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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                                 )                          
                                                                            
                                                 )                          
                                                                            
     In the Matter of                            )                          
                                                                            
     DQE Communications Network Services, LLC,   )                          
                                                                            
     Complainant,                                )                          
                                                     File No. EB-05-MD-027  
     v.                                          )                          
                                                                            
     North Pittsburgh Telephone Company,         )                          
                                                                            
     Respondent.                                 )                          
                                                                            
                                                 )                          
                                                                            
                                                 )                          


                          MEMORANDUM OPINION AND ORDER

   Adopted: February 2, 2007 Released: February 2, 2007

   By the Chief, Enforcement Bureau:

   I. Introduction

    1. In this Memorandum Opinion and Order, we grant a Pole Attachment
       Complaint filed by DQE Communications Network Services, LLC ("DQE
       CNS") against North Pittsburgh Telephone Company ("NPTC") pursuant to
       section 224 of the Communications Act of 1934, as amended ("the Act")
       and sections 1.1401-1.1418 of the Commission's rules. The Complaint
       alleges that NPTC violated section 224 by denying DQE CNS access to
       NPTC's poles, ducts, conduits, and rights-of-way for the placement of
       DQE CNS's attachments. DQE CNS requests that the Commission order NPTC
       immediately to provide DQE CNS with "nondiscriminatory access to the
       poles, ducts, conduits, and rights-of-way owned and/or controlled by
       NPTC." For the reasons stated below, we grant DQE CNS's Complaint and
       order NPTC to provide DQE CNS immediately with nondiscriminatory
       access to these facilities.

   II. Factual and regulatory BACKGROUND

    2. DQE CNS is authorized by Certificate of Public Convenience issued by
       the Pennsylvania Public Utility Commission ("PaPUC") to "offer,
       render, furnish, or supply telecommunication services as a Competitive
       Access Provider, to the Public, in the Commonwealth of Pennsylvania."
       DQE CNS offers "telecommunications services . . . to business
       customers for the origination and termination of telecommunications
       between points within" Pennsylvania under the terms specified in the
       "Competitive Access Provider Tariff" ("CAP Tariff" or "Tariff") DQE
       CNS published and filed with the PaPUC on December 2, 2004. Section 3
       of the Tariff describes the services DQE CNS offers as (i) "Dedicated
       Transport Services (ICB)," including DS3 Service, T1 Service (1.544
       Mbps), 10 Mbps-100-1000 Gbps Ethernet services in increments of 1
       Mbps; (ii) "Other Services," including "point-to-point high-speed
       Internet access, network management services, digital point-to-point
       services as well as redundant ring topology;" and (iii) "Individual
       Case Basis (ICB) Arrangements," including arrangements "developed on a
       case-by-case basis in response to a bona fide special request from a
       Customer."

    3. NPTC is an incumbent local exchange carrier providing
       telecommunications within the Commonwealth of Pennsylvania, and thus
       is a "utility" within the meaning of section 224(a)(1) of the Act. As
       a "utility," NPTC must provide "a cable television system or any
       telecommunications carrier" with "nondiscriminatory access to any
       pole, duct, conduit, or right-of-way owned or controlled by it,"
       unless it can show that a denial of access is justified due to
       "insufficient capacity" or "for reasons of safety, reliability and
       generally applicable engineering purposes."

    4. On July 20, 2005, DQE CNS sent a letter to NPTC requesting access to
       NPTC's poles via a pole attachment agreement, and describing DQE CNS
       as a carrier that "provides telecommunications services in
       Southwestern Pennsylvania." In an August 19, 2005 response, NPTC
       asserted that, because DQE CNS provides various private line services,
       DQE CNS is not a "telecommunications carrier" entitled to access NPTC
       poles under the Act. In a responding letter dated August 24, 2005, DQE
       CNS disputed NPTC's assertions, but was unsuccessful in persuading
       NPTC to grant its request for a pole attachment agreement.

    5. On September 16, 2005, promptly after being denied access, DQE CNS
       filed the instant Complaint alleging that NPTC has denied DQE CNS
       access to its poles in violation of section 224 of the Act, and
       requesting that the Commission order NPTC to provide DQE CNS immediate
       access to NPTC's poles. In its Response to the Complaint, NPTC
       acknowledges that it has denied DQE CNS's request for pole access, but
       argues that DQE CNS is not entitled to such access under section 224
       of the Act because it has not demonstrated that it is a
       "telecommunications carrier" planning to provide "telecommunications
       services" over the requested attachments, as those terms are defined
       in the Act.

    6. As the foregoing discussion reveals, the key question presented by DQE
       CNS's Complaint is whether DQE CNS is a "telecommunications carrier"
       with statutory access rights to NPTC's poles under section 224(f)(1)
       of the Act. Answering that question requires examination of certain
       statutory and common law definitions described below.

    7. The Act defines "telecommunications carrier," in pertinent part, as
       "any provider of telecommunications services . . ." and specifies that
       "[a] telecommunications carrier shall be treated as a common carrier
       under this Act only to the extent that it is engaged in providing
       telecommunications services." The term "telecommunications service" is
       defined as "the offering of telecommunications for a fee directly to
       the public, or to such classes of users as to be effectively available
       directly to the public, regardless of facilities used."
       "Telecommunications" is defined as "the transmission, between or among
       points specified by the user, of information of the user's choosing,
       without change in the form or content of the information as sent and
       received."

    8. In interpreting those statutory definitions, the D.C. Circuit affirmed
       the Commission's conclusions that the term "telecommunications
       service" "is intended to encompass only telecommunications provided on
       a common carrier basis," and (ii) the term "telecommunications
       carrier," which was added to the Act in 1996, has essentially the same
       meaning as the pre-existing term "common carrier." Courts construing
       "common carrier" have held, inter alia, that "the primary sine qua non
       of common carrier status is a quasi-public character, which arises out
       of the undertaking to carry for all people indifferently;" and a
       "second prerequisite to common carrier status'" is that "`customers
       transmit intelligence of their own design and choosing." Such offering
       of service indiscriminately to the public may be either a wholesale
       offering to other carriers or a retail offering to end users.

    9. A "telecommunications carrier" offering to provide telecommunications
       service over a pole attachment may also offer to provide one or more
       non-telecommunications services over its pole attachments, without
       losing its right of access under section 224(f)(1) of the Act. In NCTA
       v. Gulf Power, the Supreme Court concluded, in a case involving a
       cable system attacher, that the protections of section 224 extend to
       attachments by cable systems that are simultaneously used to provide
       cable service and high-speed Internet access. The Court reasoned that
       an attachment of a cable television company providing only cable
       service is an "attachment by a cable television system," subject to
       section 224, and that the addition of another service, such as
       Internet access service, "does not change the character of the
       attaching entity - the entity the attachment is `by.'" "And this,"
       declared the Court, "is what matters under the statute." Likewise, an
       entity that has established its status as a telecommunications carrier
       with a right of access under section 224(f) by offering to provide a
       telecommunications service over a requested attachment does not lose
       that status by offering non-telecommunications services over the same
       attachment.

   III. discussion

          A. DQE CNS Has Established a Prima Facie Case That It Is a
             "Telecommunications Carrier" with a Right of Access to NPTC's
             Poles Under Section 224(f)(1) of the Act

    1. In a case such as this challenging a denial of access, section
       1.1409(b) of our rules provides that the complainant bears the burden
       of establishing a prima facie case that the denial of access violates
       section 224(f) of the Act. Once the complainant establishes a prima
       facie case, the defendant utility has the burden of proving that its
       denial was lawful. Therefore, DQE CNS bears an initial burden to
       establish a prima facie case that it is a "telecommunications carrier"
       with a right of access within the meaning of the Act. As discussed
       below, we conclude that DQE CNS has met that burden by showing that it
       possesses a valid state authorization to provide telecommunications
       services, and has filed a state tariff offering such services to the
       public.

    2. Specifically, we find that the decisions of the PaPUC to issue a
       Certificate of Public Convenience authorizing DQE CNS to "offer,
       render, furnish, or supply telecommunications services as a
       Competitive Access Provider ["CAP"], to the Public, in the
       Commonwealth of Pennsylvania," and to allow DQE CNS to publish a CAP
       Tariff offering such services to the public, reflect judgments by an
       expert regulatory agency that the services set forth in DQE CNS's
       Tariff constitute "telecommunications services." Moreover, NPTC has
       not identified any material differences between the meaning of the
       terms "telecommunications carrier" and "telecommunications service"
       under Pennsylvania law and the definitions of those terms in the Act;
       and we are aware of none. Accordingly, DQE CNS may rely on the PaPUC's
       authorizations to offer to provide "telecommunications service" to
       establish its prima facie case under section 224(f)(1) of the Act.

    3. In assessing DQE CNS's proof of its status as a "telecommunications
       carrier" with pole attachment rights under section 224(f) under the
       Act, our reliance on the PaPUC's decisions finds support in cases
       addressing the prerequisites for the analogous process of establishing
       an entity's status as a "cable television system" with pole attachment
       rights under section 224(f). In Paragon Cable Television Inc. v. FCC,
       the D.C. Circuit upheld a Commission ruling that possession of a valid
       cable franchise is a reasonable precondition for pole attachments. In
       so holding, the D.C. Circuit found that the Commission could apply a
       "presumption of validity" to decisions by the local franchising
       authority concerning the attacher's status as an approved franchisee.
       Similarly, in Texas Util. Elec. Co v. FCC, the D.C. Circuit upheld a
       Commission ruling that section 224 of the Act conferred jurisdiction
       over those pole attachments within the franchise service area defined
       by the local franchise authority. These cases suggest that attachers
       are entitled to rely on decisions by responsible regulatory agencies,
       such as franchise authorities in the case of cable system attachers,
       and public utility commissions in the case of telecommunications
       carriers, in establishing their status as entities entitled to access
       under section 224(f) of the Act.

    4. Based on the foregoing, we conclude that DQE CNS's possession of a
       valid state authorization to provide telecommunications services,
       together with its associated state tariff filing, constitutes
       presumptive evidence of its status as a "telecommunications carrier"
       within the meaning of the Act. In our view, therefore, DQE CNS has
       made a prima facie showing that it is a "telecommunications carrier"
       entitled to nondiscriminatory access to NPTC's poles under section
       224(f)(1) of the Act. Nevertheless, to avoid disputes such as this,
       and to expedite the pole attachment process, we encourage entities
       seeking pole attachments for the first time to provide to the utility
       sufficient information at the outset to establish their right to
       attach. Moreover, although a utility may inquire as to whether the
       would-be attacher is, in fact, planning to operate as a
       telecommunications carrier offering some telecommunications service
       within the utility's service area, the utility must accept reasonable
       attempts to answer its inquiries. This is particularly true where, as
       here, the requesting entity possesses a state regulatory authorization
       to provide telecommunications services pursuant to tariff throughout
       the state, and a clearly worded inquiry on the part of the utility
       would have likely elicited the desired information.

     A. NPTC Has Failed to Show That Its Denial of Access Was Lawful

   10. Because DQE CNS has established a prima facie case, the burden shifts
       to NPTC to demonstrate that its denial of access was lawful. NPTC
       argues that it lawfully denied access to DQE CNS because DQE CNS
       purportedly does not qualify as a "telecommunications carrier" with a
       right of attachment under section 224(f). We conclude that NPTC has
       failed to show that DQE CNS is not a "telecommunications carrier"
       under the Act, and thus it cannot justify its denial of access on that
       basis.

      1. DQE CNS's Tariffed Private Line Services Offered On An "ICB" Basis
         Are "Telecommunications Services" Under the Act

   11. NPTC argues that DQE CNS is not a "telecommunications carrier"
       entitled to pole access because DQE CNS's tariffed private line
       services -- including dedicated transport services, Internet access,
       network management, point-to-point transport service, redundant
       (Ethernet) ring topology, and other ICB services -- are not
       "telecommunications services" within the meaning of the Act. NPTC also
       maintains that DQE CNS's offer of private line or other service under
       ICB arrangements disqualifies DQE CNS from being a "telecommunications
       carrier" because an ICB offering per se, "does not constitute the
       offer of telecommunications directly to the `public' [under the Act]."
       NPTC fails, however, to offer any relevant facts, legal arguments, or
       authorities to support either of these arguments. We therefore reject
       NPTC's contentions, and conclude that DQE CNS's tariffed private line
       services are "telecommunications services" within the meaning of
       section 153(46) of the Act.

   12. By offering its dedicated (i.e., private line) transport service and
       digital point-to-point services via its Tariff, DQE is holding itself
       out to the public as providing those services indifferently and
       "indiscriminately" for a fee;  moreover, those services involve
       communications by wire and transmission, between or among points
       specified by the user, of information of the user's choosing, without
       change in the form or content of the information as sent and received.
       Indeed, the Commission has long regulated as common carrier services
       the provision of "private line" services, which the Commission defines
       as "facilities or network transmission capacity dedicated to the use
       of an individual customer." For example, the Commission's rules
       contain general guidelines and rate structure requirements for the
       tariffed private line services of dominant common carriers. Moreover,
       the Commission classifies interstate private line services as
       interstate telecommunications for purposes of universal service
       contributions. The Commission thus has recognized that private line
       services may be offered on a common carrier basis, and treats private
       line services offered under tariff as common carrier offerings.
       Accordingly, the fact that DQE CNS offers dedicated or "private line"
       services provides no basis for NPTC's assertion that DQE CNS is not a
       "telecommunications carrier" with pole attachment rights under section
       224(f)(1) of the Act.

   13. We also reject NPTC's argument that DQE CNS's offer of services on an
       "ICB" basis inherently disqualifies it from the status of a
       telecommunications carrier. That argument assumes that the act of
       customizing a telecommunications offering, rather than the
       nondiscriminatory availability of a particular offering, is
       determinative of whether the offering constitutes a telecommunications
       service. NPTC has not cited a single authority holding that an entity
       failed to qualify as a common carrier solely because it offered
       services on an individual case basis, and we are aware of none. In
       fact, the Commission has treated ICB offerings as common carrier
       offerings subject to Title II of the Act. Moreover,  DQE CNS
       represents that it "offers services on an `individual case basis' but
       will provide the same or similar services to all customers with
       nondiscriminatory rates and terms of service."  NPTC has not
       identified any specific features of DQE CNS's ICB offering that would
       undermine DQE CNS's status as a common carrier. On the contrary, DQE
       CNS's tariff makes clear that DQE CNS is offering ICB services
       indiscriminately to the public.  Thus, although its initial private
       line services are being offered on a case-by-case basis, DQE CNS is
       pledging, publicly, through Section 3.4.A., to price its services on a
       non-discriminatory basis and submit its rates to the PaPUC for
       approval. Based on this record, NPTC has failed to meet its burden of
       proving that DQE CNS's tariffed offering of private line service on an
       ICB basis prevents DQE CNS from qualifying as a "telecommunications
       carrier" with pole access rights under section 224(f)(1) of the Act.

      1. DQE CNS's Tariffed Services Involve "Transmission" of Information

   14. NPTC asserts that, under the Act, "telecommunications" must involve
       "transmission" of messages. NPTC contends that DQE CNS does not
       "transmit messages," and therefore cannot be deemed a provider of
       "telecommunications services" under the Act. NPTC's contention rests
       solely on language in DQE CNS's CAP Tariff Section 2.2.D., which
       states: "Carrier does not transmit messages pursuant to this Tariff,
       but its services may be used for that purpose." We conclude, based on
       an examination of the Tariff as a whole, that DQE CNS does, in fact,
       offer to transmit information of the user's choosing through its CAP
       Tariff, and thus qualifies as a "telecommunications carrier" under the
       Act.

   15. Section 2.1.A of the CAP Tariff states: "This Tariff contains the
       regulations and rates applicable to intrastate telecommunications
       services provided by Carrier [DQE CNS] to business customers for the
       origination and termination of telecommunications between points
       within the State." Section 1 defines "Telecommunications" as the
       "transmission of voice communications or, subject to the transmission
       capabilities of the service, the transmission of data, facsimile,
       signaling, metering, or other similar communications." Moreover, most
       (if not all) of the services described in Section 3 of the Tariff --
       including, for example, DS3 Service, T-1 service, and digital
       point-to-point services -- plainly involve transmission of the user's
       information. Given this context, we interpret Tariff Section 2.2.D. as
       indicating simply that DQE CNS does not transmit messages of its own,
       but rather transmits only the messages of its customers. To hold
       otherwise would effectively nullify all of the many terms and
       conditions in the Tariff that demonstrate DQE CNS's offering of
       telecommunications service.

   16. Buttressing our conclusion is DQE CNS's explanation that it included
       the language at issue in Tariff Section 2.2.D merely because such
       provisions are commonly found in other tariffs approved by the PaPUC.
       Indeed, as DQE CNS has noted, similar tariff provisions appear in the
       Pennsylvania tariffs filed by several other common carriers, including
       NPTC itself.

   17. We therefore reject NPTC's suggestion that Section 2.2.D. of DQE CNS's
       Tariff disclaims the transmission of information. Accordingly, Section
       2.2.D provides no basis for NPTC's assertion that DQE CNS is not a
       "telecommunications carrier" with pole access rights under section
       224(f)(1) of the Act.

      1. DQE CNS Offers Broadband Internet Access Transmission on a Common
         Carriage Basis

   18. NPTC argues that, insofar as DQE CNS is offering "high speed Internet
       access" service under its Tariff, DQE CNS is offering an "information
       service," not a "telecommunications service," and thus is not a
       "telecommunications carrier" with pole access rights under section
       224(f)(1) of the Act. We find that NPTC has no legal or factual or
       basis for denying DQE CNS access on these grounds. As an initial
       matter, we note that DQE CNS qualifies as a telecommunications carrier
       under the Act based on the various telecommunications service
       offerings discussed above, and DQE CNS would not lose that status if
       it were to offer an information service in addition to these
       telecommunications services. Moreover, as explained below, NPTC has
       failed to show that DQE CNS actually offers an information service in
       NPTC's territory. Although DQE CNS's Tariff includes a service called
       "high speed Internet access," an examination of the record shows that
       this service is actually a "telecommunications service."

   19. NPTC is correct that the Commission has classified as "information
       service" an integrated service that combines transmission with the
       data storage, manipulation, processing, and retrieval portion, i.e.,
       the Internet service provider ("ISP") portion, of an Internet access
       service. The ISP portion of an Internet access service typically
       provides end users with a comprehensive capability for manipulating
       information using the Internet, including applications such as web
       browsing, file transfers, e-mail access, Usenet newsgroups, and Domain
       Name System access.  The Commission has also recognized that the
       "telecommunications" component of an Internet access service can be
       "part and parcel" of an integrated Internet access service offering,
       or it can be offered separately from the ISP portion of the service
       and consist solely of a transparent transmission path, with no changes
       to the form or content of the transmitted information. Carriers can
       choose to offer this transmission component as a telecommunications
       service on a stand-alone, wholesale, common carrier basis to ISPs, who
       then use that service as an input for the wireline broadband Internet
       access that the ISPs, in turn, offer to their own end-user customers.
       Given the foregoing, the Commission has held that whether a service is
       a "telecommunications service" or an "information service" turns on
       the nature of the functions the purchaser is offered. The
       determinative question, briefly put, is: does the service offering
       involve only a transparent transmission path, with no changes to the
       form or content of the transmitted information; or does it involve
       data storage, manipulation, processing, and retrieval?

   20. Applying that standard here, we find that the high-speed Internet
       access service that DQE CNS offers through its Tariff is a
       "telecommunications service," not an "information service." Although
       the single phrase "high speed Internet access" in DQE CNS's Tariff,
       standing alone, might suggest an offering of data storage,
       manipulation, processing, and retrieval services, we find such an
       interpretation unreasonable in the context of the Tariff as a whole.
       First, Section 2.1.A. notes that the Tariff encompasses the
       "intrastate telecommunications services provided by [DQE CNS] to
       business customers for the origination or termination of
       telecommunications between points within the State. Section 1 defines
       the "Telecommunications" offered as the "transmission of voice
       communications or, subject to the transmission capabilities of the
       service, the transmission of data, facsimile, signaling, metering, or
       other similar communications." Nowhere in the Tariff does DQE CNS
       offer the ISP portion of Internet access service, i.e., data storage,
       manipulation, processing, and retrieval. Instead, in the Tariff, DQE
       CNS offers only a transparent transmission path, with no changes to
       the form or content of the transmitted information. Specifically, DQE
       CNS offers only the underlying transmission (or "telecommunications")
       typically used by ISPs and other information service providers in the
       provision of retail Internet access and other data processing services
       to subscribers. As we found in the Wireline Broadband  Order,
       "carriers may choose to offer this type of transmission as a common
       carrier service if they wish. In that circumstance, it is of course a
       telecommunications service." Accordingly, DQE CNS's offering of "high
       speed Internet access" service provides no basis for NPTC's assertion
       that DQE CNS is not a "telecommunications carrier" with pole access
       rights under section 224(f)(1) of the Act.

      1. Intrastate Carriers Such as DQE CNS Have Pole Attachment Rights
         Under Section 224

   21. DQE CNS's Certificate of Public Convenience authorizes it to offer and
       provide intrastate telecommunications services as a CAP within the
       Commonwealth of Pennsylvania. Without offering any support, NPTC
       argues that, because DQE CNS's authority is limited to the provision
       of intrastate service, DQE CNS is not an "telecommunications carrier"
       eligible for access to its poles under section 224(f)(1). We conclude
       that, contrary to NPTC's assertions, section 224 provides pole
       attachment rights to intrastate carriers such as DQE CNS.

   22. Section 224(f)(1) unambiguously provides: "A utility shall provide a
       cable television system or any telecommunications carrier with
       nondiscriminatory access to any pole, duct, conduit or right-of-way
       owned or controlled by it." Moreover, section 224(b) grants the
       Commission broad jurisdiction over pole attachment issues, except in
       states that certify that they regulate such issues pursuant to section
       224(c); and Pennsylvania has not so certified. Further, section 2(b)
       of the Act explicitly recognizes the Commission's jurisdiction in
       connection with intrastate communication service "as provided in
       sections 223 through 227 . . . ." In view of this plain statutory
       language, we conclude that DQE CNS's status as an intrastate carrier
       provides no basis for NPTC's assertion that DQE CNS is not a
       "telecommunications carrier" with pole access rights under section
       224(f)(1) of the Act.

   IV. Conclusion

   23. For the reasons stated above, we find that (i) DQE CNS has carried its
       burden to establish a prima facie case demonstrating its entitlement
       to attach to NPTC's poles, and (ii) NPTC has failed to carry its
       burden to establish that its denial of access was lawful on the
       alleged ground that DQE CNS is not a "telecommunications carrier"
       offering or providing "telecommunications services," as those terms
       are defined in the Act. We therefore also conclude that DQE CNS is a
       "telecommunications carrier" entitled to pole attachments under
       section 224(f) of the Act, and grant the relief requested in the
       Complaint in its entirety.

   V. ordering clauseS

   24. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), and
       224 of the Communications Act of 1934, as amended, 47 U.S.C. SS 151,
       154(i), 154(j), and 224, and sections 1.1401-1.1418 of the
       Commission's rules, 47 C.F.R. SS 1.1401-1.1418, that the Complaint IS
       GRANTED.

   25. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), and 224 of
       the Communications Act of 1934, as amended, 47 U.S.C. SS 151, 154(i),
       154(j), and 224, and sections 1.1401-1.1418 of the Commission's rules,
       47 C.F.R. SS 1.1401-1.1418, that, to the extent that DQE CNS continues
       to seek access and attachments to NPTC's facilities, DQE CNS and NPTC
       SHALL PROMPTLY NEGOTIATE IN GOOD FAITH nondiscriminatory rates, terms,
       and conditions of access and attachments in accordance with 47 U.S.C.
       S 224 and the Commission's rules.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

   Complaint of DQE Communications Network Services, LLC, File No.
   EB-05-MD-027 (filed Sep. 16, 2005) ("Complaint").

   47 U.S.C. S 224.

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

   See, e.g., Complaint at 1-2, PP 1, 2.

   Complaint at 1, 10, PP 1, 29. For ease of reference, "poles" or "pole
   attachments" discussed herein refer to all facilities and properties owned
   and/or controlled by NPTC that are the subject of DQE CNS's request for
   access under section 224.

   Id. at 2, PP 4-5; Exhibit 1, Pennsylvania Public Utility Commission, In
   the Matter of the Application of: A-311233, Application of DQE CNS
   Communications Network Services, LLC for approval of the right to begin to
   offer, render, furnish, or supply telecommunication services as a
   Competitive Access Provider, to the Public, in the Commonwealth of
   Pennsylvania, Certificate of Public Convenience, November 18, 2004
   ("Certificate of Public Convenience").

   Id. at 3, P 6; Exhibit 2 at 7, Section 2.1.A., DQE CNS Communications
   Network Services, LLC, Competitive Access Provider Tariff, PA P.U.C.
   Tariff No. 1, Effective December 03, 2004 ("CAP Tariff" or "Tariff").

   Id., Exhibit 2 at 22, Sections 3.1-3.4.

   Id. at 3, PP 8-10; Response at 5, PP 8-10. Section 224(a)(1) of the Act
   defines "utility," in pertinent part, as "a local exchange carrier ... who
   owns or controls poles, ducts, conduits, or rights-of-way used, in whole
   or in part, for any wire communications." 47 U.S.C. S 224(a)(1).

   47 U.S.C. S 224(f)(1) (emphasis added). See 47 U.S.C. S 224(a)(4)
   (defining "pole attachment" as "any attachment 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"). See also National
   Cable & Telecommunications Association, Inc. v. Gulf Power Co., 534 U.S.
   327 (2002) ("NCTA v. Gulf Power").

   47 U.S.C. S 224(f)(2).

   Complaint at 4, PP 11-12; Exhibit 5, Letter dated July 20, 2005, from
   David S. Weber, General Manager, Sales, DQE CNS Communications, to Kevin
   Albaugh, Vice President, Regulatory Affairs, North Pittsburgh Telephone
   Company ("DQE CNS July 20 Letter"); Response at 5-6, PP 11-12.

   Complaint at 4, P 13; Exhibit 6, Letter dated August 19, 2005, from Kevin
   Albaugh, Vice President, Regulatory Affairs, North Pittsburgh Telephone
   Company to David S. Weber, General Manager, Sales, DQE CNS Communications,
   LLC ("NPTC August 19 Letter"); Response at 7-8, P 13.

   Complaint at 5, PP 15-16; Exhibit 7, Letter dated August 24, 2005, from
   David H. Pawlik, Counsel to Duquesne Light Holdings, Inc., to Kevin
   Albaugh, Vice President, Regulatory Affairs, North Pittsburgh Telephone
   Company, Re: DQE CNS Communications Network Services, LLC Request for
   Attachment to Poles ("DQE CNS August 24 Letter") at 2-3; Exhibit 8, E-mail
   from John Alzamora, Counsel to North Pittsburgh Telephone Company
   (acknowledging receipt of DQE CNS August 24 Letter); Response at 8-9, PP
   15-16.

   See, e.g., Response at 7-17, PP 15, 19, 21, 30-54.

   Although section 224(f)(2) explicitly permits denial of access "where
   there is insufficient capacity and for reasons of safety, reliability and
   generally applicable engineering purposes," 47 U.S.C. S 224(f)(2), NPTC's
   denial of access does not rest on any of these grounds, but rather solely
   on NPTC's contention that DQE CNS is not a "telecommunications carrier"
   with a right of access under section 224(f)(1).

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

   Id. at S 153(46). We note that the Act defines "telecommunications
   carrier" as any "provider of telecommunications service," and defines
   "telecommunications service" as the indiscriminate "offering of
   telecommunications." See 47 U.S.C. SS 153(44) and (46) (emphases
   supplied). These two definitions, read together, indicate that a
   "telecommunications carrier" is a carrier that offers to supply
   telecommunications on a common carrier basis, regardless of whether the
   carrier has actually supplied such service to a customer in the past. To
   read this statutory language as requiring a carrier to have already
   supplied such services to customers in order to qualify as a
   "telecommunications carrier" would lead to the nonsensical result that a
   facilities-based provider could never establish its identity as a
   telecommunications carrier for purposes of, for example, pole attachments
   under section 224(f)(1) unless it was already supplying telecommunications
   service to the public, which might not even be possible without access to
   the poles.

   47 U.S.C. S 153(43).

   Virgin Islands Tel. Co. v. FCC, 198 F.3d 921, 927-30 (D.C. Cir. 1999)
   ("Vitelco") (emphasis added) (affirming AT&T Submarine Sys., Inc.,
   Memorandum Opinion and Order, 13 FCC Rcd 21585 (1998)).

   Vitelco, 198 F.3d at 924-27. See, e.g., Cable & Wireless plc, Memorandum
   Opinion and Order, 12 FCC Rcd 8516, 8521-23, at PP 12-17 (1997);
   Federal-State Joint Board on Universal Service, Report and Order,  12 FCC
   Rcd 8776, 9177-78, at P 785 (1997) (subsequent history omitted)
   ("Universal Service Order"). The Act defines "common carrier" or "carrier"
   as "any person engaged as a common carrier for hire, in interstate or
   foreign communication by wire or radio ...." 47 U.S.C. S 153(10).

   Southwestern Bell Telephone Co. v. Federal Communications Commission, 19
   F.3d 1475, 1480 (D.C. Cir. 1994) (quoting National Ass'n of Regulatory
   Util. Comm'rs v. FCC, 533 F.2d 601, 608-09 (D.C. Cir.1976) (internal
   quotes and footnotes omitted)); National Ass'n of Regulatory Util. Comm'rs
   v. FCC, 525 F.2d 630 (D.C. Cir. 1975), cert. denied, 425 U.S. 992 (1976).

   See, e.g., Federal-State Joint Board on Universal Service,  Report to
   Congress, 13 FCC Rcd 11501, 11556, at P 115 (1998) ("Universal Service
   Report to Congress"); Universal Service Order, 12 FCC Rcd at 9177-78, P
   785 (holding that users of common carrier services are not limited to end
   users; "[c]ommon carrier services include services offered to other
   carriers, such as exchange access service, which is offered on a common
   carrier basis, but is offered primarily to other carriers"). See generally
   MTS and WATS Market Structure, Phase I, Third Report and Order, 93 FCC 2d
   241, 246-47, 249-50, PP 13-14, 23 (1983) ("MTS/WATS Market Structure
   Order") (stating that access charges are regulated services and include
   "carrier's carrier" services).

   NCTA v. Gulf Power, 534 U.S. at 330.

   Id. at 333. See generally Heritage Cablevision Assocs. of Dallas. L.P. v.
   Texas Util. Elec. Co., Memorandum Opinion and Order,  6 FCC Rcd 7099,
   7104, P 23, recon. dismissed, 7 FCC Rcd 4192 (1992), aff'd sub nom. Texas
   Util. Elec. Co. v. FCC, 997 F.2d 925 (D.C. Cir. 1993) (holding that cable
   system does not lose its pole attachment rights when it is also used to
   provide non-cable services on a commingled basis).

   47 C.F.R. S 1.1409(b).

   Id.

   Complaint at 7, P 21; Exhibit 1 (emphasis supplied).

   See id. at 2-3, PP 5, 6; 7-8, PP 21-24; Exhibits 1, 2, and 3.

   We leave open the possibility that a state may define either
   "telecommunications carrier" or "telecommunications service" under state
   law in a manner so inconsistent with the definitions contained in sections
   153(44) and 153(46) of the Act such that an entity could obtain state
   certification and file state tariffs, yet not meet those federal statutory
   definitions. Similarly, a state might authorize an entity to provide
   telecommunications services only in some, but not all, portions of a state
   such that additional evidence of the entity's status would be required to
   demonstrate a right of attachment in those non-certificated portions of
   the state. Neither situation, however, exists in this case, as far as our
   record shows.

   Paragon Cable Television Inc. v. FCC,  822 F.2d 152, 153-54 (D.C. Cir.
   1987) (holding that the Commission properly refused to address the
   attacher's arguments challenging the legality of the franchise authority's
   decision to revoke the attacher's franchise, noting that it was
   appropriate for the Commission to employ a "presumption of validity with
   respect to the franchising authority's actions vis-`a-vis the franchise").
   See id. at 154 & n.2 (citing Tele-Communications, Inc. v. South Carolina
   Elec. & Gas Co., File No. PA-83-0027 (Com. Car. Bur. Apr. 19, 1985)
   (holding that the utility could not substitute its judgment for the
   franchising authority by removing pole attachments before such time as the
   franchising authority's revocation actually took effect)).

   Texas Util. Elec. Co v. FCC, 997 F.2d 925, 934-35 (D.C. Cir. 1993).

   Moreover, NPTC does not argue that it lacked adequate recourse at the
   state level if it believed that the PaPUC erred either in issuing DQE CNS
   its Certificate of Public Convenience, or in accepting DQE CNS's CAP
   Tariff for filing. See Response, Exhibit 1, Certificate of Public
   Convenience, at 2 ("The Applicant complied with notice requirements set
   forth in our Implementation Orders. No Protests were filed. No hearings
   were held."); 52 Pa. Code S 54.36 (procedure for protests to
   applications); 52 Pa. Code S 5.572 (procedures for petitions for relief
   following a final decision).

   NPTC faults DQE CNS for failing, in its letters requesting pole
   attachments, to identify with specificity the particular
   telecommunications services it intends to provide over the requested pole
   attachments. Response at 7-9, PP 13, 15. See Complaint at Exhibits 4 and
   5. Even if DQE CNS's letters were vague, however, that problem was
   certainly cured by DQE CNS's submissions here, and thus cannot serve as a
   basis for NPTC's continuing denial of access. In any event, the applicable
   rule does not mandate any particular level of specificity about the
   services to be provided over the requested attachments, see 47 C.F.R. S
   1.1403; and NPTC apparently knew about DQE CNS's Tariff and Certificate of
   Public Convenience.  See Complaint, Exhibit 6 at 2.

   47 C.F.R. S 1.1409(b).

   Response at 7-8, P 13 (citing NPTC August 19 Letter at Complaint, Exhibit
   6); 13-18, PP 30-54. In correspondence with DQE CNS, NPTC referenced DQE
   CNS's purported plans to offer "dark fiber" for lease as an additional
   reason for denying DQE CNS access to its poles. August 19 Letter
   (Complaint, Exhibit 6) at 2. According to NPTC, offering dark fiber for
   lease is not a "telecommunications service," and thus the installer of
   dark fiber is not a "telecommunications carrier" within the meaning of the
   Act. Id. The only reference to the dark fiber issue in this proceeding
   appears in two paragraphs in NPTC's Response that cite to the arguments it
   raised in the August 19, 2005 Letter. See Response at 7, P 13; 10, P 17.
   Thus, it is not clear whether NPTC intended to raise the dark fiber issue
   in this proceeding as a justification for its denial of access. In any
   event, in light of our findings that DQE CNS is a telecommunications
   carrier providing or offering other telecommunications services, we need
   not address the allegations concerning providers of dark fiber. See
   Section II, P 9, supra (explaining that an entity offering a
   telecommunications service does not lose its status as a
   telecommunications carrier by also offering a non-telecommunications
   service).

   Response at 16, PP 46-47. We discuss NPTC's claim concerning the provision
   of high-speed internet access under DQE CNS's Tariff in Section III.B.3,
   infra.

   Response at 17, P 52-53; see id. at 10-11, P 21. Although NPTC fails to
   elaborate or cite any authorities in support of its argument, we interpret
   its Response as an assertion that ICBs are per se inconsistent with common
   carrier status because of their individualized nature.

   47 U.S.C. S 153(46); see id. at S 153(44). The Commission has stated that
   "an entity offering a simple, transparent transmission path, without the
   capability of providing enhanced functionality, offers
   `telecommunications.'"  Universal Service Report to Congress, 13 FCC Rcd
   at 11520, P 39.  The private line services at issue here offer a simple,
   transparent transmission path for information of the user's choosing,
   without the capability of providing enhanced functionality. See, e.g.,
   Complaint, Exhibit 2 at Original Page 22. See generally Implementation of
   the Local Competition Provisions of the Telecommunications Act of 1996,
   Interconnection between Local Exchange Carriers and Commercial Mobile
   Radio Service Providers, First Report and Order, 11 FCC Rcd 15499, 15989,
   at P 922 (1996) (subsequent history omitted) (stating that "to the extent
   a carrier is engaged in providing for a fee domestic or international
   telecommunications, directly to the public or to such classes of users as
   to be effectively available directly to the public, the carrier falls
   within the definition of `telecommunications carrier'").

   Complaint, Exhibit 1, DQE CNS PaPUC CAP Certificate of Public Convenience;
   Exhibit 2, DQE CNS CAP Tariff, Section 2.1.A (tariff regulations and rates
   for intrastate telecommunications offered to business customers within the
   state, without restriction, subject only to availability of facilities and
   services).

   Complaint, Exhibit 1, Exhibit 3 (Declaration of David S. Weber) at 2, PP
   6-7; Reply of DQE Communications Network Services, LLC, File No.
   EB-05-MD-027 (filed Nov. 7, 2005) ("Reply") at 2, P 3. Section 3 of DQE
   CNS's CAP Tariff, Description of Services, contains three categories of
   services: (1) "Dedicated Transport Services (ICB), which includes DS3
   Service, T-1 service (1.544 Mbps) and 10 Mbps-100-1000 Gbps Ethernet
   services in increments of 1 Mbps; (2) Section 3.2, "Other Services," which
   includes "point-to-point high-speed internet access, network management
   services, digital point-to-point services, as well as redundant ring
   topology;" and (3) Section 3.4, "Individual Case Basis (ICB)
   Arrangements," which offers service arrangements on a case-by-case basis
   in response to "a bona fide special request from a Customer or prospective
   Customers to develop a bid for a service not generally available under
   this tariff." Complaint, Exhibit 2 at Original Page 22. As DQE CNS
   observed in its August 24 Letter to NPTC, the term "private" in this
   context refers to the customer, not the carrier. Complaint, Exhibit 7 at
   3.

   See, e.g., Investigation of Special Access Tariffs of Local Exchange
   Carriers, Memorandum Opinion and Order, 8 FCC Rcd 4712, 4712, at P 2
   (1993) ("Special Access Tariff Investigation"); MTS and WATS Market
   Structure Order, 93 FCC 2d at 249-50, at PP 20-23; American Telephone &
   Telegraph Company; Private Line Rate Structure and Volume Discount
   Practices, Notice of Inquiry and Proposed Rulemaking, 74 FCC 2d 226 (1979)
   (investigating whether the pricing of AT&T's competitive private line
   services was consistent with 47 U.S.C S 202, which prohibits unjust
   discrimination by common carriers).

   Special Access Tariff Investigation, 8 FCC Rcd 4712, at P 2.

   47 C.F.R. S 61.40 (providing rate structure requirements for the tariffed
   private line services of dominant common carriers); Access Charge Reform,
   Fifth Report and Order, 14 FCC Rcd 14221 (1999) (establishing pricing
   flexibility rules for incumbent local exchange carrier ("ILEC") common
   carrier special access - interstate private line - services, including
   circumstances in which ILECs may offer such services on an individually
   tailored "contract tariff' basis), aff'd sub nom. WorldCom v. FCC, 238
   F.3d 449 (D.C. Cir. 2001); see Special Access Tariff Investigation, supra
   notes 42-43 (investigating certain issues  related to duration of the
   Other Common Carrier (OCC) Rate Equalization Plan adopted in connection
   with replacing local private line services provisioned under tariff by
   AT&T prior to the advent of effective special access tariffs).

   Universal Service Order, 12 FCC Rcd at 9175, P 780.

   In its August 19 Letter explaining its reasons for denying DQE CNS access
   to its poles, NPTC cites DQE CNS's lack of certification by the PaPUC as a
   "CLEC." Complaint, Exhibit 6 at 1; Response at 7, P 13; 10, P 17. If NPTC
   is thereby contending that it may deny pole access to DQE CNS merely
   because it is certified as a "CAP" rather than as a "CLEC," we soundly
   reject that position. For the reasons described above, the "Competitive
   Access Provider" services listed in DQE CNS's CAP Tariff plainly qualify
   as "telecommunications services" under the Act.  Moreover, through its CAP
   Tariff, DQE CNS holds itself out to provide the listed telecommunications
   services indiscriminately to the public, for a fee. Thus, the fact that
   DQE CNS is a "CAP" rather than a "CLEC" provides no lawful basis under the
   Act for NPTC to deny DQE CNS access to NPTC's poles.

   See Deployment of Wireline Services Offering Advanced Telecommunications
   Capability, 17 FCC Rcd 16960, 16963-64, at PP 10-11 (2002) ("2002 Advanced
   Services Order"), citing Southwestern Bell Telephone Company Tariff F.C.C.
   No. 73, Order Designating Issues for Investigation, 12 FCC Rcd 10231,
   10242, at P 20 (1997) ("SWBT Tariff No. 73 Investigation"); Local Exchange
   Carriers' Individual Case Basis DS3 Service Offerings, Memorandum Opinion
   and Order, 4 FCC Rcd 8634, 8641-42, 8645, at PP 63-67, 87 (1989) ("ICB DS3
   Rate Order"); Common Carrier Bureau Restates Commission Policy on
   Individual Case Basis Tariff Offerings, Public Notice, 11 FCC Rcd 4001
   (1995) ("ICB Public Notice"). See also MCI Telecommunications Corp. v.
   FCC, 917 F.2d 30, 38 (D.C. Cir. 1990) (rates arrived at through
   negotiations between a carrier and an individual customer and then made
   generally available to other similarly situated customers do not per se
   violate section 202 of the Act  if the rates are filed with the FCC as
   tariffs based upon contracts).

   Reply, Weber Declaration at 1-2, P 5. See Complaint, Exhibit 2 at  22 DQE
   CNS CAP Tariff, Section 3.4.A ("ICB rates will be offered to the Customer
   in writing and on a non-discriminatory basis. All such rates will be
   submitted to the Pennsylvania Utility Commission for approval."). We note
   that the record also supports the assertion by DQE CNS that it is a
   nascent carrier in NPTC's territory, lacking sufficient experience to
   develop averaged rates. Reply, Weber Declaration at 1-2, P 5. See
   generally 2002 Advanced Services Order, 17 FCC Rcd at 16963-64, at PP
   10-11; ICB Public Notice, 11 FCC Rcd at 4001-02 (stating that an ICB
   service offering by a dominant carrier may not be unreasonably
   discriminatory when used as a transitional mechanism).

   DQE CNS's ICB arrangements are described in Section 3.4.A of the Tariff as
   follows: "Arrangements will be developed on a case-by-case basis in
   response to a bona fide special request from a Customer or prospective
   Customer to develop a competitive bid for a service not generally
   available under this tariff. ICB rates will be offered to the Customer in
   writing and on a non-discriminatory basis. All such rates will be
   submitted to the Pennsylvania Utility Commission for approval." Complaint,
   Exhibit 2 at Section 3.4.A.

   How well DQE CNS meets its obligations as an intrastate telecommunications
   common carrier is a matter for the PaPUC to determine. We express no view
   on either the correct interpretation or lawfulness per se of DQE CNS's CAP
   Tariff. We examine its terms and conditions in this Order solely for the
   purpose of determining DQE CNS's status as a "telecommunications carrier"
   entitled to access NPTC's poles under section 224.

   As noted previously, NPTC has adequate recourse at the state level if it
   believes the PaPUC erred either in issuing DQE CNS its Certificate of
   Public Convenience, or in accepting DQE CNS's CAP Tariff for filing. See
   supra note 33.

   47 U.S.C. S 153(43). See Response at 10, P 19.

   47 U.S.C. S 153(44). See Response at 10, P 19 and 13-14, P 30-36.

   Complaint, Exhibit 2 at 8, Section 2.2.D. See Response at 14, P 36.

   Complaint, Exhibit 2 at 7, Section 2.1.A.

   Complaint, Exhibit 2 at 6, Section 1 (emphasis supplied).

   Complaint, Exhibit 2 at 22.

   Reply at 5, P 6.

   Id. at 5, P 6 (citing Armstrong Telephone Company - Pennsylvania, PA
   P.U.C. No. 10, Governing the Furnishing of Telephone Service in Allegheny,
   Beaver, and Washington Counties, S 2.3.5 ("Except as otherwise
   specifically provided in this tariff, the Company does not transmit
   messages but offers the use of its facilities for communications between
   customers."); NPTC PA P.U.C. Tariff No. 12, S 2.1.1 (A) ("The Telephone
   Company does not undertake to transmit messages under this Tariff ....")).

   See Complaint, Exhibit 2 (CAP Tariff) at Page 22, Section 3.2 (listing as
   "Other Services:" "point-to-point high-speed internet access, network
   management services, digital point-to-point services, as well as redundant
   ring topology. . ."). See also  Response at 16, P 47. The Act defines
   "information service" as "the offering of a capability for generating,
   acquiring, storing, transforming, processing, retrieving, utilizing, or
   making available information via telecommunications, and includes
   electronic publishing, but does not include any use of such capability for
   the management, control, or operation of a telecommunications system or
   the management of a telecommunications service." 47 U.S.C. S 153(20).

   See NTCA v. Gulf Power, 534 U.S. 327 (holding, in an analogous context,
   that the protections of section 224 continue to apply to attachments by
   cable systems, even if the attachments are simultaneously used to provide
   both cable service and a non-cable service, such as high-speed Internet
   access).

   Inquiry Concerning High-Speed Access to the Internet Over Cable and Other
   Facilities, Internet Over Cable Declaratory Ruling, Appropriate Regulatory
   Treatment for Broadband Access to the Internet Over Cable Facilities,
   Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798,
   4821-23, at PP 36-38 (2002) ("Cable Modem Declaratory Ruling");
   Appropriate Framework for Broadband Access to the Internet Over Wireline
   Facilities, Universal Service Obligations of Broadband Providers, Review
   of Regulatory Requirements for Incumbent LEC Broadband Telecommunications
   Services, Computer III Further Remand Proceedings: Bell Operating Company
   Provision of Enhanced Services; 1998 Biennial Regulatory Review - Review
   of Computer III and ONA Safeguards and Requirements, Conditional Petition
   of the Verizon Telephone Companies for Forbearance Under 47 U.S.C. S
   160(c) with Regard to Broadband Services Provided Via Fiber to the
   Premises; Petition of the Verizon Telephone Companies for Declaratory
   Ruling, or, Alternatively, for Interim Waiver with Regard to Broadband
   Services Provided Via Fiber to the Premises, Report and Order and Notice
   of Proposed Rulemaking, 20 FCC Rcd 14853, 14863-64, at PP 14-15 (2005)
   ("Wireline Broadband Order").

   See, e.g., National Cable & Telecommunications Ass'n v. Brand X Internet
   Services, 125 S.Ct. 2688, 2702-12 (2005) ("Brand X") (affirming Cable
   Modem Declaratory Ruling, supra note 62  ); Wireline Broadband Order, 20
   FCC Rcd at 14863-64, PP 14-15; Cable Modem Declaratory Ruling, 17 FCC Rcd
   at 4821-22, PP 36-38; Universal Service Report to Congress, 13 FCC Rcd at
   11537-39, PP 76-78.

   Wireline Broadband Order, 20 FCC Rcd at 14911, P 104.

   See Wireline Broadband Order, 20 FCC Rcd at 14901, 14909-10, PP 90, 103;
   Cable Modem Declaratory Ruling,  17 FCC Rcd at 4822-25, PP 38, 41-43;
   Universal Service Report to Congress, 13 FCC Rcd at 11520-21, PP 39-41.

   See Wireline Broadband Order, 20 FCC Rcd at 14909-10, P 103.

   See Cable Modem Declaratory Ruling,  17 FCC Rcd at 4821, P 35; Universal
   Service Report to Congress, 13 FCC Rcd at 11530, P 59 (noting "Congress's
   direction that the classification of a provider should not depend on the
   type of facilities used ... [but] rather on the nature of the service
   being offered to consumers").

   Complaint, Exhibit 2 at 7.

   Id., Exhibit 2 at 6 (emphasis supplied).

   Moreover, by virtue of its classification as an unregulated information
   service, retail Internet access service is not offered pursuant to tariff.

   Wireline Broadband Order, 20 FCC Rcd at 14910, P 103.

   Complaint, Exhibit 1.

   Response at 15, PP 40-42.

   47 U.S.C. S 224(f) (emphasis supplied).

   Id. at S 224(b) and (c); Complaint at 1-2, P 2; Response at 2, P 2.
   States That Have Certified That They Regulate Pole Attachments, Public
   Notice, 7 FCC Rcd 1 (1992).

   See 47 U.S.C. S 152(b). In addition, the legislative history of section
   224 acknowledges that the statute "does expand the Commission's authority
   over entities not otherwise subject to FCC jurisdiction (such as electric
   power companies) and over practices of communications common carriers not
   otherwise subject to FCC regulation (principally the intrastate practices
   of interstate or intrastate telephone companies)." Reply at 3, P 4, citing
   S.Rep. No. 95-580 at 15 (1978).

   Although NPTC failed to articulate any basis for its assertion that
   section 224 affords no pole attachment rights to intrastate carriers, we
   note that a footnote in NPTC's Response contains a single, unexplained
   reference to the definition of "common carrier" in section 153(10) of the
   Act, which provides in part, that a "`common carrier' or `carrier' means
   any person engaged as a common carrier for hire, in interstate or foreign
   communication by wire or radio ... except where reference is made to
   common carriers not subject to this Act." 47 U.S.C. S 153(10) (emphasis
   supplied). See Response at 15, PP 40-42 and n.4. We reject any implication
   that this definition of "common carrier" limits the reach of section 224
   to "telecommunications carriers" who operate interstate. First, the
   definition of "telecommunications carrier" (including the related
   definitions of "telecommunications service" and "telecommunications")
   contains no limitation to providers of interstate communications. 47
   U.S.C. SS 153(44), (46), (43). Moreover, such a restrictive interpretation
   of the term "telecommunications carrier" as used in section 224(f)(1)
   would eviscerate Congress' intent to open local telecommunications markets
   to competition through the 1996 Act and would undermine the Commission's
   policy of encouraging facilities-based competitive entry. See, e.g.,
   Review of the Section 251 Unbundling Obligations of Incumbent Local
   Exchange Carriers, Implementation of the Local Competition Provisions of
   the Telecommunications Act of 1996, Deployment of Wireline Services
   Offering Advanced Telecommunications Capability, Report and Order and
   Order on Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd
   16978, 16983-84, at PP 1-3 (2003) ("Triennial Review Order"), corrected by
   Triennial Review Order Errata, 18 FCC Rcd 19020 (2003) (subsequent history
   omitted).

   The relief granted extends to all poles, ducts, conduits and rights-of-way
   over which NPTC is responsible for acting on third-party requests for
   access, including facilities NTPC manages or controls under joint use or
   sharing agreements.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 07-472

   1

   Federal Communications Commission FCC 00-XXX