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                            Before the
                Federal Communications Commission
                     Washington, D.C.  20554
                                                  
In the Matter of                  )
                                  )
Marcus Cable Associates, LP,      )
                                  )
          Complainant,            )
                                  )         File No. PA 96-002
          v.                      )
                                  )
Texas Utilities Electric          )
Company,                          )
                                  )
          Respondent.             )



                       ORDER ON REVIEW

     Adopted:  July 15, 2003                           
Released:  July 28, 2003      

By the Commission:  

I.   INTRODUCTION

     1.   In this Order, we deny in all except one respect 
an application for review1 of a Cable Services Bureau order2 
that granted a pole attachment complaint3 filed by Marcus 
Cable Associates, LP (``Marcus'') against Texas Utilities 
Electric Company (``TU Electric'')4 pursuant to section 224 
of the Communications Act of 1934, as amended.5  As 
explained below, we conclude that the Commission has 
jurisdiction to resolve the Complaint.  On the merits, we 
find the Bureau Order to be well-supported by the non-
confidential material contained in the record and consistent 
with the mandates of section 224.  To the extent the Bureau 
Order ruled on TU Electric's pole attachment agreements 
other than the parties' Agreement, however, we find it to be 
overly broad.

II.  BACKGROUND

     A.   The Parties and the Complaint

     2.   TU Electric is a utility engaged in the 
generation, purchase, transmission, distribution, and sale 
of electric energy in Texas.6  TU Electric is affiliated 
with various entities providing telecommunications services 
within Texas that are using its private easements and 
rights-of-way.7  Marcus is a franchised cable operator that 
offers video programming services in the Dallas-Fort Worth, 
Texas metropolitan area.8  In addition to its video 
programming services, Marcus offers fiber optic conductor 
capacity over the excess capacity of its cable system, on 
mixed-use, commonly-sheathed fiber optic and coaxial 
conductors.9  

     3.   On November 1, 1995, Marcus and TU Electric 
entered into a pole attachment agreement (``Agreement'').10  
On July 24, 1996, Marcus filed its Complaint with the 
Commission, challenging the reasonableness of certain 
provisions in, and actions related to, the Agreement.11  
Specifically, Marcus objected to a section of the Agreement 
that required Marcus to indicate whether it transmitted 
``data other than a TV signal'' through its facilities 
attached to TU Electric's poles.12  A positive response 
required Marcus to obtain a release from each of its non-
video customers indemnifying both Marcus and TU Electric in 
connection with claims arising out of Marcus's or TU 
Electric's ``negligence, strict liability or other fault of 
any nature.''13  The release also had to state that non-
video services provided by Marcus may not be completely 
private and may be interrupted, lost or limited for many 
reasons.14  Marcus alleged that TU Electric included this 
section of the Agreement to gain competitively sensitive 
information to eliminate Marcus's efforts to deploy fiber 
optic communications facilities and market non-video 
services, and to destroy or interfere with Marcus's non-
video customer relationships.15  Marcus also argued that 
other provisions in the Agreement (requiring Marcus to 
indemnify TU Electric, provide insurance coverage, and post 
a bond for each pole) are more than sufficient to shield TU 
Electric from liability.16  In addition, according to 
Marcus, TU Electric demanded a portion of Marcus's revenue 
derived from the provision of such non-video services.17  
Finally, in response to the Bureau's request for 
information,18 Marcus sought confidential treatment for 
information in two contracts with third parties.19  TU 
Electric requested that the Complaint be denied or 
dismissed, arguing, inter alia, that the Commission does not 
have jurisdiction over contractual disputes.20  

     B.   Bureau Order and Application for Review

     4.   The Bureau Order found that: (1) section 224 of 
the Act provides the Commission with jurisdiction to review 
the parties' Agreement;21 (2) the Agreement's requirements 
of indemnification and disclosure of non-video transmissions 
over Marcus's facilities were unreasonable;22 (3) TU 
Electric's efforts to collect information about, and money 
for, third-party use of Marcus's cables were 
impermissible;23 and (4) Marcus was not entitled to actual 
and punitive damages.24  The Bureau Order terminated the 
provisions of the Agreement that were found to be 
unreasonable, and, more broadly, granted Marcus's request 
for a declaratory ruling terminating those provisions in all 
TU Electric pole attachment agreements.25  The Bureau Order 
further granted Marcus's request to maintain the 
confidentiality of the copies of its agreements with third-
party customers.26  

     5.   On August 20, 1997, TU Electric filed an 
application for review of the Bureau Order, asserting that 
the Bureau erred by: (1) finding that the Commission has 
jurisdiction over the Complaint, which TU Electric continues 
to assert is simply a contractual dispute;27 (2) 
misinterpreting section 224 of the Act and the holdings of 
certain Commission orders interpreting that section;28 (3) 
basing its decision on Marcus's contracts with third 
parties, which TU Electric never was allowed to review;29 
(4) deciding the issues raised in the Complaint without 
holding a hearing;30 and (5) issuing a declaratory ruling 
regarding provisions contained in other TU Electric pole 
attachment agreements.31  

III.                      DISCUSSION
     
     A.   Jurisdiction

     6.   The Bureau correctly determined that the 
Commission has jurisdiction to resolve the Complaint.  
Section 224 of the Act vests the Commission with 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.32  The 
Commission further is authorized to adopt procedures 
necessary to resolve complaints concerning such rates, 
terms, and conditions,33 and ``where onerous terms or 
conditions are found to exist on the basis of the evidence, 
. . . the term[s] or condition[s] may be invalidated.''34  
The Commission's authority does not supplant that of the 
local jurisdiction when the issue between the parties is 
limited to a breach of contract claim that does not include 
an allegation of unjust or unreasonable contractual rates, 
terms, or conditions.35  

     7.   In response to Marcus's claim that certain 
provisions and conditions attendant to the Agreement were 
unreasonable, TU Electric asserted that the ``real dispute'' 
before the Bureau was whether Marcus violated its contract 
by subleasing its pole attachment rights (i.e., allowing a 
party to ``overlash'' its facilities to Marcus's 
facilities), and that this issue is beyond the purview of 
the FCC.36  After reviewing the record, including 
supplemental information provided by Marcus, the Bureau 
disagreed with TU Electric that the issues in the complaint 
pertained exclusively to the subleasing provisions of the 
contract.37  The Bureau instead determined that the 
Complaint involved questions regarding the reasonableness of 
the Agreement's terms and conditions, as well as the 
reasonableness of TU Electric's request for additional 
payment regarding revenue from non-video services.38  The 
Bureau also concluded that two Commission-level decisions 
squarely addressed similar issues in pole attachment 
complaint proceedings, and affirmed the agency's 
jurisdiction.39

     8.   In its Application, TU Electric adheres to its 
view that the Commission lacks jurisdiction to resolve the 
Complaint.40  TU Electric insists that, by concluding that 
there was no third-party overlashing (and thus no breach of 
the Agreement), the Commission necessarily decided a matter 
of contract over which it lacked jurisdiction.41  We 
disagree.  The Complaint expressly challenges the 
reasonableness of the terms and conditions of Marcus's 
attachments to TU Electric's poles.42  TU Electric's focus 
on the issue of ``breach'' is misplaced.  Regardless of 
whether the Agreement technically was breached - and 
regardless of whether the fee TU Electric consequently 
imposed is termed ``restitution'' or an ``excessive rate''43 
- the Complaint's allegations of unreasonableness fall 
squarely within the Commission's jurisdiction.44  Stated 
differently, the description of the fee does not affect the 
Commission's jurisdiction, and the Bureau was correct to 
review the fee and determine its justness and reasonableness 
under the Act.45

     B.   Third-Party Overlashing

     9.   TU Electric argues that the Bureau incorrectly 
concluded that Marcus did not engage in third-party 
overlashing.46  Specifically, TU Electric contends that the 
Bureau improperly based its factual finding on contradicted 
and conclusory complaint allegations and on evidence that TU 
Electric was not allowed to review. 47  Moreover, TU 
Electric contends that the Bureau wrongly shifted the burden 
of proof to TU Electric and refused to hold a hearing.48  We 
reject TU Electric's assertions as unsupported by the 
record.

     10.  The facts in the record on this issue are as 
follows:  TU Electric found that in two places a third-
party, non-video provider had installed a handhole49 at the 
base of one of TU Electric's distribution poles, with a 
conduit extending to a conduit riser attached to the pole.50  
In both locations, a fiber optic cable extends from the 
handhole, up the riser, and is overlashed to Marcus's 
primary cable that is attached to TU Electric's pole.51  
This discovery caused TU Electric to question whether the 
overlashed cable or other fiber cable was wholly owned by 
Marcus, and whether it was being used or leased by third 
parties.52  Marcus submitted the Pietri Declaration, which 
states that Marcus provides non-video services, ``typically 
fiber optic conductor capacity . . . over the excess 
capacity of its cable television system, on mixed use, 
commonly sheathed fiber and coaxial conductors.''53  In 
response to nine interrogatories propounded by the Bureau, 
Marcus specified precisely the type of capacity it provides 
over its network, and stated categorically that it wholly 
owns all facilities it attaches to TU Electric poles.54  
Marcus further explained how long fiber optic cable it owns 
had been overlashed pursuant to permits obtained by Marcus's 
predecessor-in-interest, and confirmed that it has not 
entered any agreements permitting a third party to attach to 
TU Electric's poles.55  

     11.  Given this record, the Bureau reasonably concluded 
that Marcus had met its burden of demonstrating that it 
wholly owned the overlashed cable.56  Marcus's assertions 
were fully supported by affidavit, and TU Electric did not 
provide any contradictory evidence.  Thus, there was ample 
basis to find that Marcus had not engaged in third-party 
overlashing, which was the basis for TU Electric's claim 
that Marcus had breached the Agreement's non-assignment 
clause.57  

     12.  We further reject TU Electric's argument that the 
Bureau Order improperly relied on confidential documents 
provided by Marcus in response to the Bureau's request for 
information.  The Bureau based its conclusion that Marcus 
wholly owned the overlashed cable exclusively on the 
substantial, non-confidential evidence in the record.58  In 
other words, the Bureau did not rely on the confidential 
documents in reaching its conclusion.59

     13.  TU Electric contends that the Bureau impermissibly 
shifted the burden of proof on the overlashing and other 
issues to TU Electric.60  We disagree.  Once a complainant 
in a pole attachment matter meets its burden of establishing 
a prima facie case, the respondent bears a burden to explain 
or defend its actions.61  Thus, when Marcus proved as a 
matter of fact that it had not permitted third-party 
overlashing,62 TU Electric was required to come forth with 
some evidence to support its assertion that Marcus's 
contentions were wrong as a factual matter.  As discussed 
above, TU Electric offered no evidence refuting Marcus's 
claims.  The Bureau's use of phrases such as ``failed to 
make a sufficient showing''63 indicates a failure of TU 
Electric to meet its burden of production rather than a 
shift in the ultimate burden of proof.  

     14.  Finally, we reject TU Electric's contention that 
it was entitled to a hearing.  The pole attachment process 
is designed to be efficient but allow all parties to express 
fully their positions, and the decision to grant an 
evidentiary hearing is discretionary.64  In this matter, 
both parties submitted extensive pleadings, affidavits, and 
exhibits to explain their respective positions.65  The 
Bureau found that the material facts available in the record 
in written form were sufficient to support its decision, and 
we agree.66  Moreover, TU Electric has not identified ``a 
material question of fact that warrants a hearing.''67  
Consequently, we find that the Bureau did not err in 
declining to hold a hearing.
     C.   Leasing of Excess Capacity

     15.  In its Application, TU Electric argues that the 
Bureau erred in concluding that the terms and conditions of 
the Agreement with respect to leased capacity to a 
telecommunications provider are unjust and unreasonable, 
because it based its conclusions on a pre-Telecommunications 
Act of 1996 (``1996 Act'')68 interpretation of section 
224.69  In this regard, TU Electric states: ``While a 
telecommunications carrier may now also have the right to 
pole attachments from a utility and, if it does not already 
have an agreement, secure a regulated rate, that is the 
right of a telecommunications carrier, not a cable system 
wishing to sublease one.''70  As TU Electric notes, at the 
time of the Bureau decision the Commission had not itself 
addressed whether the 1996 Act should be interpreted to 
``allow (e.g., force utilities to permit) systems with 
attachment rights to let unrelated telecommunications 
carriers overlash their cables to existing systems.''71  TU 
Electric  argues that section 224 applies only to 
attachments for services offered by the attacher itself 
(here, Marcus) and not to attachments that are used to allow 
third parties to provide services, because ``[s]uch 
subleasing of capacity clearly is not encompassed within 
Section 224.''72  

     16.  The Commission subsequently decided that section 
224 does indeed apply to leased capacity:
 
        We affirm our holding in the Telecom 
        Order that if an attachment previously 
        used for providing solely cable services 
        would, as a result of the leasing of dark 
        fiber, also be used for providing 
        telecommunications services, the rate for 
        the attachment would be determined using 
        the Telecom Formula.  However, attaching 
        entities may lease their dark fiber to 
        third parties without such leases being 
        considered separate attachments and 
        without making an additional payment 
        beyond the host's existing attachment 
        rate.  The cable system operator may 
        lease excess fiber capacity within its 
        existing attachment to any party for a 
        negotiated rate without the knowledge or 
        consent of the pole owner because the 
        physical attachment will not be altered.  
        The dark fibers contained within the 
        attaching host have already been taken 
        into account in determining the rent for 
        the attachment.  The character and 
        content of the services provided do not 
        affect the amount of space occupied by 
        the attachment.  The type of services 
        provided over the attachment only affect 
        the pole attachment rate if the services 
        are telecommunications services.  If the 
        third party leasing the fiber is, or 
        becomes, a telecommunications carrier, 
        then the utility is entitled to 
        compensation for the pole attachment 
        based on the Telecom Formula and must be 
        notified.73

     D.   Information and Indemnity Requests 

     17.  We reject TU Electric's argument that the Bureau 
had insufficient evidence to find that the requirements of 
Section 13.1A of the Agreement were unreasonable.74  Section 
13.1A requires disclosure of information regarding non-video 
services and mandates that customers of non-video services 
execute indemnity and release agreements in favor of TU 
Electric.75  We concur with the Bureau's conclusion that, 
beyond an indication that a pole is being used for the 
provision of telecommunications services, the requirements 
of section 13.1A requiring identification of non-video 
customers and their location on Marcus' system appear to be 
a thinly-veiled attempt to undermine the provision of 
telecommunications services offered by actual or potential 
competitors and are unreasonable.76  Further, as the Bureau 
determined, TU Electric already is adequately indemnified by 
Marcus for liability arising out of Marcus's attachment to 
TU Electric poles.77  Whether or not Marcus seeks indemnity 
from its third-party customers, TU Electric is protected by 
the Agreement.78  Consequently, the Bureau rightly found 
that the indemnity requirement in Section 13.1A is 
unnecessary to protect TU Electric's interests and therefore 
is unreasonable.79  In addition, contrary to TU Electric's 
assertion, the Bureau did not shift the ultimate burden of 
proof regarding disclosure and indemnity to TU Electric.  
Marcus established that the provision was unnecessary in 
light of the Agreement's general indemnity provision.80  TU 
Electric failed to persuade the Bureau that there was a 
reason to require the additional indemnification.81  

     18.  Finally, TU Electric asserts that it was 
inappropriate for the Bureau to issue a declaratory ruling 
affecting multiple TU Electric agreements.82  In addition to 
invalidating the notice, information and indemnification 
requirements contained in Section 13.1A of the parties' 
Agreement, the declaratory ruling invalidates those 
provisions in all TU Electric pole attachment agreements.83  
TU Electric argues that the section 224 adjudicatory process 
is geared to the resolution of specific factual claims in 
specific factual circumstances, and that it is not proper 
for the Bureau to make a sweeping determination affecting 
agreements that the Commission has not seen and parties that 
are not before it.84  TU Electric further contends that 
because the indemnification provision in Section 13.1A 
allows individual companies affected by the provision to 
reach agreement with TU Electric as to alternative 
provisions, which may be acceptable to both parties, the 
Bureau should not have issued a declaratory ruling.85  We 
find that the Bureau did not have adequate record for 
issuing its declaratory ruling on this issue insofar as it 
pertains to TU Electric's pole attachment agreements other 
than the parties' Agreement.  In sum, there is an 
insufficient record in this case to warrant a determination 
applicable to agreements and parties that are not presently 
before the Commission.
IV.  ORDERING CLAUSE

     19.  For the reasons discussed above, IT IS ORDERED, 
pursuant to section 1.115 of the Commission's rules, 47 
C.F.R.  1.115, that the Application for Review of Marcus 
Cable Associates, LP v. Texas Utilities Electric Company, 
Declaratory Ruling and Order, 12 FCC Rcd 10362 (Cable Serv. 
Bur. 1997), IS GRANTED to the extent indicated above and in 
all other respects, IS DENIED.

     
                              FEDERAL COMMUNICATIONS 
COMMISSION



                              Marlene H. Dortch
                              Secretary
_________________________

1 Application for Review, File No. PA 96-002 (filed Aug. 20, 
1997) (``Application'').

2 Marcus Cable Associates, LP v. Texas Utilities Electric 
Company, Declaratory Ruling and Order, 12 FCC Rcd 10362 
(Cable Serv. Bur. 1997) (``Bureau Order'').

3 Complaint and Request for Declaratory Ruling, File No. PA 
96-002 (filed July 24, 1996) (``Complaint'').

4 TU Electric was the named defendant in the Complaint.  See 
Complaint at 1.  Subsequently, TU Electric was renamed TXU 
US Holdings Company, and a newly formed company, Oncor 
Electric Delivery Company, became the successor-in-interest 
to the wired assets previously held by TU Electric.  See 
Letter from Jonathan L. Wiener, counsel for TU Electric, to 
William Caton, Secretary, FCC, File No. PA 96-002 (Mar. 4, 
2002).  To avoid confusion, we will continue to refer to the 
defendant as ``TU Electric.''

5 47 U.S.C.  224.

6 Supplemental Response, File No. PA 96-002 (filed Dec. 13, 
1996) (``Supplemental Response'') at 8.

7 Supplemental Response at 8-9; Bureau Order, 12 FCC Rcd at 
10363-64,  5.

8 Complaint, Declaration of John Pietri (``Pietri 
Declaration'') at 1,  2.

9 Complaint, Pietri Declaration at 1,  2.

10 Complaint at 8,  33, Exhibit 5 (CATV Pole Lease 
Agreement).

11 Complaint at 3-4,  13-16.

12 Complaint at 9,  36-40.

13 Complaint at 6-8,  25-35, Exhibit 5 at 17-18 & 
Attachment D; Reply, File No. PA 96-002 (filed Sept. 10, 
1996) at 12-13,  31-34.

14 Complaint at 7,  26, Exhibit 5, Attachment D.

15  Complaint at 7-8,  28, 30, 37.

16 Complaint at 7,  29 & n.5; Reply at 10-11,  24-28.    

17 Complaint at 9, 11,  36, 45-47.

18 Letter from Meredith J. Jones, Chief, Cable Services 
Bureau, to Paul Glist, Counsel for Marcus, File No. PA 96-
002 (Dec. 2, 1996).

19 Complainant's Response to Bureau's Information Request, 
File No. PA 96-002 (filed Dec. 18, 1996) (``Response to 
Information Request''); Request to Withhold Information from 
Public Inspection, File No. PA 96-002 (filed Dec. 18, 1996) 
(``Request to Withhold Information'').

20 Response to Complaint and Request for Declaratory Ruling, 
PA No. 96-002 (filed Aug. 22, 1996) (``Response'') at 5-7, 
10; Supplemental Response at 2-3, 16-17.

21 Bureau Order, 12 FCC Rcd at 10365-68,  9-16.

22 Bureau Order, 12 FCC Rcd at 10369-71,  20-24.

23 Bureau Order, 12 FCC Rcd at 10371-73,  25-27.

24 Bureau Order, 12 FCC Rcd at 10373,  29. 

25 Bureau Order, 12 FCC Rcd at 10373,  28.

26 Bureau Order, 12 FCC Rcd at 10373-6,  30-38.

27 Application at 5-7.

28 Application at 19-22.

29 Application at 7-11.

30 Application at 12, 14.

31 Application at 19.

32 47 U.S.C.  224(b)(1).

33 47 U.S.C.  224(b)(1). 

34Amendment of Rules and Policies Governing the Attachment 
of Cable Television Hardware to Utility Poles, Memorandum 
Order and Opinion on Reconsideration, 4 FCC Rcd 468, 471,  
26 (1989).

35 Alabama Cable Telecommunications Ass'n v. Alabama Power 
Co., Order, 16 FCC Rcd 12209, 12217,  18 (2002), review 
denied sub nom. Alabama Power Co. v. FCC, 311 F.3d 1357 
(11th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3653 
(U.S. Apr. 4, 2003) (No. 02-1474) (``Alabama Power'').  See 
also Southern Co. Servs. Inc. v. FCC, 313 F.3d 574, 583 
(D.C. Cir. 2002) (``Southern Company'') (upholding the 
Commission's jurisdiction to resolve disputes over the terms 
and conditions of existing contracts).

36 Response at 1-7, Declaration of Robert L. Ewing at 1-2,  
3; Supplemental Response at 2, 5-7; Application at 12-13, 
21.

37 Bureau Order, 12 FCC Rcd at 10366,  11-12.

38 Bureau Order, 12 FCC Rcd at 10366, 10372,  11-12, 26.

39 Bureau Order, 12 FCC Rcd at 10366-68,  12-16.

40 Application for Review at 5-7.

41 Application at 6-7.

42 See, e.g., Complaint at 6-12,  24-50 (alleging that the 
provisions of the Agreement requiring (1) disclosure of 
information relating to Marcus's customers; (2) execution of 
releases by its customers; and (3) payment of a portion of 
non-video revenue are unreasonable terms and conditions 
under section 224).

43 See note 45, infra

44 47 U.S.C.  224(b).

45 See, e.g., Mile Hi Cable Partners v. Public Service 
Company of Colorado, Order, 17 FCC Rcd 6268, 6270,  7 
(2002) (the Commission had jurisdiction where the issue was 
``not whether the Complainant failed to pay an invoice based 
on a just and reasonable term or condition, but whether the 
term or condition itself was reasonable''), petition for 
review filed sub nom. Public Service Co. of Colorado v. FCC, 
No. 02-1163  (D.C. Cir. May 24, 2002).

46 Application at 7-13.

47 Application at 7-13.  As part of this argument, TU 
Electric contends that the Bureau erroneously determined 
that the fee TU Electric charged Marcus for Marcus's alleged 
overlashing was an unreasonable term and condition of 
attachment, rather than ``restitution'' for breach of 
contract.  Application at 13-14.  Again, notwithstanding TU 
Electric's nomenclature, this case is not simply a contract 
dispute.  The Bureau correctly concluded that the fee was a 
term and condition of attachment and, accordingly, that the 
Commission appropriately assessed the justness and 
reasonableness of the fee.  47 U.S.C.  224(b).

48 Application at 7-13.

49 A handhole is ``[a]n access opening, provided in 
equipment or in a below-the-surface enclosure in connection 
with underground lines, into which personnel reach but do 
not enter, for the purpose of installing, operating, or 
mainlining equipment or cable or both.''  National Electric 
Safety Code at 7 (1997 ed.).  

50 Complaint, Exhibit 9 (Letter from Robert L. Ewing, 
Distribution Planning Manager, TU Electric, to Marcus (May 
20, 1996)).

51 Complaint, Exhibit 9.

52 Complaint, Exhibit 9.

53 Complaint, Pietri Declaration at 1,  2.

54 Response to Information Request at 1-2.

55 Response to Information Request at 2-3.

56 Bureau Order, 12 FCC Rcd at 10366,  11-12.

57 Because Marcus did not allow a third-party to overlash 
its cable, it was not necessary for the Bureau to determine 
the reasonableness of the non-assignment provision.  See 
Implementation of Section 703(e) of the Telecommunications 
Act of 1996, Consolidated Partial Order on Reconsideration, 
16 FCC Rcd 12103, 12141,  75 (2001) (``Reconsideration 
Order''), aff'd Southern Company, 313 F.3d at 574.

58 Complaint, Pietri Declaration at 1,  2; Response to 
Information Request at 1-4.

59 See Bureau Order, 12 FCC Rcd at 10366,  11-12.  TU 
Electric also argues that Marcus did not adequately support 
its request for confidential treatment.  Application at 8-
10.  In any event, because the Bureau did not rely on the 
confidential information, we need not repeat the lengthy 
discussion contained in the Bureau Order and its analysis of 
this issue.  See Bureau Order, 12 FCC Rcd at 10373-77,  
30-38.

60 Application at 3, 12-18.  In addition to the overlashing 
issues, TU Electric claims it wrongly was assigned the 
burden of proof on the reasonableness of the Agreement's 
disclosure and indemnification provisions.  We discuss this 
contention infra, section III.D.

61 See Adoption of Rules for the Regulation of Cable 
Television Pole Attachments, First Report and Order, 68 
FCC2d 1585, 1598,  40 (1978); 47 C.F.R.  1.407, 
1.1404(j), 1.1409(a); cf. Implementation of the 
Telecommunications Act of 1996, Amendment of Rules Governing 
Procedures to Be Followed When Formal Complaints Are Filed 
Against Common Carriers, Report and Order, 12 FCC Rcd 22497, 
22617,  295 (1997) (subsequent history omitted) (it is 
``incumbent upon a defendant . . .  to respond fully to any 
prima facie showing made by a complainant, with full legal 
and evidentiary support'').

62 See Bureau Order, 12 FCC Rcd at 10366,  11-12; 
Complaint, Pietri Declaration at 1,  2; Response to 
Information Request at 1-3.

63 Bureau Order, 12 FCC Rcd at 10371,  24; Application at 
17.

64 Alabama Power, 311 F.3d at 1371; see 47 C.F.R.  1.1407 
(``. . . no other filings  . . . will be considered unless 
authorized by the Commission''); 47 C.F.R.  1.1411 (``The 
Commission may decide each complaint upon the filings and 
information before it, may require one or more informal 
meetings with the parties to clarify the issues or to 
consider settlement of the dispute, or may, in its 
discretion, order evidentiary procedures upon any issues it 
finds to have been raised by the filings.'').

65 In addition to the Agreement, Marcus submitted 
representative invoices and correspondence with TU Electric 
relating to the Agreement, as well as declarations of 
Marcus's Senior Vice President, Vice President of 
Engineering and Technology, and counsel regarding efforts to 
negotiate contract terms with TU Electric.  See Complaint, 
Exhibits 1-10 and declarations attached thereto; Reply, 
Exhibit 2 and declaration attached hereto.  Further, Marcus 
responded in writing under oath to questions propounded by 
the Bureau and provided certain franchise materials with 
respect to its provision of non-video data capacity to local 
governments.  Response to Information Request and attachment 
thereto.  In conjunction with its Response, TU Electric 
submitted four declarations as well as correspondence 
relating to the execution of the Agreement.  Response, 
Appendices A-E.

66 Bureau Order, 12 FCC Rcd at 10366,  11-12.  

67 Alabama Power, 311 F.3d at 1372.

68 Pub. L. No. 104-104, 110 Stat. 56 (1996).

69 See Heritage Cablevision Assoc. of Dallas v. Texas Util. 
Elec. Co., Memorandum Opinion and Order, 6 FCC Rcd 7099 
(1991), recon. denied, 7 FCC Rcd 4192 (1992), aff'd sub nom. 
Texas Util. Elec. Co. v. FCC, 997 F.2d 925 (D.C. Cir. 1993) 
(``Heritage Cablevision'').  In Heritage Cablevision, the 
Commission determined that the jurisdiction conferred by 
section 224 extended to pole attachments that carry non-
video services in addition to  traditional cable video 
services.  Heritage Cablevision, 6 FCC Rcd at 7107,  39.

70 Application at 20.

71 Application at 21.

72 Application at 21.

73 Reconsideration Order, 16 FCC Rcd at 12146,  86.

74 Application at 15-18.

75 Bureau Order, 12 FCC Rcd at 10368,  17.

76 Bureau Order, 12 FCC Rcd at 10370-71,  22-23.

77 Bureau Order, 12 FCC Rcd at 10369-70,  20.

78 Bureau Order, 12 FCC Rcd at 10369-70,  20.

79 Bureau Order, 12 FCC Rcd at 10369-70,  20.

80 See Complaint at 7,  29 & n.5; Reply at 9-11,  23-28 & 
Exhibit 5.

81 Cf. paragraph 13, supra.

82 Application at 19.

83 Bureau Order, 12 FCC Rcd at 10373,  28.

84 Application at 19.

85 Application at 19.