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                         Before the
                   Washington, D.C.  20554

In the Matter of                  )
Fiber Technologies Networks,      )
L.L.C.,                           )
                        Peti-     )
tioner,                           )   File No. EB-03-MD-007
         v.                      )
Verizon New England, Inc. d/b/a   )
Verizon Rhode Island,             )
         Respondent.             )


Adopted:  May 14, 2003                       Released:   May 
15, 2003

By   the  Chief,   Market   Disputes  Resolution   Division, 
Enforcement Bureau:

     1.   On April 21, 2003, Fiber Technologies Networks, 
          L.L.C. (``Fibertech'') filed a petition for 
          temporary stay pursuant to 47 C.F.R.  1.1403(d) 
          requesting, among other things, that the 
          Commission prohibit Verizon New England, Inc. 
          d/b/a Verizon Rhode Island (``Verizon'') from 
          terminating its pole attachment agreement with 
          Fibertech and removing any Fibertech cables from 
          Verizon poles.1  Because the parties have agreed 
          to mediate their dispute within the next several 
          weeks, we issue a limited interim stay, as set 
          forth below, in order to maintain the status quo 
          (to the extent consistent with public safety) 
          pending Commission-supervised mediation.
     2.   Fibertech is a telecommunications provider in the 
          northeastern and midwestern United States.2  
          Fibertech has constructed a fiber optic network, 
          including in and around Providence, Rhode Island, 
          providing telecommunications and dark-fiber 
          services.3  Fibertech's Rhode Island network is 
          installed almost entirely on utility poles or 
          underground conduit owned by Verizon, and 
          Fibertech and Verizon have entered into a pole 
          attachment agreement.4  Verizon is the incumbent 
          local exchange carrier in Rhode Island.5
     3.   Fibertech initially submitted applications for 
          licenses to attach to Verizon poles in Rhode 
          Island on July 21, 2000.6  Verizon is required by 
          Commission rules to respond to applications 
          within 45 days by either granting access to poles 
          or confirming the denial in writing by the 45th 
          day, and including specific information 
          supporting the denial based on lack of capacity, 
          safety, reliability or engineering standards.7  
          According to Fibertech's Stay Petition, Verizon 
          did not respond to Fibertech's applications 
          within the requisite 45 day time-frame.8  
          Instead, Verizon responded to the initial 
          applications 180 days after submission, and did 
          not respond to others for 329 days.9  In 
          addition, according to Fibertech, the make-ready 
          estimates accompanying Verizon's belated 
          responses grossly inflated any necessary 
          expenses.10  In sum, Fibertech contends that 
          Verizon's conduct is an anticomptetitive attempt 
          to thwart Fibertech's efforts to construct a 
          competitive broadband network in Rhode Island.11  
     4.   Instead of filing a complaint with the Commission 
          based on Verizon's alleged violation of section 
          224 of the Communications Act of 1934, as amended 
          (``Act''),12 Fibertech installed its cable within 
          the ``supply space'' of the poles utilized by 
          Narragansett Electric Company (``NECO''), the 
          local electric utility.13  Based on Fibertech's 
          agreement with NECO, a NECO contractor installed 
          Fibertech's cable under the supervision and 
          direction of NECO inspectors.14  The record 
          appears to reflect that, irrespective of its 
          agreement with NECO, Fibertech nevertheless lacks 
          the requisite licenses from Verizon, the pole 
          owner, to lawfully attach.15  At the same time, 
          however, section 224 of the Act confers on 
          Fibertech the right to nondiscriminatory access 
          to Verizon's poles, and requires Verizon to 
          respond to requests for access promptly.16
     5.   Verizon has advised Commission staff that it 
          recently filed a state court action in Rhode 
          Island, alleging, inter alia, that Fibertech 
          breached its pole attachment agreement with 
          Verizon.  While state courts have jurisdiction 
          over certain breach of contract issues involving 
          pole attachment agreements, the Commission has 
          jurisdiction to hear and resolve complaints 
          regarding the reasonableness of terms and 
          conditions of attachment.17    
     6.   The Commission may grant a stay if: (1) the 
          Petitioner is likely to succeed on the merits; 
          (2) the Petitioner would suffer irreparable 
          injury absent a stay; (3) a stay would not 
          substantially injure other interested parties; 
          and (4) a stay is in the public interest.18  
          Although we are not in a position at this 
          preliminary stage to assess fully these four 
          factors, we find that the public interest in 
          having disputes resolved by swift agreement of 
          the parties outweighs the other factors, 
          warranting issuance of a limited interim stay 
          that would maintain the status quo until the 
          parties have an opportunity to participate in 
          Commission-supervised mediation.19  Such a stay 
          will ensure that there will be no significant 
          change in the status of Fibertech's attachments 
          (and, concomitantly, its ability to provide 
          service to its customers) before the parties have 
          determined whether they can resolve their dispute 
          without resort to costly and time-consuming 
          litigation.  Accordingly, we order Verizon to 
          refrain from detaching any Fibertech cable from 
          Verizon poles in Rhode Island, except to the 
          extent necessary to prevent imminent harm to 
          public safety or property, pending Commission-
          supervised mediation of this matter.  Upon 
          completion of the mediation, we will rule on the 
          merits of the Stay Petition to the extent 


                         Alexander P. Starr
                         Chief, Market Disputes Resolution 
                         Enforcement Bureau

1 Petition for Temporary Stay, File No. EB-03-MD-007 (filed 
Apr. 21, 2003) (``Stay Petition'') at 27-28.  
2 Stay Petition at 4.  For purposes of this Order, we assume 
the facts pled in the Stay Petition to be true.
3 Stay Petition at 4.
4 Stay Petition at 4-5, 9. 
5 Stay Petition at 4.
6 Stay petition at 6.
7 47 C.F.R.  1.1403(b).
8 Stay Petition at 6
9 Stay Petition at 6.
10 Stay Petition at 9-13.
11 See Stay Petition at 4-8, 10-15.
12 See 47 U.S.C.  224.
13 Stay Petition at 8.
14 Stay Petition at 8-10.
15 See, e.g., Stay Petition at 23 (Verizon ``sought 
unlawfully to impose unnecessary and burdensome costs on 
Fibertech as a condition of access to its poles'').
16 47 U.S.C.  224(f)(1); 47 C.F.R.  1.1403(b).
17 Alabama Cable Telecommuncations Ass'n v. Alabama Power 
Co., Order, 16 FCC Rcd 12209, 12217  18 (2001), review 
denied sub nom. Alabama Power Co. v. FCC,  311 F.3d 1357 
(11th Cir. 2002), petition for cert. filed 71 U.S.L.W. 3653 
(Apr. 4, 2003) (No. 02-1474).  See also 47 C.F.R.  1.1415 
(the Commission ``may issue such other orders and so conduct 
its proceedings as will best conduce to the proper dispatch 
of business and the ends of justice'').
18 See Virginia Petroleum Jobbers Ass'n v. F.P.C., 259 F.2d 
921, 925 (D.C. Cir. 1958); Washington Metro. Transit Comm'n 
v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
19 As noted above, the parties have agreed to participate in 
mediation under the Commission's auspices, and they are in 
the process of preparing written submissions to the 
Commission in anticipation of the mediation.  The parties 
have been working to determine a mutually-convenient date 
for the mediation.  To ensure that the mediation takes place 
in a timely manner, we hereby order the parties to advise 
Commission staff, no later than May 16, 2003, of dates that 
are acceptable to both sides.