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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554
                                                  
In the Matter of                  )
                                  )
Teleport Communications           )
Atlanta, Inc.                     )
Complainant,                      )
                                  )         File No. PA 00-005
v.                                )
                                  )
Georgia Power Company,            )
Respondent                        )
                                  )
Application for Review


                       ORDER ON REVIEW

     Adopted:   September 27,  2002                         
Released:   October 8, 2002

By the Commission:  

I.   INTRODUCTION

     1.   In this  Order, we deny an  application for review 
("Application") of a Cable Services Bureau ("Bureau") Order, 
DA  01-2653  ("Bureau  Order"),1  released  under  delegated 
authority.  The  Bureau  Order  granted  a  pole  attachment 
complaint  filed by  Teleport  Communications Atlanta,  Inc. 
("Teleport") against Georgia  Power Company ("GPC") pursuant 
to Section 224 of the Communications Act of 1934, as amended 
("Pole  Attachment Act")2  and Subpart  J of  Part 1  of the 
Commission's  rules.3  The  Bureau found  GPC's annual  pole 
attachment  rate of  $53.35  to be  unjust and  unreasonable 
pursuant to  the Pole Attachment  Act and calculated  a just 
and reasonable  annual pole attachment rate.   We affirm the 
Bureau Order.

II.  BACKGROUND

     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.4  
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.5  The 
Commission is  authorized to  adopt procedures  necessary to 
resolve  complaints   concerning  such  rates,   terms,  and 
conditions.6  A utility may not charge more than the maximum 
amount permitted by the  formula developed by the Commission 
to  ensure that  rates  are just  and  reasonable.  We  have 
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."7

     3.   The Commission  developed a formula, known  as the 
Cable Formula, to  be used in resolving  complaints by cable 
systems   concerning    pole   attachment    rates.8     The 
Telecommunications Act  of 1996  ("1996 Act")9  directed the 
Commission to prescribe  similar regulations for attachments 
by     telecommunications    carriers.10      Pending    the 
implementation  of  those  regulations, the  Commission  was 
directed  to  apply the  Cable  Formula  to rates  for  pole 
attachments  made  by   telecommunications  carriers.11  The 
Commission  adopted a  Telecommunications Formula  ("Telecom 
Formula") that  became effective February 8,  2001, with any 
increases in  rates as compared  to the Cable Formula  to be 
phased in over five years.12 The two formulas differ in only 
one respect, namely their  methodologies for determining the 
proportion of unusable space on  a pole that is attributable 
to the  attachment.  Our  Cable Formula  attributes unusable 
space to an attachment based  on the portion of usable space 
occupied  by  the  attachment,  while  our  Telecom  Formula 
attributes unusable space to a telecommunications attachment 
based  on the  total  number of  attaching entities.13   The 
total  space  occupied  by  an  attacher,  both  usable  and 
unusable,  is  referred  to  as  the  Space  Factor  in  our 
formulas.14

     4.   The  attachments at  issue  in this  case are  for 
telecommunications  services. The  Cable Formula  applies to 
the  attachments until  February 8,  2001, after  which one-
fifth of the differential between the Cable Formula rate and 
the Telecom  Formula rate  is to be  phased in  annually for 
five years.

III.                      BUREAU ORDER

     5.   In  granting  Teleport's   complaint,  the  Bureau 
rejected a proposal by GPC to use an alternative methodology 
for calculating  pole attachment  rates.15  The  Bureau also 
denied  GPC's request  to provide  supplemental material  in 
support of the alternative  methodology because, among other 
reasons,   the   Commission   had  already   rejected   that 
methodology.16  The  Bureau  found   that  GPC  provided  no 
compelling  reason  why  the Commission's  procedural  rules 
should  be  waived  to   allow  an  additional  filing  that 
contained  no  new arguments  or  evidence  specific to  the 
present dispute.   Because GPC had the  opportunity to raise 
the  issues  addressed in  its  supplemental  filing in  the 
rulemaking process, and the  specific issues were raised and 
addressed  previously by  the Commission,  the Bureau  found 
that there was not good  cause to re-examine those issues in 
this case. 

     6.   The Bureau Order also rejected GPC's argument that 
our existing  formula does not provide  just compensation as 
required  by  the  Fifth  Amendment  to  the  United  States 
Constitution.17   The  Bureau  based  its  decision  on  the 
Commission's  reasoning in  Alabama Cable  v. Alabama  Power 
("Alabama Power")18  in which the Commission  concluded that 
the pole  attachment formulas, together with  the payment of 
make-ready expenses, provide  compensation that exceeds just 
compensation.   Because   the  pole   attachment   complaint 
procedures are  intended to ensure a  simple and expeditious 
process for resolving complaints,19 the Bureau also rejected 
GPC's request  for an  evidentiary hearing,  concluding that 
the record in this matter contains sufficient information to 
determine a just and reasonable pole attachment rate.

     7.   Finally, the  Bureau rejected GPC's  specific rate 
calculations because  GPC failed  to support  its deviations 
from  the  Cable and  Telecom  Formulas.   For example,  GPC 
asserted that the average number of attaching entities to be 
used  in calculating  the Space  Factor for  its alternative 
formula is 1.5922 per pole.  The Bureau rejected that number 
for  use  in  its  calculation   of  the  maximum  just  and 
reasonable  rate  using  the  Telecom  Formula  because  the 
Commission has concluded that the minimum possible number of 
attachers to be  used in the Telecom Formula  is two.20  The 
Bureau substituted a presumptive average number of attaching 
entities,   three  for   non-urbanized  (less   than  50,000 
population) areas  and five for urbanized  (more than 50,000 
population)  areas,21  in  its calculation  of  the  Telecom 
Formula  and  provided a  pole  attachment  rate for  either 
situation.   The  Bureau  calculated   a  maximum  just  and 
reasonable annual  rate of $6.56  per pole attachment  up to 
February 8, 2001,  and, beginning February 8,  2001, a first 
year  rate  of $7.23  for  areas  with  an average  of  five 
attachers, and a first year rate  of $8.24 for areas with an 
average of three attachers.  The Bureau concluded that GPC's 
pole attachment rate of $53.35 is not just and reasonable.

IV.  APPLICATION FOR REVIEW

     8.   In  its Application,  GPC argues  that the  Bureau 
mishandled this  case procedurally because the  parties were 
not required to engage in additional negotiations before the 
Bureau resolved  the Complaint, because GPC  was not allowed 
to supplement  its pleadings  with additional  material, and 
because an evidentiary hearing  was not conducted.  GPC also 
argues that  the Commission  should use this  opportunity to 
reverse its decision in  Alabama Power because that decision 
inhibits the deployment of broadband technology and violates 
GPC's constitutional right to just compensation. GPC further 
argues that the Bureau improperly used presumptions outlined 
in the Consolidated Order22 that were incorrect, and applied 
those presumptions retroactively.

     9.   In its  Opposition, Teleport asserts that  GPC not 
only  had  the  opportunity  but the  duty  to  provide,  in 
response to  the complaint,  sufficient evidence  to support 
its pole attachment rate  increase. Teleport argues that GPC 
failed  to  engage  in  good  faith  negotiations,  choosing 
instead  to  enact  a  unilateral  rate  increase.  Teleport 
asserts  that  GPC  was  not   denied  due  process  by  the 
Commission's  established pleading  cycle and  therefore was 
not  entitled to  an evidentiary  hearing.  Teleport  argues 
that GPC improperly disregarded the Commission's formulas in 
calculating its pole rental rates, ignoring the Commission's 
explicit  rulings and  including  FERC  accounts23 that  the 
Commission previously  excluded.  Teleport asserts  that GPC 
offers no new arguments to support its claim that the Bureau 
erred in terminating the $53.35 rate.

     10.  In its Reply, GPC  asserts that it will illustrate 
the Bureau's  numerous errors in computing  the maximum just 
and  reasonable   pole  attachment  rate  by   providing  an 
explanation of  its use of  1.5922 as the average  number of 
attachers  in its  proposed  formula.  GPC  claims that  its 
calculation was made in a manner that is consistent with the 
Consolidated Order, and  that the Bureau had  no legal basis 
to reject  its calculation  and impose  presumptive numbers. 
GPC also reiterates its argument  in favor of an alternative 
formula to calculate pole attachment rates.

     11.  Teleport filed a motion  to strike GPC's reply and 
its attached exhibits because  they violate Section 1.115(c) 
of   the  Commission's   rules,24  which   states  that   no 
application for  review will  be granted if  the application 
relies on questions of fact or law upon which the designated 
authority  has   been  afforded  no  opportunity   to  pass.  
Teleport asserts that the data and calculations accompanying 
GPC's  reply  were  never   submitted  to  the  Bureau.   In 
opposition, GPC argues  that the issue of  average number of 
attachers was  addressed below and  it should be  allowed to 
provide  the  underlying data  in  support  of its  original 
calculation. Moreover,  GPC asserts  that the  Bureau should 
have requested  that GPC provide this  data before rejecting 
GPC's 1.5922 calculation.  Finally, GPC argues that it is in 
the  public  interest to  include  the  additional new  data 
because it provides a useful  and informative case study for 
calculating an average number of attachers. 

V.   DISCUSSION

     12.  A review  of the record  reveals that GPC  did not 
make any  effort to justify  its pole attachment  rate using 
either the  Cable Formula,  in effect  prior to  February 8, 
2001, or  the Telecom Formula, in  effect beginning February 
8,  2001,  in  response   to  the  complaint.  Instead,  GPC 
substituted its own formula  for calculating pole attachment 
rates.25 When the Bureau reviewed GPC's filing, it concluded 
that  GPC had not  met its  burden to  calculate a  just and 
reasonable  rate using  the formulas  as promulgated  by our 
orders.
      
     13.  In the Consolidated Order, the Commission resolved 
a number  of petitions for  reconsideration of our  two most 
recent  rulemakings concerning  pole attachment  regulation, 
the Telecom  Order26 and the  Fee Order.27  GPC  argues that 
the Bureau should  have required GPC to  update its response 
following the release of the Consolidated Order in May 2001. 
In fact,  the Bureau  released an order  on June  1, 2001,28 
which specifically  gave notice  to GPC of  the Consolidated 
Order  and  provided  GPC  with  guidance  on  the  type  of 
supplemental material that would be considered by the Bureau 
in its review  of a complaint. GPC had  ample opportunity to 
update its filing  prior to the release of  the Bureau Order 
on November  14, 2001.   Our rules state  with particularity 
the information a utility must  provide an attacher in order 
for the  attacher to calculate  a just and  reasonable rate.  
GPC however,  never provided, in addition to its own formula 
calculation, the information necessary for the Commission to 
calculate  a  maximum just  and  reasonable  rate using  the 
Commission's formulas.29  GPC chose not to file supplemental 
material in  response to  the Bureau's  June 1,  2001 order.  
Instead, GPC insisted  that it should be  allowed to reargue 
the  issues raised  and rejected  by the  Commission in  the 
Consolidated Order and Alabama Power.30

     14.  Both Commission  formulas include a  Space Factor, 
which  is  used to  calculate  the  portion of  capital  and 
operating costs  attributable to the attaching  party.31  In 
the  Telecom   Order,  we   identified  a   methodology  for 
determining  the average  number of  attaching entities,  an 
element of  the Space  Factor used  in the  Telecom Formula.  
Specifically,  pursuant  to  the  Telecom  Order,  for  pole 
attachment rates for  telecommunications providers beginning 
February 8, 2001, GPC was under an obligation to provide, as 
part of the Space  Factor calculation using the Commission's 
Telecom Formula, a "presumptive  average number of attaching 
entities  .  .  .  reflecting where  the  service  is  being 
provided  .  .  .[with]  a  range  of  presumptive  averages 
depending on rural, urban, or urbanized areas . . ."32  Even 
before  the Consolidated  Order  was released,  in which  we 
reconsidered and clarified the methodology identified in the 
Telecom  Order   for  determining  the  average   number  of 
attaching entities,  GPC was obligated to  include itself in 
this average number.33

     15.  In addition,  GPC was  required to  "upon request, 
provide  all attaching  entities  and  all entities  seeking 
access  the  methodology  and  information  by  which  [the] 
presumption  was  determined."34   Once  the  complaint  was 
filed,  GPC   was  under  an  obligation   to  provide  this 
documentation  in support  of its  rate calculation.35   The 
sole explanation  provided by GPC  in support of  the 1.5922 
figure, which  represented the  average number  of attaching 
entities  in  its  proposed   alternative  formula,  was  as 
follows: "Avg.  # of  Attachments (no.  of poles  with cable 
attach. & no. of poles with telecom attach. divided by total 
no. of poles with both  cable and telecom attach.)."36  This 
explanation  articulates a  number  that  reflects only  the 
ratio  of  the  number  of  poles with  either  a  cable  or 
telecommunications attachment  to the  number of  poles with 
both  types  of  attachments.   It is  meaningless  for  the 
purpose  of  supporting  an   average  number  of  attaching 
entities  per pole.   Thus,  GPC did  not  meet its  initial 
burden to  provide the methodology and  information by which 
its presumption was determined.

     16.  The Telecom Order also provided that "[c]hallenges 
to the  presumptive average number of  attaching entities by 
the telecommunications carrier or cable operator may be made 
in the  same manner as challenges  presently are undertaken. 
The challenging party will initially be required to identify 
and calculate  the number  of attachments  on the  poles and 
submit to the utility what  it believes to be an appropriate 
average. Where  the number of  poles is large,  and complete 
inspection impractical, a  statistically sound survey should 
be submitted. The pole owner will be afforded an opportunity 
to  justify   the  presumption.   Where  a   presumption  is 
successfully challenged, the resulting figure will be deemed 
to  be   the  number  of  attaching   entities."37  Teleport 
identified three and five as the average number of attachers 
when  it filed  its complaint.  GPC had  the opportunity  to 
refute Teleport's  proposed figures  in its response  to the 
complaint, but  did not  provide any  information to  do so.  
Instead, GPC proposed a  different formula entirely which in 
fact included  a component  that might  be considered  to be 
analogous  to  the  average  number  of  attaching  entities 
component  used in  the  Telecom Formula.   As noted  above, 
however,  GPC  provided  no meaningful  explanation  of  its 
alternative calculation.  

     17.  Even though GPC did not include a justification of 
its post  February 8,  2001 pole  attachment rate  using the 
Commission's  Telecom  Formula,   the  Bureau  examined  the 
material  provided  by  GPC  to  determine  if  any  of  the 
information would be useful  in calculating the maximum rate 
permissible  under  the  Pole Attachment  Act.   The  Bureau 
rejected  GPC's  average  number of  attachments  figure  of 
1.5922 because  the minimum possible number  of attachers to 
be used in the Telecom Formula is two.38 Although the Bureau 
cited the  Consolidated Order in support  of its conclusion, 
the same result was mandated  by the Telecom Order, because, 
as we noted above, GPC was required to include itself in the 
count.  In  addition, the  Bureau  could  have rejected  the 
1.5922 figure because GPC provided no reasonable explanation 
or  supporting  documentation  to substantiate  the  number.  
Also, the  Bureau could have rejected  GPC's number outright 
because GPC  did not even proffer  the number to be  used as 
the  average number  of  attaching entities  in the  Telecom 
Formula.

     18.  In the  Consolidated Order,  in order  to expedite 
the  process  of  developing average  numbers  of  attaching 
entities,  and  allow  utilities  to avert  the  expense  of 
developing  location  specific  averages,  we  provided  two 
rebuttable  presumptive  averages  for use  in  our  Telecom 
Formula.39    Thus,   utilities  have  the  option   of  not 
conducting  a  potentially  costly and  burdensome  exercise 
necessary  to  develop  averages   based  on  their  company 
specific  records.  We  concluded  that,  as  with  all  our 
presumptions, either party may rebut this presumption with a 
statistically valid survey or  actual data.  In other words, 
a utility can  rebut the presumptions by  providing the same 
information it  was obligated  to provide under  the Telecom 
Order  in support  of its  own average  number of  attaching 
entities.  The only difference is  that now, the utility has 
the option of declining to rebut the presumptions.  

     19.  After rejecting GPC's 1.5922 figure as the average 
number  of attaching  entities  to be  used  in the  Telecom 
Formula calculation, the  Bureau substituted presumptions of 
three and  five, in accordance with  the Consolidated Order.  
As  noted  above,  these  presumptions were  also  the  same 
numbers proffered  by Teleport in its  formula calculations.  
GPC objects to the use of the presumptions because they were 
identified by the Commission  in the Consolidated Order.  As 
we  stated above,  had it  chosen to  do so,  GPC had  ample 
opportunity to  supplement its response to  the complaint in 
the   appropriate  way   following  the   issuance  of   the 
Consolidated Order.  Moreover,  even before the Consolidated 
Order  was  released,  GPC   was  aware  that  Teleport  had 
proffered, in its complaint,  presumptions of three and five 
for the average number of attaching entities.  Thus, even if 
the  Commission   had  not   adopted  presumptions   in  the 
Consolidated Order, the Bureau  reasonably could rely on the 
presumptions  proffered  by  Teleport, particularly  in  the 
absence of  any evidence  by GPC in  support of  a different 
average number.40 Under the  standard elucidated in both the 
Telecom  Order and  the Consolidated  Order, GPC  completely 
failed to  support its  proposed calculation of  the average 
number of  attaching entities and the  Bureau acted properly 
when it inserted the  presumptive numbers in its calculation 
of the  maximum permissible  rate under the  Pole Attachment 
Act.41

     20.  We therefore conclude that, even in the absence of 
the Consolidated Order, we  would find the Bureau's decision 
to be reasonable.  Although the Consolidated Order, adopting 
the presumptions of 3 to  5 attaching entities, was released 
subsequent to the  complaint being filed in  this matter, we 
hereby independently adopt these  presumptions, based on the 
fact that they  were proffered by Teleport in  this case and 
were  not  refuted  by  GPC.   We  also  conclude  that  the 
rationale set  forth in the Consolidated  Order also applies 
here.   As  we  stated  in the  Consolidated  Order,  it  is 
reasonable  to presume  that in  a non-urbanized  area (less 
than 50,000  population) there would be  electric, telephone 
and  cable attachers.42   In  an urbanized  area (50,000  or 
higher  population), which  is  more developed  commercially 
than  a non-urbanized  area,  and in  which  we expect  both 
residential and business commercial competition to flourish, 
it is reasonable to presume the following possible attaching 
entities:    electric,    telephone,   cable,    competitive 
telecommunications   service   providers  and   governmental 
agencies.43  Thus, the presumption as applied to GPC in this 
adjudicatory  proceeding does  not constitute  impermissible 
retroactive  application  of  our rules  because  under  our 
decision here, we  do not rely on  the Consolidated Order.44 
Moreover, as  discussed above, the maximum  permissible rate 
established by the Bureau would have been the same here even 
if the  case had been  decided prior  to the release  of the 
Consolidated  Order.  Therefore,  to the  extent the  Bureau 
relied  on the  Consolidated Order,  it was  harmless error, 
particularly in light of our decision not to rely on it.   

     21.  GPC argues  that the  Bureau should  have required 
that the parties engage in additional negotiations before it 
resolved the  Complaint.  While we encourage  all parties to 
negotiate prior  to seeking recourse with  the Commission,45 
in  this case,  GPC imposed  a unilateral  rate increase  on 
Teleport   without  negotiation   and   without  using   the 
Commission's formulas  as a  benchmark for  negotiation. GPC 
admittedly based its rate on its own alternative methodology 
and declined to provide supporting documentation to Teleport 
upon request.46 We  think it was reasonable  for Teleport to 
conclude that further efforts  at negotiation were fruitless 
in the absence of Commission intervention. Therefore, we are 
not persuaded  by GPC's  argument that  further negotiations 
between the parties  were required prior to  a resolution of 
the complaint. 

     22.  GPC   argues  that   it  was   entitled  to   file 
supplemental pleadings  and was  entitled to  an evidentiary 
hearing.   The pole  attachment  process is  designed to  be 
efficient  but  allow all  parties  to  fully express  their 
positions.  The  decision  to allow  additional  filings  or 
request an evidentiary  hearing is discretionary.47  Because 
most of  the information necessary  to determine a  just and 
reasonable  rate is  culled from  publicly filed  documents, 
there  is seldom  any need  to hold  an evidentiary  hearing 
concerning a  rate calculation.48  Where information  is not 
available  from   public  documents,  we   have  established 
guidelines  for the  parties to  follow.49 The  Bureau found 
that the material  facts available in the  record in written 
form,  such as  GPC's  FERC Form  1  filings and  accounting 
records,  were sufficient  to  support a  decision. GPC  had 
ample opportunity  to respond  in writing to  the complaint.  
The Bureau  was not required to  hold a hearing and  we find 
that  it did  not abuse  its discretion  in declining  to do 
so.50  In  addition, the Bureau  found that GPC  included no 
factual information  in its supplemental  material necessary 
to calculate of  a just and reasonable  pole attachment rate 
using the Commission's existing rules and policies.  Rather, 
the entire  supplement consisted of materials  in support of 
GPC's   argument   for   an  alternative   methodology   for 
calculating pole  attachment rates,  a methodology  that has 
been  rejected  by the  Commission.51  GPC  has provided  no 
compelling  reason  why  the Commission's  procedural  rules 
should have been  waived to allow an  additional filing that 
contained  no  new arguments  or  evidence  specific to  the 
present dispute. 

     23.  GPC also  argues that we should  abandon the rules 
and  policies  elucidated  in  the  Consolidated  Order  and 
Alabama Power.52    We see no  reason to revisit  the issues 
that  were  thoroughly  addressed  in  those  orders.    The 
Consolidated  Order was  the  Commission's  final ruling  on 
multiple   pole   attachment   issues   arising   from   the 
implementation  of   the  1996  Act  and   the  Commission's 
experience  in  applying  the  pole  attachments  rules  and 
formulas.  It  was a thorough notice  and comment rulemaking 
proceeding and included a review of the materials and issues 
raised by  GPC.  GPC has  provided no compelling  reason why 
those issues  should be revisited in  this adjudication.  In 
Alabama  Power,  we  concluded   that  our  pole  attachment 
formulas, together with the  payment of make-ready expenses, 
provide  compensation that  exceeds just  compensation.  GPC 
makes no new arguments and  provides no new information that 
would  cause  us  to  revisit   that  issue  in  this  case.  
Therefore,  we reject  GPC's request  that we  reverse those 
decisions.

     24.  Finally,   we  consider   GPC's   reply  and   the 
additional information contained in  it. GPC asserts that is 
has  now included  the  underlying data  in  support of  its 
original  calculation and  that  it is  consistent with  the 
Consolidated  Order. GPC  argues that  it is  in the  public 
interest  to  include the  additional  new  data because  it 
provides a useful and informative case study for calculating 
average  number   of  attachers.   However,  the   data  and 
calculations accompanying  GPC's reply were  never submitted 
to  the Bureau.  This is  the type  of information  that GPC 
should have provided in response to the complaint. We cannot 
condone GPC's failure to provide the appropriate information 
at the  required time. Section 1.115(c)  of the Commission's 
rules  states that:  "[N]o  application for  review will  be 
granted if it relies on questions  of fact or law upon which 
the designated authority has been afforded no opportunity to 
pass.53    GPC  provides  no adequate  explanation  for  its 
failure to provide a  reasonable explanation for its average 
number of attaching entities at the time it responded to the 
complaint.  Therefore, we will  not consider the new factual 
material.54 

     25.  In any  event, we  note that the  factual material 
supplied  by   GPC  does  not  comport   with  its  original 
calculation.  For example, GPC  submits, for the first time, 
a "December 2000 Spread Sheet"  that purports to support its 
original  calculation of  1.5922 for  the average  number of 
attaching  entities.55  Although   the  description  of  its 
calculation is  identical to the description  submitted with 
the complaint, it does not reflect GPC's actual methodology.  
In essence, GPC  multiplied a number of poles  by the number 
of  attachments   per  pole,  added  the   gross  number  of 
attachments together  and divided  that figure by  the total 
number of poles  included in the equation.  Even  if GPC had 
submitted  this entire  explanation  with  its response,  it 
would not have been adequate to support an average number of 
attaching entities because it provides no explanation of the 
source for  GPC's calculation.  For example,  an attacher is 
only responsible  to pay  its Telecom  Formula share  of the 
costs  of  unusable space  for  the  poles  to which  it  is 
actually attached.56  Therefore, using a survey to calculate 
an  average  number  of   attachers  provides  an  efficient 
solution  to the  problem  of calculating  a  rate for  each 
individual pole to which an  attacher is affixed.   In order 
to be a  reasonable reflection of the actual  poles to which 
an attacher is affixed, the  average must reflect only those 
poles in areas where the attacher is actually affixed.57 GPC 
asserts that Teleport targets  only local business telephone 
customers in urban  areas.58  This tends to  support the use 
of a  smaller, denser  representative area to  calculate the 
average  number of  attachers.  GPC  provides absolutely  no 
explanation in  support of its  inclusion of poles  to which 
Teleport  is not  attached.  Nor  does GPC  explain why  the 
number of  poles with multiple telephone  attachments is not 
representative of the poles to which Teleport, a competitive 
local telephone carrier, is attached.59

     26.  Finally, GPC provides what it describes as updated 
figures in its "January 2002 Spread Sheet."60  This is GPC's 
first attempt to  provide even a minimal  showing in support 
of a presumptive average number of attaching entities.  Once 
again, GPC fails to provide  an adequate explanation for the 
source of its  numbers.  For example, GPC  includes a number 
that represents the number of "paying attachments"61 without 
explaining how this  number was derived. GPC  admits that it 
does  not include  itself or  government attachments  in its 
count.  And,  while GPC does  attempt to divide  its service 
areas  into  urban  and  rural, it  does  not  indicate  the 
specific  service  areas  in   which  Teleport  is  actually 
attached. Indeed,  there is  no indication that  Teleport is 
included in the count of  attachments.   We encourage GPC to 
develop a  presumptive average that accurately  reflects the 
Teleport service  area and  that can be  used in  its future 
negotiations with  Teleport.  As  stated above,  however, we 
decline to  accept GPC's newly filed  information in support 
of its Application.

VI.  CONCLUSION AND ORDERING CLAUSE

     27.  For the reasons discussed  above, we conclude that 
Applicant's application for review should be denied.

     28.       Accordingly,  IT  IS   ORDERED,  pursuant  to 
Section 1.115 of the Commission's  rules, 47 C.F.R.  1.115, 
that the  Application for Review of  Teleport Communications 
Atlanta, Inc. v.  Georgia Power Co., DA 01-2653,  16 FCC Rcd 
20238 (2001) IS DENIED.

     
                         FEDERAL COMMUNICATIONS COMMISSION



                         Marlene H. Dortch
                         Secretary
_________________________

1  Teleport Communications  Atlanta, Inc.  v. Georgia  Power 
Company, DA 01-2653, 16 FCC Rcd 20238 (2001).

2 47 U.S.C.  224.

3 47 C.F.R.  1.1401-1.1418.  GPC also filed a petition for 
review of  the Bureau Order  with the U.S. Court  of Appeals 
for the  11th Circuit  while its  Application for  Review is 
pending before the Commission.  See Georgia Power v. Federal 
Communications Commission, No. 02-10222-B (filed January 11, 
2002).

4 47 U.S.C.  224 (b) (1).

5 47  U.S.C.  224  (b) and  (c). Georgia 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).

647  U.S.C.   224 (b)(1).  The Commission  has developed  a 
formula methodology to determine  the maximum allowable pole 
attachment rate.   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).

7Amendment 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).

8 See 47 C.F.R.  1.1409 (e)(1).

9 Pub. L. No. 104-104, 110 Stat. 56 (1996).

10 47 U.S.C.  224 (e).

11 See 47 C.F.R.  1.1409 (e)(1); 47 U.S.C.  224 (d) (3).

12 See  47 C.F.R.  1.1409 (e)(2), (f).

13 Id. at  53-56.

14 47 C.F.R.  1.1409 (e).

15  Bureau  Order  at    11.   The  Bureau  rejected  GPC's 
alternative  because GPC  calculated  a rate  of $53.35  per 
pole, using  replacement costs rather than  historical costs 
as required by the Commission.   Since the inception of pole 
attachment   regulation   in   1978,  the   Commission   has 
consistently rejected  the use  of replacement costs  in the 
formula, for  a number of  reasons that remain  valid today.  
See Amendment  of Commission's Rules and  Policies Governing 
Pole Attachments, FCC  01-170, 16 FCC Rcd 12103  at  15-25 
(2001), appeal  pending sub nom. Southern  Company Services, 
Inc. et al. v. FCC, Case  No. 01-1326 (D.C. Cir., filed July 
26,   2001)  ("the   continued  use   of  historical   costs 
accomplishes key objectives of assuring, to both the utility 
and  the  attaching  parties,  just  and  reasonable  rates; 
establishes  accountability for  prior cost  recoveries; and 
accords with generally accepted accounting principles" Id.  
15); see also  Alabama Cable Telecommunications Association, 
et  al. v.  Alabama Power  Company, FCC  01-181, 16  FCC Rcd 
12209 at   32-58 (2001),  appeal pending sub  nom. Alabama 
Power Company v. FCC, Case  No. 00-14763-I (11th Cir., filed 
Sept.  13, 2000)  ("Because  the utility's  interest in  the 
property is  not completely destroyed, requiring  the use of 
replacement  costs  as a  measure  of  just compensation  is 
inappropriate." Id.   57); see also Amendment  of Rules and 
Policies Governing Pole Attachments,  FCC 00-116, 15 FCC Rcd 
6453 (2000).  In addition,  GPC included in its calculations 
Federal Energy Regulatory Commission ("FERC") accounts which 
are  not approved  by the  Commission for  inclusion in  the 
formula because the costs recorded in those accounts are not 
sufficiently attributable to the poles.  GPC used a proposed 
30  percent  "space  allocation"   factor  rather  than  the 
Commission's  formula presumption  of  7.4  percent for  the 
cable rate or maximum 24 percent for the telecom rate in the 
rare circumstance of only two attachers.

16 Bureau  Order at   6,  citing Amendment  of Commission's 
Rules and  Policies Governing Pole Attachments,  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); Alabama Cable Telecommunications 
Association, et  al. v. Alabama  Power Company, File  No. PA 
00-003, FCC 01-181, 16 FCC  Rcd 12209 (2001), appeal pending 
sub nom. Alabama  Power Company v. FCC,  Case No. 00-14763-I 
(11th Cir., filed Sept. 13, 2000).

17 Bureau Order at  7.

18 Alabama  Cable Telecommunications Association, et  al. v. 
Alabama Power  Company, File No.  PA 00-003, FCC  01-181, 16 
FCC Rcd  12209 at   32-61 (2001), appeal pending  sub nom. 
Alabama  Power Company  v.  FCC, Case  No. 00-14763-I  (11th 
Cir., filed Sept. 13, 2000).

19 See  Adoption of  the Rules for  the Regulation  of Cable 
Television  Pole Attachments,  68  F.C.C. 2d  1585  at   36 
(1978).

20  See   Amendment  of  Commission's  Rules   and  Policies 
Governing Pole Attachments, FCC 01-170,  16 FCC Rcd 12103 at 
  60  (2001),  appeal  pending sub  nom.  Southern  Company 
Services, Inc. et  al. v. FCC, Case No.  01-1326 (D.C. Cir., 
filed July 26, 2001).

21 Id. at  71-72.

22   Amendment  of   Rules  and   Policies  Governing   Pole 
Attachments, 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).

23  For  electric utilities,  the  accounts  to be  used  to 
determine the  maximum allowable  rate for  pole attachments 
are  reported on  the Federal  Energy Regulatory  Commission 
("FERC")  Form 1.   A description  of the  FERC accounts  is 
contained in 18 C.F.R. Part 101.

24 47 C.F.R.  1.115(c).

25 See n.15 above.

26    Implementation    of    Section    703(e)    of    the 
Telecommunications Act of 1996, 13 FCC Rcd 6777 (1998).

27   Amendment  of   Rules  and   Policies  Governing   Pole 
Attachments, 15 FCC Rcd 6453 (2000).

28  See Teleport  Communications Atlanta,  Inc., v.  Georgia 
Power Co., DA 01-1332, 16 FCC Rcd 11831 (2001).

29 See n.15 above.  See also, 47 C.F.R.  1.1401-1.1418.

30 See n. 15 above.

31 See 47 C.F.R.  1.1409.

32 Telecom Order at  77.

33  GPC is  affiliated with  a telecommunications  provider.  
See id. at  51. GPC  admits that it has two affiliates that 
provide   telecommunications   related  services:   Southern 
Communications  Services,   Inc.  d/b/a  Southern   LINC,  a 
wireless  provider, and  Southern Telecom,  Inc., an  exempt 
telecommunications  company that  has developed  fiber optic 
projects   for  non-affiliate   carriers.    See  Reply   to 
Opposition to Application at Affidavit of Thomas G. Park. If 
there was any doubt about  whether GPC should be counted, we 
clarified  in the  Consolidated  Order that  a utility  pole 
owner was  so obligated,  whether or  not it  was affiliated 
with a telecommunications provider.  GPC continues to object 
to the  pole owner being  included in the average  number of 
attaching  entities under  any  circumstances. However,  GPC 
admits that on  its average pole, the  electric utility uses 
an  average  7.5  feet  of usable  space,  whereas  a  cable 
attacher uses one foot.  See Response at Affidavit of Thomas 
G. Park.  Applying the policy espoused by GPC to a pole with 
only two  attachments, an electric utility  attachment and a 
cable attachment  that provides  telecommunications service, 
the attacher  would be required  to pay  2/3 of the  cost of 
unusable space, whereas the  electric utility would pay only 
1/3.  The  inequity of this  result is even  more pronounced 
when one considers  that the electric utility  pole owner is 
using over seven times as much usable space on the pole. 

34 Telecom Order at  78.

35 See  47 C.F.R.   1.1404  (j) (". .  . the  utility shall 
supply  this information  in  response  to the  complaint.")  
Teleport also requested this information by letter to GPC at 
the same  time that  it filed its  complaint.  See  Reply at 
Exhibit 3.

36 See Response at Affidavit of Thomas G. Park.

37 Telecom Order at  79.

38 See Bureau  Order at  11, citing  the Consolidated Order 
at  60.

39 Consolidated Order at  69.

40 47  C.F.R.  1.1409  (a) ("Where  one of the  parties has 
failed  to provide  information required  to be  provided by 
these rules or requested by  the Commission, or where costs, 
values or amounts are  disputed, the Commission may estimate 
such costs,  values or  amounts it considers  reasonable, or 
may decide  adversely to  a party who  has failed  to supply 
requested information  which is readily available  to it, or 
both.").

41 This  case illustrates the importance  of presumptions in 
maintaining  a minimal  and efficient  rate-setting process. 
Without presumptions,  a responding party is  more likely to 
withhold the information necessary  to calculate the maximum 
just  and reasonable  rate.  A  party may  always choose  to 
present  probative direct  evidence regarding  an acceptable 
alternative to a presumption in  order to reflect its unique 
circumstances.

42 Consolidated Order at   71.

43 Id. at  72.

44 See, e.g., Celtronix Telemetry, Inc. v. FCC, 272 F.3d 585 
(D.C. Cir. 2001), rehearing and rehearing en banc denied Jan 
10,  2002, petition  for  certiorari filed  April 10,  2002, 
citing Landgraf  v. USI  Film Products,  Inc., 511  U.S. 244 
(1994) and Bowen v. Georgetown University Hospital, 488 U.S. 
204 (1988), Scalia, J., concurring).

45  See,  for  example,  Telecom  Order  at    10,  16-21; 
Consolidated Order  at  13.   See also, 47 C.F.R.   1.1404 
(k).

46 Teleport also requested the  information by letter to GPC 
at  the same  time it  filed  its complaint.   See Reply  at 
Exhibit 3.

47 See 47  C.F.R.  1.1407 (".  . . no other filings   . . . 
will be  considered unless authorized by  the Commission."); 
and  47 C.F.R.   1.1411  ("The Commission  may decide  each 
complaint upon  the filings  and information before  it, may 
require one  or more informal  meetings with the  parties to 
clarify the issues or to consider settlement of the dispute, 
or may, in its discretion, order evidentiary procedures upon 
any issues it finds to have been raised by the filings.").

48 See, for  example, Texas Utilities Elec. Co.  v. FCC, 997 
F.2d  925 (D.C.  Cir. 1993)  (It  is not  necessary for  the 
Commission to conduct an evidentiary proceeding to determine 
just and reasonable rates under the Pole Attachment Act).  

49 See 47 C.F.R.  1.1401-1.1418.

50 Although the  Eleventh Circuit Court of  Appeals held, in 
Gulf Power v. United States,  187 F.3d 1324 (1999), that the 
1996 Act's mandatory access amendment to the Pole Attachment 
Act  effected a  taking of  property, the  Court found  that 
there   is   an   adequate  process   for   obtaining   just 
compensation.

51  See   Amendment  of  Commission's  Rules   and  Policies 
Governing  Pole Attachments,  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); Alabama  Cable Telecommunications Association, et 
al. v.  Alabama Power Company,  File No. PA 00-003,  FCC 01-
181,  16  FCC Rcd  12209  (2001),  appeal pending  sub  nom. 
Alabama  Power Company  v.  FCC, Case  No. 00-14763-I  (11th 
Cir., filed Sept. 13, 2000).

52  In support  of this  contention, GPC  asserts that  "[a] 
rational public  policy analysis  would indicate  that cable 
and phone customers, particularly at the high end, should be 
required to  pay a higher  share of infrastructure  costs to 
lower the costs of  essential services, such as electricity, 
to consumers of those services."  Application at pp. 6-7.

53 47 C.F.R.  1.115 (c).

54 As the Commission has stated before, "[w]e cannot allow a 
party to 'sit  back and hope that a decision  will be in its 
favor and,  when it isn't,  to parry  with an offer  of more 
evidence.  No judging  process in  any branch  of government 
could operate efficiently or  accurately if such a procedure 
were allowed.'"  See Canyon  Area Residents, FCC  99-123, 14 
FCC Rcd 8152 at  7  (1999), quoting Colorado Radio Corp. v. 
FCC, 118 F. 2d 24, 26 (D.C. Cir. 1941).

55 See Park Reply Declaration at Exhibit 2.

56 47 U.S.C.  224 (e)(2).

57 See Consolidated Order at  66, n. 277 ("The service area 
must be representative of the area for which pole attachment 
rates are being set.").

58 Application at p. 2; Park Reply Declaration at p. 5.

59 GPC's analogy to splitting a three person dinner tab five 
ways is  inapposite to  the facts in  issue. See  Park Reply 
Declaration  at   p.  7.    It  is  relevant,   however,  to 
highlighting  the  need  to   have  the  average  number  of 
attachers  reflect the  number of  attachers in  the service 
area in  which the  attaching party has  actual attachments.  
Using the same  analogy as GPC, it would  be unreasonable to 
split a dinner tab based on  the number of diners sitting at 
a different table.

60 See Park Reply Declaration at Exhibit 3.

61 See Park Reply Declaration at p. 8.