FCC 1.1409 Revised as of October 1, 2006
Goto Year:2005 |
2007
Sec. 1.1409 Commission consideration of the complaint.
(a) In its consideration of the complaint, response, and reply, the
Commission may take notice of any information contained in publicly
available filings made by the parties and may accept, subject to rebuttal,
studies that have been conducted. The Commission may also request that one
or more of the parties make additional filings or provide additional
information. Where one of the parties has failed to provide information
required to be provided by these rules or requested by the Commission, or
where costs, values or amounts are disputed, the Commission may estimate
such costs, values or amounts it considers reasonable, or may decide
adversely to a party who has failed to supply requested information which is
readily available to it, or both.
(b) The 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. Sec. 224(f). If, however, a utility argues
that the proposed rate is lower than its incremental costs, the utility has
the burden of establishing that such rate is below the statutory minimum
just and reasonable rate. In 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.
(c) The Commission shall determine whether the rate, term or condition
complained of is just and reasonable. For the purposes of this paragraph, a
rate is just and reasonable if it assures a utility the recovery of not less
than the additional costs of providing pole attachments, nor more than an
amount determined by multiplying the percentage of the total usable space,
or the percentage of the total duct or conduit capacity, which is occupied
by the pole attachment by the sum of the operating expenses and actual
capital costs of the utility attributable to the entire pole, duct, conduit,
or right-of-way.
(d) The Commission shall deny the complaint if it determines that the
complainant has not established a prima facie case, or that the rate, term
or condition is just and reasonable, or that the denial of access was
lawful.
(e) When parties fail to resolve a dispute regarding charges for pole
attachments and the Commission's complaint procedures under Section 1.1404
are invoked, the Commission will apply the following formulas for
determining a maximum just and reasonable rate:
(1) The following formula shall apply to attachments to poles by cable
operators providing cable services. This formula shall also apply to
attachments to poles by any telecommunications carrier (to the extent such
carrier is not a party to a pole attachment agreement) or cable operator
providing telecommunications services until February 8, 2001:
[MATH: :MATH]
[MATH: :MATH]
(2) Subject to paragraph (f) of this section the following formula shall
apply to attachments to poles by any telecommunications carrier (to the
extent such carrier is not a party to a pole attachment agreement) or cable
operator providing telecommunications services beginning February 8, 2001:
[MATH: :MATH]
(3) The following formula shall apply to attachments to conduit by cable
operators and telecommunications carriers:
[MATH: :MATH]
simplified as:
[MATH: :MATH]
If no inner-duct is installed the fraction, “1 Duct divided by the No. of
Inner-Ducts” is presumed to be 1/2.
(f) Paragraph (e)(2) of this section shall become effective February 8, 2001
(i.e., five years after the effective date of the Telecommunications Act of
1996). Any increase in the rates for pole attachments that results from the
adoption of such regulations shall be phased in over a period of five years
beginning on the effective date of such regulations in equal annual
increments. The five-year phase-in is to apply to rate increases only. Rate
reductions are to be implemented immediately. The determination of any rate
increase shall be based on data currently available at the time of the
calculation of the rate increase.
[ 43 FR 36094 , Aug. 15, 1978, as amended at 52 FR 31770 , Aug. 24, 1987; 61 FR 43025 , Aug. 20, 1996; 61 FR 45619 , Aug. 29, 1996; 63 FR 12025 , Mar. 12,
1998; 65 FR 31282 , May 17, 2000; 66 FR 34580 , June 29, 2001]
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