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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
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Arkansas Cable Telecommunications
Association; Comcast Of Arkansas, Inc.; )
Buford Communications I, L.P. d/b/a
Alliance Communications Network; WEHCO )
Video, Inc.; and TCA Cable Partners d/b/a
Cox Communications, )
EB Docket No. 06-53
Complainants, )
File No. EB-05-MD-004
v. )
Entergy Arkansas, Inc., )
Respondent. )
)
)
)
)
)
HEARING DESIGNATION ORDER
Adopted: March 1, 2006 Released: March 2, 2006
By the Chief, Enforcement Bureau:
I. introduction
1. Pursuant to the Commission's rules, we issue this Hearing Designation
Order ("HDO") to initiate a hearing before an Administrative Law Judge
("ALJ") in the above-captioned complaint proceeding that complainants
Arkansas Cable Telecommunications Association ("ACTA"), Comcast of
Arkansas, Inc. ("Comcast"), Buford Communications I, L.P. d/b/a
Alliance Communications Network ("Alliance"), WEHCO Video, Inc.
("WEHCO"), and TCA Cable Partners d/b/a Cox Communications ("Cox")
(collectively, "Cable Operators" or "Complainants") filed against
respondent Entergy Arkansas, Inc. ("Entergy") pursuant to section 224
of the Communications Act of 1934, as amended ("Act") and the
Commission's pole attachment rules. As explained more fully below, the
purpose of the hearing will be to take evidence and make
determinations on disputed issues, as set forth in Part IV, infra.
II. background
A. The Parties' Submissions
2. Complainants are four cable operators in the state of Arkansas and
their trade association. The four cable operators operate cable
television systems within the meaning of section 224(a)(4) of the Act.
Entergy is a "utility" in Arkansas within the meaning of section
224(a)(1) of the Act.
3. The Complaint alleges, inter alia, that Entergy violated section 224
by imposing on the Cable Operators a variety of allegedly unjust,
unreasonable, and discriminatory terms and conditions of attachment.
The Complaint further alleges that Entergy unlawfully denied
complainants Comcast and Alliance access to its poles, in violation of
section 224 of the Act and section 1.1403(a) of the Commission's pole
attachment rules, by imposing a permitting freeze on their
attachments. Entergy filed a Response to the Complaint in which it
denied Complainants' allegations. Entergy's Response also raised a
number of defenses, including that the Commission lacks jurisdiction
over the Complaint insofar as Complainants seek a determination
regarding the reasonableness of Entergy's choice and application of
engineering standards, and that complainant Cox is not a proper party
to this proceeding. Complainants then filed a Reply.
4. Each of the pleadings filed in this proceeding is exceptionally
voluminous and raises numerous disputed issues of fact and law.
Consequently, Commission staff issued a letter order instructing the
parties to meet and confer and file a Joint Statement setting forth
all (a) stipulated facts; (b) disputed facts as to which either party
or both parties seek a finding from the Commission; and (c) legal
issues as to which either party or both parties seek a conclusion from
the Commission. In response, the parties filed a Joint Statement that
spans nearly 200 pages. It contains few stipulations of fact or law,
and consists overwhelmingly of summaries of the numerous factual and
legal issues that remain in dispute between Entergy and the Cable
Operators.
A. The Propriety of a Hearing
5. The Complaint in this case raises a large number of complex factual
and legal issues involving four cable operators with facilities
located throughout the state of Arkansas. Broadly speaking, these
issues include the reasonableness of certain engineering standards
that Entergy has sought to impose on Complainants and whether these
standards are consistent with the parties' past practices; whether
Entergy has applied its engineering standards in a discriminatory
manner; the reasonableness of the design, method, and costs of
Entergy-initiated inspections of Complainants' attachments; the
allocation of responsibility for the costs of correcting numerous
alleged safety and engineering violations; and the extent,
circumstances, and reasonableness of Entergy's alleged refusals to
grant access to its poles to Comcast and Alliance. The disputed
attachments number in the tens of thousands and, in many cases, date
back to the 1980's. Some of the conduct at issue spans decades. The
parties' submissions include thousands of pages of company documents
and photographs, and conflicting declarations both from numerous fact
witnesses and experts.
6. In view of the large number of factual and legal issues in dispute,
the resolution of which may, in many cases, depend on determinations
as to the credibility of opposing witnesses, we conclude that this
proceeding should be designated for a hearing before an ALJ. We find
that a hearing presents the best opportunity for the Commission to
examine and test the many conflicting allegations that all parties
have leveled in this case, and to arrive at a just, equitable, and
expeditious resolution. Although a hearing is clearly not warranted in
every pole attachment dispute, we believe that the breadth and
complexity of this proceeding make a hearing appropriate here.
III. Resolution of Threshold Issues
7. Entergy raises two threshold issues that we do not designate for
hearing, but instead decide in this HDO. The first issue concerns the
Commission's jurisdiction to decide Complainants' claims regarding
engineering standards, and the second concerns the propriety of
joining Cox as a complainant in this proceeding. We address each of
these issues below.
A. Commission Jurisdiction
8. Entergy challenges the Commission's authority to address the Cable
Operators' allegations regarding Entergy's engineering standards.
Entergy argues that the Commission lacks "specific expertise with
respect to electric utilities and their unique safety and operational
issues," and asserts that the Commission "does not have jurisdiction .
. . to specify the engineering standards that a utility must employ."
According to Entergy, because "[m]ost states, including Arkansas,
already have the authority to address safety, engineering and
reliability issues, . . . [j]urisdiction, therefore, is properly
located with the states as to engineering, reliability and safety."
9. Entergy's argument assumes, incorrectly, that deciding the merits of
the Complaint will require the Commission to establish a comprehensive
set of engineering standards that Entergy and other utilities would be
required to use throughout their operations. The Complainants'
allegations regarding engineering standards raised in the Complaint
are actually much narrower in scope. The Complainants challenge
particular engineering standards, and seek a determination of whether
Entergy's application of each such standard in the unique
circumstances presented constitutes an unjust and unreasonable term or
condition of attachment in violation of section 224(b)(1) of the Act.
The Complaint also accuses Entergy of wrongfully denying Comcast and
Alliance access to its poles based on purported safety and reliability
concerns in violation of section 224(f)(1) and (2) of the Act. This
denial of access claim, like Complainants' allegations of unjust and
unreasonable terms and conditions of attachment, challenges the
application of specific engineering standards and practices in the
unique circumstances presented here.
10. The parties agree that the Commission has jurisdiction over the
justness and reasonableness of rates, terms, and conditions of pole
attachments under section 224(b) of the Act. The parties also
acknowledge that, under section 224(f)(1) and (2), a utility must
provide cable television systems with "nondiscriminatory access to any
pole, duct, conduit or right-of-way owned or controlled by it," but
the utility "may deny access to its poles for insufficient capacity,
or for reasons of safety, reliability, and generally applicable
engineering purposes." Pursuant to the provisions of section 224, the
Commission, through its Bureaus, has exercised its jurisdiction in
prior pole attachment complaint proceedings to determine whether a
pole owner's adoption or application of specific engineering standards
was unjust and unreasonable. Making such a determination does not
require the Commission to establish a set of engineering standards
that utilities must use across-the-board. Indeed, in adopting rules
governing pole attachments, the Commission expressly declined to
establish a comprehensive set of engineering standards that would
govern when a utility could deny access to its poles based on
capacity, safety, reliability, or engineering concerns. The Commission
concluded, instead, that "the reasonableness of particular conditions
of access imposed by a utility should be resolved on a case-specific
basis."
11. At the same time, the Commission "reject[ed] the contention of some
utilities that they are the primary arbiters of such [safety,
reliability, and engineering] concerns," and required utilities "to
justify any conditions they place on access." Further, the Commission
rejected the suggestion -- also advanced by Entergy here -- that state
and local regulators, rather than the Commission, have primary
responsibility for determining whether a utility's engineering
standards and practices are just and reasonable under section 224.
Although the Commission found that state and local requirements
affecting attachments are entitled to deference, it concluded that
"[w]here a local requirement directly conflicts with a rule or
guideline we adopt herein, [the Commission's] rules will prevail." The
Commission thus confirmed that it has jurisdiction to review and
reject a challenged engineering standard or practice as unjust or
unreasonable under section 224, even where the standard or practice
complies with state or local requirements.
12. Adopting Entergy's suggestion that the Commission lacks jurisdiction
to determine the justness or reasonableness of the engineering
standards a utility may impose on attachers would largely rob section
224(b)(1) of meaning. Under Entergy's construction, the Commission
would lack jurisdiction any time a utility raised safety or
reliability concerns to justify the engineering standards it imposed
on attachers. To allow utilities to thus evade Commission review would
undermine the purpose of section 224 to "prohibit utilities from
engaging in unfair pole attachments practices" and to "ensure that the
deployment of communications networks and the development of
competition are not impeded by private ownership and control of . . .
scarce infrastructure and rights-of-way." For all the foregoing
reasons, we reject Entergy's overly restrictive view of the
Commission's jurisdiction. We affirm the Commission's authority to
decide whether Entergy's application of the particular engineering
standards at issue in the Complaint is unjust and unreasonable under
section 224(b), and whether Entergy unlawfully denied Complainants
access to its poles based on purported safety and reliability concerns
in violation of section 224(f).
A. Joinder of Cox
13. Entergy contends that we should dismiss complainant Cox from this
action, because the allegations in the Complaint regarding Cox's
attachments differ so substantially from the allegations regarding the
other Cable Operators as to make joinder of Cox in this proceeding
improper. Entergy asserts that the purpose of joinder is to prevent
duplicative complaint proceedings where there are common issues of
fact and law, and argues that such commonality is absent here.
Complainants acknowledge that the facts in this proceeding "are to
some extent specific to each Complainant," but argue that there are
"many common areas of fact, experience, injury suffered, law and
relief due that warrant prosecuting this matter in a single
complaint."
14. Section 1.1404(a) of the pole attachment rules, which governs joinder
of complainants in a single proceeding, does not specify particular
requirements for joinder. It simply states: "Complainants may join
together to file a joint complaint." Still, the rule would seem to
contemplate joinder of claims by multiple attachers against a pole
owner only in situations where each of the attachers' claims involve
comparable contractual provisions and similar grievances.
15. In this case, the parties stipulate that all the Complainants,
including Cox, "are subject to separate but identical pole attachment
agreements governing the attachment of Complainants' facilities to
Entergy's poles." The Complaint allegations concerning Cox's
attachments share many elements in common with the allegations
concerning the other Cable Operators' attachments. For example, the
Complaint asserts that Entergy is imposing on Cox the same allegedly
unreasonable, discriminatory, and unjust charges that it is imposing
on Comcast, Alliance, and WEHCO. The Complaint further alleges, with
respect to Cox's attachments, that Entergy unlawfully failed to
allocate properly the costs of inspections among attachers; imposed
unreasonable overhead charges on the costs of inspections; improperly
inspected poles on which Cox has no attachments; and cited Cox for
purported violations of clearance standards for facilities that
allegedly fall well within the standards in the National Electric
Safety Code ("NESC"). These allegations are similar, if not identical,
to the allegations the other Complainants assert against Entergy.
16. In an effort to demonstrate the absence of common factual and legal
issues between Cox and the other Complainants, Entergy points out that
Cox's attachments, unlike those of the other Complainants, have not
been subject to an Entergy-initiated test inspection or a full safety
inspection. Instead, Entergy has engaged a contractor to conduct
pre-construction engineering, make-ready, and post-construction
inspections with respect to Cox's upgrades to its facilities. Although
Cox acknowledges that Entergy has not yet conducted a test audit or
safety inspection of Cox's facilities, Cox asserts that Entergy has
indicated its intent to impose on Cox's upgrade process many of the
same objectionable inspection and engineering standards that Entergy
has allegedly imposed on the other Complainants.
17. We conclude that the factual distinctions that Entergy has identified
do not warrant dismissal of Cox from this proceeding. Cox's
allegations challenge many of the same engineering standards,
contractual provisions, and charges that the other Complainants have
put at issue in this proceeding. Nothing in section 1.1404(a) of the
pole attachment rules requires a total identity of allegations among
complainants. Given the significant degree of overlap between Cox's
claims and those of the other Complainants, we believe that forcing
Cox to litigate its claims in a separate proceeding would result in a
needless duplication of effort and increased expenditure of resources
by both the parties and the Commission. For these reasons, we deny
Entergy's request to dismiss Cox from this proceeding.
IV. Issues to be addressed in hearing
18. We hereby designate for a hearing before an ALJ each of the following
disputed issues set forth in the parties' Joint Statement:
Issues Relating to Entergy's Engineering Standards
1(a). To determine whether it is unjust and unreasonable for Entergy to
require Complainants to comply strictly with the engineering standards in
the pole attachment agreements as a condition of access.
1(b). To determine whether, and under what circumstances, it is reasonable
for Entergy to require Complainants to obtain "sign off" from an
Arkansas-licensed professional engineer as to the grandfathered status of
an attachment or as to the applicability of an NESC exception.
1(c). To determine whether the Entergy engineering standards that
Complainants challenge in the Complaint exceed those of the NESC, or its
grandfathering provisions or exceptions, and if so, whether such
heightened standards are unjust and unreasonable.
Issues Relating to Entergy's Charges to Complainants
2(a). To determine whether Entergy designed its pole surveys without
Complainants' input, and if so, whether such conduct was unjust and
unreasonable.
2(b). To determine whether Entergy's inspection and clean-up program was
initiated in response to safety and reliability problems with
Complainants' facilities.
2(c). To determine whether Entergy unlawfully inflated cable operator
invoices with so-called "phantom" attachments.
2(d). To determine whether Entergy and its survey contractor failed to
ensure quality control in the survey.
2(e). To determine whether the costing model used by Entergy is
unreasonable.
2(f). To determine whether it is unjust and unreasonable for Entergy to
charge an overhead fee for processing contractor invoices.
2(g). To determine whether Entergy may recover directly from Complainants
the cost of inspections that occurred more than one year after the
installation of Complainants' facilities.
2(h). To determine whether the charges Entergy has sought to impose on
Complainants for inspections, corrections, and/or clean-up of facilities
are contrary to the parties' pole attachment agreements or are otherwise
unjust and unreasonable.
Issue Relating to Complainants' Allegedly Unauthorized Attachments
3. To determine whether the Complainants have made unauthorized
attachments to Entergy's poles, and if so, whether Entergy's charges for
such unauthorized attachments are unjust and unreasonable.
Issues Relating to the Responsibility for Correcting Allegedly
Non-Compliant Pole Conditions
4(a). To determine the extent to which Entergy or its contractor made
assignments of responsibility for remediation based on field evidence
and/or presumptions as to the normal course of installation, and if so,
whether such presumptions were unjust and unreasonable.
4(b). To determine whether Entergy seeks to impose record-keeping
responsibilities on Complainants with respect to their attachments on
Entergy's poles that are inconsistent with the parties' prior practices
and are unjust and unreasonable.
4(c). To determine whether Entergy has installed electric facilities out
of compliance with the NESC and/or Entergy's own standards, and if so,
whether it has unreasonably attempted to hold Complainants responsible for
costs associated with correcting those conditions.
Issues Relating to Pole Access
5(a). To determine whether Entergy has denied Complainants access to its
poles, or placed conditions on access, based on reasonable concerns about
existing widespread safety violations, or potential safety violations,
associated with Complainants' proposed new attachments.
5(b). To determine whether Entergy has denied access to its poles based on
Complainants' failure to adhere to standards that exceed the requirements
of the NESC, and if so, whether such conduct by Entergy is unjust and
unreasonable.
5(c). To determine whether Complainants have installed and maintained
their facilities in accordance with the parties' past practices, and if
so, whether Entergy may deny access to its poles based on Complainants'
conduct that may not comply with the pole attachment agreements but is
consistent with the parties' past practices.
Issue Relating to Allegations of Discrimination
6. To determine whether Entergy has discriminated against Complainants and
in favor of other communications companies in violation of Section 224 of
the Act.
Issue Relating to Relief
7. To determine, in light of the evidence adduced on the foregoing issues,
whether Complainants are entitled to the relief requested in the
Complaint, and if so, the nature and scope of the relief to which
Complainants are entitled.
V. procedural designations
A. Procedural and Evidentiary Rules
19. The proceeding before the ALJ shall be governed by sections 1.201
through 1.364 of the Commission's rules of practice for hearing
proceedings, to the extent practicable for the adjudication of this
matter. The ALJ may, in his discretion, require the parties to submit
all or any portion of their case in writing if he determines that such
written submissions would contribute significantly to the disposition
of the proceeding.
A. Discovery
20. Discovery shall be conducted in accordance with sections 1.311-1.325
of the Commission's rules.
A. Burdens of Proceeding and Proof
21. The Complainants shall have both the burden of establishing a prima
facie case and the burden of proof with respect to Issues 1(a) through
(c), 2(a) through (h), 3, 4(a) through (c), and 6. With respect to
Issues 5(a) through (c), the Complainants shall have the burden of
establishing a prima facie case that Entergy denied them access to its
poles in violation of Section 224(f)(1) and (2) of the Act, and
Entergy shall have the burden of proving that the denial was lawful,
once a prima facie case is established by the Complainants.
A. Bureau Participation
22. The Enforcement Bureau shall be a party to the hearing before the ALJ
and will determine its level of participation, as appropriate.
Pursuant to section 1.47(c) of the Commission's rules, the Bureau
shall be served with documents in the same manner as other parties.
VI. ORDERING CLAUSES
23. 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 0.111, 0.311, 1.1411, and 1.1415
of the Commission's rules, 47 C.F.R. SS 0.111, 0.311, and 1.1411, and
1.1415, that the above-captioned complaint proceeding IS DESIGNATED
FOR A HEARING before an ALJ, at a time and place to be specified in a
subsequent Order, upon the issues specified in paragraph 18 of this
Order;
24. IT IS ORDERED, pursuant to section 224 of the Communications Act of
1934, as amended, 47 U.S.C. S 224, and sections 1.1401-1.1418 of the
Commission's rules, 47 C.F.R. SS 47 C.F.R. SS 1.1401-1.1418, that
Entergy's request to dismiss certain claims for lack of jurisdiction
is DENIED;
25. IT IS FURTHER ORDERED, pursuant to section 224 of the Communications
Act of 1934, as amended, 47 U.S.C. S 224, and section 1.1404(a) of the
Commission's rules, 47 C.F.R. SS 47 C.F.R. SS 1.1404(a), that
Entergy's request to dismiss Cox for improper joinder is DENIED;
26. IT IS FURTHER ORDERED that, to avail themselves of the opportunity to
be heard and the right to present evidence, the designated parties,
pursuant to section 1.221 of the Commission's rules, 47 C.F.R. S
1.221, SHALL FILE in triplicate, within twenty (20) days of the
mailing of this Order, a WRITTEN NOTICE OF APPEARANCE, stating an
intention to appear on whatever date the ALJ shall fix for the
hearing, and to present evidence on the issues specified in this
Order.
27. IT IS FURTHER ORDERED, that this hearing will be governed by the rules
of practice and procedure pertaining to the Commission's Hearing
Proceedings, 47 C.F.R. SS 1.201-1.364, subject to the ALJ's discretion
to regulate the hearing.
28. IT IS FURTHER ORDERED, that all discovery shall be conducted in
accordance with 47 C.F.R. SS 1.311-1.325, subject to the ALJ's
discretion.
29. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the
Commission's rules, 47 C.F.R. S 1.1409(b), that the Complainants shall
have the both the burden of establishing a prima facie case and the
burden of proof with respect to Issues 1(a) through (c), 2(a) through
(h), 3, 4(a) through (c), and 6 listed in paragraph 18 above.
30. IT IS FURTHER ORDERED, pursuant to section 1.1409(b) of the
Commission's rules, 47 C.F.R. S 1.1409(b), that, with respect to
Issues 5(a) through (c) listed in paragraph 18 above, the Complainants
shall have the burden of establishing a prima facie case that Entergy
denied them access to its poles in violation of Section 224(f)(1) and
(2) of the Act, and Entergy shall have the burden of proving that the
denial was lawful, once a prima facie case is established by the
Complainants.
31. IT IS FURTHER ORDERED, that the Enforcement Bureau shall be a party to
the proceeding.
32. IT IS FURTHER ORDERED, that the Secretary of the Commission shall
cause to have this Order published in the Federal Register.
33. IT IS FURTHER ORDERED that the Commission's Consumer and Governmental
Affairs Bureau, Reference Information Center, SHALL SEND copies of
this Order to all parties by certified mail, return receipt requested.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief
Enforcement Bureau
See 47 C.F.R. SS 1.1411 (providing that, in pole attachment complaint
proceedings, the Commission "may, in its discretion, order evidentiary
procedures upon any issues it finds to have been raised by the filings");
0.111(a)(12) (delegating to the Enforcement Bureau the authority to
resolve complaints regarding pole attachments filed under 47 U.S.C. S
224); 0.111(a)(17) (delegating to the Enforcement Bureau the authority to
issue orders taking appropriate action in response to complaints,
including hearing designation orders). See also 47 C.F.R. S 1.415
(providing that 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."). See generally 47 U.S.C. SS 154(i), 154(j).
Pole Attachment Complaint, File No. EB-05-MD-004 (filed Feb. 18, 2005)
("Complaint").
47 U.S.C. S 224.
47 C.F.R. SS 1.1401-1.1418.
Complaint at 2, PP 2-6.
47 U.S.C. S 224(a)(4); Complaint at 2, PP 2-6; 24, P 84; 33, P 126; 37, P
149; 42, P 174; Response to Complaint, File No. EB-05-MD-004 (filed April
19, 2005) ("Response") at 102, PP 176-80; 153, P 290; 175, P 337; 183, P
360; 190, P 385.
47 U.S.C. S 224(a)(1); Complaint at 2, P 7; Response at 102, P 181.
See, e.g., Complaint at 24-46, 50-84.
47 U.S.C. S 224.
47 C.F.R. S 1.1403(a).
See Complaint at 47-50, PP 202-212; 83-84, P 379(a).
See Response.
Response at 14-18, PP 23-24, 28.
Response at 8, P 14; 45, P 73.
Reply to Defendant's Response (filed June 10, 2005) ("Reply").
Letter Order, File No. EB-05-MD-004 (dated July 8, 2005). The letter order
also instructed the parties to state briefly their differing positions on
each disputed factual and legal issue. Id.
Joint Statement, File No. EB-05-MD-004 (filed Aug. 29, 2005) ("Joint
Statement").
For example, the dispute concerns engineering standards relating to, inter
alia, clearance or separation requirements between facilities on poles at
residential drops (see, e.g., Complaint at 59, PP 254-58; 60, PP 261-66;
61, PP 270-76; Response at 58, PP 96-99; 62, PP 102-3; 65, PP 108-112);
bonding of Complainants' facilities to the poles (see, e.g., Complaint at
60, PP 259-60; Response at 60-61, PP 100-01); and anchors (see, e.g.,
Complaint at 61, PP 267-68; Response at 63-64, PP 104-06).
See 47 C.F.R. SS 1.1411; 0.111(a)(12); 0.111(a)(17); 1.415. See also 47
C.F.R. SS 1.201-1.364
See, e.g., Multimedia Cablevision, Inc. v. Southwestern Bell Telephone
Co., Hearing Designation Order, 11 FCC Rcd 11202 (1996); TCA Management
Co. et al. v. Southwestern Public Service Co., Hearing Designation Order,
10 FCC Rcd 11832 (1995); Florida Cable Telecommunications Ass'n., Inc. v.
Gulf Power Co., Hearing Designation Order, 19 FCC Rcd 18718 (Enf. Bur.
2004).
See, e.g., Joint Statement at 4-10.
See, e.g., Joint Statement at 11-16.
Response at 14.
Joint Statement at 10, P 27. See Response at 14-16, PP 22-27; 17-18, P 28.
Joint Statement at 10, P 27. See Response at 17-18, P 28. We note that the
parties stipulate that the state of Arkansas has not certified under
section 224(c) of the Act that it regulates the rates, terms, and
conditions of attachments. Joint Statement at 4, P 15; 47 U.S.C. S 224(c).
The state of Arkansas thus has not preempted Commission jurisdiction over
the rates, terms, and conditions of pole attachments pursuant to section
224(c).
47 U.S.C. S 224(b)(1). See, e.g., Complaint at 59-62, PP 254-76.
See, e.g., Complaint at 47-50, PP 202-212; Joint Statement at 148-51, PP
339-45.
Joint Statement at 4, P 15. See 47 U.S.C. S 224(b)(1).
47 U.S.C. S 224(f)(2). See Joint Statement at 153, P 348. See also id. at
4, P 15.
See, e.g., Cable Television Association of Georgia v. Georgia Power Co.,
Order, 18 FCC Rcd 16333, 16338-39 at PP 10-12 (Enf. Bur. 2003) (finding
that certain proposed contract provisions were unjust and unreasonable,
and rejecting the pole owner's contention that these provisions were
necessary to prevent safety violations); Newport News Cablevision, Ltd.
Comm., Inc. v. Virginia Elec. and Power Co., Order, 7 FCC Rcd 2610,
2612-13 at PP 15-16 (Com. Car. Bur. 1992) (rejecting cable operator's
claims that the pole owner's safety standards relating to guying and
clearance were unreasonable).
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996; Interconnection between Local Exchange
Carriers and Commercial Mobile Radio Service Providers, First Report and
Order, 11 FCC Rcd 15499, 16067-74 at PP 1143-1150, 1158 (1996) (subsequent
history omitted)("Local Competition Order"). See id. at 16068, P 1145
(noting that the Commission's "determination not to prescribe numerous
specific rules is supported by acknowledgements in the relevant national
industry codes that no single set of rules can take into account all of
the issues that can arise in the context of a single installation or
attachment.") See also id. at 16070, P 1148 ("Because there is no fixed
manner in which to provide electricity, there is no way to develop an
exhaustive list of specific safety and reliability standards").
Local Competition Order, 11 FCC Rcd at 16067, P 1143.
Id. at 16074, P 1158. See Kansas City Cable Partners v. Kansas City Power
& Light Co., Order, 14 FCC Rcd 11599, 11604 at P 11 (Cab. Serv. Bur. 1999)
(a utility "may rely on the NESC [National Electric Safety Code] to
provide standards for safety, reliability, and generally applicable
engineering standards, but the utility is not the final arbiter of such
issues and its conclusions are not presumed reasonable") (citing Local
Competition Order, 11 FCC Rcd at 16074, P 1158).
Local Competition Order, 11 FCC Rcd at 16071, P 1150. The Commission
further concluded that, although a complainant challenging a denial of
access "must establish a prima facie case" and "state the grounds given
for the denial of access, the reasons those grounds are unjust or
unreasonable, and the remedy sought," the utility bears the burden of
justifying why the denial fits within one of the exceptions to the general
access mandate of section 224(f)(2). Id. at 16100-01, PP 1222-23. See 47
C.F.R. S 1.1409(b) (providing that, in a pole attachment complaint
proceeding, "[t]he complainant shall have the burden of establishing a
prima facie case that the rate, term, or condition is not just and
reasonable or that the denial of access violates 47 U.S.C. S 224(f)," but
"[i]n a case involving a denial of access, the utility shall have the
burden of proving that the denial was lawful, once a prima facie case is
established by the complainant.").
See, e.g., Local Competition Order, 11 FCC Rcd at 16072-73, P 1154-55.
Local Competition Order, 11 FCC Rcd at 16072-73, P 1154.
Notably, the Commission observed in the Local Competition Order that
nothing in section 224 "compels us to preempt . . . local [pole
attachment] regulations as a matter of course" and concluded that "it
would be unduly disruptive to invalidate summarily all such local
requirements." Id. at 161072-73, P 1154. These comments indicate that the
Commission recognized its authority to preempt state and local engineering
requirements, but declined to exercise that power summarily to invalidate
local regulations across-the-board.
Entergy's suggestion also conflicts with statements in Entergy's Response
requesting that the Commission require Complainants to remedy alleged
safety violations that Entergy has identified. Response at 18, P 29; 101,
P 173.
Promotion of Competitive Networks, Report and Order, 15 FCC Rcd 22983,
23014-15 at P 70 (2000)(citing S. Rep. No. 580, 95th Cong., 1st Sess. at
19, 20 (1977)) (internal quotations omitted). See also id. at 23,015, P 71
(noting that amendments to section 224 enacted in the Telecommunications
Act of 1996 extended the protections of section 224 to telecommunications
carriers; gave both cable operators and telecommunications carriers a
mandatory right of access to utility poles; and maintained "a scheme to
assure that the rates, terms and conditions governing such attachments are
just and reasonable.")
Implementation Of Section 703(e) Of The Telecommunications Act Of 1996,
Report and Order, 13 FCC Rcd 6777, 6780 at P 2 (1998) (subsequent history
omitted) (citing S. Rep. No. 580, 95th Cong., 1st Sess. 19, 20 (1977)).
Joint Statement at 16, P 44; Response at 8, P 14; 45, P 73.
Joint Statement at 16, P 44.
Joint Statement at 11, P 30.
47 C.F.R. S 1.1404(a). By contrast, section 1.723(a) of the Commission's
rules, which governs formal complaints under section 208 of the Act,
specifies that joinder of two or more complainants in one complaint is
permitted only "if their respective causes of action are against the same
defendant and concern substantially the same facts and alleged violation
of the Communications Act." 47 C.F.R. S 1.723(a). This proviso does not
appear in rule 1.1404(a).
See Adoption Of Rules For The Regulation Of Cable Television Pole
Attachments, First Report and Order, 68 F.C.C.2d 1585 (1978). In adopting
section 1.1404(a), the Commission noted that "a utility will typically
enter into comparable agreements with several CATV operators in its
service area so that if there is troublesome language or a contentious
provision in the agreement, the filings by affected CATV operators will
likely focus on the same or similar contractual provisions." Id. at 1591,
P 17. Rule 1.1404(a) was designed "to simplify the process for handling
such situations . . .[by] permit[ing] aggrieved parties to initiate a
consolidated multiple-issue complaint procedure." Id.
Joint Statement at 10, P 28.
Complaint at 45, P 190.
Complaint at 45, P 191(a).
Complaint at 45, P 191(d).
Complaint at 45, P 192.
Complaint at 47, P 199.
See Complaint at 24, PP 86-116; 33, PP 128-47; 38-41, PP 151-70; 55-83, PP
239-378.
Joint Statement at 15, P 41.
Joint Statement at 13, P 35.
Joint Statement at 13, P 35.
Complaint at 42, P 173.
Indeed, although only two of the four Complainants allege that Entergy
imposed a freeze on their applications for new attachments, Entergy has
not sought to dismiss any of the Complainants based on that distinction.
See Complaint at 47-50, PP 202-212.
See Complaint at 83-86, P 379(a) through (t).
47 C.F.R. SS 1.201-1.364.
See 47 U.S.C. SS 154(i), 154(j).
47 C.F.R. SS 1.311-1.325.
See 47 C.F.R. S 1.1409(b).
See 47 C.F.R. S 1.1409(b).
47 C.F.R. S 1.47(c).
See 47 C.F.R. S 1.1409(b).
See 47 C.F.R. S 1.1409(b).
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Federal Communications Commission DA 06-494
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Federal Communications Commission DA 06-494