Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the matter of )
Fiber Technologies Networks, L.L.C., )
Complainant, )
File No. EB-05-MD-014
v. )
North Pittsburgh Telephone Company, )
Respondent. )
)
)
)
MEMORANDUM OPINION AND ORDER
Adopted: February 23, 2007 Released: February 23, 2007
By the Chief, Enforcement Bureau:
I. introduction
1. In this Memorandum Opinion and Order, we grant a Complaint filed by
Fiber Technologies Networks, L.L.C. ("Fibertech") against North
Pittsburgh Telephone Company ("NPTC"), pursuant to section 224 of the
Communications Act of 1934, as amended ("the Act") and sections
1.1401-1.1418 of the Commission's rules. The Complaint alleges that
NPTC violated section 224 by denying Fibertech access to NPTC's poles
for the placement of Fibertech's attachments. Fibertech requests that
the Commission grant it immediate access to NPTC's poles, and require
NPTC to take all actions necessary to accommodate Fibertech's access.
For the reasons stated below, we grant Fibertech's Complaint and order
NPTC to provide Fibertech immediately with nondiscriminatory access to
NPTC's poles.
II. FACTUAL AND REGULATORY background
2. Fibertech provides facilities-based fiber-optic telecommunications
capacity and services. Fibertech holds four Certificates of Public
Convenience ("Certificates") from the Pennsylvania Public Utilities
Commission ("PaPUC") to provide "telecommunications services to
business customers, other carriers and public and private
institutions." The Certificates authorize Fibertech to "offer, render,
furnish, or supply telecommunications services" "to the public" "in
the Commonwealth of Pennsylvania" as (1) "a Reseller of Interexchange
Toll Services;" (2) "a Competitive Access Provider;" and (3) "a
Facilities-Based Interexchange Carrier."
3. Fibertech has filed tariffs with the PaPUC ("Tariffs") offering to
provide a variety of telecommunications services throughout the
Commonwealth of Pennsylvania, including, for example: (i) intrastate
interexchange resale toll services, such as switched and dedicated
long distance services for business customers; (ii) competitive access
services, such as trunk-side transport termination, local transport,
SS7 out-of-band signaling, 800 data base access, and dedicated
high-speed digital services; and (iii) intrastate facilities-based
interexchange services, such as interLATA switched long-distance
service and intraLATA switched long-distance service.
4. NPTC is a "local exchange carrier" and a "utility" within the meaning
of section 224(a)(1) of the Act. It provides facilities-based,
switched access, telecommunications services to subscribers in
portions of Allegheny, Armstrong, Butler, and Westmoreland Counties,
Pennsylvania. As a "utility," NPTC must provide "a cable television
system or any telecommunications carrier" with "nondiscriminatory
access to any pole, duct, conduit, or right-of-way owned or controlled
by it," unless it can show that a denial of access is justified due to
"insufficient capacity" or "for reasons of safety, reliability and
generally applicable engineering purposes."
5. In April and May 2005, Fibertech sought access to NPTC's poles to
extend into NPTC's service territory a fiber optic network already
operating elsewhere in Pennsylvania. Fibertech explained that it
sought to build in NPTC's service territory a network extension of
Fibertech's Pittsburgh-area network, enabling Fibertech to satisfy the
needs of an initial end-user customer as well as "many other future
customers," pursuant to Fibertech's Certificates and Tariffs.
6. NPTC promptly denied Fibertech's request for access to NPTC's poles.
NPTC construed the information supplied by Fibertech as showing that
Fibertech was planning to (i) construct a private network for only one
customer rather than a common carriage network available to the
public, and (ii) offer only dark fiber rather than lit fiber. Thus, in
NPTC's view, Fibertech was not a "telecommunications carrier" with
pole access rights under section 224(f)(1) of the Act.
7. On July 8, 2005, Fibertech filed the instant Complaint requesting that
the Commission grant Fibertech immediate rights of access to NPTC's
poles. The key question presented by Fibertech's Complaint is whether
Fibertech is a "telecommunications carrier" with statutory rights of
access to NPTC's poles under section 224(f)(1) of the Act. Answering
that question requires examination of certain statutory and common law
definitions described below.
8. NPTC must provide Fibertech access to NPTC's poles if Fibertech is a
"telecommunications carrier" in NPTC's territory. The Act defines
"telecommunications carrier," in pertinent part, as "any provider of
telecommunications services ...," and specifies that "[a]
telecommunications carrier shall be treated as a common carrier under
this Act only to the extent that it is engaged in providing
telecommunications services." The term "telecommunications service" is
defined as "the offering of telecommunications for a fee directly to
the public, or to such classes of users as to be effectively available
directly to the public, regardless of the facilities used."
"Telecommunications" is defined as "the transmission, between or among
points specified by the user, of information of the user's choosing,
without change in the form or content of the information as sent and
received."
9. In interpreting those statutory definitions, the U.S. Court of Appeals
for the D.C. Circuit (D.C. Circuit) affirmed the Commission's
conclusions that (i) the term "telecommunications service" "is
intended to encompass only telecommunications provided on a common
carrier basis," and (ii) the term "telecommunications carrier," which
was added to the Act in 1996, has essentially the same meaning as the
pre-existing term "common carrier." Courts construing "common carrier"
have held, inter alia, that "the primary sine qua non of common
carrier status is a quasi-public character, which arises out of the
undertaking to carry for all people indifferently;" and a "second
prerequisite to common carrier status" is that "`customers transmit
intelligence of their own design and choosing." Such offering of
service indiscriminately to the public may be either a wholesale
offering to other carriers or a retail offering to end users.
III. DISCUSSION
A. Fibertech Has Established A Prima Facie Case That It Is A
"Telecommunications Carrier" With A Right Of Access To NPTC's
Poles Under Section 224(f)(1) Of The Act
10. In a case such as this challenging a utility's denial of access to its
poles, section 1.1409(b) of our rules provides that the complainant
bears the burden of establishing a prima facie case that the denial of
access violates section 224(f) of the Act. Once the complainant
establishes a prima facie case, the respondent utility has the burden
of proving that its denial was lawful. Therefore, Fibertech bears an
initial burden to establish a prima facie case that it is a
"telecommunications carrier" with a right of access to NPTC poles
within the meaning of the Act. As discussed below, we conclude that
Fibertech has met that burden by showing that it possesses valid state
authorizations to provide telecommunications services, and has filed
state tariffs offering such services to the public.
11. Fibertech has offered proof of its status as a "telecommunications
carrier" in NPTC's territory by submitting in the record (i) its
Certificates from the PaPUC authorizing Fibertech to "offer, render,
furnish, or supply telecommunications services" as a reseller and
facilities-based carrier of interexchange toll services ("IXC"), and
as a competitive access provider ("CAP"); and (ii) the
telecommunications service Tariffs that it has publicly filed with the
PaPUC pursuant to its authorizations to provide intrastate
telecommunications services. We find that the decisions of the PaPUC
to issue Certificates of Public Convenience authorizing Fibertech to
provide intrastate "telecommunications services" and to allow
Fibertech to publish its Tariffs reflect judgments by an expert
regulatory agency that the services set forth in Fibertech's Tariff
constitute "telecommunications services" and that Fibertech will offer
those services for a fee to the public. Such judgments suffice to
establish a prima facie case.
12. NPTC observes that the Pennsylvania statutory provisions defining who
is a "telecommunications carrier" providing "telecommunications
service" are not identical to the definitions of those terms provided
in the Act. An examination of the Pennsylvania definitions, however,
reveals that they are, in fact, very similar to the federal
definitions, although not identical. The applicable Pennsylvania
statute defines "telecommunications carrier" as "[a]n entity that
provides telecommunications services subject to the jurisdiction of
the [PaPUC]," and defines "telecommunications service" as "[t]he
offering of the transmission of messages or communications for a fee
to the public." Like the Act, the Pennsylvania statute provides that,
to qualify as a "telecommunications carrier" providing
"telecommunications service," an entity must offer transmission of
communications for a fee to the public.
13. Recognizing that the Pennsylvania statute provides that a
"telecommunications carrier" is subject to the jurisdiction of the
PaPUC, NPTC focuses on the definition of "public utility" in S 102 of
the statute, which identifies entities regulated by the PaPUC. Section
102 states, in pertinent part, that a "Public Utility" is "(1) Any
person or corporations now or hereafter owning or operating in this
Commonwealth equipment or facilities for: ... (vi) Conveying or
transmitting messages or communications ... by telephone or telegraph
or domestic public land mobile radio service ... for the public for
compensation." NPTC argues, based on this statutory language, that
Pennsylvania law is broader than the Act "in that it concerns not only
the transmitting of communications, but also the conveying of
communications (as well as `messages')," and it is "narrower in that
it applies only to entities which own or operate equipment or
facilities."
14. NPTC has not shown, however, that these alleged distinctions
constitute material differences between the definitions of
"telecommunications carrier" and "telecommunications service" provided
under Pennsylvania and federal law; and we discern none. Moreover,
NPTC provides no reason to conclude, based on these alleged
definitional distinctions, that Fibertech does not qualify as a
"telecommunications carrier" under the Act, even though Fibertech
qualifies as a "telecommunications carrier" and "public utility"
authorized to provide "telecommunications services" under Pennsylvania
law. For these reasons, we reject NPTC's suggestion that Fibertech is
not entitled to rely on the decisions of the PaPUC to make a prima
facie showing that Fibertech is a "telecommunications carrier" with
pole attachment rights under section 224(f) under the Act.
15. Our reliance on the PaPUC's decisions in assessing whether Fibertech
has made a prima facie showing of its status as a "telecommunications
carrier" finds support in cases addressing the prerequisites for the
analogous process of establishing an entity's status as a "cable
television system" with pole attachment rights under section 224(f).
In Paragon Cable Television Inc. v. FCC, the D.C. Circuit upheld a
Commission ruling that possession of a valid cable franchise is a
reasonable precondition for establishing pole attachment rights. In so
holding, the D.C. Circuit found that the Commission could apply a
"presumption of validity" to decisions by the local franchising
authority concerning the attacher's status as an approved franchisee.
Similarly, in Texas Util. Elec. Co v. FCC, the D.C. Circuit upheld a
Commission ruling that section 224 of the Act confers jurisdiction
over those pole attachments within the franchise service area defined
by the local franchise authority. These cases suggest that attachers
are entitled to rely on decisions by responsible regulatory agencies,
such as franchise authorities in the case of cable system attachers,
and public utility commissions in the case of telecommunications
carriers, in establishing their status as entities entitled to pole
access under section 224(f) of the Act.
16. Based on the foregoing, we conclude that Fibertech's possession of
valid state authorizations to provide telecommunications services,
together with its associated state Tariffs, constitute presumptive
evidence of its status as a "telecommunications carrier" within the
meaning of the Act. Therefore, in our view, Fibertech has made a prima
facie showing that it is a "telecommunications carrier" entitled to
nondiscriminatory access to NPTC's poles under section 224(f)(1) of
the Act.
A. NPTC Has Failed to Show That Its Denial of Access Was Lawful
17. Because Fibertech has established a prima facie case, the burden
shifts to NPTC to demonstrate that its denial of access was lawful.
NPTC cites several factors that purportedly show that Fibertech does
not qualify as a "telecommunications carrier" with a right to attach
to NPTC's poles under section 224 of the Act. We have examined each of
the factors offered by NPTC and conclude, for the reasons set forth
below, that NPTC has failed to show that Fibertech is not a
"telecommunications carrier" under the Act, and thus it cannot justify
its denial of access on that basis.
1. Pursuant to its intrastate CAP and IXC Tariffs, Fibertech holds
itself out directly to the public to provide telecommunications for
a fee in NPTC's service territory
18. NPTC defends its denial of access on the ground that mere possession
of authorizations to provide telecommunications service, and the
filing of tariffs pursuant thereto, do not establish that Fibertech is
acting as a "telecommunications carrier" in NPTC's service territory.
NPTC seems to suggest that Fibertech cannot qualify as a
"telecommunications carrier" unless and until it is actually supplying
telecommunications service to at least one customer in NPTC's
territory. NPTC also contends that provision of dark fiber is not a
"telecommunications service," so Fibertech cannot rely on its
provision of dark fiber to qualify as a "telecommunications carrier."
We reject both of these assertions.
19. First, we reject NPTC's contention that Fibertech must show that it is
actually supplying telecommunications service to a customer in NPTC's
territory to qualify as a "telecommunications carrier" with a right of
attachment under section 224 of the Act. The Act defines
"telecommunications carrier" as any "provider of telecommunications
services," and defines "telecommunications service" as the
indiscriminate "offering of telecommunications." These two
definitions, read together, indicate that a "telecommunications
carrier" is a carrier that offers to provide telecommunications on a
common carrier basis, regardless of whether the carrier has actually
supplied such service to a customer in the past. To hold otherwise
would lead to the anomalous, Catch-22 result that an entity could not
establish its identity as a "telecommunications carrier" for purposes
of obtaining access to poles under section 224(f)(1) unless it was
already supplying telecommunications service to the public, which
might not even be possible without first obtaining access to poles.
20. Turning to the record before us, we find that Fibertech is, in fact,
offering to provide telecommunications service in NPTC's territory
within the meaning of the Act. Specifically, Fibertech's PaPUC
authorizations to provide telecommunications services as a CAP and an
IXC on a statewide basis, together with its Tariffs, establish that
Fibertech offers to provide a variety of telecommunication services to
the public for a fee in NPTC's territory. Indeed, the very term
"tariff" means an offering to provide service; and the text of
Fibertech's Tariffs reflects that meaning. For example, Fibertech's
CAP Tariff and Switched Access Tariff each set forth "the service
offerings, rates, terms and conditions applicable to the furnishing of
... services for connection to communications facilities of
[Fibertech] to customers." Therefore, NPTC's contention that Fibertech
is not a "telecommunications carrier" because Fibertech is not yet
actually supplying service to any customers in NPTC's territory lacks
merit.
21. NPTC also asserts, without support, that Fibertech intends to serve
only a single customer in NPTC's territory, which, in NPTC's view,
disqualifies Fibertech as a "telecommunications carrier." NPTC's
assertions are contradicted by statements from Fibertech's
representatives affirming that (i) the network segment Fibertech seeks
to provide to its initial customer will be part of a wider network
that Fibertech plans to use to serve many future customers and (ii)
Fibertech intends to provide a variety of telecommunications services
in NPTC's service area, including "lit" long distance and local
dedicated transport service. Based on this record, we find that NPTC's
unsubstantiated suppositions about Fibertech's intentions are
insufficient to rebut Fibertech's prima facie showing of its status as
a telecommunications carrier.
22. We also find unavailing NPTC's attempt to justify its denial of access
based on Fibertech's plans to provide "dark fiber" facilities to its
initial customer in NPTC's service area. According to NPTC, dark fiber
does not constitute a "telecommunications service" under the Act, and
therefore Fibertech has no right to attach to NPTC's poles for the
purpose of providing dark fiber. This argument overlooks the fact that
Fibertech, through its Tariffs, offers to provide a variety of "lit"
services in NPTC's area that indisputably qualify as
"telecommunications services" under the Act. Thus, regardless of the
status of dark fiber under the Act - an issue we need not and do not
address here - Fibertech has established that it qualifies as a
"telecommunications carrier" with a right of access under section
224(f) based on these "lit" service offerings.
23. This conclusion is supported by the Supreme Court's decision in NCTA
v. Gulf Power, which held, in an analogous context, that the
protections of section 224 continue to apply to attachments by cable
systems, even if the attachments are simultaneously used to provide
both cable service and a non-cable service, such as high-speed
Internet access. The Court reasoned that an attachment by a cable
television company providing only cable service is an "attachment by a
cable television system," subject to section 224, and that the
addition of another service, such as Internet access service, "does
not change the character of the attaching entity - the entity the
attachment is `by.'" "And this," declared the Court, "is what matters
under the statute." Likewise, Fibertech, having established its status
as a telecommunications carrier with a right of access under section
224(f) based on its lit service offering, would not lose that status
by offering non-telecommunications services over the same attachment.
As long as Fibertech is offering to provide at least one
telecommunications service via its pole attachments, its additional
offering of an alleged non-telecommunications service has no impact on
its pole attachment rights.
1. Fibertech offers to provide "telecommunications" rather than
"information" services pursuant to its intrastate Tariffs
24. NPTC also claims that denial of access to its poles is justified
because Fibertech intends to provide to its initial customer "an
information (or data transmission) service rather than what the FCC
views as a `telecommunications service.'" In support, NPTC states that
the Commission has deemed Internet access an "information service"
rather than a "telecommunications service." As explained below, we
reject this argument because NPTC has failed to show that Fibertech
offers an information service in NPTC's territory.
25. NPTC is correct that the Commission has classified as "information
service" an integrated service that combines transmission with the
data storage, manipulation, processing, and retrieval portion, i.e.,
the Internet service provider ("ISP") portion of an Internet access
service. The ISP portion of an Internet access service typically
provides end users with a comprehensive capability for manipulating
information using the Internet, including applications such as web
browsing, file transfers, e-mail access, Usenet newsgroups, and Domain
Name System access. The Commission has also recognized that the
"telecommunications" component of an Internet access service can be
"part and parcel" of an integrated Internet access service offering,
or it can be offered separately from the ISP portion of the service
and consist solely of a transparent transmission path, with no changes
to the form or content of the transmitted information. Carriers can
choose to offer this transmission component as a telecommunications
service on a stand-alone, wholesale, common carrier basis to ISPs, who
then use that service as an input for the wireline broadband Internet
access that the ISPs, in turn, offer to their own end user customers.
Given the foregoing, the Commission has held that whether a service is
a "telecommunications service" or an "information service" turns on
the nature of the functions the purchaser is offered. The
determinative question, briefly put, is: does the service offering
involve only a transparent transmission path, with no changes to the
form or content of the transmitted information; or does it involve
data storage, manipulation, processing, and retrieval?
26. Applying that standard here, we find that the services that Fibertech
offers through its PaPUC Tariffs are "telecommunications services,"
not "information services." NPTC has not identified, and we cannot
independently discern, any provision in any of Fibertech's various
Tariffs that offers to provide the ISP portion of Internet access
service, i.e., data storage, manipulation, processing, and retrieval.
Instead, in its applicable Tariffs, Fibertech offers only transparent
transmission paths, with no changes to the form or content of the
transmitted information in NPTC's service territory. Specifically,
Fibertech offers to provide only the underlying transmission (or
"telecommunications") typically used by ISPs and other information
service providers in the provision of retail Internet access and other
data processing services to subscribers. As we found in the Wireline
Broadband Order, "carriers may choose to offer this type of
transmission as a common carrier service if they wish. In that
circumstance, it is of course a telecommunications service."
Accordingly, Fibertech's provision of tariffed service to its initial
customer provides no basis for NPTC's assertion that Fibertech is not
a "telecommunications carrier" with pole access rights under section
224(f)(1) of the Act.
A. NPTC's Request to Dismiss the Complaint on Procedural Grounds Lacks
Merit
27. Finally, NPTC argues that the Complaint, filed on July 8, 2005, should
be dismissed as defective because it "fails to overcome the reasons
given for dismissal" of the original complaint that Fibertech's filed
on the June 24, 2005. Staff had dismissed the original complaint
without prejudice on procedural grounds, citing Fibertech's failure to
comply fully with the Commission's pleading rules. When Fibertech
filed its revised Complaint on July 8, 2005, staff found it to be
adequate and accepted it for filing. Staff subsequently allowed
Fibertech to supplement its pleadings with further documentation, and
directed both parties to provide additional briefing of certain legal
issues.
28. We find that dismissal of the re-filed complaint is unwarranted here.
Although Fibertech should have included with its Complaint all of the
additional documentation it reasonably believed was necessary to
support its factual allegations, NPTC has shown absolutely no
prejudice by Fibertech's later inclusion of these materials in the
record. We therefore deny NPTC's request to dismiss the Complaint for
failure to comply with the Commission's rules.
IV. Conclusion
29. For the reasons stated above, we find that (i) Fibertech has carried
its burden to establish a prima facie case demonstrating its
entitlement to attach to poles, ducts, conduits and rights-of-way
owned or controlled by NPTC, and (ii) NPTC has failed to carry its
burden of proof that denial of access was lawful on the alleged ground
that Fibertech is not a "telecommunications carrier" offering to
provide "telecommunications services," as those terms are defined in
the Act. We therefore find that Fibertech is a "telecommunications
carrier" entitled to pole attachments under section 224(f), and grant
the relief requested in the Complaint.
V. 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. SS 151,
154(i), 154(j), and 224, and sections 0.111 and 1.1401-1.1418 of the
Commission's rules, 47 C.F.R. SS 0.111 and SS 1.1401-1.1418, that the
Complaint IS GRANTED.
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. SS 151, 154(i),
154(j), and 224, and sections 0.111 and 1.1401-1.1418 of the
Commission's Rules, 47 C.F.R. SS 0.111 and 1.1401-1.1418, that, to the
extent that Fibertech continues to seek access to NPTC's facilities,
Fibertech and NPTC SHALL PROMPTLY NEGOTIATE IN GOOD FAITH
nondiscriminatory terms and conditions of access and maximum just and
reasonable rates for pole attachments in accordance with 47 U.S.C. S
224 and the Commission's rules.
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. SS 151, 154(i),
154(j), and 224, and sections 0.111 and 1.1401-1.1418 of the
Commission's Rules, 47 C.F.R. SS 0.111 and 1.1401-1.1418, that, to the
extent that Fibertech continues to seek access to NPTC's facilities,
NPTC SHALL: (i) immediately commence survey and engineering work on
the poles in NPTC's service area to which Fibertech seeks to attach;
(ii) grant access to NPTC's poles without a formal agreement in the
event NPTC fails to complete a just and reasonable pole attachment
agreement within 60 days from the date of this Order; and (iii)
commence make-ready/facilities arrangements no later than 15 days from
the date of this Order.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Complaint of Fiber Technologies Networks, LLC, File No. EB-05-MD-014
(filed Jul. 8, 2005) ("Complaint").
47 U.S.C. S 224.
47 C.F.R. SS 1.1401-1.1418.
See, e.g., Complaint at 5, P 19 and 7, P 29.
Complaint at 8-9, P 34.
See, e.g., Complaint at 1, P 2; Response to Complaint filed by NPTC, File
No. EB-05-MD-014 (filed Aug. 10, 2005) ("Response") at 1, P 2.
Order of the PaPUC dated September 28, 2001 approving Fibertech's
certification applications in PaPUC Docket A-311101, A-311101 F0002,
A-311101 F0003, and A-311101 F0004 ("PaPUC Fibertech Order") at 2,
attached to Letter dated October 25, 2005 from J.D. Thomas, Counsel for
Fibertech, to Marlene Dortch, Federal Communications Commission, Office of
the Secretary, File No. EB-05-MD-014 ("Fibertech October 25 Letter"). See
Complaint at 4-5, P 17; Response at 1, P 2 n.1; 7-8, P 17. See also
Certificates of Public Convenience granted by the PaPUC ("Certificate
A-311101," "Certificate A-311101 F0002," "Certificate A-311101 F0003,"),
attached to Fibertech October 25 Letter, and ("Certificate A-311101
F0004"), attached to Letter dated August 15, 2006 from Genevieve D. Sapir
to Marlene H. Dortch, Secretary, Federal Communications Commission, File
No. EB-MD-014 ("Fibertech Aug. 15 Letter").
Certificate A-311101, attached to Fibertech October 25 Letter.
Certificate A-311101 F0003, attached to Fibertech October 25 Letter.
Certificate A-311101 F0004, attached to Fibertech Aug. 15 Letter.
Fibertech has also received a Certificate from the PaPUC authorizing it to
"offer, render, furnish, or supply telecommunications services" as a
"Reseller and Facilities-Based Competitive Local Exchange Carrier to the
public within the service territory of Verizon Pennsylvania, Inc."
Certificate A-311101 F0002, attached to Fibertech October 25 Letter.
See Letter dated November 30, 2005 from J.D. Thomas, David L. Sieradzki,
Genevieve D. Sapir, Counsel for Fibertech, to Barbara Esbin, Market
Disputes Resolution Division, Enforcement Bureau, File No. EB-05-MD-014
("Fibertech Nov. 30 Letter"), attaching Fibertech's PaPUC Tariffs and a
Declaration of Frank Chiaino, Executive Vice President and Chief Operating
Officer of Fibertech Networks, ("Chiaino Declaration"), which describes
Fibertech's Tariff offerings at 1-3, PP 2-5. The Tariffs attached to the
Fibertech Nov. 30 Letter include Fiber Technologies Networks, L.L.C.,
Reseller of Interexchange Toll Services Tariff, PA P.U.C. No. 1, Effective
June 19, 2002 ("IXC Reseller Tariff"); Fiber Technologies Networks,
L.L.C., Competitive Access Tariff, Supplement No. 4 to PA P.U.C. No. 3,
Effective September 30, 2005 (revising PA P.U.C. No. 3, Effective June 19,
2002) ("CAP Tariff"); Fiber Technologies Networks, L.L.C.,
Facilities-Based Interexchange Toll Services Tariff, Supplement No. 1 to
PA P.U.C. No. 4, Effective September 30, 2005 (revising PA P.U.C. No. 4,
Effective June 19, 2002) ("IXC Tariff"); and Fiber Technologies Networks,
L.L.C., Switched Access Service for Connection to Communications
Facilities Tariff, PA P.U.C. No. 5, Effective June 19, 2002 ("Switched
Access Tariff"). See Complainant's Reply File No. EB-05-MD-014 (filed Aug.
30, 2005) ("Reply") at 9-10; Letter dated October 6, 2005 from J.D. Thomas
and Genevieve Sapir, to Marlene Dortch, Federal Communications Commission,
Office of the Secretary, File No. EB-05-MD-014 at 1, attaching Declaration
of James Baase, Vice President, Engineering, of Fibertech Networks, LLC,
at 1, P 2.
See, e.g., Complaint at 1, P 3; Response at 2, P 3.
47 U.S.C. S 224(f)(1) (emphasis added). See 47 U.S.C. SS 224(a)(4)
(defining "pole attachment" as "any attachment 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"). See also National
Cable & Telecommunications Ass'n, Inc. v. Gulf Power Co., 534 U.S. 327
(2002) ("NCTA v. Gulf Power").
47 U.S.C. S 224(f)(2).
Complaint at 3, P 10; Exhibit 1, Letter dated April 11, 2005 from Julie S.
Adams, Director of Regulatory Affairs and Compliance, Fibertech to Mr.
Kevin Albaugh, Vice President Regulatory Affairs, NPTC ("Fibertech April
11 Letter") and Exhibit 3, Letter dated May 5, 2005 from Charles B.
Stockdale, Vice President and Corporate Counsel, Fibertech to Mr. Kevin
Albaugh, Vice President Regulatory Affairs, NPTC ("Fibertech May 5
Letter") at 1; Response at 4, P 10.
Fibertech May 5 Letter at 1. See Fibertech April 11 Letter at 1.
Fibertech April 11 Letter at 1; Fibertech May 5 Letter at 1.
Complaint at 3, P 11 and 4, P 13; Exhibit 2, Letter dated May 4, 2005 from
Kevin J. Albaugh, Vice President Regulatory Affairs, NPTC, to Julie S.
Adams, Director of Regulatory Affairs and Compliance, Fibertech ("NPTC May
4 Letter") (seeking additional information about Fibertech's attachment
request); Exhibit 4, Letter dated May 25, 2005 from John A. Alzamora,
Counsel to NPTC to Charles B. Stockdale, Vice President and General
Counsel, Fibertech ("NPTC May 25 Letter") at 1-4 (denying attachment
request); Response at 4-5, P 11.
NPTC May 4 Letter at 1; NPTC May 25 Letter at 1-4.
See, e.g., Complaint at 8-9, P 34. Specifically, Fibertech seeks an order,
inter alia, requiring NPTC to: (1) immediately commence survey and
engineering work on the poles in NPTC's service area to which Fibertech
seeks to attach; (2) immediately commence good-faith negotiations for a
pole attachment agreement, with a commitment to execute a new pole
attachment agreement no later than 30 days from the date of such order;
(3) grant access to NPTC's poles without a formal agreement in the event
NPTC fails to complete a just and reasonable pole attachment agreement
within the 30-day time period; and (4) commence make-ready/facilities
arrangements no later than 15 days from the date of such order. Complaint
at 9, P 34.
47 U.S.C. S 224(f)(1).
47 U.S.C. S 153(44) (emphases added).
47 U.S.C. S 153(46) (emphasis added).
47 U.S.C. S 153(43).
Virgin Islands Tel. Co. v. FCC, 198 F.3d 921, 927-30 (D.C. Cir. 1999)
("Vitelco") (emphasis added) (affirming AT&T Submarine Sys., Inc.,
Memorandum Opinion and Order, 13 FCC Rcd 21585 (1998)).
Vitelco, 198 F.3d at 924-27. See, e.g., Cable & W ireless plc, Memorandum
Opinion and Order, 12 FCC Rcd 8516, 8521-23, PP 12-17 (1997);
Federal-State Joint Board on Universal Service, Report and Order, 12 FCC
Rcd 8776, 9177-78, P 785 (1997) (subsequent history omitted) ("Universal
Service Order"). The Act defines "common carrier" or "carrier" as "any
person engaged as a common carrier for hire, in interstate or foreign
communication by wire or radio ...." 47 U.S.C. S 153(10).
Southwestern Bell Telephone Co. v. FCC, 19 F.3d 1475, 1480 (D.C. Cir.
1994) (quoting National Ass'n of Regulatory Util. Comm'rs v. FCC, 533 F.2d
601, 608-09 (D.C. Cir. 1976) (internal quotes and footnotes omitted)).
See, e.g., National Ass'n of Regulatory Util. Comm'rs v. FCC, 525 F.2d 630
(D.C. Cir. 1976), cert. denied, 425 U.S. 992 (1976).
See, e.g., Federal-State Joint Board on Universal Service, Report to
Congress, 13 FCC Rcd 11501, 11556, P 115 (1998) ("Universal Service Report
to Congress"); Universal Service Order, 12 FCC Rcd at 9177-78, P 785
(holding that "[c]ommon carrier services include services offered to other
carriers, such as exchange access service, which is offered on a common
carrier basis, but is offered primarily to other carriers"). See generally
MTS and WATS Market Structure, Phase I, Third Report and Order, 93 FCC 2d
241, 246-47, 249-50, PP 13-14, 23 (1983) ("MTS/WATS Market Structure
Order") (stating that access charges are regulated services and include
"carrier's carrier" services).
47 C.F.R. S 1.1409(b).
47 C.F.R. S 1.1409(b).
Certificate A-311101 and Certificate A-311101 F0003, attached to Fibertech
October 25 Letter; Certificate A-311101 F0004, attached to Fibertech Aug.
15 Letter.
IXC Reseller Tariff; CAP Tariff; IXC Tariff; Switched Access Tariff,
attached to Fibertech October 25 Letter; Complaint at 3, P 10; Fibertech
April 11 Letter at 1; Fibertech Nov. 30 Letter attaching Fibertech's PaPUC
Tariffs.
See Letter dated December 15, 2005 from John Alzamora, Counsel for NPTC,
to Barbara Esbin, Market Disputes Resolution Division, Enforcement Bureau,
File No. EB-05-MD-014 ("NPTC Dec. 15 Letter") at 4-6 (citing 66 P.C.S.A. S
3012).
66 P.C.S.A. S 3012. Compare with 47 U.S.C. SS 153(44) (defining
"telecommunications carrier," in pertinent part, as "any provider of
telecommunications services ... ") and 153(46) (defining
"telecommunications service" as "the offering of telecommunications for a
fee directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of facilities
used").
See NPTC Dec. 15 Letter at 4-6 (citing 66 P.C.S.A. S 102). See also 66
P.C.S.A. SS 1101, 1102.
See 66 P.C.S.A. S 102.
NPTC Dec. 15 Letter at 4-5.
We leave open the possibility that a state may define either
"telecommunications carrier" or "telecommunications service" in a manner
flatly inconsistent with the definitions contained in the Act, such that
an entity could obtain state certification and file state tariffs, yet not
meet the definitions contained in sections 153(44) and 153(46) of the Act.
Similarly, there may be instances where an entity could be certificated to
provide telecommunications services only in some, but not all, portions of
a state, such that additional evidence of its status would be required to
demonstrate a right of attachment in those non-certificated portions of
the state. Neither situation, however, is presented here.
Paragon Cable Television Inc. v. FCC, 822 F.2d 152, 153-54 (D.C. Cir.
1987) (holding that the Commission properly refused to address the
attacher's arguments challenging the legality of the franchise authority's
decision to revoke the attacher's franchise, noting that it was
appropriate for the Commission to employ a "presumption of validity with
respect to the franchising authority's actions vis-`a-vis the franchise").
See id. at 154 & n.2 (citing Tele-Communications, Inc. v. South Carolina
Elec. & Gas Co., File No. PA-83-0027 (Com. Car. Bur. Apr. 19, 1985) as
holding that the utility could not substitute its judgment for the
franchising authority by removing pole attachments before such time as the
franchising authority's revocation actually took effect).
Texas Util. Elec. Co v. FCC, 997 F.2d 925, 934-35 (D.C. Cir. 1993).
Moreover, NPTC has adequate recourse at the state level if it believes the
PaPUC erred either in issuing Fibertech its Certificates, or in accepting
Fibertech's various Tariffs for filing. See Fibertech Oct. 25 Letter,
attaching PaPUC Fibertech Order at 3 ("The Applicant complied with
Section 5.14 of our regulations, 52 Pa. Code S 5.14, relating to
applications requiring notice. No Protests were filed and no hearings were
held."); 52 Pa. Code S 54.36 (procedure for protests to applications); 52
Pa. Code S 5.572 (procedures for petitions for relief following a final
decision).
47 C.F.R. S 1.1409(b).
See, e.g., Response at 1-2, 4-5, 6-8, 11-13, PP 2, 11, 13, 16, 17, 36,
38-40; NPTC Dec. 15 Letter at 2, 7-8; NPTC May 25 Letter at 1-4.
Response at 12-13, P 39; NPTC Dec. 15 Letter at 2.
See Response at 7, P 17; 12-13, PP 39-40; NPTC May 25 Letter at 3; NPTC
Dec. 15 Letter at 1-2; 7-8.
47 U.S.C. SS 153(44) and (46) (emphases supplied).
In addition, such a holding would be inconsistent with the Commission's
policy of encouraging competition and infrastructure investment and
deployment in broadband markets. See, e.g., Review of the Section 251
Unbundling Obligations of Incumbent Local Exchange Carriers, Order on
Reconsideration, 19 FCC Rcd 20293 (2004); Appropriate Framework for
Broadband Access to the Internet Over Wireline Facilities, Universal
Service Obligations of Broadband Providers, Review of Regulatory
Requirements for Incumbent LEC Broadband Telecommunications Services,
Computer III Further Remand Proceedings: Bell Operating Company Provision
of Enhanced Services; 1998 Biennial Regulatory Review - Review of Computer
III and ONA Safeguards and Requirements, Conditional Petition of the
Verizon Telephone Companies for Forbearance Under 47 U.S.C. S 160(c) with
Regard to Broadband Services Provided Via Fiber to the Premises; Petition
of the Verizon Telephone Companies for Declaratory Ruling, or,
Alternatively, for Interim Waiver with Regard to Broadband Services
Provided Via Fiber to the Premises, Report and Order and Notice of
Proposed Rulemaking, 20 FCC Rcd 14853 (2005) ("Wireline Broadband Order"),
appeal pending sub nom. Time Warner Telecom v. FCC, No. 05-4769 (and
consolidated cases) (3^rd Cir. filed Oct. 26, 2005).
As noted above, these telecommunications services include, for example,
switched and dedicated long distance services for business customers;
competitive access services, such as trunk-side transport termination, and
local transport; and interLATA and intraLATA switched long-distance
service. See Section II P 3 supra. We also reject NPTC's further
suggestion that providers of competitive access services do not qualify as
telecommunications carriers with pole attachment rights under section 224.
See Response at 13, P 40; NPTC May 25 Letter at 3 (arguing that
"Fibertech's purpose in attaching to NPTC poles is not to act as a CLEC or
an IXC," and suggesting that only CLECs and IXCs have pole attachment
rights). NPTC's premise is clearly erroneous, as competitive access
services are, in fact, "telecommunications services" under the Act. See,
e.g., 47 U.S.C. S 153(16) (defining "exchange access" as "the offering of
access to telephone exchange services or facilities for the purpose of the
origination or termination of telephone toll services."); Tariff Filing
Requirements for Nondominant Common Carriers, Memorandum Opinion and
Order, 8 FCC Rcd 6752, 6754, P 13 (1993), vacated on other grounds,
Southwestern Bell Corp. v. FCC, 43 F.3d 1515 (D.C. Cir. 1995) (recognizing
that "CAPs are nondominant carriers [i.e., common carriers] because they
have not been previously declared dominant").
See, e.g., Integrated Services Digital Networks, First Report, 98 FCC 2d
249, 278, n.77 (1984) ("A tariff for interstate service is a public offer
to provide service ... ."); Harry Newton, Newton's Telecom Dictionary 888
(22nd ed. 2006) (defining "tariff" in relevant part as a "public document
[that] details services, equipment and pricing offered by the telephone
company (a common carrier) to all potential customers") (emphasis added).
See CAP Tariff Section 1, 3^rd Revised page 1; Switched Access Tariff,
Original Title Page. Similar language describing the carrier's undertaking
to offer service in accordance with the terms of its tariffs is contained
in Fibertech's IXC Tariff at Section 2.1.1, Original page 1, and its IXC
Reseller Tariff at Section 2.1.1, Original page 1.
See Response at 13, P 40; NPTC May 25 Letter at 1-4.
Fibertech May 5 Letter at 1.
Chiaino Declaration at 2, PP 2-3.
See, e.g., NPTC May 25 Letter at 1-4; Response at 6-8, 12-13 PP 13, 16-17,
40; NPTC Dec. 15 Letter at 1, 7-8.
See, e.g., NPTC May 25 Letter at 1-4; Response at 6-8, 12-13 PP 13, 16-17,
40; NPTC Dec. 15 Letter at 1, 7-8.
NCTA v. Gulf Power, supra note 13.
Id. at 333. See generally Heritage Cablevision Assocs. of Dallas. L.P. v.
Texas Util. Elec. Co, Memorandum Opinion & Order, 6 FCC Rcd 7099, 7104 P
23 (1991), recon. dismissed, 7 FCC Rcd 4192 (1992), aff'd sub nom. Texas
Util. Elec. Co. v. FCC, 997 F.2d 925 (D.C. Cir. 1993) (holding that cable
system does not lose its pole attachment rights when its attachments are
used to provide video and non-video services on a commingled basis).
NPTC May 25 Letter at 3, (citing Deployment of Wireline Services Offering
Advanced Telecommunications Capability, Order on Remand, 15 FCC Rcd 385,
401, P 34 (1999) and In the Matter of Federal-State Joint Board on
Universal Service, Report to Congress, 13 FCC Rcd 11501, 11512-14, PP
23-27 (1998) ("Universal Service Report")); See Response at 12, P 38.
Response at 7, P 16; NPTC May 25 Letter at 3. The Act defines "information
service" as "the offering of a capability for generating, acquiring,
storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications, and includes electronic
publishing, but does not include any use of any such capability for the
management, control, or operation of a telecommunications system or the
management of a telecommunications service." 47 U.S.C. S 153(20).
Inquiry Concerning High-Speed Access to the Internet Over Cable and Other
Facilities, Internet Over Cable Declaratory Ruling, Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Cable Facilities,
Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798,
4821-23, PP 36-38 (2002) ("Cable Modem Declaratory Ruling"); Wireline
Broadband Order, 20 FCC Rcd at 14863-64, PP 14-15.
See, e.g., National Cable & Telecommunications Ass'n v. Brand X Internet
Services, 545 U.S. 967, 125 S.Ct. 2688, 2702-12 (2005) ("Brand X")
(affirming Cable Modem Declaratory Ruling); Wireline Broadband Order, 20
FCC Rcd at 14863-64, PP 14-15; Cable Modem Declaratory Ruling, 17 FCC Rcd
at 4821-22, PP 36-38; Universal Service Report to Congress, 13 FCC Rcd at
11537-40, PP 76-78.
Wireline Broadband Order, 20 FCC Rcd at 14910-11, P 104.
See Wireline Broadband Order, 20 FCC Rcd at 14901, 14909-10, PP 90, 103;
Cable Modem Declaratory Ruling, 17 FCC Rcd at 4822-25, PP 38, 41-43;
Universal Service Report to Congress, 13 FCC Rcd at 11520-21, PP 39-41.
See Wireline Broadband Order, 20 FCC Rcd at 14909-10, P 103.
See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4821, P 35; Universal
Service Report to Congress, 13 FCC Rcd at 11530, P 59 (noting "Congress's
direction that the classification of a provider should not depend on the
type of facilities used . . . [but] rather on the nature of the service
being offered to customers").
See, e.g., CAP Tariff at Section 3.4, 1^st Revised Page 14, Original Page
15, 1^st Revised Page 16 (offering "Dedicated High-Speed Digital Service"
configured as a "point-to-point service" connecting two
customer-designated premises at varying speeds, including DS-3, OC-3,
OC-12, OC-48, OC-192 services); Switched Access Tariff at Section 3.1
(offering "a two-point communications path between a Customer's premises
(or a collocated interconnection location) and [Fibertech's] network").
Wireline Broadband Order, 20 FCC Rcd at 14910, P 103.
Response at 13-14, PP 41-45.
Letter Ruling dated July 6, 2005 from Alexander P. Starr, Chief, Market
Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas,
Genevieve D. Sapir, Counsel for Complainant, and John A. Alzamora, Counsel
for Respondent, File No. EB-05-MD-012 at 2, (citing 47 C.F.R. S 1.1404(m)
& (l)).
See Letter Ruling dated November 15, 2005 from Barbara Esbin, Market
Disputes Resolution Division, Enforcement Bureau, to J.D. Thomas,
Genevieve D. Sapir, Counsel for Complainant, and Kenneth E. Hardman and
John A. Alzamora, Counsel for Respondent, File No. EB-05-MD-014 (directing
both parties to provide additional briefing of certain legal issues;
directing Fibertech to provide all tariff filings referenced in the
Complaint; and granting Fibertech's request to file a declaration in
support of its Reply, its four Certificates, and the PaPUC Fibertech
Order).
The relief granted extends to all poles, ducts, conduits and rights-of-way
over which NPTC is responsible for acting on third-party requests for
access, including facilities NTPC manages or controls under joint use or
sharing agreements. See Complaint at 8-9, P 34.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 07-486
12
Federal Communications Commission DA 07-486