Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Fiber Technologies Networks, )
L.L.C., )
)
Peti- )
tioner, ) File No. EB-03-MD-007
)
v. )
)
Verizon New England, Inc. d/b/a )
Verizon Rhode Island, )
)
Respondent. )
)
ORDER
Adopted: May 14, 2003 Released: May
15, 2003
By the Chief, Market Disputes Resolution Division,
Enforcement Bureau:
1. On April 21, 2003, Fiber Technologies Networks,
L.L.C. (``Fibertech'') filed a petition for
temporary stay pursuant to 47 C.F.R. § 1.1403(d)
requesting, among other things, that the
Commission prohibit Verizon New England, Inc.
d/b/a Verizon Rhode Island (``Verizon'') from
terminating its pole attachment agreement with
Fibertech and removing any Fibertech cables from
Verizon poles.1 Because the parties have agreed
to mediate their dispute within the next several
weeks, we issue a limited interim stay, as set
forth below, in order to maintain the status quo
(to the extent consistent with public safety)
pending Commission-supervised mediation.
2. Fibertech is a telecommunications provider in the
northeastern and midwestern United States.2
Fibertech has constructed a fiber optic network,
including in and around Providence, Rhode Island,
providing telecommunications and dark-fiber
services.3 Fibertech's Rhode Island network is
installed almost entirely on utility poles or
underground conduit owned by Verizon, and
Fibertech and Verizon have entered into a pole
attachment agreement.4 Verizon is the incumbent
local exchange carrier in Rhode Island.5
3. Fibertech initially submitted applications for
licenses to attach to Verizon poles in Rhode
Island on July 21, 2000.6 Verizon is required by
Commission rules to respond to applications
within 45 days by either granting access to poles
or confirming the denial in writing by the 45th
day, and including specific information
supporting the denial based on lack of capacity,
safety, reliability or engineering standards.7
According to Fibertech's Stay Petition, Verizon
did not respond to Fibertech's applications
within the requisite 45 day time-frame.8
Instead, Verizon responded to the initial
applications 180 days after submission, and did
not respond to others for 329 days.9 In
addition, according to Fibertech, the make-ready
estimates accompanying Verizon's belated
responses grossly inflated any necessary
expenses.10 In sum, Fibertech contends that
Verizon's conduct is an anticomptetitive attempt
to thwart Fibertech's efforts to construct a
competitive broadband network in Rhode Island.11
4. Instead of filing a complaint with the Commission
based on Verizon's alleged violation of section
224 of the Communications Act of 1934, as amended
(``Act''),12 Fibertech installed its cable within
the ``supply space'' of the poles utilized by
Narragansett Electric Company (``NECO''), the
local electric utility.13 Based on Fibertech's
agreement with NECO, a NECO contractor installed
Fibertech's cable under the supervision and
direction of NECO inspectors.14 The record
appears to reflect that, irrespective of its
agreement with NECO, Fibertech nevertheless lacks
the requisite licenses from Verizon, the pole
owner, to lawfully attach.15 At the same time,
however, section 224 of the Act confers on
Fibertech the right to nondiscriminatory access
to Verizon's poles, and requires Verizon to
respond to requests for access promptly.16
5. Verizon has advised Commission staff that it
recently filed a state court action in Rhode
Island, alleging, inter alia, that Fibertech
breached its pole attachment agreement with
Verizon. While state courts have jurisdiction
over certain breach of contract issues involving
pole attachment agreements, the Commission has
jurisdiction to hear and resolve complaints
regarding the reasonableness of terms and
conditions of attachment.17
6. The Commission may grant a stay if: (1) the
Petitioner is likely to succeed on the merits;
(2) the Petitioner would suffer irreparable
injury absent a stay; (3) a stay would not
substantially injure other interested parties;
and (4) a stay is in the public interest.18
Although we are not in a position at this
preliminary stage to assess fully these four
factors, we find that the public interest in
having disputes resolved by swift agreement of
the parties outweighs the other factors,
warranting issuance of a limited interim stay
that would maintain the status quo until the
parties have an opportunity to participate in
Commission-supervised mediation.19 Such a stay
will ensure that there will be no significant
change in the status of Fibertech's attachments
(and, concomitantly, its ability to provide
service to its customers) before the parties have
determined whether they can resolve their dispute
without resort to costly and time-consuming
litigation. Accordingly, we order Verizon to
refrain from detaching any Fibertech cable from
Verizon poles in Rhode Island, except to the
extent necessary to prevent imminent harm to
public safety or property, pending Commission-
supervised mediation of this matter. Upon
completion of the mediation, we will rule on the
merits of the Stay Petition to the extent
necessary.
FEDERAL COMMUNICATIONS COMMISSION
Alexander P. Starr
Chief, Market Disputes Resolution
Division
Enforcement Bureau
_________________________
1 Petition for Temporary Stay, File No. EB-03-MD-007 (filed
Apr. 21, 2003) (``Stay Petition'') at 27-28.
2 Stay Petition at 4. For purposes of this Order, we assume
the facts pled in the Stay Petition to be true.
3 Stay Petition at 4.
4 Stay Petition at 4-5, 9.
5 Stay Petition at 4.
6 Stay petition at 6.
7 47 C.F.R. § 1.1403(b).
8 Stay Petition at 6
9 Stay Petition at 6.
10 Stay Petition at 9-13.
11 See Stay Petition at 4-8, 10-15.
12 See 47 U.S.C. § 224.
13 Stay Petition at 8.
14 Stay Petition at 8-10.
15 See, e.g., Stay Petition at 23 (Verizon ``sought
unlawfully to impose unnecessary and burdensome costs on
Fibertech as a condition of access to its poles'').
16 47 U.S.C. § 224(f)(1); 47 C.F.R. § 1.1403(b).
17 Alabama Cable Telecommuncations Ass'n v. Alabama Power
Co., Order, 16 FCC Rcd 12209, 12217 ¶ 18 (2001), 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
(Apr. 4, 2003) (No. 02-1474). See also 47 C.F.R. § 1.1415
(the Commission ``may issue such other orders and so conduct
its proceedings as will best conduce to the proper dispatch
of business and the ends of justice'').
18 See Virginia Petroleum Jobbers Ass'n v. F.P.C., 259 F.2d
921, 925 (D.C. Cir. 1958); Washington Metro. Transit Comm'n
v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).
19 As noted above, the parties have agreed to participate in
mediation under the Commission's auspices, and they are in
the process of preparing written submissions to the
Commission in anticipation of the mediation. The parties
have been working to determine a mutually-convenient date
for the mediation. To ensure that the mediation takes place
in a timely manner, we hereby order the parties to advise
Commission staff, no later than May 16, 2003, of dates that
are acceptable to both sides.