
to ensure that such  rates are just  and reasonable.8  A  utility 
may not  charge more  than the  maximum amount  permitted by  the 
formulas  developed  by  the  Commission.   The  Commission   has 
concluded that "where  onerous terms or  conditions are found  to 
exist on  the basis  of  the evidence,  a  cable company  may  be 
entitled to a  rate adjustment or  the term or  condition may  be 
invalidated."9

     3.   In  its  Petition,  Nevada   Bell  raises  two   issues 
concerning the  Cable  Services Bureau's  calculation  of  Nevada 
Bell's maximum permitted  rate.  First,  Petitioner asserts  that 
the Bureau  Order "failed  to  explain how  the rate  it  adopted 
applies to jointly  owned as  opposed to  solely owned  poles".10 
Nevada Bell claims that, because the poles in issue were  jointly 
owned with  another utility  ("electric utility"),  the  electric 
utility is entitled to charge a separate rental fee based on  the 
Common Carrier  Bureau's decisions  in Continental  Cablevision11 
and Teleprompter  Corporation.12   Nevada Bell  argues  that  the 
Cable Services Bureau should have set a maximum rate that allowed 
Nevada Bell to be compensated for the electric utility's costs in 
addition to Nevada Bell's costs. NSCTA responds that Nevada  Bell 
is not entitled to  collect a pole attachment  rate on behalf  of 
the electric utility, citing  Nevada Bell's Joint Pole  Agreement 
with the  electric utility,  which states  that Nevada  Bell  may 
retain any  rental fees  from attachments  in the  communications 
space of the jointly owned poles.13  

     4.   The record does not support Nevada Bell's argument.  As 
NSCTA points out,  Nevada Bell's  Joint Pole  Agreement with  the 
electric utility states  that Nevada Bell  may retain any  rental 
fees from attachments in the communications space of the  jointly 
owned poles. Indeed,  in its  Response to  the Complaint,  Nevada 
Bell stated that it did not propose to set a pole attachment rate 
for the electric utility.14  There is no evidence in the  record, 
which includes  the pole  attachment agreements  between  NSCTA's 
members and Nevada Bell, that  supports Nevada Bell's claim  that 
it is collecting pole attachment  fees on behalf of the  electric 
utility.  

     5.   In fact, the issue of joint ownership was considered by 
the Cable Services  Bureau ("Bureau") in  its calculation of  the 
maximum rate  Nevada Bell  was entitled  to charge.   The  Bureau 
accepted Nevada Bell's proposed number of equivalent poles as the 
total pole  count  to  be  used in  the  formula.15   Because  an 
equivalent pole count  was used in  the rate calculation,  Nevada 
Bell is able to recover its fully allocated costs associated with 
the pole attachments, in accordance with the Pole Attachment Act. 
In the Bureau Order, the  Bureau determined that Nevada Bell  may 
charge a maximum per pole attachment rate of $1.26 for poles  for 
which Nevada Bell's  ownership interest is  100 percent.  To  the 
extent Nevada Bell seeks  to clarify that it  may collect only  a 
proportionate amount of the maximum $1.26 rate per pole, based on 
its ownership interest  percentage, we clarify  as follows:   For 
solely owned poles,  the maximum  attachment rate  is $1.26;  for 
jointly owned  poles  in which  Nevada  Bell owns  a  50  percent 
interest, the maximum attachment rate  is $0.63; and for  jointly 
owned poles in which Nevada Bell owns a 40 percent interest,  the 
maximum attachment rate is $0.50.16  Because Nevada Bell used  an 
equivalent pole count  in calculating the  rate per pole,  Nevada 
Bell will fully recover its  costs despite the reduction in  rate 
for the jointly owned poles.17  

     6.   Nevada Bell's reliance  on Continental Cablevision  and 
Teleprompter Corporation to support its claim for additional fees 
is misplaced.   In Continental  Cablevision, the  Common  Carrier 
Bureau merely  noted  that the  utility  could only  collect  its 
portion of the maximum rate based on its ownership  percentage.18   
Although the Common Carrier Bureau stated that it was possibility 
that a joint owner  could collect a separate  rental fee for  its 
share of  the poles,  in the  instant case,  no other  entity  is 
sharing in the fees and Nevada Bell may not collect an additional 
fee  on  such   entity's  behalf.    Likewise,  in   Teleprompter 
Corporation, the Common Carrier Bureau did calculate rates  based 
on the separate costs of  the individual utilities.  Unlike  this 
case, however, in  Teleprompter Corporation  both utilities  were 
parties to the case and both utilities separately collected  pole 
attachment fees.  The  Bureau Order  is consistent  with both  of 
these decisions.  Based  on the  record evidence,  we affirm  the 
Cable Services Bureau conclusion that Nevada Bell is not entitled 
to receive an additional fee over its maximum permitted rate.  

     7.   Nevada Bell's second issue concerns the Cable  Services 
Bureau's decision not to depart from its standard formula,  which 
relies on publicly  filed and  verifiable data,  to allow  Nevada 
Bell to substitute an internally generated number in the  formula 
for pole  investment  accumulated deferred  taxes  ("Pole  ADT"), 
rather than using a prorated number calculated from the  publicly 
available and independently verifiable data reported to  ARMIS.19    
Nevada Bell argues that the  internally generated figure is  more 
accurate because the Cable Services Bureau used a pole investment 
related  accumulated  depreciation  ("Pole  AD")  figure  in  its 
calculation and the two numbers  are linked.  Nevada Bell  argues 
that this is the type of inconsistency frowned on by the court in 
Alabama Power.20 Nevada Bell argues that the Pole Attachment  Act 
requires the use of actual figures  and a prorated figure is  not 
an actual figure.  Nevada Bell argues that the proration  method, 
although  applied  by  the  Common  Carrier  Bureau  in  American 
Cablesystems21 and TCA Management,22  is not an established  part 
of the pole attachment formula.

     8.   NSCTA responds that Nevada Bell  should not be able  to 
pick and choose specific internal  accounts to substitute in  the 
formula when  it  results in  a  lower rate  calculation.   NSCTA 
argues that  selective use  of internal  accounts results  in  an 
"unbalancing" of the formula.  NSCTA also argues that reliance on 
internal  records  significantly  increases  the  likelihood   of 
factual disputes and reduces  an attacher's ability to  calculate 
the maximum  rate using  publicly available  information.   NSCTA 
explains that  using internal  accounts would  result in  a  more 
complicated formula  but  would not  be  any more  accurate  than 
relying on  publicly available  information.  NSCTA  argues  that 
Nevada Bell misconstrues  Alabama Power,  which did  not in  fact 
disapprove of  using proration  as a  methodology for  allocating 
costs.  NSCTA also disagrees  with Nevada Bell's contention  that 
the Common Carrier  Bureau's restatement of  the pole  attachment 
formula in American  Cablesystems23 and TCA  Management24 has  no 
precedential value for this case.

     9.   To determine  a  just and  reasonable  pole  attachment 
rate,  Congress   directed  the   Commission  to   institute   an 
expeditious program "which will  necessitate a minimum of  staff, 
paperwork and  procedures  consistent  with  fair  and  efficient 
regulation."25  To that end,  Congress noted that although  there 
may be  some  difficulty in  determining  the components  of  the 
operating expenses  and  actual  capital costs  of  the  utility, 
special accounting measures  or studies should  not be  necessary 
since the majority of the cost and expense items attributable  to 
the utility pole  plant are already  established and reported  to 
various  regulatory  bodies  and  therefore  the  information  is 
already a matter of public record.26  The Commission has  stated, 
"we expect  to  continue  to use  a  methodology  which  utilizes 
publicly available data, does not require ratemaking proceedings, 
and lends itself to an expeditious resolution of disputes.  It is 
our intent  to conform  to  the will  of  Congress and  to  avoid 
protracted  proceedings,  special  studies,  or  submissions   of 
internal corporate data to the maximum extent possible."27

     10.  The Commission  has expressed  a preference  for  using 
publicly available data to calculate the maximum pole  attachment 
rate.28  In Television Cable  Service, Inc. v. Monongahela  Power 
Co.,29  the  Commission  expressed   its  preference  for   "data 
developed for regulatory  purposes."30  Nevertheless,  we do  not 
require  that  only  publicly   available  data  be  used.    The 
provisions in the  rules requiring utilities  to provide data  to 
attachers anticipate that  some data may  be available only  from 
the  utility.   However,  in  complaint  proceedings,  where  the 
Commission may take notice  of information in publicly  available 
filings made by the parties, it  is our practice "in the  absence 
of supported  carrying charges  .  . .  to  use the  figure  from 
publicly available information."31

     11.  For regulatory purposes, utilities depreciate equipment 
over   its   estimated   useful   life   using   straight    line 
depreciation.32  For tax purposes, however, a utility might claim 
higher depreciation expense  in the  early years  of the  service 
life of an asset and  lower depreciation in later years,  through 
accelerated depreciation  and  investment  tax  credits.33   This 
results in lower  tax payments  with respect to  the early  years 
which are offset by  increased tax payments  in later years.  The 
amount of income  taxes deferred through  the use of  accelerated 
depreciation  is   recorded  for   accounting  purposes   in   an 
accumulated deferred tax  reserve and  represents funds  provided 
for capital investment.  The majority  of regulatory  commissions 
which follow tax normalization  practice deduct the  depreciation 
related deferred income  taxes from the  utility's rate base,  to 
prevent the utility from earning a  return on the portion of  its 
investment financed by the reserve.34  

     12.  The Commission has stated that "[i]t is essential  that 
a uniform method for  the normalization of  taxes be utilized  to 
permit interested parties to independently verify, from  publicly 
available data, the reasonableness  of a utility's procedure  for 
determining the tax component of the carrying charge.  Consistent 
with our goal of utilizing a simple and predictable approach,  we 
have chosen  formulas which  are  both reasonable  and  straight-
forward. . . .  We have also determined  that our application  of 
tax normalization  should include  an adjustment  to reflect  the 
state regulatory commissions'  treatment of accumulated  deferred 
tax reserve.  . .  . If  the state  regulatory commission  treats 
deferred  taxes  as  a  rate  base  deduction  the  formula   for 
determining pole attachment rates  should include a deduction  of 
the   accumulated   tax   reserve   from   the   utility's   pole 
investment."35  Therefore, consistent with the appropriate  state 
commission's treatment of the  accumulated deferred tax  reserve, 
when determining  the net  cost of  a bare  pole, we  reduce  the 
utility's pole investment by subtracting accumulated depreciation 
and accumulated  deferred  taxes  to  prevent  the  utility  from 
earning a return on the accumulated deferred tax reserve.36   

     13.  The  pole  attachment  formula  requires  the  use   of 
proration in several contexts.  For example, when calculating the 
administrative portion  of the  carrying charges,  we divide  the 
total plant administrative expenses by the net plant  investment, 
which results  in  a percentage  reflecting  the ratio  of  total 
administrative expenses to net  plant investment.  We then  apply 
that percentage to the net pole investment, in essence, prorating 
the administrative charges from net plant investment to net  pole 
investment to yield a  reasonable estimate of the  administrative 
expenses related to poles.  This methodology was approved by  the 
court in  Alabama  Power.37   In order  to  determine  net  plant 
investment, we subtract  the plant  related accumulated  deferred 
taxes ("Plant ADT")  and plant  related accumulated  depreciation 
("Plant AD")  from  the  gross plant  investment.   Likewise,  we 
determine net pole  investment by  subtracting the  Pole ADT  and 
Pole AD from the gross  pole investment.  When applying the  pole 
attachment formula to  electric utilities,  we generally  prorate 
both the  Pole AD  and  the Pole  ADT, using  publicly  available 
information about the Plant AD and the Plant ADT.  We divide  the 
gross pole investment by the gross plant investment and  multiply 
that figure  by the  Plant AD  and Plant  ADT to  determine  what 
portion of the Plant  AD and Plant ADT  is reasonably related  to 
gross pole investment.  For  telephone utilities, we prorate  the 
Pole ADT  but not  the Pole  AD  because the  Pole AD  figure  is 
available in the ARMIS report.  Because we have a more  accurate, 
publicly available  and verifiable  figure, we  use that  in  the 
formula.

     14.  Nevada Bell  would  like to  substitute  an  internally 
generated negative number for its Pole ADT figure in the formula.  
When subtracted from  Nevada Bell's gross  pole investment,  this 
would actually increase the net cost of a bare pole and  increase 
the pole attachment  rate.  If  we were to  accept Nevada  Bell's 
proposal, we would  be required  to inquire  and investigate  why 
Nevada Bell  has  a  negative Pole  ADT.   Although  Nevada  Bell 
provides a spread sheet  that totals negative $1,060,000,  Nevada 
Bell offers no detailed  explanation of its  spread sheet and  no 
reconciliation with the Plant ADT  figure available in the  ARMIS 
report, which is a positive figure.  While Nevada Bell does offer 
a general explanation of how it obtained a negative Pole ADT,  it 
provides no specific details that would help clarify this anomaly 
or explain how  this negative  number is reflected  in its  gross 
pole investment.    

     15.  Nevada Bell does raise an interesting point  concerning 
the relationship of the Pole  AD and Pole ADT figures.   However, 
rather than arguing that we use a prorated Pole AD figure, as  we 
would use with an electric utility, instead of the more  accurate 
Pole AD figure  as reported  in ARMIS, Nevada  Bell rejects  this 
argument out  of hand.38   In addition,  although we  agree  with 
NSCTA that use of  the internal Pole ADT  figure might affect  or 
require additional adjustments  to other formula  calculations,39 
just as any change  in one input to  the formula will affect  the 
overall pole attachment rate, our goal is to use the most simple, 
expeditious and accurate  formula that will  result in a  maximum 
just  and  reasonable  rate.    Therefore,  the  Commission   has 
concluded that the more accurate Pole  ADT figure may be used  in 
the formula, once  that figure is  publicly reported in  ARMIS.40  
Additional issues relating to the telephone utilities' regulatory 
accounting  reporting  requirements  can  be  addressed  as  they 
arise.41  For  purposes  of this  case,  however, we  affirm  the 
Bureau  Order.    Nevada  Bell   has  not   provided   sufficient 
information or explanation  to support its  use of an  internally 
generated report.

     16.  Accordingly, IT IS ORDERED, pursuant to Sections 0.111, 
0.311 and 1.106 of  the Commission's rules,  47 C.F.R.   0.111, 
0.311 and 1.106, that the petition for reconsideration of  Nevada 
State Cable Television Association v. Nevada Bell, PA 96-001,  DA 
98-1175, 13 FCC Rcd 16774 (CSB 1998), IS DENIED.

     17.  IT IS FURTHER ORDERED,  pursuant to Sections 0.111  and 
0.311 of the Commission's  rules, 47 C.F.R.   0.111 and  0.311, 
that Nevada State Cable Television Association v. Nevada Bell, PA 
96-001, DA 98-1175, 13 FCC Rcd 16774 (1998), IS CLARIFIED TO  THE 
EXTENT INDICATED HEREIN.
                              
                              FEDERAL COMMUNICATIONS COMMISSION



                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

1  Effective   March  25,   2002,  the   Commission   transferred 
responsibility for resolving pole attachment complaints from  the 
former Cable  Services Bureau  to  the Enforcement  Bureau.   See 
Establishment of  the  Media  Bureau,  the  Wireline  Competition 
Bureau  and  the  Consumer   and  Governmental  Affairs   Bureau, 
Reorganization   of   the   International   Bureau   and    Other 
Organizational Changes, FCC 02-10, 17 FCC Rcd 4672 (2002).
2 Nevada State  Cable Television Association  v. Nevada Bell,  PA 
96-001, DA 98-1175, 13 FCC Rcd 16774 (CSB 1998).
3 47 U.S.C.  224.
4 47 C.F.R. 1.1401-1.1418.
5 47 U.S.C.  224 (b) (1).
6 47 U.S.C.  224 (b) and  (c). Nevada has not certified that  it 
regulates rates, terms  and conditions of  pole attachments.  See 
Public Notice,  "States That  Have Certified  That They  Regulate 
Pole Attachments," 7 FCC Rcd 1498 (1992).
747 U.S.C.  224 (b)(1).
8 See Adoption of  Rules for the  Regulation of Cable  Television 
Pole Attachments,  First  Report and  Order,  68 F.C.C.  2d  1585 
(1978);  Second  Report  and  Order,  72  F.C.C.  2d  59  (1979); 
Memorandum and Order, 77 F.C.C. 2d 187 (1980), aff'd, Monongahela 
Power Co. v. FCC,  655 F.2d 1254 (D.C.  Cir. 1985) (per  curiam); 
and Amendment of Rules and  Policies Governing the Attachment  of 
Cable Television  Hardware  to  Utility Poles,  2  FCC  Rcd  4387 
(1987).  See  also,  Implementation  of  Section  703(e)  of  the 
Telecommunications Act  of  1996,  13 FCC  Rcd  6777  (1998)  and 
Amendment of Rules  and Policies Governing  Pole Attachments,  15 
FCC Rcd 6453 (2000), pet. for recon. denied in part, Amendment of 
Commission's Rules and  Policies Governing  Pole Attachments,  CS 
Docket  No.  97-98;  Implementation  of  Section  703(e)  of  the 
Telecommunications Act  of 1996,  FCC 01-170,  16 FCC  Rcd  12103 
(2001), appeal pending sub  nom. Southern Company Services,  Inc. 
et al. v. FCC, Case No. 01-1326 (D.C. Cir., filed July 26, 2001).
9Amendment of  Rules and  Policies  Governing the  Attachment  of 
Cable Television Hardware to Utility Poles, Memorandum Order  and 
Opinion on Reconsideration, 4 FCC Rcd 468, 471 at  26 (1989).
10 Petition at p. 1.
11 Continental  Cablevision of  New  Hampshire, Inc.  v.  Concord 
Electric Company, PA 82-0074, Mimeo No. 5536, 1985 FCC Lexis 3023 
(CCB 1985).
12  Teleprompter  Corporation  v.   New  England  Telephone   and 
Telegraph Company, et  al., PA  79-0044, Mimeo  No. 002016  (CCB, 
released July 14, 1981).
13 See Joint Pole Agreement, Complaint Exhibit E at Section VIII.
14 Response at p. 8, n. 4.
15 In determining the cost of a bare pole, an element of the pole 
attachment formula, the pole investment  is divided by the  total 
number of poles owned  or controlled by  the utility.  The  total 
number  of  poles  must  be  adjusted  to  the  total  number  of 
equivalent poles if some of the utility's poles are jointly owned 
by another entity.   The number  of equivalent  poles equals  the 
number of solely owned poles plus the sum of the products of  the 
numbers of jointly owned poles times their ownership percentages.  
For example, if  a utility owns  100 percent of  10 poles and  50 
percent of  20  poles, that  utility  owns 20  equivalent  poles. 
Where, as here, both parties  to the proceeding stipulate to  the 
number of equivalent  poles, the staff  does not inquire  further 
about the number of jointly owned poles.
16 See Joint Pole Agreement, Complaint Exhibit E at Section X.
17 E.g.,  if  a  utility owns  20  poles  and 50  percent  of  20 
additional poles, its equivalent pole count is 30.  Assuming  its 
total net pole investment and  carrying charges are $300.00,  the 
per pole rate  is $10.00.  If  it collects for  an attachment  on 
every pole, it will collect 20 x $10.00 and 20 x $5.00 =  $300.00 
for a full recovery.
18 Continental Cablevision at n. 11.  
19Automated Reporting and Management Information System.
20 Alabama Power  Company v.  Federal Communications  Commission, 
773 F.2d 362 (D.C. Cir. 1985).
21 American Cablesystems  of Florida, Ltd.,  et al.   v.  Florida 
Power &  Light Company  and TCA  Management Co.  v.  Southwestern 
Public Service Co., PA 91-0012,  10 FCC Rcd 10934 (CCB 1995).
22 TCA Management  Co., et  al., v.  Southwestern Public  Service 
Company, PA 90-0002, 10 FCC Rcd 11832 (CCB 1995).
23 American Cablesystems  of Florida, Ltd.,  et al.   v.  Florida 
Power &  Light Company  and TCA  Management Co.  v.  Southwestern 
Public Service Co., PA 91-0012,  10 FCC Rcd 10934 (CCB 1995).
24 TCA Management  Co., et  al., v.  Southwestern Public  Service 
Company, PA 90-0002, 10 FCC Rcd 11832 (CCB 1995).
25 See S. Rep. No. 95-580, 95th Cong., 1st Sess. at 21 (1977).  
26 Id. at 19-20.
27 Notice of Proposed Rulemaking, Amendment of Rules and Policies 
Governing the Attachment of Cable Television Hardware to  Utility 
Poles, CC Dkt. No. 86-212, FCC 86-274 (released June 6, 1986).  
28 See Amendment of Rules  and Policies Governing the  Attachment 
of Cable Television Hardware to Utility Poles, 2 FCC Rcd 4387  at 
 37, 47, and 52 (1987).
29 Television Cable Services, Inc.  v. Monongahela Power Co.,  88 
F.C.C. 2d 63 (CCB 1981), modified in part, FCC 81-488, 88  F.C.C. 
2d 56 (1981). 
30 Id. at  20.
31 Teleprompter v. C&P of West Virginia, FCC 80-372, 79 F.C.C. 2d 
232 at  17 (1980).  See also Texas Cable and  Telecommunications 
Association v. GTE Southwest Incorporated, DA 99-348, 14 FCC  Rcd 
2975 at  26-29 (CSB 1999).
32 Amendment of  Rules and Policies  Governing the Attachment  of 
Cable Television Hardware to Utility Poles, 2 FCC Rcd 4387 at   
45-52 (1987).
33 Id.
34 Id.
35 Id. at  52.
36 Id.
37 773 F.2d at 369-370.
38 Petition at p. 7.
39 See, e.g., Comments of  SBC Communications, Inc. at pp.  19-22 
(filed June  27,  1997)  and Reply  Comments  of  National  Cable 
Television Association , et  al. at pp.  33-34 (filed August  11, 
1997) in  CS  Docket  No. 97-98,  concerning  the  administrative 
carrying charge calculation.
40 See  Amendment of  Commission's Rules  and Policies  Governing 
Pole Attachments, CS Docket No. 97-98; Implementation of  Section 
703(e) of the Telecommunications Act of 1996, FCC 01-170, 16  FCC 
Rcd 12103  at   104  (2001), appeal  pending sub  nom.  Southern 
Company Services,  Inc. et  al. v.  FCC, Case  No. 01-1326  (D.C. 
Cir., filed July 26, 2001).
41 See, e.g., discussion concerning  when net pole investment  is 
zero or negative, id. at  26-42.