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

In the Matter of                  )
                                 )
Florida Cable                     )
Telecommunications Association,   )
Inc.; Comcast Cablevision of      )
Panama City, Inc.; Mediacom       )
Southeast, L.L.C.; and Cox        )
Communications Gulf Coast,        )
L.L.C.,                           )   File No. PA 00-004
                                 )
                        Com-      )
plainants,                        )
                                 )
         v.                      )
                                 )
Gulf Power Company,

         Respondent.


                MEMORANDUM OPINION AND ORDER

     Adopted:  May 12, 2003                            
Released:  May 13, 2003

By the Chief, Enforcement Bureau:1

I.        INTRODUCTION

In this Memorandum Opinion and Order, we grant a complaint 
filed by Florida Cable Telecommunications Association, Inc. 
(``FCTA''); Comcast Cablevision of Panama City, Inc. 
(``Comcast''); Mediacom Southeast, L.L.C. (``Mediacom''); 
and Cox Communications Gulf Coast, L.L.C. (``Cox'') against 
Gulf Power Company (``Gulf Power'') pursuant to section 224 
of the Communications Act of 1934, as amended (``Act'').2  
In short, FCTA, Comcast, Mediacom, Cox, and Time Warner 
(collectively, the ``Cable Operators'') challenge Gulf 
Power's imposition of a rate increase under new pole 
attachment agreements that allegedly exceeds the rates the 
Cable Operators paid under prior pole attachment agreements 
by ``more than 514 percent (and in one case as high as 550 
percent).''3  As explained below, we find Gulf Power's 
proposed rate of $38.06 to be unjust and unreasonable.  We 
further reject Gulf Power's argument that the Commission 
should abandon its reliance on the rate formula contained in 
its rules,4 and order the parties to negotiate new contracts 
using that formula as a guide for determining a reasonable 
rate.  Until that time, the Cable Operators may remain 
attached to Gulf Power's poles at the rates contained in 
their former agreements.

II.       BACKGROUND

The Cable Operators provide cable services throughout 
communities in Florida.5 The Cable Operators, or their 
predecessors-in-interest, and Gulf Power have had 
longstanding relationships governed by voluntary pole 
attachment contracts.6  For the year beginning July 1999 
through June 2000, the Cable Operators paid annual pole 
attachment rates ranging from $5.00 to $6.20 per pole.7  In 
mid-2000, Gulf Power sent the Cable Operators notices that 
their annual pole attachment rates would increase to 
$38.06.8

On July 10, 2000, the Cable Operators filed their Complaint 
with the Commission.  The Cable Operators allege that Gulf 
Power violated section 224 of the Act by unilaterally 
terminating existing pole attachment agreements, forcing the 
Cable Operators to execute new pole attachment agreements, 
and refusing to negotiate in good faith concerning the terms 
and conditions of those new agreements.9  According to the 
Cable Operators, Gulf Power's actions ``represent an 
unprecedented break in the established course of dealing'' 
that the parties had maintained, pursuant to which attachers 
would remain on Gulf Power's poles during the course of 
negotiations toward new pole agreements.10  The Cable 
Operators maintain that, under the Commission's rules, Gulf 
Power is entitled to charge an attachment rate between $4.16 
and $4.93 per pole.11  Nevertheless, the Cable Operators 
assert that they are willing to accept the ``moderately 
higher rates in the $5.00 to $6.20 range'' provided for in 
their prior contracts with Gulf Power.12  The Complaint, 
inter alia, asks the Commission (1) to declare that Gulf 
Power has acted unreasonably, and that the proposed $38.06 
rate is unlawful; (2) to establish an annual pole attachment 
rate for cable operators in Florida in an amount not greater 
than the former contract rate (not to exceed $6.20 per 
pole); and (3) to order Gulf Power to cease and desist from 
terminating the prior pole attachment agreements, negotiate 
in good faith regarding new agreements, comply with the 
Commission's rules regarding any rate increase, and refund 
the Cable Operators any amounts they have paid in excess of 
proper rates, plus interest.13

On August 9, 2000, Gulf Power filed a Response, which, in 
addition to denying all of the Complaint's material 
allegations, argues that the Commission lacks jurisdiction 
over the Complaint.14  Moreover, the Response asserts that 
the Commission's ``cable rate'' does not result in just 
compensation, because it excludes compensation for the value 
derived from space on poles that cannot be used for 
attachments, fails to allow recovery of all costs associated 
with the ``taking,'' and inappropriately is based on 
embedded costs.15  Finally, the Response argues that the 
price Gulf Power proposes to charge for attachments is 
supported by standard appraisal and valuation principles.16  
On the same day, Gulf Power filed a motion seeking 
confidential treatment of competitively-sensitive, 
proprietary data relating to its ``operating options, costs 
and practices,'' arguing that such data should be protected 
from disclosure to anyone other than members of the 
Commission's staff.17  According to Gulf Power, most of the 
confidential information is contained in its FERC Form No. 1 
for the year ending December 31, 1999, and neither the 
Federal Energy Regulatory Commission (``FERC''), nor the 
Florida Public Service Commission, has compelled disclosure 
of that information.18

The Cable Operators filed a Reply on August 29, 2000.19  In 
addition to taking issue with Gulf Power's arguments that it 
properly terminated its contracts with the Cable 
Operators,20 the Reply contends that the Commission's 
regulations provide just compensation for attachers' use of 
Gulf Power's poles.21

III.           ANALYSIS

     III.A.         The Commission Has Jurisdiction to 
     Resolve the Complaint.

We begin by addressing two threshold jurisdictional issues.  
First, Gulf Power argues that the Complaint must be 
dismissed, because the Commission lacks jurisdiction to 
regulate rates for pole attachments that are used to provide 
Internet service, irrespective of whether the Internet 
service is provided on a stand-alone or co-mingled basis.22  
This argument easily is answered by the United States 
Supreme Court's decision in National Cable 
Telecommunications Association v. Gulf Power Company, which 
held that section 224 vests the Commission with authority to 
regulate pole attachments of cable services providers that 
also provide access to the Internet.23

Second, Gulf Power argues that the Commission lacks 
jurisdiction to resolve the Complaint, because the claims at 
issue are for breach of contract.24  According to Gulf 
Power, the Complaint does not allege that the contractual 
provisions themselves are unjust and unreasonable.25  
Rather, the Complaint purportedly reflects the Cable 
Operators' unhappiness over the outcome of the provisions' 
application:  in other words, the ``consequences and impact 
of both their contractual obligations and their having to 
meet those duties seems unreasonable and unjust'' to the 
Cable Operators.26

In enacting section 224, Congress recognized that the 
Commission's involvement in ``regulat[ing] the rates, terms, 
and conditions for pole attachments'' would include review 
of a utility's pole attachment ``practices.''27  The terms 
and conditions of pole attachments consequently include not 
only the reasonableness of the contract provisions 
themselves, but also the reasonableness of pole owner 
practices in implementing contract provisions.28  This case 
concerns Gulf Power's ``unilateral rate increases, with the 
concomitant threat to dislodge [the Cable Operators'] 
attachments with the express purpose to make [the Cable 
Operators] assert [their] mandatory right to access'' under 
section 224(f).29  This type of practice by a utility in 
administering its contracts with attachers falls squarely 
within the ambit of section 224.

     III.B.         The Complaint Is Ripe for Resolution.

Gulf Power maintains that the Complaint is not ripe for 
resolution, because the Cable Operators have not 
demonstrated that the parties' negotiations reached an 
impasse prior to the filing of the Complaint.30  
Specifically, Gulf Power argues that it has offered to meet 
with the Cable Operators to ``discuss the new pole 
attachment agreement[s]'' and to ``explain Gulf Power's use 
of replacement cost in an attempt to establish a fair 
payment . . . that approaches just compensation.''31  
According to Gulf Power, it is the Cable Operators who have 
refused to engage in any meaningful negotiations.32  Despite 
Gulf Power's protestations, we believe the Complaint is ripe 
for resolution.

Parties are not required to engage in extended negotiations 
where they appear to be far apart in their analysis of the 
issues.33  We believe such is the situation in this case.  
In the Spring of 2000, Gulf Power advised Cox, Comcast, and 
Mediacom that they were required to execute new pole 
attachment agreements providing for a dramatically higher 
attachment rate in order to remain on Gulf Power's poles.34  
Time Warner received a letter dated October 26, 2000, 
stating that its pole attachment agreement must be amended 
to reflect the higher rate.35  Gulf Power has demonstrated 
that it is unwilling to negotiate a rate less than the 
demanded rate of $38.06.  Specifically, in its Response, 
Gulf Power makes clear that it considers the $38.06 rate to 
be ``just compensation,'' and that it will not continue 
``subsidized pole attachment fees . . . .''36  The parties 
met at various times to discuss the rate increase, and also 
exchanged correspondence regarding the increase.37  
Communications ultimately broke down, prompting the Cable 
Operators to file this Complaint.38  Based on our review of 
the record, we believe that further negotiations between the 
parties are likely to be fruitless without the Commission's 
intervention. 

     III.C.         Gulf Power Has Failed to Justify Its 
     Imposition of a $38.06 Annual Pole                
     Attachment Rate. 

Section 224 imposes upon all utilities, the duty to 
``provide a cable television system or any 
telecommunications carrier with nondiscriminatory access to 
any pole, duct, conduit, or right-of-way owned or controlled 
by it.''39  This directive ensures that ``no party can use 
its control of the enumerated facilities and property to 
impede, inadvertently or otherwise, the installation and 
maintenance of telecommunications and cable equipment by 
those seeking to compete in those fields.''40

In a pole attachment complaint proceeding, the complainant 
bears the burden of establishing a prima facie case that the 
rate, term, or condition of attachment at issue is not just 
and reasonable, or that the denial of access violates 
section 224(f) of the Act.41  Toward that end, a complaint 
must include data and information in support of the claim.42  
Nonetheless, the Commission will not dismiss a complaint if 
the requisite information is not available from public 
records or from the utility after reasonable request.43

The Cable Operators have met their burden of establishing a 
prima facie case.  Specifically, the Complaint, supported by 
numerous exhibits, alleges that Gulf Power notified the 
Cable Operators of its desire to have the parties execute 
new pole attachment agreements containing a $38.06 pole 
attachment rate that is significantly higher than the rate 
the Cable Operators had been paying.44  Moreover, the 
Complaint sets forth the outcome of the Cable Operators' 
``rate study,'' which concluded that, using the Commission's 
Cable Formula,45 an appropriate attachment rate ranges from 
$4.16 to $4.93 per pole per year.46  Accordingly, we address 
the question of whether the rates proposed by the Cable 
Operators are below the statutory just and reasonable 
rate.47

Gulf Power does not expressly allege that the rates 
currently paid under the parties' contracts, which range 
from $5.00 to $6.20,48 or the maximum annual rate calculated 
under the Cable Formula, are less than the utility's 
incremental costs.49  Rather, Gulf Power contends that the 
Commission should abandon the Cable Formula, because the 
formula purportedly does not provide just compensation.50  
As an alternative, Gulf Power supports application of a 
``reproduction cost methodology,'' which is based on a 
``gross pole investment price arising from the replacement 
cost of the pole at current prices.''51  According to Gulf 
Power, the ``reproduction cost methodology'' includes ``all 
proper FERC accounts,'' and fully allocates the cost of both 
usable and unusable space.52  The ``reproduction cost 
methodology,'' Gulf Power contends, produces an annual rate 
of $38.06.53  Gulf Power further attempts to shore up the 
reasonableness of its $38.06 rate by including an affidavit 
that discusses various methods of making market valuations 
for property and concludes that an appropriate range for an 
annual attachment rate for Gulf Power's poles is $40-$45.54

We reject Gulf Power's assertion that the Cable Formula does 
not provide just compensation.  The Commission has concluded 
that its pole attachment formulas, together with the payment 
of make-ready expenses, provide compensation that exceeds 
just compensation.55   The Eleventh Circuit Court of Appeals 
upheld that determination, explaining:

          In short, before a power company can seek 
          compensation above marginal cost, it must 
          show with regard to each pole that (1) 
          the pole is at full capacity and (2) 
          either (a) another buyer of the space is 
          waiting in the wings or (b) the power 
          company is able to put the space to a 
          higher-valued use with its own 
          operations.  Without such proof, any 
          implementation of the Cable Rate (which 
          provides for much more than marginal 
          cost) necessarily provides just 
          compensation.56

Gulf Power has submitted no evidence in this proceeding that 
would satisfy the test articulated by the Eleventh 
Circuit.57

Finally, we find no merit in Gulf Power's objections to 
specific aspects of the Cable Formula, which the utility has 
asserted, time and again, before the Commission.  First, 
Gulf Power argues that the Commission's presumptions 
concerning pole height (i.e., 37.5 feet) and usable space 
(i.e., 13.5 feet)58 do not reflect the ``realities of the 
utility industry'' or ``Gulf Power's system of poles.''59  
Rather, Gulf Power claims that its average existing pole 
height is 40 feet (with usable space of 11.5 feet) based 
upon its claim that its average replaced pole in 1999 is 
approximately 40 feet.60  There is no evidence, however, to 
support a conclusion that the average height of the poles 
Gulf Power replaced in 1999 reflects the system-wide pole 
height average.61  Second, Gulf Power argues that additional 
capital accounts should be included in the investment 
calculation for poles and conduits,62 as well as in the 
calculation of the carrying charge rate.63  The Commission 
has addressed these identical arguments previously,64 and 
Gulf Power provides no new information or argument to 
persuade us that, in order to ensure just compensation, it 
is necessary to include additional accounts. 

In sum, Gulf Power fails utterly to justify its proposed 
annual pole attachment rate of $38.06 using the Cable 
Formula.  Accordingly, we find that rate to be unreasonable 
under section 224 of the Act and the Commission's rules.  
Moreover, Gulf Power offers no persuasive reason why 
departure from the Cable Formula is warranted in this case.  
Accordingly, we order Gulf Power to allow the Cable 
Operators to remain attached to Gulf Power's poles at the 
rates under their former contracts (i.e., $5.00 to $6.20), 
pending satisfactory negotiation of new agreements.  We 
further order the parties to negotiate new agreements in 
good faith using the Cable Formula as a guide to 
establishing a reasonable rate.  To the extent the Cable 
Operators have paid the $38.06 rate, we order refunds of the 
difference between the $38.06 rate and the rates contained 
in the parties' prior pole attachment agreements.

IV.       ORDERING CLAUSES

     1.   Accordingly, IT IS ORDERED, pursuant to sections 
          0.111, 0.311, and 1.1401-1.1418 of the 
          Commission's rules, 47 C.F.R.  0.111, 0.311, 
          1.1401-1.1418, that the relief requested in the 
          Complaint IS GRANTED TO THE EXTENT INDICATED 
          HEREIN.

     2.   IT IS FURTHER ORDERED, pursuant to sections 
          0.111, 0.311, and 1.1410 of the Commission's 
          rules, 47 C.F.R.  0.111, 0.311, 1.1410, that 
          the annual pole attachment rate of $38.06 IS 
          UNREASONABLE and IS TERMINATED, effective upon 
          the release of this Order.

     3.   IT IS FURTHER ORDERED, pursuant to sections 
          0.111, 0.311, and 1.1410 of the Commission's 
          rules, 47 C.F.R.  0.111, 0.311, 1.1410, that 
          the rates contained in the parties' prior pole 
          attachment agreements (i.e., $5.00-$6.20 annually 
          per pole) ARE CONTINUED, pending further 
          negotiations between the parties.

     4.   IT IS FURTHER ORDERED, pursuant to sections 
          0.111, 0.311, and 1.1410 of the Commission's 
          rules, 47 C.F.R.  0.111, 0.311, 1.1410, that 
          Gulf Power Company SHALL REFUND to Complainants 
          Comcast Cablevision Panama City, Inc., Mediacom 
          Southeast, L.L.C., and Cox Communications Gulf 
          Coast, L.L.C., within thirty (30) days of the 
          release of this Order, that portion of any 
          amounts paid in excess of the rates contained in 
          the parties' prior pole attachment agreements, 
          for the period July 10, 2000 to the present, plus 
          interest to the date of the refund.

     5.   IT IS FURTHER ORDERED, pursuant to sections 
          0.111, 0.311, and 1.1410 of the Commission's 
          rules, 47 C.F.R.  0.111, 0.311, 1.1410, that 
          Gulf Power Company SHALL REFUND to Complainant 
          Time Warner Cable, within thirty (30) days of the 
          release of this Order, that portion of any 
          amounts paid in excess of the rate contained in 
          the parties' prior pole attachment agreement, for 
          the period March 13, 2001 to the present, plus 
          interest to the date of the refund.

     6.   IT IS FURTHER ORDERED, pursuant to sections 
          0.111, 0.311, and 1.1401-1.1418 of the 
          Commission's rules, 47 C.F.R.  0.111, 0.311, 
          1.1401-1.1418, that Gulf Power Company and the 
          Complainants SHALL NEGOTIATE IN GOOD FAITH    
          maximum just and reasonable rates for pole 
          attachments, in accordance with the Commission's 
          rules.

     7.   IT IS FURTHER ORDERED, pursuant to sections 
          0.111, 0.311, and 1.1401-1.1418 of the 
          Commission's rules, 47 C.F.R.  0.111, 0.311, 
          1.1401-1.1418, that the Motion of Gulf Power 
          Company for Leave to File Motion to Dismiss 
          Complaint for Lack of Jurisdiction, File No. PA 
          00-004 (filed July 20, 2000); Gulf Power 
          Company's Motion for Leave to File a Motion for 
          Confidential Treatment of Commercial and 
          Financial Information, File No. PA 00-004 (filed 
          Aug. 9, 2000); Gulf Power Company's Motion for 
          Leave to File Supplemental Authority, File No. PA 
          00-004 (filed Sept. 11, 2000); and Motion for 
          Leave to File Comments on Gulf Power Notice of 
          Filing Supplemental Authority, File No. PA 00-004 
          (filed Sept. 21, 2000), ARE GRANTED.

     8.   IT IS FURTHER ORDERED, pursuant to sections 
          0.111, 0.311, and 1.1401-1.1418 of the 
          Commission's rules, 47 C.F.R.  0.111, 0.311, 
          1.1401-1.1418, that the Motion of Gulf Power 
          Company to Dismiss Complaint and Complainants' 
          Petition for Temporary Stay for Lack of 
          Jurisdiction, File No. PA 00-004 (filed July 20, 
          2000); Gulf Power Company's Motion to Strike, 
          File No. PA 00-004 (filed Aug. 7, 2000); Gulf 
          Power Company's Motion for Confidential Treatment 
          of Commercial and Financial Information, File No. 
          PA 00-004 (filed Aug. 9, 2000); Gulf Power 
          Company's Motion to Strike and Reply to 
          Complainants' Opposition to Request for Grant of 
          Motion for Confidential Treatment, File No. PA 
          00-004 (filed Sept. 6, 2000); and Gulf Power 
          Company's Motion to Strike the Complainants' 
          Supplement or, in the Alternative, Motion to 
          Dismiss, File No. PA 00-004 (filed Apr. 11, 2001) 
          ARE DENIED.

                              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, 17 FCC Rcd 4672 (2002).
2 47 U.S.C.  224.  See Complaint, File No. PA 00-004 (filed 
July 10, 2000) (``Complaint'').  On March 13, 2001, the 
original complainants endeavored to add Time Warner Cable 
(``Time Warner'') as a complainant.  Supplement, File No. PA 
00-004 (filed Mar. 13, 2001) (``Supplement'').  Gulf Power 
objected to the amendment, claiming, inter alia, that Time 
Warner had suffered no cognizable injury as of the date the 
Complaint was filed, and that the amendment constitutes an 
attempt by Time Warner unlawfully to obtain a refund 
retroactive to January 1, 2001 (the effective date of the 
higher annual pole attachment rate Gulf Power charged Time 
Warner).  Gulf Power Company's Motion to Strike the 
Complainants' Supplement or, in the Alternative, Motion to 
Dismiss, File No. PA 00-004 (filed Apr. 11, 2001) (``Motion 
to Strike'') at 3-7.  We deny the Motion to Strike.  The 
Commission has recognized that a state association, on 
behalf of its members, can facilitate negotiations with a 
utility and, when the negotiations reach an impasse, 
coordinate the filing of a complaint.  See Amendment of 
Rules and Policies Governing the Attachment of Cable 
Television Hardware to Utility Poles, Report and Order, 2 
FCC Rcd 4387, 4397-98,  78-80 (1987) (``Hardware Order''), 
aff'd, Memorandum Opinion and Order, 4 FCC Rcd 468 (1989).  
Indeed, the Commission's rules expressly provide that a 
state association may bring a complaint on behalf of its 
cable operator members.  47 C.F.R.  1.1404(a).  When a 
state association is a lead complainant, the Commission 
allows similarly-situated aggrieved complainants to join in 
a complaint against a utility, because it promotes 
administrative efficiency.  Hardware Order, 2 FCC Rcd at 
4397-98,  78-80.  It would be a waste of resources to 
require a similarly-situated cable operator to file a 
separate complaint simply because a utility delayed in 
providing notice to that cable operator of precisely the 
same rate change.  Gulf Power does not argue that Time 
Warner is situated differently from the other cable 
operators, beyond the fact that Time Warner did not receive 
notice of Gulf Power's rate change until October 26, 2000.  
(Gulf Power did ``reserve[ ] the right to file additional 
pleadings,'' if the Commission allows Time Warner to be 
added as a party.  Motion to Strike at 6 n.6.  Gulf Power 
has had numerous and adequate opportunities to supplement 
the record, however.  Having failed to do so on this issue, 
the record is now closed.)  As indicated below, the refund 
we order to be paid to Time Warner accrues from the date on 
which Time Warner was added to the proceeding - i.e., March 
13, 2001.
3 Complaint at 2, at 5,  15.  Pursuant to 47 C.F.R.  
1.1403(d), and simultaneously with the filing of the 
Complaint, the Cable Operators filed a Petition for 
Temporary Stay of Gulf Power's announced termination of 
access to its poles unless the Cable Operators paid the 
higher rate.  Petition for Temporary Stay, File No. PA 00-
004 (filed July 10, 2000) (``Petition for Temporary Stay'').  
The parties filed multiple submissions pertaining to the 
issues raised in the Petition for Temporary Stay.  See Gulf 
Power Company's Answer to Petition for Temporary Stay, File 
No. PA 00-004 (filed July 21, 2000) (``Answer to Petition 
for Temporary Stay''); Motion of Gulf Power Company to 
Dismiss Complaint and Complainants' Petition for Temporary 
Stay for Lack of Jurisdiction, File No. PA 00-004 (filed 
July 21, 2000); Opposition to Motion to Dismiss, File No. PA 
00-004 (filed July 31, 2000) (``Motion to Dismiss''); Motion 
to Strike; Letter dated August 16, 2000 to Magalie Roman 
Salas, Secretary, FCC, from Brian M. Josef, counsel for 
Cable Operators, File No. PA 00-004 (filed Aug. 16, 2000).  
Because this Order disposes of the substantive issues raised 
in the Petition for Temporary Stay, we dismiss it and the 
filings relating to it as moot. 
4 See 47 C.F.R.  1.1409(e)(1).
5 Complaint, Exhibit 2 (Schedule of Parties, Poles and 
Communities); Supplement, Exhibit 2 (Schedule of Parties).
6 Complaint at 4,  11.
7 See Complaint, Exhibit 3 (Pole Attachment Agreements 
between Cox and Gulf Power ), Exhibit 4 (Pole Attachment 
Agreements between Comcast and Gulf Power), Exhibit 5 (Pole 
Attachment Agreements between Mediacom and Gulf Power); 
Supplement, Exhibit 5 (Pole Attachment Agreement).
8 Complaint at 5,  15 & Exhibit 9 (Cover Letters and Draft 
Pole Attachment Agreements from Gulf Power to Cox), Exhibit 
10 (Cover Letters and Draft Pole Attachment Agreements from 
Gulf Power to Comcast); Exhibit 11 (Cover Letters and Draft 
Pole Attachment Agreements from Gulf Power to Mediacom); 
Supplement, Exhibit 9.  
9 Complaint at 7,  22-23.
10 Complaint at 5,  4, at 7,  24.
11 Complaint at 7 n.4.
12 Complaint at 7 n.4.
13 Complaint at 8-9,  29. 
14 Gulf Power Company's Response to Complaint, File No. PA 
00-004 (filed Aug. 9, 2000) (``Response'') at 9-13, 4.
15 Response at 38-48.
16 Response at 48-52.
17 Gulf Power Company's Motion for Confidential Treatment of 
Commercial and Financial Information, File No. PA 00-004 
(filed Aug. 9, 2000) (``Motion for Confidential Treatment'') 
at 2.  See also Gulf Power Company's Motion for Leave to 
File Motion for Confidential Treatment of Commercial and 
Financial Information, File No. PA 00-004 (filed Aug. 9, 
200) (``Motion for Leave to File Motion for Confidential 
Treatment'') at 2.
18 Motion for Confidential Treatment at 2, 5.  On September 
14, 2000, FERC denied Gulf Power's request for confidential 
treatment of ``certain information in Gulf Power Company's 
1999 Form 1 filing,'' because FERC ``does not consider the 
Form 1 information confidential.''  See Letter dated 
November 9, 2000 to Magalie Roman Salas, Secretary, FCC, 
from Brian M. Josef, counsel for Cable Operators, File No. 
PA 00-004 (filed Nov. 9, 2000) (attachment).  Gulf Power's 
FERC Form No. 1 reports now are available on the Internet.  
See http://www.ferc.gov.  Moreover, this Order does not rely 
on any other of the purportedly confidential information, 
because that information relates to Gulf Power's proposed 
alternative ``reproduction cost methodology,'' which we 
reject.  See paragraph 16, infra.  See also Motion for Leave 
to File Motion for Confidential Treatment at 3 (``In 
addition [to the FERC Form 1 information], some of the 
confidential information supporting the replacement cost 
methodologies being submitted by Gulf Power is from Gulf 
Power's internal documents . . . .'').  For these reasons, 
we deny the Motion for Confidential Treatment as moot.
19  Reply,  File  No.  PA   00-004  (filed  Aug.  29,  2000) 
(``Reply'').
20 Reply at 6-20.
21 Reply at 20-57.
22 Response at 9.  See also Motion to Dismiss at 3-4; Motion 
to Strike at 3-7.
23 534 U.S. 327, 333 (2002) (``Gulf Power'').
24 Response at 10; Motion to Dismiss at 4-6.
25 Response at 12; Motion to Dismiss at 5.
26 Response at 12; Motion to Dismiss at 5-6.
27 See Newport News Cablevision, Ltd. Communications, Inc. 
v. Virginia Electric & Power Co., Order, 7 FCC Rcd 2610, 
2610,  4 (Comm. Car. Bur. 1992) (``Newport News'') (citing 
S. Rep. No. 580, 95th Cong., 1st Sess. at 14 (1977), 
reprinted in 1978 U.S. Code Cong. & Admin. News 109 
[Commission involvement via section 224 was intended to 
``minimize the effect of unjust or unreasonable pole 
attachment practices on the wider development of cable 
television service to the public.'']).
28 Newport News, 7 FCC Rcd at 2610,  4.
29 Alabama Cable Telecommunications Ass'n  v. Alabama Power 
Co., Order, 16 FCC Rcd 12209, 12217,  19 (2001) (``APCo 
Review''), review denied sub nom. Alabama Power Co. v. FCC, 
311 F.3d 1357 (11th Cir. 2002) (``Alabama Power''), petition 
for certiorari filed.  See, e.g., Response at 15 (``[A]ny of 
the Complainants herein that desires to keep or place its 
facilities on Gulf Power's poles will be required to mandate 
such access under Section 224 of the Act.'').
30 Response at 20-21,  18.  See Amendment of Commission's 
Rules and Policies Governing Pole Attachments, Consolidated 
Partial Order on Reconsideration, 16 FCC Rcd 12103, 12111,  
10 (2001) (``Pole Attachments Reconsideration Order'') (the 
pole attachment complaint rules apply ``when parties are 
unable to arrive at a negotiated agreement . . . .''); see 
also 47 C.F.R.  1.1404(k) (a pole attachment complaint must 
include ``a brief summary of all steps taken to resolve the 
problem prior to filing.  If no such steps were taken, the 
complain[an]t shall state the reason(s) why it believed such 
steps were fruitless.''). 
31 Response at 20-21,  18.  See also Second Affidavit of 
Michael R. Dunn, File No. PA 00-004 (filed Aug. 9, 2000) 
(``Second Dunn Affidavit'') at 2-3,  3; Third Affidavit of 
Michael R. Dunn, File No. PA 00-004 (filed Aug. 9, 2000) 
(``Third Dunn Affidavit'') at 3,  4.
32 Response at 21,  18.   See also Second Dunn Affidavit at 
3,  5; Third Dunn Affidavit at 3,  4.
33 See, e.g., Teleprompter of Fairmont, Inc. v. Chesapeake & 
Potomac Telephone Co. of West Virginia, Memorandum Opinion 
and Order, 85 FCC 2d 243, 244 n.2 (1981) (Commission 
considered complainant's representation that its differences 
with the utility over pole attachments rates were so great 
that negotiations would be futile to be ``satisfactory'' for 
purposes of the pole attachment rules'').
34 Complaint at 5,  15 & Exhibit 9 (Cover Letters and Draft 
Pole Attachment Agreements from Gulf Power to Cox), Exhibit 
10 (Cover Letters and Draft Pole Attachment Agreements from 
Gulf Power to Comcast); Exhibit 11 (Cover Letters and Draft 
Pole Attachment Agreements from Gulf Power to Mediacom).  
35 Supplement, Exhibit 9.  There is no indication that Time 
Warner attempted to negotiate with Gulf Power, although Gulf 
Power does not raise this as an issue.  As discussed supra 
note 2, as a matter of administrative efficiency, we will 
allow Time Warner to participate in this proceeding, but the 
refund ordered in this case will accrue from the date on 
which Time Warner was added to the proceeding - i.e., March 
13, 2001. 
36 Response at 21,  18.
37 See Complaint at 6,  17-18, Exhibit 7 (Declaration of 
L. Keith Gregory) at 3-5,  7-13, Exhibit 12 (June 2, 2000 
Letter from J. Christopher Redding to Michael R. Dunn re: 
Pole Attachments), Exhibit 13 (June 28, 2000 Letter from 
Bruce Glickman to Michael R. Dunn re: Pole Attachment 
Agreement), Exhibit 14 (June 16, 2000 Letters from Michael 
R. Dunn to J. Christopher Redding and Thomas R. Nathan re: 
Pole Attachments), Exhibit 15 (July 7, 2000 Letter from J. 
Christopher Redding to Michael R. Dunn re: Cox 
Communications Pole Attachment Agreement); Reply at 11-12; 
Response at 17-22,  15-18.  
38 Response at 20-21,  18.
39 47 U.S.C.  224(f)(1).
40 Implementation of the Local Competition Provisions in the 
Telecommunications Act of 1996, First Report and Order, 11 
FCC Rcd 15499, 16060,  1123 (1996) (subsequent history 
omitted).  
41 47 C.F.R.  1.1409(b).  See also 47 C.F.R.  1.1409(d) 
(``The Commission shall deny the complaint if it determines 
that the complainant has not established a prima facie case 
. . . .'').
42 47 C.F.R.  1.1404(g).
43 47 C.F.R.  1.1406(b).  
44 Complaint at 5,  15, Exhibit 9 (Cover Letters and Draft 
Pole Attachment Agreements from Gulf Power to Cox), Exhibit 
10 (Cover Letters and Draft Pole Attachment Agreements from 
Gulf Power to Comcast), Exhibit 11 (Cover Letters and Draft 
Pole Attachment Agreements from Gulf Power to Mediacom); 
Supplement, Exhibit 9.
45 The Cable Formula is the methodology the Commission 
developed to calculate the maximum allowable pole attachment 
rate a specific utility may charge a cable operator 
providing cable services.  See Amendment of Rules and 
Policies Governing Pole Attachments, Report and Order, 15 
FCC Rcd 6453, 6457,  5 (2000) (``Fee Order''), review 
denied sub nom. Southern Co. Serv., Inc. v. FCC, 313 F.3d 
574 (D.C. Cir. 2002); Pole Attachments Reconsideration 
Order, 16 FCC Rcd at 12107,  5.  See also Adoption of Rules 
for the Regulation of Cable Television Pole Attachments, 
First Report and Order, 68 FCC2d 1585 (1978) (``First Report 
and Order''); Second Report and Order, 72 FCC2d 59 (1979) 
(``Second Report and Order''); Third Report and Order, 77 
FCC2d 187 (1980) (``Third Report and Order''), review denied 
sub nom. Monongahela Power Co. v. FCC, 655 F.2d 1254 (D.C. 
Cir. 1985) (per curiam); Hardware Order,  2 FCC Rcd at 4387.
46 Complaint at 6-7,  19 & n.4.
47 As a threshold argument, the Cable Operators contend that 
the Commission need not decide whether, utilizing the 
principle of ``just compensation,'' Gulf Power is entitled 
to a higher pole rate than that produced by the Cable 
Formula.  Reply at 6.  According to the Cable Operators, the 
Commission should find that the ``unilateral and coercive 
character of Gulf Power's termination and rate increase'' 
contravened the parties' twenty-year ``custom and course of 
dealing,'' which permitted the Cable Operators to keep their 
attachments on Gulf Power's poles while the parties 
negotiated new voluntary pole attachment agreements.  Reply 
at 6-7.  The Commission has refused to find that voluntary 
relationships automatically become mandatory relationships 
(i.e., are ``grandfathered'') pursuant to the 1996 Act's 
mandatory access amendments to section 224.  In other words, 
at some point a pole owner reasonably may terminate a 
voluntary relationship with an attacher without running 
afoul of section 224, even though the pole owner still must 
grant access.  See APCo Review, 16 FCC Rcd at 12218,  20-
21.  Because we deny this argument by the Cable Operators, 
we need not resolve whether Gulf Power in fact had a 
contract with one of the attachers (Cox) and, if so, when 
that contract (as well as the other contracts) expired.  
See, e.g., Motion to Dismiss at 5 & n.3; Response at 7, 11-
12 & n.4.
48 Complaint at 7 n.4.
49 See 47 U.S.C.  224(d)(1); 47 C.F.R.  1.1409(c). 
50 Response at 34-48,  28.  In making this argument, Gulf 
Power incorporates its Petition for Reconsideration in CS 
Docket No. 97-98.
51 Response at 49.  See Third Dunn Affidavit at 12-16,  
19-24.
52 Response at 49.  See Third Dunn Affidavit at 12-16,  
19-24.
53 Response at 49.  See Third Dunn Affidavit at 12-16,  
19-24.
54 Response at 49-51.  See Affidavit of Henry J. Wise, MAI, 
File No. PA 00-004 (filed Aug. 9, 2000) (``First Wise 
Affidavit''); Second Affidavit of Henry J. Wise, MAI, File 
No. PA 00-004 (filed Sept. 12, 2000) (``Second Wise 
Affidavit''). 
55 APCo Review, 16 FCC Rcd at 12223-36,  32-61.
56 Alabama Power, 311 F.3d at 1370-71.
57 Cf. Alabama Power, 311 F.3d at 1370 (``[N]owhere in the 
record did APCo allege that APCo's network of poles is 
currently crowded.  It therefore has no claim.'').  Gulf 
Power and Alabama Power Company are wholly-owned 
subsidiaries of The Southern Company.  See Complaint, 
Exhibit 17 (FERC Form No. 1: Annual Report of Major Electric 
Utilities, Licensees and Others) (filed May 2, 2000).  
Although Gulf Power was not a party to the Bureau proceeding 
underlying the Commission's order in APCo Review, it filed 
in the Eleventh Circuit a Petition for Review of the Bureau 
order.  The Court of Appeals dismissed Gulf Power's petition 
for lack of standing.  Alabama Power, 311 F.3d at 1366-67.  
Gulf Power argues that its filing of a Petition for Review 
in Alabama Power divests the Commission of jurisdiction to 
decide the Complaint in the instant matter.  See Motion to 
Strike at 2-3.  That argument - which borders on the 
frivolous - is moot in light of the Eleventh Circuit's 
disposition of Gulf Power's Petition for Review in Alabama 
Power.
58 See Fee Order, 15 FCC Rcd at 6465,  16.
59 Response at 42.
60 Response at 42-43; Third Dunn Affidavit at 14,  21 & 
Attachment E (Gulf Power Company 1999 New Pole Additions and 
Average Pole Heights).  
61 Gulf Power indicates that it owns 224,555 distribution 
poles, and that it uses 66,440 distribution poles.  Third 
Dunn Affidavit, Attachment A (Gulf Power Company Response 
for Data and Information Specified in 47 C.F.R.  1.1404(g) 
(Based on December 31, 1999 Data)) at 1.  The utility, 
however, fails to provide information about the various 
heights of these poles, or even about a statistically-valid 
sampling of the poles.
62 Specifically, Gulf Power argues that, in addition to FERC 
Account 364, the following capital accounts should be 
utilized:  Account 360 (land and land rights), Account 365 
(overhead conductors and devices), Account 368 (line 
transformers), and Accounts 389-399 (general plant).  
Response at 41-42; Third Dunn Affidavit at 10,  16.  
63 According to Gulf Power, a ``full and perfect price'' 
necessary to provide just compensation must include FERC 
Account 580 (operation supervision and engineering), Account 
583 (overhead line expenses), Account 588 (miscellaneous 
distribution expenses), Account 590 (maintenance supervision 
and engineering), and Account 598 (maintenance of 
miscellaneous distribution plant).  Response at 40-41; Third 
Dunn Affidavit at 10,  16.
64 APCo Review, 16 FCC Rcd at 12236,  61; Pole Attachment 
Reconsideration Order, 16 FCC Rd at 12159-64,  116-28.