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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of )
Salsgiver Communications, Inc., )
Complainant, )
File No. EB-06-MD-004
v. )
North Pittsburgh Telephone Company, )
Defendant. )
)
)
)
Memorandum opinion and order
Adopted: November 26, 2007 Released: November 26, 2007
By the Enforcement Bureau:
1. In this Order, we grant in part a pole attachment complaint filed by
Salsgiver Communications, Inc. ("Salsgiver") against North Pittsburgh
Telephone Company ("NPTC") pursuant to section 224 of the
Communications Act of 1934, as amended ("Act"). We hold that section
224 and the Commission's pole attachment rules require NPTC to allow
Salsgiver access to NPTC's poles in Buffalo Township, the Borough of
Freeport, and Harrison Township, Pennsylvania. We also find that
several terms in the NPTC-Salsgiver pole attachment agreement violate
section 224 and the Commission's rules. We therefore order NPTC to
amend the parties' pole attachment agreement to eliminate those terms
that we have found unlawful, and to process promptly Salsgiver's
attachment applications.
I. Background
2. Salsgiver describes itself as "a cable television operator, and a
provider of competitive communications services, including broadband
services." NPTC is an incumbent local exchange carrier in
Pennsylvania, and is a "utility" within the meaning of section
224(a)(1) of the Act. As a utility, NPTC must give "cable television
systems" nondiscriminatory access to attach their facilities to any
poles that it controls.
3. Salsgiver has been seeking to attach its facilities to NPTC's poles
since 2004. In its initial request, Salsgiver indicated that it
sought attachment for "wiring and equipment necessary to provide data
communications services." NPTC denied the request on the grounds
that, as a provider of only data communications services, Salsgiver
did not qualify for mandatory access under section 224. After much
negotiation, during which Salsgiver asserted that it was eligible for
access as a cable television system, NPTC eventually sent Salsgiver a
proposed pole attachment agreement. Salsgiver signed the Agreement in
September 2005, and then sent NPTC payment and an application
requesting access to specific poles.
4. Salsgiver has never attached its facilities to NPTC's poles, however.
In February 2006, NPTC again raised the issue whether Salsgiver was
entitled to access as a cable television system, in light of the fact
that Salsgiver had not yet installed a cable "headend." NPTC asserted
that the Pole Attachment Agreement required Salsgiver to identify the
location of its headend, and that a headend "is necessary for
Salsgiver Communications to be considered a cable television system"
entitled to pole access under the Act. NPTC returned Salsgiver's
application and payment, indicating that Salsgiver could resubmit them
if and when its headend was complete. Salsgiver then filed its
Complaint.
II. Discussion
A. Salsgiver Is Entitled to Access to NPTC's Poles in Areas Where It
Has a Local Franchise Agreement.
5. Under section 224(f)(1) of the Act, operators of "cable television
systems" are entitled to nondiscriminatory access to utility poles.
In a complaint proceeding, if a cable operator establishes a prima
facie case that it is entitled to such access, the utility has the
burden of proving that its denial of access is lawful. As explained
below, we find that, by presenting evidence of its local franchise
agreements, Salsgiver has established a prima facie case that it is
entitled to pole access as a cable operator. We also find that NPTC
has not rebutted Salsgiver's prima facie case. We therefore hold that
Salsgiver is entitled to access to NPTC's poles in the areas covered
by the franchise agreements.
6. The dispute in this case centers on whether Salsgiver actually intends
to provide cable television services -- which would make it eligible
for mandatory access to NPTC's poles -- or only services ineligible
for mandatory access, such as information services. As evidence that
it is a cable operator, Salsgiver provides copies of an FCC Cable
Community Registration Form 322 for the Borough of Freeport, and
cable franchise agreements with Buffalo Township, the Borough of
Freeport, and Harrison Township, Pennsylvania. Salsgiver also provides
the declaration of its Chief Executive Officer, Loren Salsgiver,
stating that the company has entered into programming agreements with
video content providers, and purchased some of the equipment it will
need to construct a cable headend.
7. The FCC Registration Form is not sufficient to establish a prima facie
case that Salsgiver is a cable operator. It does not represent an
authorization to operate a cable television system, or an FCC
determination that Salsgiver operates a cable television system. It
is merely a necessary, but not sufficient, prerequisite to providing
cable service. We also find the declarations about equipment and
programming agreements insufficient in themselves to make a prima
facie case. These declarations fail to identify any particular
equipment or programming suppliers.
8. We do, however, find Salsgiver's showing that it has cable franchise
agreements with a number of municipalities sufficient to create a
prima facie case that it is entitled to pole access as a "cable
television system" within the meaning of section 224(f)(1) of the Act.
These franchise grants demonstrate that the municipalities involved
expect Salsgiver to operate a cable television system. For instance,
the Harrison Township franchise requires Salsgiver, within three
years, to construct "an all-digital video system capable of offering
not less than one hundred seventy-eight (178) channels of programming
and high speed internet service." Moreover, in three other recent
cases involving NPTC, we found that prospective pole attachers can
rely on decisions by responsible regulatory agencies, such as
franchise authorities in the case of cable system attachers, to
establish a prima facie showing of their status as entities entitled
to pole access under section 224(f) of the Act. Furthermore, the Pole
Attachment Agreement itself recognizes franchise agreements as
relevant to assessing Salsgiver's status as a cable operator.
9. NPTC nevertheless argues that the Freeport and Buffalo franchise
agreements are inadequate to show that Salsgiver is a cable operator,
because they do not obligate Salsgiver to initiate service at any
particular time, or to serve specific areas "as cable franchises
customarily require." But NPTC provides no other agreements to
demonstrate what is "customarily required," and offers only
speculation that Salsgiver will not provide service under these
franchise agreements. Thus, we find NPTC's argument inadequate to
counter Salsgiver's prima facie showing.
10. Aside from attacking the franchise agreements, NPTC questions
Salsgiver's eligibility for pole attachment on four other bases. As
explained below, we find none of those arguments sufficient to rebut
Salsgiver's prima facie case.
11. NPTC first asserts that because Salsgiver has not yet constructed a
cable headend, it is not yet eligible to attach to NPTC's poles as a
cable operator. NPTC's primary support for this assertion is that the
Pole Attachment Agreement between the parties allegedly requires
Salsgiver to have a headend already in place. We disagree, even
assuming, arguendo, that such a contractual requirement would be
reasonable under section 224 of the Act. The only portion of the
Agreement that NPTC cites is Sheet 1 of Exhibit 1, "CATV System
Application for Permit to Attach to NPTC Pole(s)." This application
form includes a field for identifying "CATV headend street address."
Nothing, however, indicates that the application is invalid if there
is no such address yet. Moreover, a cable operator may have an
address where it is building, or plans to build, a headend before the
construction is complete. Thus, this field on the application form is
not sufficient to create the substantive requirement that NPTC claims.
12. Second, although NPTC accuses Salsgiver of "gloss[ing] over" the issue
of how it could be a cable television system within the meaning of
Part 76 of the Commission's rules without a fully constructed headend,
NPTC offers no legal argument to suggest that Salsgiver cannot be.
Rule 76.5 defines a cable system as "a facility consisting of a set of
closed transmission paths and associated signal generation, reception,
and control equipment that is designed to provide cable service."
Thus, rule 76.5 expressly contemplates that a network can qualify as a
cable television system, even if it is still in the design phase and
not yet fully operational, if it is intended to provide cable service.
The fact that Salsgiver's headend has not yet been completed does not,
in our view, disqualify Salsgiver from pole attachment rights as a
cable television system.
13. Third, NPTC argues more generally that Salsgiver does not actually
intend to provide cable services, but rather has "embarked upon a
staged campaign to dress itself up as an entity entitled to access
NPTC's poles." NPTC suggests that Salsgiver actually intends to use
NPTC's poles only to provide services not eligible for mandatory pole
attachment, such as information services. We find, however, that
Salsgiver's obtaining franchise agreements constitutes a strong prima
facie case that is not countered by mere speculation about Salsgiver's
motives and intentions. As discussed above, the Harrison Township
franchise requires Salsgiver to construct a cable system within three
years. Moreover, the Agreement already addresses NPTC's concerns about
whether Salsgiver will actually provide cable services via its
attachments to NPTC's poles. Section 9.2 of the Agreement provides
that Salsgiver's attachment rights will be deemed terminated if
Salsgiver fails to initiate cable television service to a franchise
area within one year after completion of make-ready work, or if
Salsgiver ceases providing cable service in a franchise area.
14. Finally, NPTC asserts that the franchise agreements "may not properly
be considered part of Salsgiver's evidence of its claim that it is a
bona fide `cable television system,'" because the agreements were not
filed with the Complaint. We disagree. Rule 1.1409 permits the
Commission to request additional filings or information from the
parties in pole attachment cases, and the staff made such a request
here for the franchise agreements. NPTC was given an opportunity to
respond, and was in no way unfairly prejudiced by the filing of this
additional information.
15. In sum, we find that Salsgiver has established a prima facie case,
unrebutted by NPTC, that it operates a "cable television system" in
Buffalo Township, the Borough of Freeport, and Harrison Township,
Pennsylvania. Therefore, we hold that Salsgiver is entitled, under
section 224 of the Act, to access NPTC's poles in these areas. We
order NPTC immediately to provide Salsgiver with nondiscriminatory
access to NPTC's poles in these areas, and promptly to process
Salsgiver's attachment applications submitted pursuant to the Pole
Attachment Agreement.
A. Salsgiver's Claims Regarding Rates, Terms, and Conditions of
Attachment are Granted in Part and Denied in Part.
16. Salsgiver attacks numerous terms of the Pole Attachment Agreement as
unjust, unreasonable, or discriminatory, in violation of section
224(b)(1) of the Act. As discussed below, we conclude that Salsgiver
has met its burden of proving that certain of the challenged
provisions are unlawful. Salsgiver has failed, however, to meet its
burden of proving that many other challenged provisions are unlawful.
1. The Pole Attachment Agreement Unreasonably Restricts Overlashing.
17. Section 3.2 of the Pole Attachment Agreement states that "Salsgiver is
limited to one attachment per Licensor Pole and one installation per
conduit, that attachment or installation is to include no more than
one (1) cable...." Salsgiver contends that, by limiting attachments
to one cable per pole, the Agreement unreasonably prohibits Salsgiver
from overlashing its own attachments. We agree. The Commission has a
long-standing policy against unreasonable restrictions on overlashing,
including restrictions on attachers' ability to overlash their own
facilities. The one-cable limitation does appear to ban Salsgiver from
overlashing its own facilities, and NPTC does not argue otherwise.
NPTC also fails to provide any justification for the limitation. Thus,
we find this blanket limitation to be unreasonable on its face, and
direct NPTC to eliminate this restriction on overlashing within 60
days of the release of this order.
18. NPTC's only response is that Salsgiver did not raise this issue while
the parties were negotiating the Pole Attachment Agreement. NPTC
raises this defense in response to a number of Salsgiver's other
claims as well. Failure to object to a pole attachment provision
prior to its adoption, however, does not necessarily preclude a
subsequent complaint, especially where, as here, the Agreement was
challenged within several months of its adoption. Thus, we reject
NPTC's argument in connection with this and all other issues as to
which it has been raised.
1. The Pole Attachment Agreement Unreasonably Restricts the Number of
Salsgiver's Attachments.
19. Salsgiver complains that, independent of its effect on overlashing,
the blanket prohibition on multiple attachments in section 3.2 of the
Agreement is facially unreasonable, and that NPTC can deny access only
on a case-by-case basis, and only when there is insufficient capacity,
or for reasons of safety, reliability, or engineering concerns. We
agree, given that section 224 allows exceptions to attachment rights
only for reasons of insufficient capacity, safety, reliability, and
generally applicable engineering purposes. NPTC offers no such
justification for this limitation, noting only that Salsgiver did not
raise the issue earlier, does not assert that it has requested
multiple attachments, and does not prove that it needs multiple
attachments. Under the Act, none of these factors permits such a
restriction. Therefore, we direct NPTC, within 60 days, to revise the
Pole Attachment Agreement to eliminate this limitation.
1. The Pole Attachment Agreement Unlawfully Restricts Salsgiver's Use
of "Boxing."
20. As previously indicated, the Act requires utilities to allow cable
operators to make attachments to utility poles, allowing exceptions
only "on a non-discriminatory basis where there is insufficient
capacity and for reasons of safety, reliability and generally accepted
engineering purposes." Salsgiver asserts that section 3.2 of the
Agreement violates the Act by imposing a discriminatory restriction on
Salsgiver's attachments. Section 3.2 provides that "Salsgiver shall
make all attachments on the same side of the Licensor Pole as Licensor
has done . . . . Two-sided attachments are prohibited." Salsgiver
complains that this provision discriminatorily prohibits Salsgiver
from engaging in the "commonly-accepted industry practice" of
"boxing," the installation of facilities on both sides of a pole at
approximately the same height. Salsgiver asserts that NPTC itself uses
boxing, and allows other attachers to do so as well. NPTC does not
actually deny this, but says that Salsgiver "does not aver facts to
show that NPTC itself uses `boxing.'" In reply, however, Salsgiver
offers photographic evidence of boxing on NPTC poles.
21. Given the evidence that NPTC does allow boxing on some occasions, we
find that the Agreement's blanket ban on Salsgiver's doing so is
discriminatory and thus in violation of section 224 of the Act.
Moreover, although NPTC states that "boxing creates an unnecessary
safety hazard and/or encumbrance for NPTC lineman (sic) and
technicians," that statement is unsupported by specific facts or
analysis, and is undermined by the evidence of some boxing on NPTC's
poles. Accordingly, we direct NPTC, within 60 days, to revise the Pole
Attachment Agreement to eliminate this discriminatory provision.
1. The Pole Attachment Agreement Unreasonably Requires Salsgiver to
Incur Make-Ready Costs With No Assurance That Those Costs Will Be
Reasonable.
22. Section 4.1.3 of the Agreement provides that Salsgiver's submission of
a pole attachment application is deemed to constitute Salsgiver's
agreement to pay for the cost of the Make-Ready survey. Under the
Agreement, NPTC is not required to provide, nor is Salsgiver
apparently permitted to demand, an estimate of those costs before
Salsgiver is deemed to have agreed to pay them. We find this provision
to be unreasonable on its face. NPTC argues that it is not
unreasonable to charge Salsgiver for the cost of the survey. We agree
- the problem with this provision lies only in the fact that Salsgiver
is committed to costs in an unspecified amount, with no opportunity to
review them in advance. We direct NPTC, within 60 days, to revise the
Pole Attachment Agreement to provide Salsgiver an opportunity to
review a cost estimate before incurring Make-Ready costs.
1. The Pole Attachment Agreement Unreasonably Requires That Third
Parties Overlashing Salsgiver's Attachments Obtain A License From
NPTC.
23. Section 5.2.3. of the Agreement prohibits Salsgiver from allowing any
third party to overlash Salsgiver's attachments without obtaining a
license to overlash from NPTC. Salsgiver argues that this provision is
unreasonable on its face, and we agree. The Commission has made clear
that "neither the host attaching entity nor the third party overlasher
must obtain additional approval from or consent of the utility for
overlashing other than the approval obtained for the host attachment."
NPTC asserts that Salsgiver lacks standing to object on behalf of
third parties. Inasmuch as it is a provision of NPTC's agreement with
Salsgiver that is at issue here, that position is meritless. We find
this provision to be unreasonable on its face, and direct NPTC, within
60 days, to revise the Pole Attachment Agreement to eliminate the
requirement that third party overlashers obtain their own licenses.
1. The Pole Attachment Agreement's 30-Day Application Requirement for
Service Drops Is Unreasonable.
24. Salsgiver alleges that section 5.6 of the Agreement unreasonably
requires an application, 30 days in advance, before attaching or
removing a service drop from NPTC's poles. Salsgiver argues that it
is entitled to make service drops on reasonable notice, and without
prior approval. We agree, and find that section 5.6 is unreasonable on
its face.
25. The former Cable Services Bureau, now Media Bureau, has previously
stated that attachments to drop poles are adjuncts to attachments that
are approved in the normal application process, and thus a utility may
require notice, but not prior approval. Salsgiver points out that a
30-day notice period would force the company to impose a 30-day
waiting period on new service requests, and that such delays may be
inconsistent with its franchises or other legal obligations. NPTC
fails to address the substance of Salsgiver's allegations, stating in
a conclusory fashion only that Salsgiver "fail[s] to aver facts which
would show that such notice in its 30 day requirement is
discriminatory, unjust or unreasonable." For the reasons stated by
Salsgiver, we find the 30-day application requirement to be
unreasonable, and direct NPTC, within 60 days, to revise the Pole
Attachment Agreement to state a reasonable notice provision.
1. The Pole Attachment Agreement Provides Insufficient Notice For
Removal of Salsgiver's Attachments.
26. Salsgiver challenges sections 5.9 and 9.3 of the Pole Attachment
Agreement as providing inadequate notice for removal of Salsgiver's
attachments. Section 5.9 says that if NPTC decides to abandon, remove,
or relocate a pole, Salsgiver's right to attach to that pole will
terminate at the earlier of 60 days following the date of NPTC's
notice to Salsgiver or the scheduled date of abandonment, removal, or
relocation. Section 9.3 states that if the Pole Attachment Agreement
is terminated because of Salsgiver's noncompliance or default, NPTC
may remove Salsgiver's attachments upon 30 days written notice.
Salsgiver alleges that these provisions conflict with the Commission's
rules, which require utilities to provide no less than 60 days written
notice prior to "removal of facilities or termination of any service
to those facilities, such removal or termination arising out of a
rate, term or condition of the ... pole attachment agreement."
27. We agree that the challenged provisions, on their face, patently
conflict with the plain language of our rules. NPTC's defense seems to
be that the 60-day minimum notice provision of rule 1.1403 applies
only if NPTC removes the attachments, not if it directs Salsgiver to
remove them. NPTC offers no rationale for making such a distinction,
nor can we find one in the rule or its adopting order. Moreover, such
a distinction would make no sense. Accordingly, we direct NPTC,
within 60 days, to amend the Pole Attachment Agreement to provide at
least 60 days notice prior to removal of attachments.
1. The Pole Attachment Agreement Imposes an Unreasonable Penalty For
Unauthorized Attachments.
28. Section 5.7.1 of the Agreement imposes a "penalty charge" of $250 for
each unauthorized attachment, in addition to back attachment fees. We
agree with Salsgiver's contention that this penalty charge directly
conflicts with Commission precedent. The Commission has previously
found unlawful a similar $250 "unauthorized attachment fee." In Mile
Hi Cable Partners, the Commission applied general contract principles
prohibiting the enforcement of unreasonable penalties for breach of
contract, and limited the utility to compensatory damages, where there
was no specific record to support punitive damages. Similarly, here we
find that it would be unreasonable for NPTC to charge a $250 per
attachment penalty, above and beyond compensatory damages, without a
specific basis to justify such charges. NPTC asserts that the Mile Hi
Cable Partners precedent is irrelevant, but offers no cogent basis
for its assertion. NPTC also fails to explain how the charge is
anything but punitive. We therefore direct NPTC, within 60 days, to
amend the Pole Attachment Agreement to limit the penalty for
unauthorized attachments to compensatory damages, in accordance with
Mile Hi Cable Partners.
1. Salsgiver's Other Facial Challenges to the Pole Attachment Agreement
Are Denied.
29. Salsgiver's remaining claims are denied. Contrary to Salsgiver's
allegations, we find that sections 2.1, 5.2.1, 5.3, 6.1, 6.4, 6.7,
9.1, 9.2, and 9.5 of the Pole Attachment Agreement are not facially
unlawful. As to its claims regarding sections 2.6, 3.2, 5.11, 5.5.4,
6.2, 6.6, and 6.16 of the Pole Attachment Agreement, Salsgiver has
failed to meet its burden of proving the facts necessary to show that
those provisions would be unlawful, as applied. Salsgiver has also
failed to meet its burden of proving that NPTC has imposed unlawful
make-ready charges. Finally, we deny as moot Salsgiver's claim that
NPTC violated 47 C.F.R. S: 1.1403(b) by failing to grant or deny
Salsgiver's November 8, 2005 attachment application within 45 days,
inasmuch as we now grant the access that Salsgiver sought in that
application.
III. ORDERING CLAUSES
30. 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. S:S: 151,
154(i), 154(j), 224, and sections 1.1401-1.1408 of the Commission's
rules, 47 C.F.R. S:S: 1.1401-1.1408, that Salsgiver Communications,
Inc.'s complaint is GRANTED to the extent that it requests immediate
access to North Pittsburgh Telephone Company's poles located in
Buffalo Township, the Borough of Freeport, and Harrison Township,
Pennsylvania.
31. 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. S:S: 151,
154(i), 154(j), 224, and sections 1.1401-1.1408 of the Commission's
rules, 47 C.F.R. S:S: 1.1401-1.1408, that the Complaint is GRANTED to
the extent that we find above that certain provisions of the Pole
Attachment Agreement are unlawful, and that NPTC SHALL, within 60 days
from the release of this order, amend the Pole Attachment Agreement to
eliminate or modify those terms that we have found unlawful.
32. 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. S:S: 151,
154(i), 154(j), 224, and sections 1.1401-1.1408 of the Commission's
rules, 47 C.F.R. S:S: 1.1401-1.1408, that the Complaint is otherwise
DENIED.
33. 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. S:S: 151,
154(i), 154(j), 224, and sections 1.1401-1.1408 of the Commission's
rules, 47 C.F.R. S:S: 1.1401-1.1408, that Salsgiver's Motion for
Expedited Action and to Bifurcate Complaint is DENIED as moot.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief, Enforcement Bureau
Complaint, File No. EB-06-MD-004 (filed Mar. 20, 2006) ("Complaint").
47 U.S.C. S: 224.
See 47 C.F.R. S:S: 1.1401-1.1418.
Complaint at 2. As discussed below, NPTC challenges that characterization
of Salsgiver's status.
Complaint at 2; NPTC Response, File No. EB-06-MD-004 (filed Apr. 24, 2006)
("Response") at 4.
Complaint at 2; Response at 4. Section 224(a)(1) of the Act defines
"utility" as including "a local exchange carrier ... who owns or controls
poles, ducts, conduits, or rights-of-way use, 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) ("A utility shall provide a cable television system
... with nondiscriminatory access to any pole, duct, conduit, or
right-of-way owned or controlled by it.") For purposes of this Order, we
consider "cable television system" under section 224(f)(1) of the Act to
be synonymous with "cable operator" under section 602(5) of the Act, 47
U.S.C. S: 522(5), and we use these terms interchangeably.
See, e.g., Complaint at 2; Response at 5.
Complaint, Exh. 2.
Complaint at 2, Exhs. 3 & 4; Response at 5.
Complaint, Exhs. 5-7.
Complaint at 7, Exh. 8 ("Pole Attachment Agreement" or "Agreement").
Complaint at 7, Exhs. 8 & 9.
Complaint at 9.
The Agreement defines a headend as "[t]he control center of a cable TV
system, whose primary function is to receive via antenna, filter, amplify
and process local, TV broadcast signals and to receive, decrypt, and
modulate satellite-delivered video programming for distribution from the
headend over cable, fiber or wire to, and receipt by, cable television
subscribers as discrete channels." Complaint, Exh. 8, at S: 1.5.
Complaint, Exh. 14.
Complaint, Exhs. 14-15.
The Complaint initially requested that the Commission grant "extraordinary
relief" in the form of penalties and sanctions. Complaint at 40-42, P:P:
166-169. See Reply, File No. EB-06-MD-004 (filed May 23, 2006) ("Reply")
at 26-28. On May 24, 2007, however, Salsgiver filed a Notice that it was
"withdrawing its request for extraordinary relief, penalties, forfeitures,
sanctions, and damages." Notice, File No. EB-06-MD-004 (filed May 24,
2007). Accordingly, we are not ruling on the initial request.
47 U.S.C. S: 224(f)(1).
47 C.F.R. S: 1.1409(b).
Complaint, Exh. 1. FCC Form 322 is a registration statement filed pursuant
to 47 C.F.R. S: 76.1801.
Reply in Support of Motion to Expedite and Bifurcate, File No.
EB-06-MD-004 (filed April 12, 2006) ("Reply in Support of Motion"), Exhs.
1-3.
Reply, Declaration of Loren Salsgiver ("Salsgiver Declaration") at 3. See
Reply in Support of Motion at 5-7.
See Sur-Reply of North Pittsburgh Telephone Company, File No. EB-06-MD-004
(filed June 20, 2006) ("NPTC Sur-Reply") at 2. See also 47 C.F.R. S:
76.1801 ("a system community unit shall be authorized to commence
operation only after filing ... FCC Form 322"). This was the only evidence
that Salsgiver initially offered to NPTC to demonstrate that Salsgiver was
operating a cable television system. Complaint at 6. We therefore find no
fault with NPTC's rejection of that showing.
Reply, Exh. 1 at S: 3.2.
Fiber Technologies Networks, LLC v. North Pittsburgh Telephone Company,
Memorandum Opinion and Order, 22 FCC Rcd 3392, 3397, P: 15 (Enf. Bur.
2007) ("Fiber Technologies"); DQE Communications Network Services, LLC v.
North Pittsburgh Telephone Company, Memorandum Opinion and Order, 22 FCC
Rcd 2112, 2116, P: 12 (Enf. Bur. 2007) ("DQE Communications"); Salsgiver
Telecom, Inc. v. North Pittsburgh Telephone Company, Memorandum Opinion
and Order, 22 FCC Rcd 9285 (Enf. Bur. May 24, 2007) ("Salsgiver").
Section 2.1 of the Agreement provides that pole attachments will be
permitted only in areas for which Salsgiver has been granted a franchise
by the applicable authority. Complaint, Exh. 8, S: 2.1.
NPTC Sur-Reply at 4-5.
The single example of the Harrison Township Agreement, with its three-year
buildout requirement, is insufficient evidence to establish an industry
standard.
See Paragon Cable Television Inc. v. FCC, 822 F.2d 152, 153-54 (D.C. Cir.
1987) (upholding Commission's decision to enforce pole attachment
agreement's requirement that attacher have a local franchise, and to
presume validity of franchising authority's action). See also Fiber
Technologies, 22 FCC Rcd at 3395-98, P:P: 10-16; DQE Communications, 22
FCC Rcd at 2116-17, P:P: 10-13; Salsgiver, 22 FCC Rcd at 9281-9291, P:P:
9-12. NPTC also objects that the Harrison Township agreement post-dates
the filing of the Complaint, and thus does not support Salsgiver's claim
that it was a bona fide cable system operator in 2004 and 2005. Sur-Reply
at 5. We agree, but note that the agreement does constitute a prima facie
showing that Salsgiver is a cable operator in Harrison Township currently.
Response at 17.
See Response at 2, 17 (citing Sheet 1, Exh. 1 of the Pole Attachment
Agreement, Complaint Exh. 8).
See Reply at 9.
Response at 17-18.
47 C.F.R. S: 76.5 (emphasis added).
Response at 1.
E.g., Opposition to Motion for Expedited Action, File No. EB-06-MD-004
(filed Apr. 3, 2006) ("Opposition to Motion"), at 1-4; Response at 1-3.
Complaint, Exh. 8 at section 9.2. Similarly, under section 224(f) of the
Act, if Salsgiver does not use its attachments to provide cable service
(or telecommunications service), it will lose its statutory right to pole
access.
Sur-Reply at 2 (citing 47 C.F.R. S: 1.1404(e)).
47 C.F.R. S: 1.1409.
Note, however, that had Salsgiver attached the franchise agreements to its
initial Complaint, the pleading cycle in this case could have been more
streamlined. Indeed, had Salsgiver provided the agreements to NPTC sooner,
the parties' negotiations may well have been more fruitful.
We note that Salsgiver has not made a prima facie case as to other
portions of NPTC's service area, nor has it challenged that portion of
the Pole Attachment Agreement granting access only in those areas in which
Salsgiver has been granted a cable franchise by the relevant authority.
We expect that Salsgiver will provide NPTC with evidence of such
franchises if Salsgiver seeks to attach to poles outside the areas
specified above.
47 U.S.C. S: 224(b)(1) (providing that "the Commission shall regulate the
rates, terms, and conditions for pole attachments to provide that such
rates, terms, and conditions are just and reasonable").
Complaint, Exh. 8 at 6.
See Complaint at 19-20. Overlashing, whereby a service provider physically
ties its wiring to other wiring already secured to the pole, is routinely
used to accommodate additional strands of fiber or coaxial cable on
existing pole attachments. See, e.g., In the Matter of Implementation of
Section 703(e) of the Telecommunications Act of 1996, Report and Order,
13 FCC Rcd 6777, 6805, P: 59 (1998) (subsequent history omitted) ("Telecom
Order").
Section 5.2.3. of the Agreement states that "Salsgiver may over-lash to
its own attachments permitted under this Agreement." Complaint, Exh. 8 at
11. We cannot determine whether this provision overrides or otherwise
affects section 3.2, as neither party has explained it. We thus must
consider whether section 3.2 is reasonable standing alone.
See, e.g., Telecom Order, 13 FCC Rcd at 6805-10, P:P: 59-69 (citing
Common Carrier Bureau Cautions Owners of Utility Poles, Public Notice, DA
95-35 (Jan. 11, 1995) (cautioning owners of utility poles against
restricting cable operators from overlashing their own pole attachments)).
NPTC says that section 3.2 "does not prohibit [Salsgiver] from
overlashing onto third-party facilities," but does not respond to the
contention that the provision prohibits Salsgiver from overlashing its own
facilities. See Response at 25.
Response at 24-25.
See Response at 29-38.
See, e.g., RCN Telecom Services of Philadelphia, Inc. v. PECO Energy Co.,
Memorandum Opinion and Order, 17 FCC Rcd 25238, 25240-41, Phase I Order
(Enf. Bur. 2002).
Complaint at 20-21, P:P: 78-80 (citing 47 U.S.C. S: 224(f)(2)).
47 U.S.C. S: 224(f).
Response at 25-26.
47 U.S.C. S: 224(f) (emphasis added).
Complaint, Exh. 7 at 6.
Complaint at 21-22, P:P: 81-85
Complaint at 22; Reply at 12-16.
Response at 26.
Reply at 19-21 and attached Salsgiver Declaration at 12-16.
Response at 27.
Our decision here is limited to and by the record in this case. In some
future adjudication or rulemaking, the Commission could, on the basis of a
different record, decide to allow restrictions on boxing.
Response at 28-29.
See Cable Texas, Inc. v. Entergy Services, Inc., Order, 14 FCC Rcd 6647,
6652 P: 14 (Cable Serv. Bur. 1999) (stating that pole owner must keep
costs imposed on attacher reasonable).
Amendment of Commission's Rules and Policies Governing Pole Attachments,
Consolidated Partial Order on Reconsideration, 16 FCC Rcd 12103, 12141, P:
75 (2001).
Response at 28.
Complaint at 28-30, P:P: 115-120; Complaint, Exh. 8 at 14 (section 5.6.
provides that "installing or removing service connections shall not
require prior authorization or notices, except that when a service drop is
attached to or removed from a Licensor Pole, Salsgiver shall submit an
Application at least 30 days prior to the attachment or removal"). A
"service drop" is an adjunct line to the electric supply or communications
main line. In cases where a service drop must cross a roadway, it is
attached to a drop pole on the opposite side of the roadway. See Mile Hi
Cable Partners, L.P. v. Public Serv. Co. of Colo., Order, 15 FCC Rcd
11450, 11460, P: 19 (Cable Serv. Bur. 2000) ("Mile Hi Bureau Order"),
aff'd on review, Order, 17 FCC Rcd 6268 (2002) ("Mile Hi Commission
Order"), review denied sub nom. Public Serv. Co. of Colo. v. FCC, 328 F.3d
675 (D.C. Cir. 2003).
Mile Hi Bureau Order, 15 FCC Rcd at 11460, P: 19. NPTC asserts that this
decision is irrelevant because it concerns drop poles, not service drops.
Response at 33. NPTC is incorrect - the decision addresses the issue of
attaching service drops to drop poles. Id.
Complaint at 29-30, P: 118, 120.
Response at 33.
The Complaint refers to section 9.2, but the language that Salsgiver
quotes actually appears in section 9.3.
Complaint at 31.
Complaint, Exh. 8 at 16.
Complaint, Exh. 8 at 25.
47 C.F.R. S: 1.1403(c) (emphasis added).
Response at 35.
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, First Report and Order, 11 FCC Rcd 15499,
16094-98 (1996) (subsequent history omitted).
Complaint, Exh. 8 at 14-15.
See Complaint at 31-31, P:P: 121-25.
Mile Hi Cable Commission Order, 17 FCC Rcd at 6271-73.
Id.
Response at 34-35.
See Complaint at 23-39, P:P: 89-102, 129-31, 137-41, 149-59.
Section 2.1 does not, as Salsgiver asserts, apply to Salsgiver's
attachments on other utilities' poles. Sections 5.2.1 and 6.1, dealing
with space reservation, are not facially unreasonable because we presume
that NPTC will comply with the guidelines for space reservation
established by the Commission. Section 5.3 charges Salsgiver for safety
inspections only if Salsgiver is found to be out of compliance with the
Pole Attachment Agreement's Construction standards; this is not facially
unlawful, and Salsgiver has not shown that NPTC will charge an
unreasonable amount for such inspections. Section 6.4 does not, as
Salsgiver claims, require Salsgiver to misrepresent the nature of its
access rights. Section 6.7 does not, as Salsgiver claims, require
Salsgiver to accede to requests from other utilities for make-ready work.
Section 9.1, which permits either party to terminate the agreement without
cause, but only with at least six months' notice, does not vitiate
Salsgiver's attachment rights. Sections 9.1, 9.2 and 9.5 are not facially
unlawful, inasmuch as they merely terminate Salsgiver's pole attachment
rights if Salsgiver ceases to operate a cable television system.
See Complaint at 19-36, P:P: 73-74, 86-88, 103-20, 132-36, and 142-48.
As to the confidentiality provision in section 2.6, Salsgiver has not
explained why it must be permitted to divulge the terms of the Pole
Attachment Agreement to others, simply so that Salsgiver may determine
whether it is discriminatory. With respect to Section 3.2, Salsgiver has
not shown how the requirement to obtain written agreement, "which
agreement shall not be unreasonably withheld," constitutes an unreasonable
burden on its right to attach to non-wooden poles. Salsgiver claims that
section 5.11 discriminates between Salsgiver and other attachers, but
provides no evidence of what other attachers are required to do.
Salsgiver's complaint about sections 5.5.4 and 6.2 is merely speculative,
and those provisions do not on their face suggest that NPTC will disregard
its section 224 obligation to provide Salsgiver with nondiscriminatory
access to rights of way. With respect to section 6.6, which gives NPTC the
authority to bump unauthorized Salsgiver attachments off its poles in
favor of a subsequent attacher, Salsgiver fails to provide any rationale
for why its unauthorized attachments should be entitled to priority over
other parties' authorized attachments. Salsgiver claims that under section
6.16, NPTC plans to charge for overhead and administrative costs that are
already recovered in the annual rental rate, but offers inadequate
evidence to prove this charge.
See Complaint at 14-17, P:P: 51-66. Salsgiver provides no factual basis
for its claim that NPTC has attempted to charge Salsgiver for remedying
other parties' violations. As to the claim that NPTC's make-ready charges
exceed prevailing market rates, Salsgiver has not provided sufficient
evidence of comparative rates. And as to the claim that NPTC has charged
for unnecessary make-ready work, Salsgiver does not respond to NPTC's
justification for the charges, and thus we do not have sufficient basis to
rule for Salsgiver at this time. We note, however, that costs not required
to accommodate the attacher may not be imposed on the attacher. See, e.g.,
Kansas City Cable Partners v. Kansas City Power & Light Co., Consolidated
Order, 14 FCC Rcd 11599 (Cable Serv. Bur. 1999) (attacher responsible only
for cost of work made necessary because of its attachments).
See Complaint at 13-14, P:P: 47-50.
Motion for Expedited Action and to Bifurcate Complaint, File No.
EB-06-MD-004 (filed Mar. 20, 2006).
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Federal Communications Commission DA 07-4721
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Federal Communications Commission DA 07-4721