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Before the
Federal Communications Commission
Washington, D.C. 20554
Fiber Technologies Networks, L.L.C., )
)
Complainant, )
)
v. ) File No. EB-03-MD-005
)
Duquesne Light Company, )
)
Defendant. )
ORDER
Adopted: May 22, 2003 Released: May 27, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Order, we reject a Petition To Stay Termination Of
Pole Attachment Rights1 that complainant Fiber Technologies
Networks, L.L.C., (``Fibertech'') filed in this matter pursuant to
sections 1.1403(d) and 1.1415 of the Commission's rules.2
Fibertech's Stay Petition asks the Commission to stay any attempt
by defendant Duquesne Light Company (``Duquesne'') either to
terminate a pole attachment agreement between Fibertech and
Duquesne or to remove or seek removal of Fibertech's facilities
from Duquesne's poles, pending the Commission's decision on a
complaint that Fibertech filed against Duquesne3 alleging that
Duquesne violated section 224 of the Communications Act of 1934, as
amended (the ``Act'').4 As explained below, we conclude that the
Petition should be dismissed as moot to the extent that it seeks to
stay any effort by Duquesne to remove or seek removal of
Fibertech's facilities from Duquesne's poles. Moreover, to the
extent that the Petition seeks to stay any attempt by Duquesne to
terminate the parties' pole attachment agreement, we conclude that
the Petition should be denied on the ground that Fibertech has
failed to show that, in the absence of a stay, it will suffer
irreparable harm from the actual or threatened termination of that
agreement.
II. BACKGROUND
2. Fibertech filed its Complaint against Duquesne on April 8,
2003. The Complaint alleges that Fibertech is a telecommunications
carrier within the meaning of section 224 of the Act.5 It further
alleges that defendant Duquesne is a corporation engaged in the
provision of electric utility service in Pennsylvania.6 The
Complaint charges that Duquesne has violated section 224 of the Act
by, inter alia, imposing unreasonable delays and unreasonable
expenses on Fibertech's attachment of facilities to Duquesne's
poles.7 Specifically, the Complaint alleges that Duquesne impeded
Fibertech's access to its poles by unreasonably delaying execution
of a pole attachment agreement with Fibertech,8 and imposed
unnecessary expense on Fibertech's network expansion by imposing
unjust and unreasonable charges for pole survey, engineering, and
make-ready work following the parties' execution of a pole
attachment agreement.9 The Complaint seeks an order: (i) requiring
Duquesne to refund to Fibertech allegedly unlawful engineering and
make-ready charges that Duquesne allegedly forced Fibertech to pay;
(ii) terminating additional unlawful charges totaling $570,643 that
Duquesne has attempted to collect from Fibertech, and which
Fibertech has refused to pay;10 (iii) declaring that certain terms
and conditions of attachment imposed by Duquesne are unjust and
unreasonable; and (iv) and prohibiting Duquesne from terminating
the Pole Attachment Agreement based on Fibertech's refusal to pay
disputed amounts, and from removing Fibertech's facilities from
Duquesne's poles.11
3. Fibertech filed its Stay Petition on April 8, 2003, the
same day that it filed the Complaint. The Petition alleges that
Duquesne issued a Notice of Termination of Fibertech's Pole
Attachment Agreement to become effective on April 8, 2003.12 The
alleged Notice of Termination consisted of a letter that Duquesne
sent to Fibertech on February 7, 2003.13 The February 7 Letter
stated that Fibertech had not paid invoices that Duquesne submitted
to Fibertech in amounts totaling $565,814. The February 7 Letter
asserted that the parties' Pole Attachment Agreement requires
Fibertech to pay submitted invoices within 30 days, and that the
$565,814 amount had been past due for more than 30 days. The
February 7 Letter further stated:
Fibertech's failure to timely pay the amounts
due for services provided under the Agreement
constitutes a breach of a material term.
Pursuant to Section 1.2.01 of the Agreement,
[Duquesne] will have the right to terminate
the Agreement sixty (60) days from the date
of this notice if Fibertech has not cured its
breach. [Duquesne] intends thereafter to
exercise its rights to the full extent
provided in the Agreement under applicable
law.
4. Section 1.2.01 of the Pole Attachment Agreement provides
that Duquesne ``has the right to terminate this Agreement upon
sixty (60) days written notice for a breach of any material
term.''14 Section 1.2.05 of the Pole Attachment Agreement provides
that, in the event of termination of the agreement, ``the attaching
party shall remove its facilities from Duquesne's structure within
sixty (60) days from the date of termination . . .;''15 and section
1.2.06 provides that, if the attaching party does not remove its
facilities within the sixty-day time period specified in section
1.2.05, Duquesne ``shall have the right to remove them at the
expense of the attaching party . . . .''16 In its Petition,
Fibertech requests that the Commission stay Duquesne's purported
attempt to terminate the Pole Attachment Agreement between
Fibertech and Duquesne, and stay any efforts by Duquesne to remove
or seek removal of Fibertech's facilities from Duquesne's poles
pending a decision on the Complaint, arguing, inter alia, that it
will suffer irreparable injury in the absence of a stay.17
5. Under 47 C.F.R. � 1.1403(d), Duquesne was permitted to
file a response to the Stay Petition within 7 days after it was
filed. On April 22, 2003, Commission staff, having not received a
response to the Petition, telephoned Duquesne's counsel, David
Pawlik, to inquire as to whether Duquesne intended to file a
response. Mr. Pawlik advised staff that his client, Duquesne, did
not intend to file a response to the Petition, and that Duquesne
had no intention of removing Fibertech's facilities from its poles
pending the resolution of the dispute set forth in Fibertech's
Complaint.
6. On April 24, 2003, Commission staff issued a letter order
in this proceeding that recounted Mr. Pawlik's representation to
staff that Duquesne has no intention of removing Fibertech's
facilities pending resolution of this dispute, and stated that this
representation appeared to render moot the request for relief set
forth in Fibertech's Stay Petition.18 The Letter Order directed
the parties to advise staff in writing as to whether they agree
that the Petition should be dismissed as moot based on the
representations of Duquesne's counsel, and to provide full support
for any objection to such dismissal.19
7. On May 1, 2003, Duquesne's counsel filed a letter in which
he affirmed that Duquesne ``does not intend to remove any
[Fibertech] facilities from [Duquesne] poles while the dispute set
forth in Fibertech's Complaint . . . is pending before the
Commission,''20 and he agreed that the Commission should dismiss
the Stay Petition as moot. On May 2, 2003, Fibertech's counsel
filed a letter in response to the Letter Order and Duquesne May 1
Letter.21 The Fibertech May 2 Letter stated that ``Duquesne's
promise not to remove Fibertech from the poles is a welcome
development, but there exists the remaining question of whether
Duquesne still intends to terminate the pole attachment agreement .
. . .''22 The Fibertech May 2 Letter stated that Fibertech ``will
immediately withdraw its petition with Duquesne's promise to allow
Fibertech to continue operating on Duquesne's poles under the
lawful provisions of the parties' pole attachment agreements while
this proceeding is pending, including by processing pole attachment
applications that Fibertech might submit in accordance with
applicable guidelines and timeframes.''23
8. The Fibertech May 2 Letter did not dispute that the
portion of Fibertech's Petition that seeks a stay of any efforts by
Duquesne to remove or seek removal of Fibertech's facilities from
Duquesne's poles should be dismissed as moot. Accordingly, and in
reliance on Duquesne's representations, we dismiss as moot
Fibertech's Petition to the extent it requests that we stay
Duquesne's removal or attempted removal of Fibertech's facilities
from Duquesne's poles pending the conclusion of this complaint
proceeding.
9. Fibertech's May 2 Letter did, however, suggest that the
portion of Fibertech's Petition that requests a stay of Duquesne's
attempted termination of the Pole Attachment Agreement was not
rendered moot by Duquesne's representation. Accordingly, our
discussion will focus on Fibertech's continuing request for a stay
of Duquesne's purported attempt to terminate the Pole Attachment
Agreement.
III. DISCUSSION
10. Section 1.1403(c) of our rules24 states, in pertinent
part, that a utility shall provide a telecommunications carrier no
less than 60 days' written notice prior to ``[r]emoval of
facilities or termination of any service to those facilities, such
removal or termination arising out of a rate, term or condition of
the . . . telecommunications carrier's pole attachment agreement.''
Section 1.1403(d) states that a telecommunications carrier may file
a ``Petition for Temporary Stay'' of the action contained in a
notice received pursuant to section 1.1403(c) within 15 days of
receipt of such notice.25 Section 1.1403(d) further provides:
Such submission shall not be considered
unless it includes, in concise terms, the
relief sought, the reasons for such relief,
including a showing of irreparable harm and
likely cessation of cable television service
or telecommunication service. . . .26
11. We note at the outset that it is not at all clear from the
record whether Duquesne's February 7 Letter - which Fibertech calls
a ``Notice of Termination'' - was intended to, or did in fact,
terminate the Pole Attachment Agreement effective on April 8, 2003.
The words ``notice of termination'' did not appear on the February
7 Letter. Nor did that Letter state that the Pole Attachment
Agreement would automatically terminate 60 days hence if Fibertech
did not pay the amount that Duquesne claims it is due. Rather, the
Letter simply stated that Duquesne ``will have the right to
terminate the Agreement'' in 60 days ``if Fibertech has not cured
its breach,'' and that Duquesne ``intends thereafter to exercise
its rights to the full extent provided in the Agreement under
applicable law.'' Nothing in the record before us indicates
whether the Pole Attachment Agreement was, in fact, terminated on
or after April 8, 2003.
12. More fundamentally, Fibertech has failed to demonstrate
that the actual or threatened termination of the Pole Attachment
Agreement has caused or will cause Fibertech to suffer irreparable
harm - a showing required under section 1.1403(d).27 Duquesne's
February 7 Letter indicated that Fibertech could avoid termination
of the Pole Attachment Agreement by paying the $565,814 amount that
Duquesne claims it is due. Although we understand that Fibertech
contends that the $565,814 constitutes an overcharge in violation
of section 224, Fibertech fails to explain, in either the Stay
Petition or the Complaint, how it would be irreparably harmed if it
simply paid Duquesne the $565,814 amount now, with the expectation
that it would later recover this payment as a refund if it succeeds
in proving the section 224 violations alleged in its Complaint.
Indeed, the refund Fibertech seeks to recover in this case already
includes unlawful charges that Fibertech paid Duquesne in the past.
In the case of those earlier charges, Fibertech apparently chose to
pay the amount Duquesne demanded, with the intention of later
recovering the overcharge in an action before the Commission.
Fibertech does not explain how it would be irreparably harmed by
handling the $565,814 charge in the same way as the other alleged
overcharges at issue in this case.28 Fibertech's Petition merely
offers the unsupported, conclusory assertion that ``forcing
Fibertech into the position of paying additional unlawful charges .
. . could place Fibertech at an even greater competitive
disadvantage to Duquesne than it has so far.''29 Moreover, the
Petition does not present evidence of any irreparable harm to
Fibertech's relationships with customers, investors, or lenders
that would result from termination of the Agreement.
13. We therefore deny Fibertech's instant request for a stay
of Duquesne's actual or threatened termination of the Pole
Attachment Agreement, because Fibertech has failed to demonstrate
the irreparable harm required under section 1.1403(d) of our
rules.30
IV. ORDERING CLAUSES
14. ACCORDINGLY, IT IS ORDERED, pursuant to section 1.1403(d)
of the Commission's rules, 47 C.F.R. � 1.1403(d), sections 4(i),
4(j), and 224 of the Communications Act of 1934, as amended, 47
U.S.C. �� 154(i), 154(j), and 224, 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 Fibertech's Petition To Stay Termination Of Pole
Attachment Rights is dismissed as moot to the extent that it seeks
to stay any effort by Duquesne to remove or seek removal of
Fibertech's facilities from Duquesne's poles.
15. IT IS FURTHER ORDERED, pursuant to section 1.1403(d) of
the Commission's rules, 47 C.F.R. � 1.1403(d), sections 4(i), 4(j),
and 224 of the Communications Act of 1934, as amended, 47 U.S.C. ��
154(i), 154(j), and 224, 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 to the extent that Fibertech's Petition To Stay
Termination Of Pole Attachment Rights seeks to stay any attempt by
Duquesne to terminate the parties' pole attachment agreement, the
Petition is denied on the ground that Fibertech has failed to show
that it will suffer irreparable harm from the actual or threatened
termination of that agreement in the absence of a stay.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Petition To Stay Termination Of Pole Attachment Rights, File
No. EB-03-MD-005 (filed April 8, 2003) (``Stay Petition'' or
``Petition'').
2 47 C.F.R. �� 1.1403(d) and 1.1415.
3 Complaint, File No. EB-03-MD-005 (filed April 8, 2003)
(``Complaint''). Sections 1.1401 - 1.1418 of the Commission's
rules, 47 C.F.R. � 1.1401 - 1.1418, provide complaint and
enforcement procedures to ensure that telecommunications carriers
and cable system operators have non-discriminatory access to utility
poles, ducts, conduits, and rights-of-way on rates, terms and
conditions that are just and reasonable. See 47 C.F.R. � 1.1401.
Although the Complaint does not cite to these rules, we will
adjudicate the Complaint in accordance with the procedures set forth
therein.
4 47 U.S.C. � 224.
5 Complaint at 2-3, �� 1, 9.
6 Complaint at 2, � 2.
77 Complaint at 4-9, �� 16-33; 9-27 �� 34-103.
8 Complaint at 4-9, �� 16-33.
9 Complaint at 9-27 �� 34-103. The pole attachment agreement
that Fibertech and Duquesne executed, entitled ``Joint Use
Agreement,'' is attached as Exhibit 3 to the Complaint (``Pole
Attachment Agreement'' or ``Agreement'').
10 Complaint at vi; 1-2
11 Complaint at 1-2; 28
12 Petition To Stay at 3-4.
13 Letter from Andrew J. Tomko, Supervisor, Engineering, Duquesne,
to Contracts and Rights of Way Manager, Fibertech, dated February 7,
2003, attached to Petition as Exhibit 1 (``February 7 Letter'').
The February 7 Letter was also attached as Exhibit 8 to the
Complaint.
14 Pole Attachment Agreement at 2, � 1.2.01 .
15 Id. at 3, � 1.2.05 (cited in Petition at 4).
16 Id. at 3, � 1.2.06 (cited in Petition at 4).
17 Petition at 2, 6, 9.
18 Letter from Christopher N. Olsen, Assistant Chief, Market
Disputes Resolution Division, Enforcement Bureau, to Counsel for
Fibertech and Counsel for Duquesne, File No. EB-03-MD-005 (rel.
April 24, 2003) (``Letter Order'') at 2.
19 Id.
20 Letter from David H. Pawlik, counsel for Duquesne, to
Christopher N. Olsen, Assistant Chief, Market Disputes Resolution
Division, Enforcement Bureau, File No. EB-03-MD-005 (filed May l,
2003) (``Duquesne May 1 Letter''). The Duquesne May 1 Letter
attached a letter from Andrew J. Tomko, Supervisor, Engineering,
Duquesne, to Christopher N. Olsen, Assistant Chief, Market Disputes
Resolution Division, Enforcement Bureau, stating that ``Except in
emergency situations involving imminent danger to life or property,
we do not intend to remove any of the attachments of [Fibertech]
from our poles while the underlying dispute, contained in the
Complaint that [Fibertech] filed on April 8, 2003, is pending before
the FCC.''
21 Letter from J.D. Thomas, counsel for Fibertech, to Christopher
N. Olsen, Assistant Chief, Market Disputes Resolution Division,
Enforcement Bureau, File No. EB-03-MD-005 (filed May 2, 2003)
(``Fibertech May 2 Letter'').
22 Id. at 1.
23 Id.
24 47 C.F.R. � 1.1403(c).
25 47 C.F.R. � 1.1403(d).
26 Id.
27 Virginia Petroleum Jobbers Ass'n v. F.P.C., 259 F.2d 921, 925
(D.C. Cir. 1958) and Washington Metro. Transit Comm'n v. Holiday
Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977), cited in
Fibertech's Petition at 4-5, also hold that a showing of irreparable
harm is a prerequisite for obtaining an interim stay.
28 See e.g., Virginia Petroleum Jobbers Association v. FPC, 259
F.2d at 925 (observing that ``[m]ere injuries, however substantial,
in terms of money, time and energy necessarily expended in the
absence of a stay, are not enough'' to establish irreparable harm,
and that the ``possibility that adequate compensatory or other
corrective relief will be available at a later date, in the ordinary
course of litigation, weighs heavily against a claim of irreparable
harm.''). Accord, Implementation of the Local Competition
Provisions in the Telecommunications Act of 1996, Order, 11 FCC Rcd.
11,754 at 11,756-57 (1996); Bachow/Coastal, L.L.C. v. GTE Wireless
of the South, Order, 15 FCC Rcd. 5801 at 5802 (Enf. Bur. 2000).
29 Stay Petition at 6 (emphasis added).
30 47 C.F.R. � 1.1403(d).