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




Fiber Technologies Networks, L.L.C.,    )
                              )
Complainant,                       )
                              )
     v.                       )    File No. EB-03-MD-005
                              )
Duquesne Light Company,            )
                              )
Defendant.                         )



                                ORDER

Adopted:  May 22, 2003                       Released:  May 27, 2003

By the Chief, Enforcement Bureau:

                          I.   INTRODUCTION

      1.  In this Order, we reject a Petition To Stay Termination Of 
 Pole Attachment Rights1 that complainant Fiber Technologies 
 Networks, L.L.C., (``Fibertech'') filed in this matter pursuant to 
 sections 1.1403(d) and 1.1415 of the Commission's rules.2  
 Fibertech's Stay Petition asks the Commission to stay any attempt 
 by defendant Duquesne Light Company (``Duquesne'') either to 
 terminate a pole attachment agreement between Fibertech and 
 Duquesne or to remove or seek removal of Fibertech's facilities 
 from Duquesne's poles, pending the Commission's decision on a 
 complaint that Fibertech filed against Duquesne3 alleging that 
 Duquesne violated section 224 of the Communications Act of 1934, as 
 amended (the ``Act'').4  As explained below, we conclude that the 
 Petition should be dismissed as moot to the extent that it seeks to 
 stay any effort by Duquesne to remove or seek removal of 
 Fibertech's facilities from Duquesne's poles.  Moreover, to the 
 extent that the Petition seeks to stay any attempt by Duquesne to 
 terminate the parties' pole attachment agreement, we conclude that 
 the Petition should be denied on the ground that Fibertech has 
 failed to show that, in the absence of a stay, it will suffer 
 irreparable harm from the actual or threatened termination of that 
 agreement.  

                           II.  BACKGROUND

      2.  Fibertech filed its Complaint against Duquesne on April 8, 
 2003.  The Complaint alleges that Fibertech is a telecommunications 
 carrier within the meaning of section 224 of the Act.5  It further 
 alleges that defendant Duquesne is a corporation engaged in the 
 provision of electric utility service in Pennsylvania.6  The 
 Complaint charges that Duquesne has violated section 224 of the Act 
 by, inter alia, imposing unreasonable delays and unreasonable 
 expenses on Fibertech's attachment of facilities to Duquesne's 
 poles.7  Specifically, the Complaint alleges that Duquesne impeded 
 Fibertech's access to its poles by unreasonably delaying execution 
 of a pole attachment agreement with Fibertech,8 and imposed 
 unnecessary expense on Fibertech's network expansion by imposing 
 unjust and unreasonable charges for pole survey, engineering, and 
 make-ready work following the parties' execution of a pole 
 attachment agreement.9  The Complaint seeks an order: (i) requiring 
 Duquesne to refund to Fibertech allegedly unlawful engineering and 
 make-ready charges that Duquesne allegedly forced Fibertech to pay; 
 (ii) terminating additional unlawful charges totaling $570,643 that 
 Duquesne has attempted to collect from Fibertech, and which 
 Fibertech has refused to pay;10 (iii) declaring that certain terms 
 and conditions of attachment imposed by Duquesne are unjust and 
 unreasonable; and (iv) and prohibiting Duquesne from terminating 
 the Pole Attachment Agreement based on Fibertech's refusal to pay 
 disputed amounts, and from removing Fibertech's facilities from 
 Duquesne's poles.11  

      3.  Fibertech filed its Stay Petition on April 8, 2003, the 
 same day that it filed the Complaint.  The Petition alleges that 
 Duquesne issued a Notice of Termination of Fibertech's Pole 
 Attachment Agreement to become effective on April 8, 2003.12  The 
 alleged Notice of Termination consisted of a letter that Duquesne 
 sent to Fibertech on February 7, 2003.13  The February 7 Letter 
 stated that Fibertech had not paid invoices that Duquesne submitted 
 to Fibertech in amounts totaling $565,814.  The February 7 Letter 
 asserted that the parties' Pole Attachment Agreement requires 
 Fibertech to pay submitted invoices within 30 days, and that the 
 $565,814 amount had been past due for more than 30 days.  The 
 February 7 Letter further stated:  

          Fibertech's failure to timely pay the amounts 
          due for services provided under the Agreement 
          constitutes  a  breach  of a  material  term.  
          Pursuant to Section  1.2.01 of the Agreement, 
          [Duquesne] will  have the right  to terminate 
          the Agreement  sixty (60) days  from the date 
          of this notice if Fibertech has not cured its 
          breach.   [Duquesne]  intends  thereafter  to 
          exercise  its  rights   to  the  full  extent 
          provided  in the  Agreement  under applicable 
          law. 

      4.  Section 1.2.01 of the Pole Attachment Agreement provides 
 that Duquesne ``has the right to terminate this Agreement upon 
 sixty (60) days written notice for a breach of any material 
 term.''14  Section 1.2.05 of the Pole Attachment Agreement provides 
 that, in the event of termination of the agreement, ``the attaching 
 party shall remove its facilities from Duquesne's structure within 
 sixty (60) days from the date of termination . . .;''15 and section 
 1.2.06 provides that, if the attaching party does not remove its 
 facilities within the sixty-day time period specified in section 
 1.2.05, Duquesne ``shall have the right to remove them at the 
 expense of the attaching party . . . .''16  In its Petition, 
 Fibertech requests that the Commission stay Duquesne's purported 
 attempt to terminate the Pole Attachment Agreement between 
 Fibertech and Duquesne, and stay any efforts by Duquesne to remove 
 or seek removal of Fibertech's facilities from Duquesne's poles 
 pending a decision on the Complaint, arguing, inter alia, that it 
 will suffer irreparable injury in the absence of a stay.17

      5.  Under 47 C.F.R.  1.1403(d), Duquesne was permitted to 
 file a response to the Stay Petition within 7 days after it was 
 filed.  On April 22, 2003, Commission staff, having not received a 
 response to the Petition, telephoned Duquesne's counsel, David 
 Pawlik, to inquire as to whether Duquesne intended to file a 
 response.  Mr. Pawlik advised staff that his client, Duquesne, did 
 not intend to file a response to the Petition, and that Duquesne 
 had no intention of removing Fibertech's facilities from its poles 
 pending the resolution of the dispute set forth in Fibertech's 
 Complaint.  

      6.  On April 24, 2003, Commission staff issued a letter order 
 in this proceeding that recounted Mr. Pawlik's representation to 
 staff that Duquesne has no intention of removing Fibertech's 
 facilities pending resolution of this dispute, and stated that this 
 representation appeared to render moot the request for relief set 
 forth in Fibertech's Stay Petition.18  The Letter Order directed 
 the parties to advise staff in writing as to whether they agree 
 that the Petition should be dismissed as moot based on the 
 representations of Duquesne's counsel, and to provide full support 
 for any objection to such dismissal.19

      7.  On May 1, 2003, Duquesne's counsel filed a letter in which 
 he affirmed that Duquesne ``does not intend to remove any 
 [Fibertech] facilities from [Duquesne] poles while the dispute set 
 forth in Fibertech's Complaint . . . is pending before the 
 Commission,''20 and he agreed that the Commission should dismiss 
 the Stay Petition as moot.  On May 2, 2003, Fibertech's counsel 
 filed a letter in response to the Letter Order and Duquesne May 1 
 Letter.21  The Fibertech May 2 Letter stated that ``Duquesne's 
 promise not to remove Fibertech from the poles is a welcome 
 development, but there exists the remaining question of whether 
 Duquesne still intends to terminate the pole attachment agreement . 
 . . .''22  The Fibertech May 2 Letter stated that Fibertech ``will 
 immediately withdraw its petition with Duquesne's promise to allow 
 Fibertech to continue operating on Duquesne's poles under the 
 lawful provisions of the parties' pole attachment agreements while 
 this proceeding is pending, including by processing pole attachment 
 applications that Fibertech might submit in accordance with 
 applicable guidelines and timeframes.''23 

      8.  The Fibertech May 2 Letter did not dispute that the 
 portion of Fibertech's Petition that seeks a stay of any efforts by 
 Duquesne to remove or seek removal of Fibertech's facilities from 
 Duquesne's poles should be dismissed as moot.  Accordingly, and in 
 reliance on Duquesne's representations, we dismiss as moot 
 Fibertech's Petition to the extent it requests that we stay 
 Duquesne's removal or attempted removal of Fibertech's facilities 
 from Duquesne's poles pending the conclusion of this complaint 
 proceeding.  

      9.  Fibertech's May 2 Letter did, however, suggest that the 
 portion of Fibertech's Petition that requests a stay of Duquesne's 
 attempted termination of the Pole Attachment Agreement was not 
 rendered moot by Duquesne's representation.  Accordingly, our 
 discussion will focus on Fibertech's continuing request for a stay 
 of Duquesne's purported attempt to terminate the Pole Attachment 
 Agreement.

                           III. DISCUSSION

      10. Section 1.1403(c) of our rules24 states, in pertinent 
 part, that a utility shall provide a telecommunications carrier no 
 less than 60 days' written notice prior to ``[r]emoval of 
 facilities or termination of any service to those facilities, such 
 removal or termination arising out of a rate, term or condition of 
 the . . . telecommunications carrier's pole attachment agreement.''  
 Section 1.1403(d) states that a telecommunications carrier may file 
 a ``Petition for Temporary Stay'' of the action contained in a 
 notice received pursuant to section 1.1403(c) within 15 days of 
 receipt of such notice.25  Section 1.1403(d) further provides: 

          Such  submission  shall   not  be  considered 
          unless  it includes,  in  concise terms,  the 
          relief sought,  the reasons for  such relief, 
          including a  showing of irreparable  harm and 
          likely cessation of  cable television service 
          or telecommunication service. . . .26

      11. We note at the outset that it is not at all clear from the 
 record whether Duquesne's February 7 Letter - which Fibertech calls 
 a ``Notice of Termination'' - was intended to, or did in fact, 
 terminate the Pole Attachment Agreement effective on April 8, 2003.  
 The words ``notice of termination'' did not appear on the February 
 7 Letter.  Nor did that Letter state that the Pole Attachment 
 Agreement would automatically terminate 60 days hence if Fibertech 
 did not pay the amount that Duquesne claims it is due.  Rather, the 
 Letter simply stated that Duquesne ``will have the right to 
 terminate the Agreement'' in 60 days ``if Fibertech has not cured 
 its breach,'' and that Duquesne ``intends thereafter to exercise 
 its rights to the full extent provided in the Agreement under 
 applicable law.''  Nothing in the record before us indicates 
 whether the Pole Attachment Agreement was, in fact, terminated on 
 or after April 8, 2003.

      12. More fundamentally, Fibertech has failed to demonstrate 
 that the actual or threatened termination of the Pole Attachment 
 Agreement has caused or will cause Fibertech to suffer irreparable 
 harm - a showing required under section 1.1403(d).27  Duquesne's 
 February 7 Letter indicated that Fibertech could avoid termination 
 of the Pole Attachment Agreement by paying the $565,814 amount that 
 Duquesne claims it is due.  Although we understand that Fibertech 
 contends that the $565,814 constitutes an overcharge in violation 
 of section 224, Fibertech fails to explain, in either the Stay 
 Petition or the Complaint, how it would be irreparably harmed if it 
 simply paid Duquesne the $565,814 amount now, with the expectation 
 that it would later recover this payment as a refund if it succeeds 
 in proving the section 224 violations alleged in its Complaint.  
 Indeed, the refund Fibertech seeks to recover in this case already 
 includes unlawful charges that Fibertech paid Duquesne in the past.  
 In the case of those earlier charges, Fibertech apparently chose to 
 pay the amount Duquesne demanded, with the intention of later 
 recovering the overcharge in an action before the Commission.  
 Fibertech does not explain how it would be irreparably harmed by 
 handling the $565,814 charge in the same way as the other alleged 
 overcharges at issue in this case.28  Fibertech's Petition merely 
 offers the unsupported, conclusory assertion that ``forcing 
 Fibertech into the position of paying additional unlawful charges . 
 . . could place Fibertech at an even greater competitive 
 disadvantage to Duquesne than it has so far.''29  Moreover, the 
 Petition does not present evidence of any irreparable harm to 
 Fibertech's relationships with customers, investors, or lenders 
 that would result from termination of the Agreement.  

      13. We therefore deny Fibertech's instant request for a stay 
 of Duquesne's actual or threatened termination of the Pole 
 Attachment Agreement, because Fibertech has failed to demonstrate 
 the irreparable harm required under section 1.1403(d) of our 
 rules.30  

                        IV.  ORDERING CLAUSES

      14. ACCORDINGLY, IT IS ORDERED, pursuant to section 1.1403(d) 
 of the Commission's rules, 47 C.F.R.  1.1403(d), sections 4(i), 
 4(j), and 224 of the Communications Act of 1934, as amended, 47 
 U.S.C.  154(i), 154(j), and 224, and the authority delegated in 
 sections 0.111 and 0.311 of the Commission's rules, 47 C.F.R.  
 0.111, 0.311, that Fibertech's Petition To Stay Termination Of Pole 
 Attachment Rights is dismissed as moot to the extent that it seeks 
 to stay any effort by Duquesne to remove or seek removal of 
 Fibertech's facilities from Duquesne's poles.  

      15. IT IS FURTHER ORDERED, pursuant to section 1.1403(d) of 
 the Commission's rules, 47 C.F.R.  1.1403(d), sections 4(i), 4(j), 
 and 224 of the Communications Act of 1934, as amended, 47 U.S.C.  
 154(i), 154(j), and 224, and the authority delegated in sections 
 0.111 and 0.311 of the Commission's rules, 47 C.F.R.  0.111, 
 0.311, that to the extent that Fibertech's Petition To Stay 
 Termination Of Pole Attachment Rights seeks to stay any attempt by 
 Duquesne to terminate the parties' pole attachment agreement, the 
 Petition is denied on the ground that Fibertech has failed to show 
 that it will suffer irreparable harm from the actual or threatened 
 termination of that agreement in the absence of a stay.


                         FEDERAL COMMUNICATIONS COMMISSION


                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1    Petition To Stay Termination Of Pole Attachment Rights, File 
No. EB-03-MD-005 (filed April 8, 2003) (``Stay Petition'' or 
``Petition'').
2    47 C.F.R.  1.1403(d) and 1.1415.  
3    Complaint, File No. EB-03-MD-005 (filed April 8, 2003) 
(``Complaint'').  Sections 1.1401 - 1.1418 of the Commission's 
rules, 47 C.F.R.  1.1401 - 1.1418, provide complaint and 
enforcement procedures to ensure that telecommunications carriers 
and cable system operators have non-discriminatory access to utility 
poles, ducts, conduits, and rights-of-way on rates, terms and 
conditions that are just and reasonable.  See 47 C.F.R.  1.1401.  
Although the Complaint does not cite to these rules, we will 
adjudicate the Complaint in accordance with the procedures set forth 
therein.  
4    47 U.S.C.  224.   
5    Complaint at 2-3,  1, 9.
6    Complaint at 2,  2.
77   Complaint at 4-9,  16-33; 9-27  34-103.
8    Complaint at 4-9,  16-33.
9    Complaint at 9-27  34-103.  The pole attachment agreement 
that Fibertech and Duquesne executed, entitled ``Joint Use 
Agreement,'' is attached as Exhibit 3 to the Complaint (``Pole 
Attachment Agreement'' or ``Agreement'').
10   Complaint at vi; 1-2
11   Complaint at 1-2; 28
12   Petition To Stay at 3-4.
13   Letter from Andrew J. Tomko, Supervisor, Engineering, Duquesne, 
to Contracts and Rights of Way Manager, Fibertech, dated February 7, 
2003, attached to Petition as Exhibit 1 (``February 7 Letter'').  
The February 7 Letter was also attached as Exhibit 8 to the 
Complaint. 
14   Pole Attachment Agreement at 2,  1.2.01 . 
15   Id. at 3,  1.2.05 (cited in Petition at 4).
16   Id. at 3,  1.2.06 (cited in Petition at 4).
17   Petition at 2, 6, 9.
18   Letter from Christopher N. Olsen, Assistant Chief, Market 
Disputes Resolution Division, Enforcement Bureau, to Counsel for 
Fibertech and Counsel for Duquesne, File No. EB-03-MD-005 (rel. 
April 24, 2003) (``Letter Order'') at 2.
19   Id.  
20   Letter from David H. Pawlik, counsel for Duquesne, to 
Christopher N. Olsen, Assistant Chief, Market Disputes Resolution 
Division, Enforcement Bureau, File No. EB-03-MD-005 (filed May l, 
2003) (``Duquesne May 1 Letter'').  The Duquesne May 1 Letter 
attached a letter from Andrew J. Tomko,  Supervisor, Engineering, 
Duquesne, to Christopher N. Olsen, Assistant Chief, Market Disputes 
Resolution Division, Enforcement Bureau, stating that ``Except in 
emergency situations involving imminent danger to life or property, 
we do not intend to remove any of the attachments of [Fibertech] 
from our poles while the underlying dispute, contained in the 
Complaint that [Fibertech] filed on April 8, 2003, is pending before 
the FCC.'' 
21   Letter from J.D. Thomas, counsel for Fibertech, to Christopher 
N. Olsen, Assistant Chief, Market Disputes Resolution Division, 
Enforcement Bureau, File No. EB-03-MD-005 (filed May 2, 2003) 
(``Fibertech May 2 Letter'').
22   Id. at 1.
23   Id.
24   47 C.F.R.  1.1403(c). 
25   47 C.F.R.  1.1403(d).  
26   Id.  
27   Virginia Petroleum Jobbers Ass'n v. F.P.C., 259 F.2d 921, 925 
(D.C. Cir. 1958) and Washington Metro. Transit Comm'n v. Holiday 
Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977), cited in 
Fibertech's Petition at 4-5, also hold that a showing of irreparable 
harm is a prerequisite for obtaining an interim stay. 
28   See e.g., Virginia Petroleum Jobbers Association v. FPC, 259 
F.2d at 925 (observing that ``[m]ere injuries, however substantial, 
in terms of money, time and energy necessarily expended in the 
absence of a stay, are not enough'' to establish irreparable harm, 
and that the ``possibility that adequate compensatory or other 
corrective relief will be available at a later date, in the ordinary 
course of litigation, weighs heavily against a claim of irreparable 
harm.'').  Accord, Implementation of the Local Competition 
Provisions in the Telecommunications Act of 1996, Order, 11 FCC Rcd. 
11,754 at 11,756-57 (1996); Bachow/Coastal, L.L.C. v. GTE Wireless 
of the South, Order, 15 FCC Rcd. 5801 at 5802 (Enf. Bur. 2000). 
29   Stay Petition at 6 (emphasis added).
30   47 C.F.R.  1.1403(d).