Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Omnipoint Corporation, )
Complainant ) File No. PA 97-002
PECO Energy Company, )
MEMORANDUM OPINION AND ORDER
Adopted: March 24, 2003 Released: March 25, 2003
By the Chief, Enforcement Bureau:
1. In this Order we grant in part a complaint that
Omnipoint Corporation (``Omnipoint'') filed against PECO Energy
Company (``PECO''), pursuant to Section 224 of the
Communications Act of 1934, as amended (``Pole Attachment
Act'')1 and Subpart J of Part 1 of the Commission's rules.2
Omnipoint's Complaint concerns access to PECO's facilities for
the placement of Omnipoint's wireless Personal Communications
Service (``PCS'') base stations, antennas and equipment.3
Omnipoint requests that the Commission order PECO to comply with
the Pole Attachment Act and the Commission's rules, provide
Omnipoint with access to its facilities at just and reasonable
rates, and provide Omnipoint with the information and
documentation to support its attachment rate.4 We grant
Omnipoint's Complaint in part and order PECO to comply with the
Pole Attachment Act and the Commission's pole attachment rules,
to the extent that Omnipoint continues to seek access to PECO's
2. Pursuant to the Pole Attachment Act, the Commission has
general authority to regulate the rates, terms, and conditions
for attachments by a cable television system or provider of
telecommunications service to a pole, duct, conduit, or right-
of-way owned or controlled by a utility, except where such
matters are regulated by a State.5 The Commission has adopted
procedures to hear and resolve complaints concerning such rates,
terms, and conditions,6 and has developed a formula methodology
to determine maximum allowable pole attachment rates to ensure
that such rates are just and reasonable.7
3. Omnipoint filed its Complaint pursuant to the
Commission's pole attachment complaint rules. In its Complaint,
Omnipoint requests the Commission to: a) admonish PECO that it
is bound by section 224 of the Act and sections 1.1401 to 1.1416
of the Commission's rules; b) order PECO to provide information
and supporting documentation required by section 1.1404(g) of
the Commission's rules; c) require PECO to set a fair and
reasonable pole attachment rate; d) order PECO to provide
Omnipoint access to its poles, ducts, conduits, rights-of-way,
and transmission towers on reasonable rates and terms; e) grant
Omnipoint costs and attorneys fees; and f) grant such other
relief as the Commission deems just, reasonable and proper.8
4. PECO responds to Omnipoint's Complaint with three
jurisdictional and ripeness arguments, each of which we reject.
First, we deny PECO's motion to dismiss the Complaint.9 PECO
argues that we must dismiss the Complaint because Omnipoint is
not actually attached to any of PECO's poles and the Complaint
raises only hypothetical questions.10 We disagree and deny the
motion. A complainant need not have gained access in order to
file a valid complaint. 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
5. Second, PECO argues that the case is not ripe for
review because Omnipoint did not make PECO a counteroffer to
PECO's proposed per site charge of $2,100.00 and, therefore, did
not attempt to engage in meaningful negotiations.12 In order
to conduct fruitful negotiations, an attaching party must have
the information necessary to calculate a just and reasonable
rate in accordance with the Pole Attachment Act.13 PECO failed
to provide Omnipoint with the necessary information to support
PECO's proposed $2,100.00 rate. This failure provided an
adequate basis for Omnipoint's filing the Complaint. We
therefore disagree with PECO that the Commission's consideration
of the limited request for relief in the Complaint is premature.
6. Finally, PECO argues that the Commission does not have
jurisdiction in this matter because Omnipoint seeks to attach
wireless equipment.14 We disagree. As the Supreme Court
concluded last year in NCTA v. Gulf Power Co.,15 the Commission
has jurisdiction over wireless telecommunications service
attachments. This jurisdictional issue was the subject of
extensive litigation elsewhere during the pendency of this case.
The Supreme Court's recent resolution of this issue removes a
final obstacle to resolving Omnipoint's limited request for
7. Having rejected PECO's principal defenses to
Omnipoint's Complaint, we grant Omnipoint's request in large
part.17 Specifically, we order PECO to comply with the Pole
Attachment Act and the Commission's pole attachment rules. To
the extent that Omnipoint continues to seek access to PECO's
facilities, once Omnipoint identifies to PECO the sites it
wishes to use and the type of equipment to be installed and
requests access, PECO shall provide Omnipoint with historical
cost data related to the specific facilities to which Omnipoint
seeks attachment, in accordance with section 1.1404 of the
Commission's rules.18 The parties shall then negotiate a just
and reasonable attachment rate based upon the cost data supplied
by PECO.19 In sum, PECO is obligated to provide Omnipoint
access to its facilities at just and reasonable rates in
accordance with the Pole Attachment Act and the Commission's
8. Finally, we deny Omnipoint's request for attorney's
fees and costs. The Commission has stated that it does not have
the authority to award attorney's fees or costs in pole
attachment complaint proceedings.21
9. Accordingly, IT IS ORDERED, pursuant to Sections 0.111
and 1.1401-1.1418 of the Commission's rules, 47 C.F.R. §§ 0.111
and §§ 1.1401-1.1418, that the relief requested in the Complaint
IS GRANTED TO THE EXTENT INDICATED HEREIN.
10. IT IS FURTHER ORDERED, pursuant to Sections 0.111 and
1.1401-1.1418 of the Commission's Rules, 47 C.F.R. §§ 0.111 and
1.1401-1.1418, that, to the extent that Omnipoint continues to
seek access to PECO's facilities, Omnipoint and PECO SHALL
NEGOTIATE IN GOOD FAITH maximum just and reasonable rates for
pole attachments in accordance with 47 U.S.C. § 224 and the
11. IT IS FURTHER ORDERED, pursuant to Sections 0.111 and
1.1401- 1.1418 of the Commission's rules, 47 C.F.R. §§ 0.111 and
1.1401- 1.1418, that Omnipoint's request for attorney's fees and
costs is DENIED.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 U.S.C. § 224.
2 47 C.F.R. §§ 1.1401-1.1418.
3 Complaint of Omnipoint Corporation, File No. PA 97-002
(filed April 1, 1997) (``Complaint'') at 3.
4 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).
5 47 U.S.C. § 224 (b) and (c). Pennsylvania has not certified
that it regulates rates, terms and conditions of pole
attachments. See Public Notice, ``States That Have Certified
That They Regulate Pole Attachments,'' 7 FCC Rcd 1498 (1992).
6 47 U.S.C. § 224 (b) (1).
7 See Adoption of Rules for the Regulation of Cable Television
Pole Attachments, First Report and Order, 68 F.C.C. 2d 1585
(1978); Second Report and Order, 72 F.C.C. 2d 59 (1979);
Memorandum Opinion and Order, 77 F.C.C. 2d 187 (1980), aff'd,
Monongahela Power Co. v. FCC, 655 F.2d 1254 (D.C. Cir. 1985) (per
curiam); and Amendment of Rules and Policies Governing the
Attachment of Cable Television Hardware to Utility Poles, Report
and Order, 2 FCC Rcd 4387 (1987). See also, Implementation of
Section 703(e) of the Telecommunications Act of 1996, Report and
Order, 13 FCC Rcd 6777 (1998) and Amendment of Rules and Policies
Governing Pole Attachments, Report and Order, 15 FCC Rcd 6453
(2000), pet. for recon. denied in part, Amendment of Commission's
Rules and Policies Governing Pole Attachments, CS Docket No. 97-
98; Implementation of Section 703(e) of the Telecommunications
Act of 1996, Consolidated Partial Order on Reconsideration, 16
FCC Rcd 12103 (2001), pet. for review denied sub nom. Southern
Company Services, Inc. et al. v. FCC, 313 F.3d 574 (D.C. Cir.
8 Complaint at 6-7.
9 PECO's Motion to Dismiss, File No. PA 97-002 (filed
September 18, 1998).
10 Id. at 2-5.
11 See 47 USC § 224 (f) and 47 CFR § 1.1404 (m).
12 Response of PECO Energy, File No. PA 97-002 (filed May 1,
1997) (``Response'') at 5-6.
13 See 47 CFR § 1.1404 (j).
14 Response at 6-15.
15 534 U.S. 327, 338-339 (2002).
16 We also deny American Electric Power Service Company,
Commonwealth Edison Company, Duke Power Company, and Florida
Power and Light Company's (collectively ``utilities'') motion to
intervene in this proceeding. Motion of American Electric Power
Service Company, Commonwealth Edison Company, Duke Power Company,
and Florida Power and Light Company to Intervene, File No. PA 97-
002 (filed June 18, 1997). The utilities allege only a general
interest in the potential precedent involved in a complaint
proceeding, which is not a sufficient basis for intervention.
See, e.g., Texas Cable and Telecommunications Association v. GTE
Southwest Inc., 17 FCC Rcd 6261, 6265 (2002) (``. . . the mere
precedential effect of the agency's rationale in later
adjudications does not give rise to a legally cognizable injury
and it does not create standing to intervene''). In any event,
the utilities request intervention simply to argue that the
Commission does not have jurisdiction under the Pole Attachment
Act to regulate wireless attachments, an argument we have already
17 PECO also argues that it is required under State law to
provide all PCS attachers with nondiscriminatory rates, and
because it offered Omnipoint the same rate that it charged all
other PCS providers, the requirements of the Pole Attachment Act
are satisfied. Response at 15-17. We disagree. The mere fact
that PECO seeks to charge all PCS attachers the same rate does
not satisfy the requirement of the Pole Attachment Act that the
rate be just and reasonable.
18 We note that PECO argues that attachments to its
transmission facilities are not covered by the Pole Attachment
Act. We agree with PECO, but only to the extent that the
transmission facilities are interstate and not part of a local
distribution system. See Southern Company v. FCC, 293 F.3d 1338,
1345 (11th Cir. 2002).
19 See 47 U.S.C. § 224 (d) (3) (e) (4); Implementation of
Section 703 (e) of the Telecommunications Act of 1996, 13 FCC Rcd
6777 at ¶ 102 (1998). We reject PECO's argument that it need not
provide historical cost data. See Alabama Cable
Telecommunications Association, et al. v. Alabama Power Company,
16 FCC Rcd 12209 at ¶¶ 32-61 (2001) (stating that the
Commission's pole attachment formulas provide just compensation),
affirmed Alabama Power Company v. FCC, 311 F.3d 1357 (11th Cir.
2002), rehearing and rehearing en banc denied, Alabama Power Co.
v. FCC, --- F.3d ---- (11th Cir. Jan 08, 2003), mandate stayed
pending filing of petition for cert.
20 Thus, we do not decide in this order whether PECO's 1997
proposed rate is just and reasonable. First, Omnipoint's
Complaint did not specifically request such a ruling. Second, we
do not know whether PECO would seek to maintain such a rate
today. We note, however, that the Commission has stated that the
pole attachment formula presumptions may be modified or adjusted
in order to address unique attachments associated with wireless
systems. See Implementation of Section 703(e) of the
Telecommunications Act of 1996, 13 FCC Rcd 6777 at ¶ 42 (1998).
21 See, e.g., Multimedia Cablevision Inc. v. Southwestern Bell
Tel. Co., Memorandum Opinion and Order, 11 FCC Rcd 11202 at ¶ 16