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




In the Matter of                   )
                              )
American Fiber Systems, Inc.,      )
                              )
           Complainant,            )
                              )         File No. EB-04-MD-
003
     v.                       )
                              )
Kansas City Power & Light Company, )
                              )
           Respondent.             )



                            ORDER


        Adopted:  April 6, 2004         Released:  April 7, 
2004

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

     1.   On February 12, 2004, American Fiber Systems, Inc. 
(``AFS'') filed a complaint1 against Kansas City Power and 
Light Company (``KCPL'') pursuant to section 224 of the 
Communications Act of 1934, as amended (``Act''),2 and 
sections 1.1403 and 1.1404 of the Commission's rules.3  AFS 
initiated the Complaint in response to a primary 
jurisdiction referral by the United States District Court 
for the District of Kansas.4   

     2.   KCPL is an electric utility operating in, among 
other places, the Kansas City, Missouri area, where AFS 
seeks to attach to KCPL's poles for the purpose of offering 
telecommunications services to the public.  AFS's Complaint 
seeks, inter alia, a determination by the Commission that 
AFS is a telecommunications carrier entitled to pole 
attachment rights, as well as an order requiring KCPL 
promptly to engage in good faith negotiations with AFS for a 
nondiscriminatory pole attachment agreement in accordance 
with the Commission's rules.5  

     3.   On March 8, 2004, the Enforcement Bureau granted 
KCPL's request for extension of time, from March 12 to March 
26, 2004, to file its Response to the Complaint.  On March 
26, 2004, KCPL filed a motion to stay this proceeding, 
pending the parties' attempt to negotiate a pole attachment 
agreement.6  Also on March 26, 2004, pursuant to settlement 
discussions between the parties, KCPL provided AFS with a 
draft of its standard form pole attachment agreement.  On 
March 29, 2004, the Enforcement Bureau denied the Stay 
Motion, and ordered KCPL to file its Response as soon as 
possible, but in no event later than Friday, April 2, 2004.7  

     4.   KCPL did not file a Response.  Instead, on April 
1, 2004, the parties filed a Joint Motion for Consent Order 
with a proposed Consent Order attached.8  The Joint Motion 
characterizes the Consent Order as an ``efficient, fair and 
reasonable means by which to resolve the parties' pending 
dispute before the Commission, without further expenditure 
of resources by either the parties or the Commission.''9  
The Joint Motion further asserts that the Consent Order is 
``fully consistent'' with the Act and with the Commission's 
pole attachment rules and regulations.10

     5.   The proposed Consent Order consists of two 
provisions.  First, the Consent Order asks the Commission to 
conclude that, based on the factual evidence presented in 
the Complaint, AFS is operating as a ``telecommunications 
carrier,'' as that term is used in the Act, and therefore is 
entitled to attach to KCPL's poles.11  The parties 
specifically cite the following evidence in support of this 
conclusion:

               a.   AFS obtained a certificate from the 
     Kansas Corporation Commission (``KCC'') 
     authorizing AFS to ``transact the business of a 
     telephone public utility to provide local exchange 
     and exchange access services...''  The certificate 
     is currently in effect.

               b.   AFS obtained a certificate from the 
     Missouri Public Service Commission (``MPSC'') 
     authorizing AFS ``to provide intrastate 
     interexchange telecommunications services in the 
     State of Missouri...''  The certificate is 
     currently in effect.

               c.   AFS filed tariffs with the KCC and 
     the MPSC offering DS-1 and DS-3 service to any 
     customer requesting these services.

d.   AFS has offered to multiple parties, among other 
     services, Ethernet Virtual Private Line Service 
     and Ethernet Internet Access Service, as more 
     fully described on AFS' website.

e.   AFS has recently entered into contracts under 
     which Customers may purchase Ethernet Service, 
     Ethernet Virtual Private Line Service, Ethernet 
     Virtual Private LAN Service, and Ethernet Internet 
     Access Services, which services are more fully 
     described on AFS' website.

f.   AFS has received Section 214 (47 U.S.C. Section 
     214) authority from the Commission.

g.   AFS has a Price Guide for interstate 
     telecommunications services posted on its Internet 
     website.

h.   Eight other utility companies have entered into 
     pole attachment agreements with AFS in accordance 
     with the Commission's pole attachment rules.12

     6.   Second, the Consent Order asks the Commission to 
require KCPL to ``immediately engage in good faith 
negotiations with AFS for a nondiscriminatory pole 
attachment agreement in conformance with the applicable 
Commission rules,'' and it states that ``both parties hav[e] 
the intention of consummating the execution of such an 
agreement by April30, 2004.''13

     7.   We are satisfied that granting the Joint Motion 
will serve the public interest by promoting the private 
resolution of disputes and by eliminating the need for 
further litigation and the expenditure of further time and 
resources of the parties and this Commission.

     8.   Based upon the assertions contained in the 
Complaint and supporting attachments, the fact that KCPL has 
not filed a Response to the Complaint denying these 
assertions, and the fact that AFS and KCPL together filed 
the Joint Motion, we find that, for purposes of this 
proceeding, AFS is a ``telecommunications carrier,'' as that 
term is defined by section 3 of the Act,14 and therefore is 
entitled to attach to KCPL's poles pursuant to section 224 
of the Act15 and the Commission's rules regarding pole 
attachments.16

     9.   Accordingly, IT IS ORDERED, pursuant to sections 
4(i), 4(j), and 224 of the Act, as amended, 47 U.S.C.  
154(i), 154(j), 224, and sections 1.1401-1.1418 of the 
Commission's rules, 47 C.F.R.  1.1401-1.1418, and the 
authority delegated in sections 0.111 and 0.311 of the 
Commission's rules, 47 C.F.R.  0.111, 0.311, that the 
Joint Motion for Consent Order IS GRANTED.

     10.  IT IS FURTHER ORDERED, pursuant to sections 4(i), 
4(j), and 224 of the Act, as amended, 47 U.S.C.  154(i), 
154(j), 224, and sections 1.1401-1.1418 of the Commission's 
rules, 47 C.F.R.  1.1401-1.1418, and the authority 
delegated in sections 0.111 and 0.311 of the Commission's 
rules, 47 C.F.R.  0.111, 0.311, that AFS's Complaint 
against KCPL IS DISMISSED. 

                         FEDERAL COMMUNICATIONS COMMISSION



                         Lisa B. Griffin
                         Deputy Chief, Market Disputes 
                    Resolution Division
                         Enforcement Bureau

_________________________

1    Complaint, File No. EB-04-MD-003 (filed Feb. 12, 2004) 
(``Complaint'').

2    47 U.S.C.  224.

3    47 C.F.R.  1.1403, 1.1404.

4    Memorandum Order, Kansas City Power & Light Co. v. 
American Fiber Systems, Inc., Civil Action No. 03-2330-GTV 
(D. Kan. Nov. 5, 2003).

5    Complaint at 15,  45.

6    Motion to Stay Proceedings and Motion for Leave to 
File Motion for Stay, File No. EB-04-MD-003 (filed Mar.26, 
2004) (collectively, ``Stay Motion'').

7    See Letter Order, File No. EB-04-MD-003 (dated Mar. 
30, 2004).

8    Joint Motion for Leave, Joint Motion for Consent Order 
(collectively, ``Joint Motion''), and proposed Consent 
Order (``Consent Order''), File No. EB-04-MD-003 (filed 
Apr. 1, 2004).

9    Joint Motion at 1.

10   Joint Motion at 1 (citing 47 U.S.C.  224, 47 C.F.R. 
 1.1401-1.1418).

11   Consent Order at 2-3.

12   Consent Order at 3-4.

13   Consent Order at 4.

14   47 U.S.C.  153(44).

15   47 U.S.C.  224.

16   47 C.F.R.  1.1401-1.1418.