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

In the matter of                 )
                                )
The Cable Television             )
Association of Georgia, et al.,  )
                                )
                                          )
Complainants,                    )
                                )    File No. PA 01-002
                         v.      )
                                )
Georgia Power Company,           )
                                )
                                          )
Respondent.

                              ORDER

   Adopted:  August 7, 2003             Released:  August 8, 2003

By the Chief, Enforcement Bureau:1

I.   INTRODUCTION

     1.   In this Order, we grant in part a complaint filed by 
the Cable Television Association of Georgia (``CTAG'') and 
certain of its members (collectively, the ``Cable Operators'')2 
against Georgia Power Company (``Georgia Power''), pursuant to 
section 224(b)(1) of the Communications Act of 1934, as amended 
(``Act'').3  In short, the Complaint alleges that Georgia Power 
imposed unjust and unreasonable conditions of attachment and 
failed to negotiate in good faith with the Cable Operators 
regarding reasonable terms and conditions of a pole attachment 
agreement, and requests that the Commission order Georgia Power 
to comply with section 224 by providing the Cable Operators 
access to Georgia Power's facilities on reasonable terms and 
conditions. 

     2.   As explained below, we conclude that the Complaint 
satisfies the Commission's rules and is ripe for review.  We 
further find that some of the terms and conditions of attachment 
imposed by Georgia Power are unjust and unreasonable.  We 
therefore order Georgia Power to bargain in good faith with the 
Cable Operators regarding just and reasonable terms to replace 
those terms declared unjust and unreasonable in this Order.  
Until the parties reach agreement, their prior pole attachment 
agreements will continue in effect, retroactive to the dates on 
which they were cancelled. 

II.          BACKGROUND

     3.   Georgia Power provides electrical power service in 
Georgia and elsewhere.4  The Cable Operators attach their cables 
to Georgia Power's utility poles in order to provide cable 
television services to consumers.5  Toward that end, as far back 
as 1990, the Cable Operators and Georgia Power entered into pole 
attachment agreements governing the terms and conditions of 
attachment to Georgia Power's poles.6  On June 30, 2000, Georgia 
Power informed the Cable Operators that it was ``updating its 
pole attachment agreements that predate the Telecommunications 
Act of 1996 [``1996 Act'']'' and replacing those contracts with a 
uniform new contract (``New Contract'').7  According to Georgia 
Power, it had been using the New Contract to govern its 
relationships with ``all new cable and telecommunications 
companies since 1996,'' and, ``to avoid unfair discrimination'' 
and to promote administrative efficiency and consistency, it 
wished to have ``pre-1996 attaching parties'' sign the New 
Contract as well.8  The June 30 Letter also stated that, if the 
Cable Operators did not execute the New Contract by December 31, 
2000, Georgia Power would ``deem'' the Cable Operators ``to have 
accepted the full terms and conditions [of the New Contract] . . 
. and such terms and conditions [would] govern such attachments 
and all future attachments.''9  The parties met for two hours on   
October 12, 2000 to discuss the terms of the New Contract,10 but 
were unable to resolve their differences.  Subsequent 
correspondence between the parties was not fruitful.11  

     4.   The record reflects that the Cable Operators generally 
advocated retaining provisions from their prior pole attachment 
agreements with Georgia Power, and asked the utility to clarify 
and explain its position on a variety of the New Contract's 
terms.12  The Cable Operators also asked Georgia Power to extend 
their prior agreements on a month-to-month basis.13  In response, 
Georgia Power clarified two clauses and deleted two clauses that 
it found to be either unnecessary or drafted in error.14  Georgia 
Power declined to make additional changes proposed by the Cable 
Operators, contending that the New Contract's provisions were 
reasonable, and that altering the New Contract's terms would 
result in ``treat[ing] CTAG's members differently'' than 
``numerous . . . other entities'' that had agreed to the New 
Contract's terms.15  Moreover, Georgia Power refused to extend 
the prior contracts on a month-to-month basis, and stated its 
intention to apply the New Contract's terms as of December 31, 
2000, regardless of whether the Cable Operators had executed the 
agreement by then.16  In addition, Georgia Power maintained that 
it would not permit additional new attachments until the Cable 
Operators executed the New Contract.17  

     5.   The Cable Operators filed the Complaint on January 17, 
2001.  The Complaint alleges that Georgia Power violated section 
224 of the Act by imposing unjust and unreasonable provisions in 
the New Contract,18 and refusing to negotiate in good faith 
regarding those provisions.19  In addition to declaratory relief, 
the Complaint requests that the Commission order Georgia Power 
(1) to comply with section 224 and negotiate in good faith just 
and reasonable terms in a new pole attachment agreement; (2) to 
reinstate and extend the parties' prior agreements until the 
parties successfully negotiate a new agreement; (3) to cease and 
desist from denying the Cable Operators access to Georgia Power's 
facilities unless the Cable Operators accept the New Contract; 
and (4) to refund all amounts paid, plus interest, that are in 
excess of just and reasonable charges.20

     6.   Georgia Power filed its Response on February 16, 2001.  
As a threshold matter, the Response argues that the Complaint 
should be dismissed, because the Complaint's allegations are 
unsupported and therefore do not establish a prima facie case, 
and because the case is not ripe for adjudication.21  In 
addition, the Response contends that the terms of the New 
Contract are reasonable (especially in light of widespread safety 
violations allegedly perpetrated by the Cable Operators), and 
that Georgia Power negotiated with the Cable Operators in good 
faith.22

     7.   The Cable Operators filed a Reply on March 15, 2001.  
The Reply argues, inter alia, that Georgia Power's concern for 
safety and pole integrity is really a ``smokescreen'' raised for 
the first time in litigation and designed to mask the utility's 
true motive - to promote its ``telecommunications affiliates' 
service offerings . . . [which] are among the most diverse and 
aggressive, if not the most, of any electric utility.''23

II.  DISCUSSION 

     II.A.     The Complaint Satisfies the Commission's Rules and 
          Is Ripe for Review. 

     8.   Georgia Power argues that the Commission should dismiss 
the Complaint, pursuant to sections 1.1404 and 1.1409 of the 
Commission's rules,24 because the Cable Operators have not met 
their burden of establishing a prima facie case that the terms 
and conditions at issue are unjust and unreasonable.25  Although 
the Complaint's allegations arguably could have been more 
detailed, the pleading as a whole sufficiently identifies the 
factual basis of the allegations.26  Moreover, the Cable 
Operators attached their prior agreements with Georgia Power;27 
the New Contract;28 correspondence between the parties regarding 
the negotiations and the New Contract's provisions;29 and two 
Declarations that affirm the Complaint's factual allegations.30  
Viewing this information as a whole, we find that the Complaint 
establishes a prima facie case.

     9.   We also reject Georgia Power's contention that this 
dispute is not ripe for resolution, because the Complaint's 
allegations lack factual concreteness, and because there is not 
an ``actual threat of injury, constituting denial of access for 
reasons other than meritorious capacity, safety, reliability, or 
engineering concerns . . . .''31  Georgia Power is correct that 
the Cable Operators contest the New Contract provisions in their 
incipiency, rather than as enforced.  This posture, however, does 
not preclude the Cable Operators from challenging the New 
Contract at this juncture, as section 224 expressly provides that 
the Commission has jurisdiction to determine the reasonableness 
of the terms of attachment.32  Indeed, nothing in the statute 
requires attachers to wait until terms are enforced before 
contesting their reasonableness.  The parties have well-defined 
disagreements as to whether specific sections of the New Contract 
are lawful.  Moreover, Georgia Power has prohibited the Cable 
Operators from making new attachments since January 2001.33  
Thus, the issues in dispute are sufficiently crystallized for us 
to rule.34  The Complaint, which challenges the terms of Georgia 
Power's New Contract, is thus clearly ripe for decision.  We 
determine below on a claim-by-claim basis the extent to which the 
Cable Operators are able to demonstrate that a particular term is 
unreasonable on its face (and without the benefit of factual 
history regarding enforcement of the term).35  

     II.B.     Several Provisions of the New Contract Are Unjust 
          and Unreasonable.

     10.  In the Complaint, the Cable Operators claim that a 
number of the New Contract's terms and conditions are unjust and 
unreasonable, in violation of section 224 of the Act.36  As 
discussed below, with respect to certain provisions, we agree.  
Before explaining our rationale, however, we address Georgia 
Power's principal defense to the Cable Operators' claims - 
preservation of safety.

       1. Georgia Power's Safety Defense

     11.  Georgia Power contends that the terms and conditions of 
the New Contract are warranted in light of numerous violations of 
safety and prudent engineering procedures that the Cable 
Operators have committed.37  According to Georgia Power, the New 
Contract implements ``sound industry-recognized procedures for 
ensuring attachments to utility poles are made in a safe and 
efficient manner without compromising the integrity of vital 
electric service operations.''38  Georgia Power claims that the 
New Contract ``holds attaching entities responsible for the costs 
and rights associated with their violations, an element necessary 
to discourage violations and imprudent practices'' and to make 
Georgia Power and its customers ``whole for diligently policing 
and maintaining a safe distribution system.''39 Georgia Power 
also suggests that the fact that some attachers have signed the 
New Contract indicates the justness and reasonableness of its 
provisions.40    

     12.  While we emphatically share Georgia Power's concern 
about safety, the record does not support its assertions that the 
host of new contract provisions are necessary to preserve safe 
operations.  As an initial matter, we are struck by the fact that 
Georgia Power did not emphasize during the course of negotiations 
regarding the New Contract its grave concerns about the Cable 
Operators' purported failure to adhere to safety standards.41  If 
many contractual provisions were in fact drafted in response to 
serious safety issues, Georgia Power undoubtedly would have 
explained its reasoning to the Cable Operators.42  Moreover, as 
the Cable Operators persuasively argue, the Response exhibits 
relating to safety fall short of establishing a record of recent 
safety violations by the Cable Operators to justify the terms of 
the New Contract.43  Indeed, Georgia Power cannot point 
definitively to a single incident of property damage or personal 
injury caused by one of the Cable Operators.  The closest Georgia 
Power comes is to say that ``a blatant NESC violation'' by an un-
named cable company was ``the probable cause'' of a fire,44 and 
that, in the past few years ``there has been a noticeable 
increase of serious injuries or fatalities to cable workers or 
the contractors working for cable companies.''45  Thus, while it 
may be the case that the Cable Operators' attachments have caused 
safety violations,46 we do not have a record in this case on 
which to find that such violations are as recent, widespread and 
egregious as Georgia Power claims, or that the contract 
provisions Georgia Power has proposed were justified in 
preventing such violations from recurring. 

       2. Overlashing

     13.  Overlashing involves an attacher tying communication 
conductors to existing, supportive strands of cable on poles, 
which enables attachers to replace deteriorated cables or expand 
the capacity of existing facilities while reducing construction 
disruption and associated expense.47  The parties' prior 
contracts allowed the Cable Operators to overlash without notice 
to Georgia Power, or on one day's notice, unless the overlashing 
would create a bundle exceeding six inches in diameter.48  The 
New Contract provision challenged by the Cable Operators requires 
Georgia Power's written consent to any overlashing, which the 
utility may take up to 30 days to grant or deny.49  This new 
provision is unjust and unreasonable on its face.  The Commission 
has expressly articulated a policy promoting overlashing, and 
stated that ``neither the host attaching entity nor the third 
party overlasher must obtain additional approval from or consent 
of the utility for overlashing other than the approval obtained 
for the host attachment.''50  Georgia Power is therefore ordered 
to negotiate in good faith a reasonable provision consistent with 
Commission precedent.

          3.   Inspection Rights

     14.  The parties' prior agreements required the Cable 
Operators to pay the costs of periodic pole surveys to occur 
every five years.51  Under the New Contract, the Cable Operators 
must reimburse Georgia Power for the cost of periodic inspections 
- not more frequently than every 12 months or a shorter interval 
recommended by ``NESC or any other industry standard.''52  The 
Cable Operators are also liable for a pro rata share of the cost 
of non-periodic inspections - that is, whenever Georgia Power 
either discovers or reasonably suspects any violation of the 
Agreement.53  The Cable Operators characterize the New Contract 
as giving Georgia Power ``a near-infinite source of unreasonable 
leverage over cable operators, readily susceptible to utility 
abuse.''54

     15.  We agree with Georgia Power that it has the right to 
inspect its poles to ensure they are compliant with applicable 
safety standards.  Consequently, we do not consider unreasonable 
a provision allowing inspections when Georgia Power ``discover[s] 
a safety violation during the previous regular inspection.''55  
Nor, in our view, is it unreasonable for the attacher that is 
responsible for the violation to bear the cost of such an 
inspection.  The New Contract, however, is phrased more broadly.  
Rather than allowing inspections upon the discovery of a ``safety 
violation,'' it provides for inspections when there is ``any 
violation of this Agreement.''56  While Georgia Power seeks to 
justify the provision based solely on safety concerns,57 this 
provision is far broader and, in our view, unreasonable.  We 
therefore order Georgia Power to negotiate in good faith a 
reasonable provision.

     16.  The Cable Operators proffered no evidence that the New 
Contract's provision for routine inspections no more frequently 
than every twelve months is unreasonable.  In contrast, Georgia 
Power presented evidence that such an interval is consistent with 
industry standard.58  We therefore have no basis on this record 
to find that the yearly inspection right is unreasonable.  
Regardless of frequency, however, costs attendant to routine 
inspections of poles, which benefit all attachers, should be 
included in the maintenance costs account and allocated to each 
attacher in accordance with the Commission's formula.59  
Consequently, we find the New Contract's provision requiring the 
Cable Operators to pay for routine pole inspections to be 
unreasonable.

          4.   Administrative Fees

     17.  The Cable Operators challenge a section of the New 
Contract requiring payment of Georgia Power's ``reasonable costs 
and expenses in the enforcement of this agreement.''60  In 
addition, this provision requires the Cable Operators to pay for 
``administrative services not otherwise required to be performed 
by Georgia Power under this agreement, including . . . services 
related to credit facilities or consents . . . [and fees for] 
outside counsel and allocated costs of inside counsel . . . 
incurred in connection with any of the foregoing.''61  The Cable 
Operators assert that these fees are unreasonable because they 
are ``unspecified and open-ended'' and allow Georgia Power to 
recover ``an excessive pole attachment rate.''62

     18.    We agree that this provision of the New Contract is 
unreasonable.  Through the annual rate derived by the 
Commission's formula, an attacher pays a portion of the total 
plant administrative costs incurred by a utility.63  Included in 
the total plant administrative expenses is a panoply of accounts 
that covers a broad spectrum of expenses.64  A utility would 
doubly recover if it were allowed to receive a proportionate 
share of these expenses based on the fully-allocated costs 
formula and additional amounts for administrative expenses.  The 
allocated portion of administrative expenses covers any routine 
administrative costs associated with pole attachments, such as 
billing and legal costs associated with administering the 
agreement.  Georgia Power has not argued persuasively that 
recovering these costs through direct reimbursement rather than 
through the annual rental rate is preferable or reasonable.65

     19.  The Cable Operators also contest an up-front fee 
Georgia Power imposes for make-ready work, which the utility 
estimates will average $150 per pole.66  According to Georgia 
Power, it applies this fee to the ``actual make-ready 
construction costs, management and inspection costs, and 
engineering costs required to put any attachment on a pole.''67  
Since December 2000, Georgia Power has refused to allow certain 
attachments unless this fee is paid up front.68

     20.  In deciding an analogous question under section 224(h) 
of the Act, the Commission stated that ``a utility may require an 
inquiring entity to reimburse the utility, on an actual cost 
basis, for the actual labor and administrative costs incident to 
providing maps, plats, and other data to entities making 
inquiries regarding access . . . .''69  Applying the Commission's 
rationale to the instant matter, we find to be unreasonable 
Georgia Power's up-front make-ready fee, as well as the utility's 
practice of denying access to its poles until such fee is paid.  
Georgia Power first should incur the costs attendant to make-
ready, and then seek reimbursement for its actual make-ready 
costs. 

          5.   Unauthorized Attachment Fee

     21.  The Cable Operators challenge a provision in the New 
Contract that requires them to pay, for each unauthorized 
attachment, back rent (owed from the time of the last inspection 
of the poles to which the unauthorized attachment was made); ten 
percent of the back rent as an administrative fee; interest at 
eight percent above the prime rate; and Georgia Power's out-of-
pocket expenses, including legal fees.70  According to the Cable 
Operators, this provision is unjust and unreasonable, because it 
subjects them to ``near-unlimited liability'' for unauthorized 
attachments.71  Georgia Power claims that unauthorized 
attachments are a ``serious problem throughout Georgia,''72 and 
pose significant safety hazards, because loading calculations 
will not have incorporated the additional weight on poles.73  
Georgia Power further argues that the more onerous penalty 
provisions provide the Cable Operators a needed incentive to 
follow the utility's application process.74

     22.  Penalties for unauthorized attachments are not per se 
unreasonable.75  ``Although an unauthorized attachment penalty 
may exceed the annual pole attachment rate, the amount of the 
penalty and the circumstances under which it is imposed must be 
just and reasonable.''76  We find the New Contract's unauthorized 
attachment fee to be unreasonable in several respects.  First, 
there is no evidence in the record demonstrating how frequently 
Georgia Power inspects its poles.  Therefore, a hard-and-fast 
rule requiring back rent to the date of the last inspection could 
grossly overcompensate Georgia Power if an unauthorized 
attachment were installed long after the last inspection.  While 
providing for calculation based on the date of the last 
inspection might be a reasonable proxy where no other information 
is available, it precludes the use of more precise information 
regarding attachment, which would permit an accurate calculation 
of back rent.  Alternatively, if the use of actual attachment 
dates is not practical, a reasonable maximum period could be 
included to ensure that the back rent assessment is not 
unreasonable.  Thus, Georgia Power must negotiate a provision 
that allows for such a reasonable calculation under appropriate 
circumstances.

     23.  Second, while it is appropriate for Georgia Power to 
recover out-of-pocket expenses directly attributable to 
unauthorized attachments, those expenses must be reasonable.  A 
provision allowing recovery of all out-of-pocket expenses, 
without regard to their reasonableness, is overbroad.  

     24.  Finally, there is insufficient record evidence allowing 
us to conclude that the ten-percent administrative fee, which 
Georgia Power states is a penalty,77 and the interest provision, 
are either reasonable or unreasonable on their face.  We will 
look closely at application of provisions such as these in the 
specific circumstances presented, and we will consider evidence 
of industry practice to determine whether their application is 
reasonable.  We may conclude that application of such provisions 
is reasonable only in extraordinary situations of egregious 
conduct by an attacher.  In any event, because of the other flaws 
identified with the unauthorized attachment provision described 
herein, Georgia Power is ordered to negotiate in good faith a 
reasonable provision relating to fees and expenses for 
unauthorized attachments.

       6. Rights-of-Way and Easements

     25.  Section 6 of the New Contract states that the Cable 
Operators have ``acquired and shall continue to acquire in 
[their] own name and at [their] expense any and all easements,'' 
but clarifies that the New Contract does not give the Cable 
Operators ``any right to use Georgia Power's rights-of-way which 
must be separately agreed upon for further consideration.''78  
The Cable Operators argue that, pursuant to section 621 of the 
Act,79 they have the right to ``use pre-existing compatible 
utility easements for the installation of their cable 
facilities.''80  According to the Cable Operators, the New 
Contract deprives them of that right, because they must reach a 
separate agreement with Georgia Power to obtain access to any 
easements.81

     26.  We agree with the Cable Operators, albeit on 
alternative statutory grounds.  Section 224 of the Act expressly 
mandates that ``[a] utility shall provide a cable television 
system . . . with nondiscriminatory access to any . . . right-of-
way owned or controlled by it.82

     27.  Georgia Power argues that not requiring the Cable 
Operators to pay for ``piggybacking'' on the utility's private 
easements would violate the Fifth Amendment, because it would 
constitute a taking.83  We agree with the Cable Operators, 
however, that because the Commission's rate formula assures that 
Georgia Power receives just compensation under the Constitution, 
84 the utility is not entitled to additional payment for private 
easements.85  

          7.   Security Interests

     28.  The Cable Operators object to section 9 of the New 
Contract, which deals with security interests.  Specifically, the 
Cable Operators argue that sections 9.1 (requiring the Cable 
Operators to furnish a bond to Georgia Power in an indeterminate 
amount), 9.2 (granting Georgia Power access to the Cable 
Operators' financial records, so that Georgia Power can make a 
creditworthiness determination), and 9.3 (giving Georgia Power a 
security interest in the Cable Operators' equipment, depending on 
creditworthiness) are unjust and unreasonable terms.86  

     29.  We agree with the Cable Operators.  To be sure, Georgia 
Power has an interest in ensuring that the Cable Operators 
actually pay the amounts owed to Georgia Power.  The 
``creditworthiness matrix'' established in section 9 of the New 
Contract, however, gives Georgia Power unfettered access to 
sensitive financial information and unilateral authority to 
determine whether an attacher is creditworthy.  Based on this 
determination, Georgia Power, by itself, assesses whether posting 
of a bond is appropriate and, if so, in what amount.  These type 
of open-ended provisions invite arbitrary and anticompetitive 
conduct that is antithetical to the principles underlying section 
224.  Moreover, Georgia Power fails to explain why provisions of 
the parties' prior pole attachment agreements (e.g., requiring 
the Cable Operators to provide evidence of insurance coverage or 
to post a bond in a definite amount)87 afforded the utility 
insufficient protection.

       8. Indemnities/Limits of Liability

     30.  The Cable Operators object to several aspects of the 
New Contract's provisions concerning indemnities/limits of 
liability, namely sections 8.1 (requiring the Cable Operators to 
indemnify Georgia Power from and against liability, but not vice 
versa), 8.2 (placing a six-month limitation on claims against 
Georgia Power), and 8.4 (allowing Georgia Power to control the 
defense of claims against the Cable Operators).88  Georgia 
Power's arguments in defense of these provisions miss the mark, 
and we find the provisions to be unreasonable.

     31.  As an initial matter, Georgia Power relies generally on 
the Cable Operators' allegedly poor safety practices as a 
justification for the challenged provisions, claiming that it 
should not be required to pay for damages it did not cause.89  As 
explained above,90 however, the record in this case does not 
support the safety defense.  In any event, the Cable Operators do 
not contend that indemnification provisions generally are 
unreasonable; instead, they claim that these particular 
provisions are unreasonable.  Second, Georgia Power argues that, 
because of mandatory access, a non-reciprocal indemnification 
provision is warranted given that the Cable Operators allegedly 
pose a ``far greater, and unwanted, risk'' to Georgia Power in 
the pole attachment process.91  A reciprocal indemnification 
provision, however, simply would result in each party assuming 
responsibility for losses occasioned by its own misconduct.  
Consequently, if Georgia Power is correct that the Cable 
Operators more frequently are the ``bad actors,'' then the Cable 
Operators more frequently would be called upon to indemnify.  
Finally, Georgia Power offers no response to the Cable Operators' 
argument that they should not be forced to bring claims in a 
shorter period than required by law or to relinquish their right 
to defend claims against them.  We cannot discern any rational 
basis to support those contractual provisions.92    

          9.   Force Majeure

     32.  The Cable Operators complain that the New Contract's 
force majeure clause should be, but is not, reciprocal.93  
Specifically, according to the Cable Operators, they should not 
be liable to pay rent for pole space, if a pole is unusable 
because of a force majeure.94  In response, Georgia Power asserts 
that the clause appropriately is one-sided, because a force 
majeure should not permit the Cable Operators to ``escape 
responsibility'' for carrying out their obligations to ensure 
compliance with safety, reliability and engineering concerns.95  
Without such a clause and in the event of a force majeure, 
Georgia Power contends, it would be required to ``assume'' the 
Cable Operators' obligations to attend to safety and reliability 
issues.96

     33.  This argument is a non sequitur.  By definition, a 
force majeure is an event that can be neither anticipated nor 
controlled.97  Thus, it makes little sense to speak in terms of 
the Cable Operators ``escaping responsibility'' when safety 
violations occur due to circumstances beyond their anticipation 
or control.  In the event of a force majeure that affects one 
party's attachments, we anticipate that the party immediately 
would take steps to bring its attachments into a safe condition.  

     34.  We believe it is unreasonable for the force majeure 
clause not to be reciprocal.  In the event, for example, that a 
pole is rendered unusable because of inclement weather, the Cable 
Operators should be no more responsible for paying rental for 
unusable pole space than Georgia Power should be responsible in 
damages for the fact that the pole is unusable. 

          10.  Rates

     35.  The Cable Operators contest the New Contract's 
provision regarding rate adjustments,98 which allows Georgia 
Power at the end of every year to adjust the rate for the current 
year via a ``true-up'' process.99  The Cable Operators contend 
that this provision contravenes the Commission's clear rule 
requiring 60 days' advance notice of any pole attachment rate 
increase.100  Georgia Power asserts that there is ``no reason to 
presume a rate increase from this provision,'' and that, if there 
is a rate increase, notice of ``any possible increase'' has been 
given more than 60 days in advance.101

     36.  We agree with the Cable Operators that the rate 
provision is unreasonable.  Section 1.1403(c)(2) of the 
Commission's rules states that a ``utility shall provide a cable 
television system operator or telecommunications carrier no less 
than 60 days written notice prior to . . . [a]ny increase in pole 
attachment rates . . .''102  Blanket notice of a possible rate 
increase is not equivalent to notice of an actual rate increase.  
Accordingly, the New Contract's true-up provision is 
unreasonable. 

          11.  Assignments

     37.  The Cable Operators argue that the assignment provision 
of the New Contract is unreasonable, because it is not 
reciprocal, or, at a minimum, does not include an exemption for 
``affiliate transfers or . . . transfers to parties that have 
existing pole attachment agreements.''103  We find no merit in 
this claim.  First, we are persuaded by Georgia Power's argument 
that, in order to maintain the safety and reliability of its pole 
plant, it must ascertain the identity of all attachers, and that 
reciprocity is not required, because the Cable Operators do not 
have the same obligation to ensure the operational integrity of 
the utility pole infrastructure.104  Second, the clause obligates 
Georgia Power not to withhold unreasonably or deny its consent to 
assignments,105 so the Cable Operators are by no means barred 
from assigning their rights.106    Finally, the New Contract's 
assignment clause is essentially the same as the assignment 
provision of the parties' prior agreements,107 which the Cable 
Operators describe as ``model[s] of reasonableness.''108    

          12.  Termination

     38.  The parties' prior agreements had terms of at least 
five years and were terminable on six months' notice by either 
party.109  The New Contract has no fixed term and is terminable 
at any time by Georgia Power on 90 days' notice, ``to the extent 
not prohibited by law.''110  The Cable Operators assert that the 
shorter notice provision is unjust and unreasonable, because, 
given that Georgia Power now allegedly requires agreements to be 
for a term of one year, parties will be negotiating a new 
contract every year after nine months into their current 
contract.111   Georgia Power argues that it needs flexibility in 
the newly ``deregulated power industry,'' and that ``ninety days 
is more than enough time to negotiate the terms of a new 
agreement.''112  These justifications, in our view, are strained.  
Specifically, it is unclear how deregulation of the power 
industry translates into a need to terminate contracts on less 
notice than in the past.  Moreover, given the difficulties the 
parties have had in negotiating the New Contract, we are not 
sanguine that ninety days is a sufficient time frame to re-
negotiate a contract.  Accordingly, we order the 
parties to negotiate based on business needs and industry 
practice a reasonable termination clause.  

III.      CONCLUSION AND ORDERING CLAUSES

     39.  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.

     40.  IT IS FURTHER ORDERED, pursuant to sections 0.111, 
0.311, 1.1410, and 1.1415 of the Commission's rules, 47 C.F.R.  
0.111, 0.311, 1.1410, 1.1415, that Georgia Power cease and desist 
from enforcing the New Contract's provisions found by this Order 
to be unreasonable, and that Georgia Power refund to the Cable 
Operators, retroactive to the date the Complaint was filed, any 
amounts paid pursuant to the unreasonable provisions.

     41.  IT IS FURTHER ORDERED, pursuant to sections 0.111, 
0.311, 1.1410, and 1.1415 of the Commission's rules, 47 C.F.R.  
0.111, 0.311, 1.1410, 1.1415, that Georgia Power resume 
negotiations with the Cable Operators, that Georgia Power bargain 
in good faith with the Cable Operators concerning the New 
Contract's provisions found by this Order to be unreasonable, and 
that, pending negotiations, the parties' prior pole attachment 
agreements remain in effect, retroactive to the date Georgia 
Power canceled the agreements, until the earlier of (a) the 
execution of a mutually-acceptable pole attachment contract or 
(b) one year from the date of release of this Order.

     42.       IT IS FURTHER ORDERED, pursuant to Sections 0.111, 
0.311, 1.1410, and 1.1415 of the Commission's rules, 47 C.F.R.  
0.111, 0.311, 1.1410, 1.1415, that in the event the parties 
cannot reach an agreement one year from the date of release of 
this Order, they shall file a joint report to with the Chief of 
the Market Disputes Resolution Division of the Enforcement 
Bureau, summarizing the status of the negotiations, including a 
description of the issues that remain in dispute and the parties' 
respective positions concerning those issues.

     43.  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 For Leave to File 
Motion to Substitute Parties, File No. PA 01-002 (filed Dec. 6, 
2001); Motion to Substitute Parties, File No. PA 01-002 (filed 
Dec. 6, 2001); Motion for Leave to File Supplement, File No. PA 
01-002 (filed Mar. 8, 2002); Motion for Leave to File Supplement, 
File No. PA 01-002 (filed Mar. 27, 2002); Motion for Leave to 
File Surreply and Surreply Regarding Supplement, File No. PA 01-
002 (filed Apr. 17, 2002), ARE GRANTED.

     44.  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 For Leave and Motion 
to Strike, File No. PA 01-002 (filed Aug. 9, 2001), IS 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, Order, 17 FCC Rcd 4672 (2002).
2 CTAG is an industry trade association acting on behalf of the 
following members:  Alltel Teleview, Inc.; Blackshear TV Cable, 
Inc.; Charter Communications; City of Covington, Georgia; Comcast 
Cable Communications, Inc.; Cox Communications, Inc.; Insight 
Communications Co.; InterMedia Partners, L.P.; James Cable 
Partners; MCC Georgia, LLC; MediaOne Enterprises, Inc.; MediaOne 
of Colorado, Inc.; MediaOne of Greater Florida, Inc.; Northland 
Cable Television, Inc.; Northland Cable Properties Seven Limited 
Partnership; Northland Cable Properties Eight Limited 
Partnership; Northland Premier Limited Partnership; RGW 
Communications, Inc.; Southeast Cable TV, Inc.; Suburban Cable, 
Inc.; US Cable of Coastal-Texas, L.P.; and Waycross Cable Co., 
Inc.  Complaint, File No. PA 01-002 (filed Jan. 17, 2001) 
(``Complaint''), Exhibit 1; Supplement, File No. PA 01-002 (filed 
Feb. 6, 2001) (``February 6 Supplement''), Exhibit 1; Supplement, 
File No. PA-01-002 (filed Sept. 5, 2001) (``September 5 
Supplement''), Exhibit 1; Motion to Substitute Parties, File No. 
PA 01-002 (filed Dec. 6, 2001) at 2.   On March 8, 2002, the 
original complainants endeavored to add Time Warner Cable and 
Flint Cable TV, Inc. as complainants.  Supplement, File No. PA 
01-002 (filed Mar. 8, 2002) (``March 8 Supplement'').  See also 
Motion for Leave to File Supplement, File No. PA 01-002 (filed 
Mar. 8, 2002).  Georgia Power objected to the amendment (although 
it did not object to two similar amendments made in the February 
6 and September 5 Supplements), arguing that the March 8 
Supplement unnecessarily protracts the proceeding, and that, 
through the March 8 Supplement, the Cable Operators are 
attempting to ``bootstrap by supplemental pleading an entirely 
new issue [i.e., Georgia Power's imposition of a $53.35 rate] 
that was not raised in the Complaint and as to which Georgia 
Power has had no opportunity to respond.''  Opposition of Georgia 
Power Company to Supplement, File No. PA 01-002 (filed Mar. 21, 
2002) (``Opposition to March 8 Supplement'') at 2-3.  We disagree 
with Georgia Power that addition of two cable operators is 
inappropriate.  See Florida Cable Telecommunications Ass'n, Inc. 
v. Gulf Power Co., Memorandum Opinion and Order, 18 FCC Rcd 9599, 
9599, n.2 (Enf. Bur. 2003) (allowing the addition of cable 
operators who are ``similarly-situated aggrieved complainants'').  
However, the Cable Operators cannot, via the March 8 Supplement, 
challenge Georgia Power's new annual pole attachment rate.  See 
RCN Telecom Servs. of Philadelphia, Inc. v. PECO Energy Co., 
Order, 16 FCC Rcd 11857, 11858,  4 (Cable Servs. Bur. 2001) 
(describing appropriate means of introducing new issues in pole 
attachment complaint proceedings).  As discussed infra section 
III.B.10., the Complaint objects to Georgia Power's alleged 
refusal to negotiate over a proposed contract provision allowing 
``retroactive rate adjustments.''  Complaint at 17,  91-95.  
The pleading does not contest imposition of a $53.35 annual rate.  
Complaint at 3-4 n.7 (complainants reserve their ``right . . . to 
challenge this unlawful rate with the Commission'').   Indeed, 
the Cable Operators appear to concede this fact, and subsequently 
have explained that they ``separately and informally asked 
Georgia Power to clarify its intentions regarding the rate 
increases and the bases therein.''  Reply to Georgia Power's 
Opposition, File No. PA 01-002 (filed Apr. 2, 2002) (``Reply to 
Opposition to March 8 Supplement'') at 4-5.  
3 47 U.S.C.  224(b)(1).
4 Complaint at 2,  2.
5 Complaint at 2,  5.
6 See Complaint, Exhibit 3 (prior pole attachment agreements); 
February 6 Supplement, Exhibit 3 (prior pole attachment 
agreements); September 5 Supplement, Exhibit 3 (prior pole 
attachment agreements); March 8 Supplement (prior pole attachment 
agreements).  When discussing the parties' prior pole attachment 
agreements, this Order, for convenience, hereafter will cite only 
Exhibit 3 to the Complaint.  Such citation, however, should be 
understood to refer also to the several supplements that have 
augmented the contents of Exhibit 3.
7 Complaint at 4,  13 & Exhibit 5 (Letter dated June 30, 2000 to 
Cable Operators from J. Darryl Wilson, Joint Use Coordinator, 
Georgia Power) (``June 30 Letter'').
8 Complaint, Exhibit 5 (June 30 Letter).
9 Complaint, Exhibit 5 (June 30 Letter).
10 Complaint at 5,  17; Response of Georgia Power Company, File 
No. PA 01-002 (filed Feb. 16, 2001) (``Response'') at 32; Reply, 
File No. PA 01-002 (filed Mar. 15, 2001) (``Reply'') at 7.
11 See Complaint, Exhibit 5 (various memoranda and correspondence 
between counsel for the Cable Operators and counsel for Georgia 
Power).
12 See Complaint, Exhibit 5 (various memoranda and correspondence 
between counsel for the Cable Operators and counsel for Georgia 
Power).
13 Complaint, Exhibit 5 (December 14, 2000 Memorandum from Paul 
Glist, counsel for the Cable Operators, to David Armistead, 
counsel for Georgia Power [``December 14 Memorandum'']) at 3; 
Complaint, Exhibit 5 (December 22, 2000 letter to J. Darryll 
Wilson, Joint Use Coordinator, Georgia Power, from Scott 
Colavolpe, Contract Administration Manager, Law & Government 
Affairs, AT&T Broadband [``December 22 Letter'']); Complaint, 
Exhibit 5 (December 28, 2000 letter to J. Darryll Wilson, Joint 
Use Coordinator, Georgia Power, from Scott Colavolpe, Contract 
Administration Manager, Law & Government Affairs, AT&T Broadband 
[``December 28 Letter'']).
14 Complaint, Exhibit 5 (November 1, 2000 letter to Paul Glist, 
counsel for the Cable Operators, from David Armistead, counsel 
for Georgia Power [``November 1 Letter'']) at 1-2.
15 Complaint, Exhibit 5 (November 1 Letter) at 1.
16 Complaint, Exhibit 5 (December 20, 2000 Letter to Paul Glist, 
counsel for the Cable Operators, from David H. Armistead, counsel 
for Georgia Power [``December 20 Letter'']) at 5; Complaint, 
Exhibit 5 (December 29, 2000 letter to Scott Colavolpe, AT&T 
Broadband, from J. Darryll Wilson, Joint Use Coordinator, Georgia 
Power [``December 29 Letter'']).
17 Complaint, Exhibit 5 (December 20 Letter) at 5; Complaint, 
Exhibit 5 (December 29 Letter).  For simplicity, we describe the 
activity that Georgia Power prohibited as new attachments, 
although the utility appears to have disallowed overlashing and 
certain expansion activities as well.  See Reply, Exhibit 6 
(February 13, 2001 e-mail to Cable Operators from J. Darryll 
Wilson, Joint Use Coordinator, Georgia Power).
18 Complaint at 7-18,  29-99.  The provisions relate to the 
following subject matters:  overlashing, inspection rights, 
administrative fees, make-ready work, unauthorized attachment 
fees, drop poles, rights-of-way and easements, security 
interests, indemnities/limits of liability, worker releases, 
force majeure, rates, assignments, and termination.
19 Complaint at 4-6,  13-22. 
20 Complaint at 19,  105.
21 Response at 4-6.
22 Response at 6-32.
23 Reply, Summary.  Approximately five months after the Cable 
Operators filed their Reply, Georgia Power moved to Strike the 
portions of the Reply in which the Cable Operators allegedly 
``mis-characteriz[e] the electric utility industry as anti-
competitive and the cable television industry as pro-
competitive.''  Motion for Leave and Motion to Strike, File No. 
PA 01-002 (filed Aug. 9, 2001) (``Motion to Strike'') at 3.  
According to Georgia Power, the Reply ``repeatedly makes 
impertinent, immaterial, and inflammatory `factual' allegations 
without support.''  Motion to Strike at 3.  We agree with Georgia 
Power that certain portions of the Reply (e.g., pages 42-55) are 
largely irrelevant to resolving this dispute and, indeed, merely 
add unnecessary histrionics.  We are not relying on those 
portions of the Reply in reaching our conclusions herein.  
Nevertheless, we deny the Motion to Strike, because it was not 
timely filed.  Georgia Power's assertion that it waited five 
months in order to see whether the Cable Services Bureau would 
strike the Reply sua sponte (Reply in Support of Motions for 
Leave and to Strike, File No. PA 01-002 (filed Aug. 31, 2001) at 
2) strains credulity, given the multitude of filings in this 
proceeding beyond those countenanced by the Commission's rules. 
24 47 C.F.R.  1.1404, 1.1409(b).
25 Response at 4-5.
26 Complaint at 4-6,  13-21; at 6-7,  24-26; at 7,  30-31; 
at 8,  33-34; at 9,  37, 40; at 9-10,  42-44; at 11,  49, 
51-52, 54; at 12,  56, 59-61; at 13,  63, 65, 67-68; at 14, 
 70-73; at 15,  75-78; at 16,  80, 83, 85-86, 88-89; at 17, 
 91, 94, 96-97; at 18,  99-100.
27 Complaint, Exhibit 3 (pole attachment agreements).
28 Complaint, Exhibit 6 (New Contract).
29 Complaint, Exhibit 5 (various memoranda and correspondence 
between counsel for the Cable Operators and counsel for Georgia 
Power).
30 Complaint, Exhibit 7 (Declaration of Nancy Horne [``Horne 
Declaration'']), Exhibit 8 (Declaration of Harris L. Bagley 
[``Bagley Declaration'']).  These declarations are based on 
``knowledge, information and belief.''  Section 1.1405(l) of the 
Commission's rules requires affiants to have ``actual knowledge 
of the facts.'' 47 C.F.R.  1.1404(l).  Nevertheless, given that 
the declarants attest that they directly were involved in the 
events narrated in the Complaint, and given that Georgia Power 
has provided a detailed response to all of the Complaint's 
allegations, we find that Georgia Power has not been prejudiced 
by any alleged deficiencies in the declarations.
31 Response at 5-6. 
32 47 U.S.C.  224(b)(1).
33 Complaint at 6-7,  21-27; Complaint, Exhibit 5 (December 20 
Letter) at 5; Complaint, Exhibit 5 (December 29 Letter); Reply at 
15-16; Reply, Exhibit 5 (Declaration of Scott S. Colavolpe 
[``Colavolpe Declaration'']) at 3-4,        11-13; Reply, 
Exhibit 7 (Reply Declaration of Mark W. Fowler [``Fowler Reply 
Declaration'']) at 2,  5; Reply, Exhibit 15 (Declaration of 
Timothy M. Gregory [``Gregory Declaration'']) at 2,  5, at 4,  
11.
34 See Texas Cable & Telecommunications Ass'n v. Entergy 
Services, Inc., Order, 14 FCC Rcd 9138, 9142,  12 (Cable Servs. 
Bur. 1999) (``TCTA v. Entergy'') (finding a dispute concerning a 
proposed pole attachment agreement to be ripe where the parties 
reached an impasse in their negotiations); Omnipoint Corp. v. 
PECO Energy Co., Memorandum Opinion and Order, 18 FCC Rcd 5484, 
5485,  4 (Enf. Bur. 2003) (``A complaint alleging denial of 
access, in this case due to an allegedly excessive attachment 
rate, is valid and ripe for review under the Pole Attachment Act 
and the Commission's rules.'').
35 The Complaint challenges the reasonableness of a number of 
terms and conditions and, concomitantly, claims that Georgia 
Power failed to negotiate in good faith.  Because we address the 
reasonableness of each of the challenged provisions below, we 
need not address separately whether the provision was negotiated 
in good faith.  Rather, where we determine that the term is 
unreasonable, we order Georgia Power to negotiate in good faith 
with the Cable Operators to reach agreement as to a reasonable 
provision. 
36 In this regard, the Cable Operators challenge provisions of 
the New Contract pertaining to notice of pole replacements 
(Complaint at 11,  51) and the treatment of drop poles 
(Complaint at 12-13,  58-64).  Georgia Power argues that 
neither of these subjects was raised in the parties' pre-
Complaint negotiations (Response at 18, 20, 22), and the Cable 
Operators do not refute this assertion in their Reply.  In 
addition, the Cable Operators contend generally (i.e., without 
identifying a particular provision of the New Contract or 
explaining relevant factual context) that the New Contract 
``allows Georgia Power to refuse responsibility for its own 
subsequent make-ready costs.''  Complaint at 11,  49.  It 
similarly appears that the parties did not address this issue in 
their pre-Complaint negotiations.  The Commission's pole 
attachment complaint rules apply ``when parties are unable to 
arrive at a negotiated agreement . . . .''  In the Matter of 
Amendment of Commission's Rules and Policies Governing Pole 
Attachments, Consolidated Partial Order on Reconsideration, 16 
FCC Rcd 12103, 12111,  10 (``Pole Attachments Reconsideration 
Order'').  We order the parties to negotiate in good faith 
concerning these issues, in addition to the other issues 
identified in this Order.
37 Georgia Power argues that the Cable Operators have an 
``abysmal record'' of ``blatant . . . [and] rampant'' safety 
violations (Response at 7, 8); that, over a period of years, the 
Cable Operators have committed in Georgia 15,684 recorded 
violations of the National Electric Safety Code (``NESC'') and 
accepted industry construction standards (Response at 7); that, 
over a three-year period, fifteen percent of all construction 
locations inspected on behalf of Georgia Power had to be shut 
down because of severe safety violations; and that, according to 
the Georgia Public Service Commission, Georgia cable television 
companies in general have hit gas pipelines over 1,400 times, 
because they violated the ``24 inch tolerance zone required by 
law'' (Response at 8).
38   Response at 3.
39   Response at 3.
40  Response at 3-4, 12, 15, 17, 27.   While average, typical, or 
standard conduct can be evidence of what is just and reasonable, 
it is not conclusive.  See, e.g., Local Competitive Provisions in 
the Telecommunications Act of 1996, First Report and Order, 11 
FCC Rcd 15499, 16072,  1151 (1996) (``Local Competition Order'') 
(``industry codes also will be presumed reasonable if shown to be 
widely-accepted objective guides for the installation and 
maintenance of electrical and communications facilities'') 
(subsequent history omitted).  Because attachers may have varying 
abilities to mount a legal challenge to the New Contract, we do 
not view a willingness to sign the New Contract, standing alone, 
as evidence of the reasonableness of its terms.  
41 Reply, Summary at 1; Reply, Exhibit 1 (Reply Declaration of 
Nancy Horne [``Horne Reply Declaration'']) at 6, 17 (``Georgia 
Power did not raise safety issues as a concern while discussing 
unauthorized attachments, or other provisions for that matter.  
Georgia Power also never discussed safety violations by CTAG 
members as a reason for imposing significantly more burdensome 
and objectionable terms in the new agreement.''); Reply, Exhibit 
2 Bagley Declaration at 3,  7 (``Georgia Power has never 
informed me or my staff of Comcast safety violations''); Reply, 
Exhibit 15 (Declaration of  Timothy M. Gregory [``Gregory 
Declaration'']) at 4,  12 (``During the more than three years 
that I have served as [Comcast's safety point of contact for five 
counties], I have received no reports of safety code violations 
from Georgia Power, with the exception of minor incidents arising 
from natural phenomena such as severe storms, strong winds or 
accidents.  In those limited instances, Comcast acted promptly to 
correct the problem.'').  But cf. Reply, Exhibit 5 (Colavolpe 
Declaration) at 2,  8 (``Safety and network reliability were 
discussed [at the October 12, 2000 meeting between the parties] 
but were not the specific overriding themes of the session.'').
42 See 47  U.S.C.  224(f)(2)  (a utility may  deny access  ``for 
reasons of safety'').
43 See Reply at 18-20.  Specifically, a spreadsheet submitted by 
Georgia Power purportedly documenting recent safety violations 
contains no dates (see Response, Exhibit B (Declaration of David 
Thompson [``Thompson Declaration'']), Exhibit 4 (Shutdowns of 
Companies as a Result of Violations)), and a summary of 
violations purportedly committed in large part by AT&T/MediaOne 
contains dated information that calls into question the report's 
accuracy (see Response, Exhibit B (Thompson Declaration), Exhibit 
6 (FCC Complaint Post Inspection Report)).  Moreover, we cannot 
tell from the latter exhibit which attaching entity is 
responsible for the alleged violations.  Compare Response, 
Exhibit B (Thompson Declaration) at 2  16 (``Exhibit 6 portrays 
the number of poles with violations committed by cable companies 
in specific nodes within a particular hub.''), with Reply at 19 & 
Exhibit 8 (Declaration of James J. Yates [``Yates Declaration'']) 
at 5,  15 (``Georgia Power's attitude has always been that if 
there is a violation on a pole to which AT&T Broadband is 
attached, then AT&T Broadband is responsible for the violation . 
. . According to USS, AT&T Broadband is responsible for taking 
only 643 of the actions necessary to clear violations on poles 
located in Hub C1.  Georgia Power and the telephone company are 
responsible for the other 867 actions needed.'').
44 Response at 8 n.24; Response, Exhibit B (Thompson Declaration) 
at 4,  17.
45 Response, Exhibit K (Declaration of Michael E. Davis  [``Davis 
Declaration'']) at 6,  23.
46 The Cable Operators appear to acknowledge that their 
attachments sometimes caused unsafe conditions, but they urge 
that such problems always have been solved in the normal course 
of business under the parties' prior agreements.  Reply at 21-23; 
Reply, Exhibit 3 (Declaration of William B. Durand [``Durand 
Declaration'']) at 5,  13; Reply, Exhibit 8 (Declaration of 
James J. Yates [``Yates Declaration'']) at 1-2,  4.
47 Pole Attachments Reconsideration Order, 16 FCC Rcd at 12140,  
73.  See also Implementation of Section 703(E) of the 
Telecommunications Act of 1996, Amendment of the Commission's 
Rules and Policies Governing Pole Attachments, Report and Order, 
13 FCC Rcd 6777, 6807,  62 (1998) (``Telecom Order'') (``We 
believe overlashing is important to implementing the 1996 Act as 
it facilitates and expedites installing infrastructure essential 
to providing cable and telecommunications services to American 
communities.  Overlashing promotes competition by accommodating 
additional telecommunications providers and minimizes installing 
and financing infrastructure facilities.  We think that 
overlashing is an important element in promoting the policies of 
Sections 224 and 257 to provide diversity of services over 
existing facilities, fostering the availability of 
telecommunications services to communities, and increasing 
opportunities for competition in the marketplace.'') (footnotes 
omitted).
48 Complaint, Exhibit 3 (prior pole attachment agreements),  6; 
Reply, Exhibit 1 (Horne Reply Declaration) at 4, 10.
49 Complaint, Exhibit 6 (New Contract), 1.1.
50 Pole Attachments Reconsideration Order, 16 FCC Rcd at 12141,  
75.
51 Complaint, Exhibit 3 (prior pole attachment agreements),  8; 
Reply at 33.
52 Complaint, Exhibit 6 (New Contract),  5.
53 Complaint, Exhibit 6 (New Contract),  5.  
54 Complaint at 9,  36.  See also Reply at 33-34.
55 Response at 12.
56 Complaint, Exhibit 6 (New Contract),  5 (emphasis added).
57 See Response at 12, 13.
58 Response, Exhibit K (Davis Declaration) at 4,  12.
59 See Amendment of Rules and Policies Governing the Attachment 
of Cable Television Hardware to Utility Poles, Report and Order, 
2 FCC Rcd 4387, 4393  41 (1987) (a ``separate charge or fee for 
items such as application processing or periodic inspections of 
the pole plant is not justified if the costs associated with 
these items are already included in the rate, based on fully 
allocated costs, which the utility charges the cable company 
since the statute does not permit utilities to recover in excess 
of fully allocated costs'').  There is no suggestion in the 
record that costs of routine inspections are not included as part 
of Georgia Power's annual pole attachment rate calculated in 
accordance with the Commission's formula.
60 Complaint, Exhibit 6 (New Contract),  16.6.
61 Complaint, Exhibit 6 (New Contract), 16.6.
62 Complaint at 9-10,  42, 45.  See also Reply at 34.
63 When calculating the administrative portion of the carrying 
charges, the Commission allocates the total plant administrative 
expenses to yield a reasonable estimate of the administrative 
expenses related to poles.  Nevada State Cable Television Ass'n 
v. Nevada Bell, Order on Reconsideration, 17 FCC Rcd 15534, 
15539,  13 (Enf. Bur. 2002).
64 See 18 C.F.R. pt. 101, Accounts 920, et seq.
65 See, e.g., TCTA v. Entergy, 14 FCC Rcd at 9143,  14.
66 Complaint at 10,  44; Response at 15-16.   
67 Response at 15.
68 Complaint at 6-7,  23-26, at 10,  46; Complaint, Exhibit 8 
(Bagley Declaration) at 2,  8.
69 Implementation of the Local Competition Provisions in the 
Telecommunications Act of 1996, CC Docket No. 96-98, 
Interconnection Between Local Exchange Carriers and Commercial 
Mobile Radio Service Providers, CC Docket No. 95-185, Order on 
Reconsideration, 14 FCC Rcd 18049, 18086,  107 (1999) (emphasis 
added).  

70 Complaint, Exhibit 6 (New Contract),  4.2.
71 Complaint at 12,  54-55.  See also Reply at 36-37.
72 Response at 18 & Exhibit F (Declaration of Obie Youngblood 
[``Youngblood Declaration'']) at 2,  9; Exhibit G (Declaration 
of Ron Marshall [``Marshall Declaration'']) at 2,  5; Exhibit K 
Davis Declaration at 4-5,  16-18.  Neither the Response nor the 
declarations accuse the Cable Operators specifically of making 
unauthorized attachments. 
73 Response at 18.
74 Response at 18.
75 Mile Hi Cable Partners, L.P. v. Public Service Co. of Colo., 
Order, 15 FCC Rcd 11450, 11457,  10 (Cable Servs. Bur. 2000) 
(``Mile Hi Bureau Order''), review denied, 17 FCC Rcd 6268 (2002) 
(``Mile Hi Commission Order''), review denied sub nom. Public 
Serv. Co. of Colo. v. FCC, 328 F.3d 675 (D.C. Cir. 2003).
76 Mile Hi Bureau Order, 15 FCC Rcd at 11457,  10.
77 Response at 19.  See Mile Hi Commission Order, 17 FCC Rcd at 
6272,  10 (general contract principles prohibit the enforcement 
of unreasonable penalties for breach of contract).  As discussed 
supra, section III.B.1., we reject Georgia Power's assertion that 
the Cable Operators have committed recent, widespread safety 
violations.
78 Complaint, Exhibit 6 (New Contract),  6.
79 47 U.S.C.  541.
80 Complaint at 13,  66.
81 Reply at 38.
82 47 U.S.C.  224(f)(1) (emphasis added).
83 Response at 22 (citing Media General, 991 F.2d at 1175;  Cable 
Holdings, 953 F.2d at 602).
84 See FCC v. Florida Power Corp., 480 U.S. 245, 254 (1987) 
(finding that it could not be seriously argued that a rate 
providing for the fully allocated recovery of costs is 
confiscatory); Alabama Power Co. v. FCC, 311 F.3d 1357, 1360 
(11th Cir. 2002) (``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.'').
85 Pole Attachments Reconsideration Order, 16 FCC Rcd at 12162,  
123 (``utility enjoys full use of its land rights, and an 
attacher's physical occupation of a portion of space on a pole 
does not restrict the utility's use of land for its distribution 
network'').
86 Complaint at 14,  70-74 & Exhibit 6 (New Contract),   9.1, 
9.2, 9.3; Reply at 39-40.
87 See Complaint, Exhibit 3 (prior pole attachment agreements) at 
17,  30.
88 Complaint at 15,  75-79 & Exhibit 6 (New Contract),   8.1, 
8.2, 8.4; Reply at 41.
89 Response at 24-25.
90 See section III.C.1., supra.
91 Response at 24.
92 The Cable Operators also challenge a related provision of the 
New Contract requiring workers to sign a release in Georgia 
Power's favor.  Complaint at 16,  80-84 & Exhibit 6 (New 
Contract),  2.4; Reply at 42.  The provision is substantially 
similar to provisions contained in the parties' prior pole 
attachment agreements, which the Cable Operators describe as 
``model[s] of reasonableness.''  Reply at 28.  The provision, 
however, should be clarified to provide that a such a release 
would not apply when Georgia Power is grossly negligent or 
commits willful misconduct.
93 Complaint at 16,   88-89 & Exhibit  6 (New Contract),   15; 
Reply at 43.
94 Reply at 43.
95 Response at 28.
96 Response at 28.
97 Black's Law Dictionary 254 (Pocket Edition 1996).
98 Complaint at 17,  91-95 & Exhibit 6 (New Contract),  7.1.
99 Response at 29.
100 Complaint at 17,  92.
101 Response at 29.
102 47 C.F.R.  1.1403(C)(2). 
103 Complaint at 17,  96; Reply at 45.  See Complaint, Exhibit 6 
(New Contract),  16.1.
104 Response at 30.
105 Complaint, Exhibit 6 (New Contract),  16.1.
106 In considering requests for assignment in connection with 
affiliate transfers and transfers to incumbent attachers, we 
fully expect Georgia Power, absent extraordinary circumstances, 
to grant its consent expeditiously.
107 See Complaint, Exhibit 3 (prior pole attachment agreements), 
 27.
108 Reply at 28.
109 Complaint, Exhibit 3 (prior pole attachment agreements),  
29.
110 Complaint, Exhibit 6 (New Contract),  10.
111 Complaint at 18,  101; Reply at 46.
112 Response at 31.  Georgia Power also argues that it negotiated 
in good faith about this position, because it amended the 
termination clause as it originally appeared in the New Contract 
to state that it may exercise termination rights only to the 
extent not prohibited by law.  Response at 31.  See Complaint, 
Exhibit 5 (November 1 Letter) at 2.  It is hardly a negotiation 
concession, however, for a party to clarify in a contract that it 
will obey the law.