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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Marcus Cable Associates, LP, )
)
Complainant, )
) File No. PA 96-002
v. )
)
Texas Utilities Electric )
Company, )
)
Respondent. )
ORDER ON REVIEW
Adopted: July 15, 2003
Released: July 28, 2003
By the Commission:
I. INTRODUCTION
1. In this Order, we deny in all except one respect
an application for review1 of a Cable Services Bureau order2
that granted a pole attachment complaint3 filed by Marcus
Cable Associates, LP (``Marcus'') against Texas Utilities
Electric Company (``TU Electric'')4 pursuant to section 224
of the Communications Act of 1934, as amended.5 As
explained below, we conclude that the Commission has
jurisdiction to resolve the Complaint. On the merits, we
find the Bureau Order to be well-supported by the non-
confidential material contained in the record and consistent
with the mandates of section 224. To the extent the Bureau
Order ruled on TU Electric's pole attachment agreements
other than the parties' Agreement, however, we find it to be
overly broad.
II. BACKGROUND
A. The Parties and the Complaint
2. TU Electric is a utility engaged in the
generation, purchase, transmission, distribution, and sale
of electric energy in Texas.6 TU Electric is affiliated
with various entities providing telecommunications services
within Texas that are using its private easements and
rights-of-way.7 Marcus is a franchised cable operator that
offers video programming services in the Dallas-Fort Worth,
Texas metropolitan area.8 In addition to its video
programming services, Marcus offers fiber optic conductor
capacity over the excess capacity of its cable system, on
mixed-use, commonly-sheathed fiber optic and coaxial
conductors.9
3. On November 1, 1995, Marcus and TU Electric
entered into a pole attachment agreement (``Agreement'').10
On July 24, 1996, Marcus filed its Complaint with the
Commission, challenging the reasonableness of certain
provisions in, and actions related to, the Agreement.11
Specifically, Marcus objected to a section of the Agreement
that required Marcus to indicate whether it transmitted
``data other than a TV signal'' through its facilities
attached to TU Electric's poles.12 A positive response
required Marcus to obtain a release from each of its non-
video customers indemnifying both Marcus and TU Electric in
connection with claims arising out of Marcus's or TU
Electric's ``negligence, strict liability or other fault of
any nature.''13 The release also had to state that non-
video services provided by Marcus may not be completely
private and may be interrupted, lost or limited for many
reasons.14 Marcus alleged that TU Electric included this
section of the Agreement to gain competitively sensitive
information to eliminate Marcus's efforts to deploy fiber
optic communications facilities and market non-video
services, and to destroy or interfere with Marcus's non-
video customer relationships.15 Marcus also argued that
other provisions in the Agreement (requiring Marcus to
indemnify TU Electric, provide insurance coverage, and post
a bond for each pole) are more than sufficient to shield TU
Electric from liability.16 In addition, according to
Marcus, TU Electric demanded a portion of Marcus's revenue
derived from the provision of such non-video services.17
Finally, in response to the Bureau's request for
information,18 Marcus sought confidential treatment for
information in two contracts with third parties.19 TU
Electric requested that the Complaint be denied or
dismissed, arguing, inter alia, that the Commission does not
have jurisdiction over contractual disputes.20
B. Bureau Order and Application for Review
4. The Bureau Order found that: (1) section 224 of
the Act provides the Commission with jurisdiction to review
the parties' Agreement;21 (2) the Agreement's requirements
of indemnification and disclosure of non-video transmissions
over Marcus's facilities were unreasonable;22 (3) TU
Electric's efforts to collect information about, and money
for, third-party use of Marcus's cables were
impermissible;23 and (4) Marcus was not entitled to actual
and punitive damages.24 The Bureau Order terminated the
provisions of the Agreement that were found to be
unreasonable, and, more broadly, granted Marcus's request
for a declaratory ruling terminating those provisions in all
TU Electric pole attachment agreements.25 The Bureau Order
further granted Marcus's request to maintain the
confidentiality of the copies of its agreements with third-
party customers.26
5. On August 20, 1997, TU Electric filed an
application for review of the Bureau Order, asserting that
the Bureau erred by: (1) finding that the Commission has
jurisdiction over the Complaint, which TU Electric continues
to assert is simply a contractual dispute;27 (2)
misinterpreting section 224 of the Act and the holdings of
certain Commission orders interpreting that section;28 (3)
basing its decision on Marcus's contracts with third
parties, which TU Electric never was allowed to review;29
(4) deciding the issues raised in the Complaint without
holding a hearing;30 and (5) issuing a declaratory ruling
regarding provisions contained in other TU Electric pole
attachment agreements.31
III. DISCUSSION
A. Jurisdiction
6. The Bureau correctly determined that the
Commission has jurisdiction to resolve the Complaint.
Section 224 of the Act vests the Commission with authority
to regulate the rates, terms, and conditions for attachments
by a cable television system or provider of
telecommunications service to a pole, duct, conduit, or
right-of-way owned or controlled by a utility.32 The
Commission further is authorized to adopt procedures
necessary to resolve complaints concerning such rates,
terms, and conditions,33 and ``where onerous terms or
conditions are found to exist on the basis of the evidence,
. . . the term[s] or condition[s] may be invalidated.''34
The Commission's authority does not supplant that of the
local jurisdiction when the issue between the parties is
limited to a breach of contract claim that does not include
an allegation of unjust or unreasonable contractual rates,
terms, or conditions.35
7. In response to Marcus's claim that certain
provisions and conditions attendant to the Agreement were
unreasonable, TU Electric asserted that the ``real dispute''
before the Bureau was whether Marcus violated its contract
by subleasing its pole attachment rights (i.e., allowing a
party to ``overlash'' its facilities to Marcus's
facilities), and that this issue is beyond the purview of
the FCC.36 After reviewing the record, including
supplemental information provided by Marcus, the Bureau
disagreed with TU Electric that the issues in the complaint
pertained exclusively to the subleasing provisions of the
contract.37 The Bureau instead determined that the
Complaint involved questions regarding the reasonableness of
the Agreement's terms and conditions, as well as the
reasonableness of TU Electric's request for additional
payment regarding revenue from non-video services.38 The
Bureau also concluded that two Commission-level decisions
squarely addressed similar issues in pole attachment
complaint proceedings, and affirmed the agency's
jurisdiction.39
8. In its Application, TU Electric adheres to its
view that the Commission lacks jurisdiction to resolve the
Complaint.40 TU Electric insists that, by concluding that
there was no third-party overlashing (and thus no breach of
the Agreement), the Commission necessarily decided a matter
of contract over which it lacked jurisdiction.41 We
disagree. The Complaint expressly challenges the
reasonableness of the terms and conditions of Marcus's
attachments to TU Electric's poles.42 TU Electric's focus
on the issue of ``breach'' is misplaced. Regardless of
whether the Agreement technically was breached - and
regardless of whether the fee TU Electric consequently
imposed is termed ``restitution'' or an ``excessive rate''43
- the Complaint's allegations of unreasonableness fall
squarely within the Commission's jurisdiction.44 Stated
differently, the description of the fee does not affect the
Commission's jurisdiction, and the Bureau was correct to
review the fee and determine its justness and reasonableness
under the Act.45
B. Third-Party Overlashing
9. TU Electric argues that the Bureau incorrectly
concluded that Marcus did not engage in third-party
overlashing.46 Specifically, TU Electric contends that the
Bureau improperly based its factual finding on contradicted
and conclusory complaint allegations and on evidence that TU
Electric was not allowed to review. 47 Moreover, TU
Electric contends that the Bureau wrongly shifted the burden
of proof to TU Electric and refused to hold a hearing.48 We
reject TU Electric's assertions as unsupported by the
record.
10. The facts in the record on this issue are as
follows: TU Electric found that in two places a third-
party, non-video provider had installed a handhole49 at the
base of one of TU Electric's distribution poles, with a
conduit extending to a conduit riser attached to the pole.50
In both locations, a fiber optic cable extends from the
handhole, up the riser, and is overlashed to Marcus's
primary cable that is attached to TU Electric's pole.51
This discovery caused TU Electric to question whether the
overlashed cable or other fiber cable was wholly owned by
Marcus, and whether it was being used or leased by third
parties.52 Marcus submitted the Pietri Declaration, which
states that Marcus provides non-video services, ``typically
fiber optic conductor capacity . . . over the excess
capacity of its cable television system, on mixed use,
commonly sheathed fiber and coaxial conductors.''53 In
response to nine interrogatories propounded by the Bureau,
Marcus specified precisely the type of capacity it provides
over its network, and stated categorically that it wholly
owns all facilities it attaches to TU Electric poles.54
Marcus further explained how long fiber optic cable it owns
had been overlashed pursuant to permits obtained by Marcus's
predecessor-in-interest, and confirmed that it has not
entered any agreements permitting a third party to attach to
TU Electric's poles.55
11. Given this record, the Bureau reasonably concluded
that Marcus had met its burden of demonstrating that it
wholly owned the overlashed cable.56 Marcus's assertions
were fully supported by affidavit, and TU Electric did not
provide any contradictory evidence. Thus, there was ample
basis to find that Marcus had not engaged in third-party
overlashing, which was the basis for TU Electric's claim
that Marcus had breached the Agreement's non-assignment
clause.57
12. We further reject TU Electric's argument that the
Bureau Order improperly relied on confidential documents
provided by Marcus in response to the Bureau's request for
information. The Bureau based its conclusion that Marcus
wholly owned the overlashed cable exclusively on the
substantial, non-confidential evidence in the record.58 In
other words, the Bureau did not rely on the confidential
documents in reaching its conclusion.59
13. TU Electric contends that the Bureau impermissibly
shifted the burden of proof on the overlashing and other
issues to TU Electric.60 We disagree. Once a complainant
in a pole attachment matter meets its burden of establishing
a prima facie case, the respondent bears a burden to explain
or defend its actions.61 Thus, when Marcus proved as a
matter of fact that it had not permitted third-party
overlashing,62 TU Electric was required to come forth with
some evidence to support its assertion that Marcus's
contentions were wrong as a factual matter. As discussed
above, TU Electric offered no evidence refuting Marcus's
claims. The Bureau's use of phrases such as ``failed to
make a sufficient showing''63 indicates a failure of TU
Electric to meet its burden of production rather than a
shift in the ultimate burden of proof.
14. Finally, we reject TU Electric's contention that
it was entitled to a hearing. The pole attachment process
is designed to be efficient but allow all parties to express
fully their positions, and the decision to grant an
evidentiary hearing is discretionary.64 In this matter,
both parties submitted extensive pleadings, affidavits, and
exhibits to explain their respective positions.65 The
Bureau found that the material facts available in the record
in written form were sufficient to support its decision, and
we agree.66 Moreover, TU Electric has not identified ``a
material question of fact that warrants a hearing.''67
Consequently, we find that the Bureau did not err in
declining to hold a hearing.
C. Leasing of Excess Capacity
15. In its Application, TU Electric argues that the
Bureau erred in concluding that the terms and conditions of
the Agreement with respect to leased capacity to a
telecommunications provider are unjust and unreasonable,
because it based its conclusions on a pre-Telecommunications
Act of 1996 (``1996 Act'')68 interpretation of section
224.69 In this regard, TU Electric states: ``While a
telecommunications carrier may now also have the right to
pole attachments from a utility and, if it does not already
have an agreement, secure a regulated rate, that is the
right of a telecommunications carrier, not a cable system
wishing to sublease one.''70 As TU Electric notes, at the
time of the Bureau decision the Commission had not itself
addressed whether the 1996 Act should be interpreted to
``allow (e.g., force utilities to permit) systems with
attachment rights to let unrelated telecommunications
carriers overlash their cables to existing systems.''71 TU
Electric argues that section 224 applies only to
attachments for services offered by the attacher itself
(here, Marcus) and not to attachments that are used to allow
third parties to provide services, because ``[s]uch
subleasing of capacity clearly is not encompassed within
Section 224.''72
16. The Commission subsequently decided that section
224 does indeed apply to leased capacity:
We affirm our holding in the Telecom
Order that if an attachment previously
used for providing solely cable services
would, as a result of the leasing of dark
fiber, also be used for providing
telecommunications services, the rate for
the attachment would be determined using
the Telecom Formula. However, attaching
entities may lease their dark fiber to
third parties without such leases being
considered separate attachments and
without making an additional payment
beyond the host's existing attachment
rate. The cable system operator may
lease excess fiber capacity within its
existing attachment to any party for a
negotiated rate without the knowledge or
consent of the pole owner because the
physical attachment will not be altered.
The dark fibers contained within the
attaching host have already been taken
into account in determining the rent for
the attachment. The character and
content of the services provided do not
affect the amount of space occupied by
the attachment. The type of services
provided over the attachment only affect
the pole attachment rate if the services
are telecommunications services. If the
third party leasing the fiber is, or
becomes, a telecommunications carrier,
then the utility is entitled to
compensation for the pole attachment
based on the Telecom Formula and must be
notified.73
D. Information and Indemnity Requests
17. We reject TU Electric's argument that the Bureau
had insufficient evidence to find that the requirements of
Section 13.1A of the Agreement were unreasonable.74 Section
13.1A requires disclosure of information regarding non-video
services and mandates that customers of non-video services
execute indemnity and release agreements in favor of TU
Electric.75 We concur with the Bureau's conclusion that,
beyond an indication that a pole is being used for the
provision of telecommunications services, the requirements
of section 13.1A requiring identification of non-video
customers and their location on Marcus' system appear to be
a thinly-veiled attempt to undermine the provision of
telecommunications services offered by actual or potential
competitors and are unreasonable.76 Further, as the Bureau
determined, TU Electric already is adequately indemnified by
Marcus for liability arising out of Marcus's attachment to
TU Electric poles.77 Whether or not Marcus seeks indemnity
from its third-party customers, TU Electric is protected by
the Agreement.78 Consequently, the Bureau rightly found
that the indemnity requirement in Section 13.1A is
unnecessary to protect TU Electric's interests and therefore
is unreasonable.79 In addition, contrary to TU Electric's
assertion, the Bureau did not shift the ultimate burden of
proof regarding disclosure and indemnity to TU Electric.
Marcus established that the provision was unnecessary in
light of the Agreement's general indemnity provision.80 TU
Electric failed to persuade the Bureau that there was a
reason to require the additional indemnification.81
18. Finally, TU Electric asserts that it was
inappropriate for the Bureau to issue a declaratory ruling
affecting multiple TU Electric agreements.82 In addition to
invalidating the notice, information and indemnification
requirements contained in Section 13.1A of the parties'
Agreement, the declaratory ruling invalidates those
provisions in all TU Electric pole attachment agreements.83
TU Electric argues that the section 224 adjudicatory process
is geared to the resolution of specific factual claims in
specific factual circumstances, and that it is not proper
for the Bureau to make a sweeping determination affecting
agreements that the Commission has not seen and parties that
are not before it.84 TU Electric further contends that
because the indemnification provision in Section 13.1A
allows individual companies affected by the provision to
reach agreement with TU Electric as to alternative
provisions, which may be acceptable to both parties, the
Bureau should not have issued a declaratory ruling.85 We
find that the Bureau did not have adequate record for
issuing its declaratory ruling on this issue insofar as it
pertains to TU Electric's pole attachment agreements other
than the parties' Agreement. In sum, there is an
insufficient record in this case to warrant a determination
applicable to agreements and parties that are not presently
before the Commission.
IV. ORDERING CLAUSE
19. For the reasons discussed above, IT IS ORDERED,
pursuant to section 1.115 of the Commission's rules, 47
C.F.R. § 1.115, that the Application for Review of Marcus
Cable Associates, LP v. Texas Utilities Electric Company,
Declaratory Ruling and Order, 12 FCC Rcd 10362 (Cable Serv.
Bur. 1997), IS GRANTED to the extent indicated above and in
all other respects, IS DENIED.
FEDERAL COMMUNICATIONS
COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 Application for Review, File No. PA 96-002 (filed Aug. 20,
1997) (``Application'').
2 Marcus Cable Associates, LP v. Texas Utilities Electric
Company, Declaratory Ruling and Order, 12 FCC Rcd 10362
(Cable Serv. Bur. 1997) (``Bureau Order'').
3 Complaint and Request for Declaratory Ruling, File No. PA
96-002 (filed July 24, 1996) (``Complaint'').
4 TU Electric was the named defendant in the Complaint. See
Complaint at 1. Subsequently, TU Electric was renamed TXU
US Holdings Company, and a newly formed company, Oncor
Electric Delivery Company, became the successor-in-interest
to the wired assets previously held by TU Electric. See
Letter from Jonathan L. Wiener, counsel for TU Electric, to
William Caton, Secretary, FCC, File No. PA 96-002 (Mar. 4,
2002). To avoid confusion, we will continue to refer to the
defendant as ``TU Electric.''
5 47 U.S.C. § 224.
6 Supplemental Response, File No. PA 96-002 (filed Dec. 13,
1996) (``Supplemental Response'') at 8.
7 Supplemental Response at 8-9; Bureau Order, 12 FCC Rcd at
10363-64, ¶ 5.
8 Complaint, Declaration of John Pietri (``Pietri
Declaration'') at 1, ¶ 2.
9 Complaint, Pietri Declaration at 1, ¶ 2.
10 Complaint at 8, ¶ 33, Exhibit 5 (CATV Pole Lease
Agreement).
11 Complaint at 3-4, ¶¶ 13-16.
12 Complaint at 9, ¶¶ 36-40.
13 Complaint at 6-8, ¶¶ 25-35, Exhibit 5 at 17-18 &
Attachment D; Reply, File No. PA 96-002 (filed Sept. 10,
1996) at 12-13, ¶¶ 31-34.
14 Complaint at 7, ¶ 26, Exhibit 5, Attachment D.
15 Complaint at 7-8, ¶¶ 28, 30, 37.
16 Complaint at 7, ¶ 29 & n.5; Reply at 10-11, ¶¶ 24-28.
17 Complaint at 9, 11, ¶¶ 36, 45-47.
18 Letter from Meredith J. Jones, Chief, Cable Services
Bureau, to Paul Glist, Counsel for Marcus, File No. PA 96-
002 (Dec. 2, 1996).
19 Complainant's Response to Bureau's Information Request,
File No. PA 96-002 (filed Dec. 18, 1996) (``Response to
Information Request''); Request to Withhold Information from
Public Inspection, File No. PA 96-002 (filed Dec. 18, 1996)
(``Request to Withhold Information'').
20 Response to Complaint and Request for Declaratory Ruling,
PA No. 96-002 (filed Aug. 22, 1996) (``Response'') at 5-7,
10; Supplemental Response at 2-3, 16-17.
21 Bureau Order, 12 FCC Rcd at 10365-68, ¶¶ 9-16.
22 Bureau Order, 12 FCC Rcd at 10369-71, ¶¶ 20-24.
23 Bureau Order, 12 FCC Rcd at 10371-73, ¶¶ 25-27.
24 Bureau Order, 12 FCC Rcd at 10373, ¶ 29.
25 Bureau Order, 12 FCC Rcd at 10373, ¶ 28.
26 Bureau Order, 12 FCC Rcd at 10373-6, ¶¶ 30-38.
27 Application at 5-7.
28 Application at 19-22.
29 Application at 7-11.
30 Application at 12, 14.
31 Application at 19.
32 47 U.S.C. § 224(b)(1).
33 47 U.S.C. § 224(b)(1).
34Amendment of Rules and Policies Governing the Attachment
of Cable Television Hardware to Utility Poles, Memorandum
Order and Opinion on Reconsideration, 4 FCC Rcd 468, 471, ¶
26 (1989).
35 Alabama Cable Telecommunications Ass'n v. Alabama Power
Co., Order, 16 FCC Rcd 12209, 12217, ¶ 18 (2002), review
denied sub nom. Alabama Power Co. v. FCC, 311 F.3d 1357
(11th Cir. 2002), petition for cert. filed, 71 U.S.L.W. 3653
(U.S. Apr. 4, 2003) (No. 02-1474) (``Alabama Power''). See
also Southern Co. Servs. Inc. v. FCC, 313 F.3d 574, 583
(D.C. Cir. 2002) (``Southern Company'') (upholding the
Commission's jurisdiction to resolve disputes over the terms
and conditions of existing contracts).
36 Response at 1-7, Declaration of Robert L. Ewing at 1-2, ¶
3; Supplemental Response at 2, 5-7; Application at 12-13,
21.
37 Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12.
38 Bureau Order, 12 FCC Rcd at 10366, 10372, ¶¶ 11-12, 26.
39 Bureau Order, 12 FCC Rcd at 10366-68, ¶¶ 12-16.
40 Application for Review at 5-7.
41 Application at 6-7.
42 See, e.g., Complaint at 6-12, ¶¶ 24-50 (alleging that the
provisions of the Agreement requiring (1) disclosure of
information relating to Marcus's customers; (2) execution of
releases by its customers; and (3) payment of a portion of
non-video revenue are unreasonable terms and conditions
under section 224).
43 See note 45, infra
44 47 U.S.C. § 224(b).
45 See, e.g., Mile Hi Cable Partners v. Public Service
Company of Colorado, Order, 17 FCC Rcd 6268, 6270, ¶ 7
(2002) (the Commission had jurisdiction where the issue was
``not whether the Complainant failed to pay an invoice based
on a just and reasonable term or condition, but whether the
term or condition itself was reasonable''), petition for
review filed sub nom. Public Service Co. of Colorado v. FCC,
No. 02-1163 (D.C. Cir. May 24, 2002).
46 Application at 7-13.
47 Application at 7-13. As part of this argument, TU
Electric contends that the Bureau erroneously determined
that the fee TU Electric charged Marcus for Marcus's alleged
overlashing was an unreasonable term and condition of
attachment, rather than ``restitution'' for breach of
contract. Application at 13-14. Again, notwithstanding TU
Electric's nomenclature, this case is not simply a contract
dispute. The Bureau correctly concluded that the fee was a
term and condition of attachment and, accordingly, that the
Commission appropriately assessed the justness and
reasonableness of the fee. 47 U.S.C. § 224(b).
48 Application at 7-13.
49 A handhole is ``[a]n access opening, provided in
equipment or in a below-the-surface enclosure in connection
with underground lines, into which personnel reach but do
not enter, for the purpose of installing, operating, or
mainlining equipment or cable or both.'' National Electric
Safety Code at 7 (1997 ed.).
50 Complaint, Exhibit 9 (Letter from Robert L. Ewing,
Distribution Planning Manager, TU Electric, to Marcus (May
20, 1996)).
51 Complaint, Exhibit 9.
52 Complaint, Exhibit 9.
53 Complaint, Pietri Declaration at 1, ¶ 2.
54 Response to Information Request at 1-2.
55 Response to Information Request at 2-3.
56 Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12.
57 Because Marcus did not allow a third-party to overlash
its cable, it was not necessary for the Bureau to determine
the reasonableness of the non-assignment provision. See
Implementation of Section 703(e) of the Telecommunications
Act of 1996, Consolidated Partial Order on Reconsideration,
16 FCC Rcd 12103, 12141, ¶ 75 (2001) (``Reconsideration
Order''), aff'd Southern Company, 313 F.3d at 574.
58 Complaint, Pietri Declaration at 1, ¶ 2; Response to
Information Request at 1-4.
59 See Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12. TU
Electric also argues that Marcus did not adequately support
its request for confidential treatment. Application at 8-
10. In any event, because the Bureau did not rely on the
confidential information, we need not repeat the lengthy
discussion contained in the Bureau Order and its analysis of
this issue. See Bureau Order, 12 FCC Rcd at 10373-77, ¶¶
30-38.
60 Application at 3, 12-18. In addition to the overlashing
issues, TU Electric claims it wrongly was assigned the
burden of proof on the reasonableness of the Agreement's
disclosure and indemnification provisions. We discuss this
contention infra, section III.D.
61 See Adoption of Rules for the Regulation of Cable
Television Pole Attachments, First Report and Order, 68
FCC2d 1585, 1598, ¶ 40 (1978); 47 C.F.R. §§ 1.407,
1.1404(j), 1.1409(a); cf. Implementation of the
Telecommunications Act of 1996, Amendment of Rules Governing
Procedures to Be Followed When Formal Complaints Are Filed
Against Common Carriers, Report and Order, 12 FCC Rcd 22497,
22617, ¶ 295 (1997) (subsequent history omitted) (it is
``incumbent upon a defendant . . . to respond fully to any
prima facie showing made by a complainant, with full legal
and evidentiary support'').
62 See Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12;
Complaint, Pietri Declaration at 1, ¶ 2; Response to
Information Request at 1-3.
63 Bureau Order, 12 FCC Rcd at 10371, ¶ 24; Application at
17.
64 Alabama Power, 311 F.3d at 1371; see 47 C.F.R. § 1.1407
(``. . . no other filings . . . will be considered unless
authorized by the Commission''); 47 C.F.R. § 1.1411 (``The
Commission may decide each complaint upon the filings and
information before it, may require one or more informal
meetings with the parties to clarify the issues or to
consider settlement of the dispute, or may, in its
discretion, order evidentiary procedures upon any issues it
finds to have been raised by the filings.'').
65 In addition to the Agreement, Marcus submitted
representative invoices and correspondence with TU Electric
relating to the Agreement, as well as declarations of
Marcus's Senior Vice President, Vice President of
Engineering and Technology, and counsel regarding efforts to
negotiate contract terms with TU Electric. See Complaint,
Exhibits 1-10 and declarations attached thereto; Reply,
Exhibit 2 and declaration attached hereto. Further, Marcus
responded in writing under oath to questions propounded by
the Bureau and provided certain franchise materials with
respect to its provision of non-video data capacity to local
governments. Response to Information Request and attachment
thereto. In conjunction with its Response, TU Electric
submitted four declarations as well as correspondence
relating to the execution of the Agreement. Response,
Appendices A-E.
66 Bureau Order, 12 FCC Rcd at 10366, ¶¶ 11-12.
67 Alabama Power, 311 F.3d at 1372.
68 Pub. L. No. 104-104, 110 Stat. 56 (1996).
69 See Heritage Cablevision Assoc. of Dallas v. Texas Util.
Elec. Co., Memorandum Opinion and Order, 6 FCC Rcd 7099
(1991), recon. denied, 7 FCC Rcd 4192 (1992), aff'd sub nom.
Texas Util. Elec. Co. v. FCC, 997 F.2d 925 (D.C. Cir. 1993)
(``Heritage Cablevision''). In Heritage Cablevision, the
Commission determined that the jurisdiction conferred by
section 224 extended to pole attachments that carry non-
video services in addition to traditional cable video
services. Heritage Cablevision, 6 FCC Rcd at 7107, ¶ 39.
70 Application at 20.
71 Application at 21.
72 Application at 21.
73 Reconsideration Order, 16 FCC Rcd at 12146, ¶ 86.
74 Application at 15-18.
75 Bureau Order, 12 FCC Rcd at 10368, ¶ 17.
76 Bureau Order, 12 FCC Rcd at 10370-71, ¶¶ 22-23.
77 Bureau Order, 12 FCC Rcd at 10369-70, ¶ 20.
78 Bureau Order, 12 FCC Rcd at 10369-70, ¶ 20.
79 Bureau Order, 12 FCC Rcd at 10369-70, ¶ 20.
80 See Complaint at 7, ¶ 29 & n.5; Reply at 9-11, ¶¶ 23-28 &
Exhibit 5.
81 Cf. paragraph 13, supra.
82 Application at 19.
83 Bureau Order, 12 FCC Rcd at 10373, ¶ 28.
84 Application at 19.
85 Application at 19.