Implementation of Section 703 of the Communications Act of 1996

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 1

[CS Docket No. 96-166; FCC 96-327]

Implementation of Section 703 of the Communications Act of 1996

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: By adopting this Order, the Commission implements the self-

effectuating additions and revisions made by Section 703 of the

Telecommunications Act of 1996 to Section 224 of the Communications Act

of 1934, as amended. The pole attachment provisions of Section 224 of

the Communications Act of 1934, as amended, initially only applied to

cable television system operators. However, Section 703 of the

Telecommunications Act of 1996 expanded the scope of the pole

attachment provisions under Section 224 to include telecommunications

carriers as well as cable television system operators.

DATES: Effective August 20, 1996. Written comments by the public on the

information collections contained herein are due October 21, 1996.

ADDRESSES: Comments on the information collections contained herein

should be submitted to Dorothy Conway, Federal Communications

Commission, Room 234, 1919 M Street, N.W., Washington, DC 20554, or via

the Internet to [email protected], and to Timothy Fain, OMB Desk Officer,

10236 NEOB, 725--17th Street, N.W., Washington, DC 20503 or via the

Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Michael T. McMenamin, Cable Services

Bureau, (202) 418-7200. For additional information concerning the

information collections contained in this Order contact Dorothy Conway

at 202-418-0217, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's

Order, CS Docket No. 96-166, adopted August 2, 1996 and released August

6, 1996. The full text of this decision is available for inspection and

copying during normal business hours in the FCC Reference Center (Room

239), 1919 M Street, NW, Washington, D.C. 20554, and may be purchased

from the Commission's copy contractor, International Transcription

Service, (202) 857-3800, 1919 M Street, NW, Washington, D.C. 20554.

Synopsis of the Order

Section 703 of the 1996 Act added and amended several provisions of

Section 224 of the Communications Act of 1934, as amended (``Section

224''). Specifically, Section 703 amended Sections 224 (a)(1), (a)(4),

(c)(1) and (c)(2)(B), and added new Sections 224 (a)(5), (d)(3), (e),

(f), (g), (h) and (i). Many of these additions and revisions to

existing federal statutory provisions are self-effectuating. This Order

conforms our rules to meet these new statutory requirements. We are

revising these rules without providing prior public notice and an

opportunity for comment because the rule modifications do not involve

discretionary action on the part of the Commission but rather, simply

conform our rules to the applicable provisions of the 1996 Act. We find

that notice and comment procedures are unnecessary, and that this

action falls

[[Page 43024]]

within the ``good cause'' exception of the Administrative Procedure

Act. Sections 224(e) is not self-effectuating. We will seek notice and

comment regarding implementation of Section 224(e) in a separate

proceeding consistent with the two-year period specified by Section

224(e). In addition, the Commission has sought notice and comment

regarding the implementation of Sections 224 (f) and (h) in a separate

proceeding.1

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\1\ The Commission has issued a Notice of Proposed Rulemaking,

Implementation of the Local Competition Provisions in the

Telecommunications Act of 1996, FCC 96-182, 61 FR 18311, par. 220-

225 (April 25, 1996), to implement the Interconnection provisions of

Section 251.

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Paperwork Reduction Act

This Order contains either proposed or modified information

collections. The Commission has requested Office of Management and

Budget (``OMB'') approval, under the emergency processing provisions of

the Paperwork Reduction Act of 1995, of the information contained in

this rulemaking. Approval is requested to be effective no later than

the date that the summary of the Order appears in the Federal Register.

The OMB control number for information collections contained in this

rulemaking is 3060-0392. The Commission, as part of its continuing

effort to reduce paperwork burdens and to obtain regular OMB approval

of the information collections, invites the general public to comment

on the information collections contained in this Order, as required by

the Paperwork Reduction Act of 1995. Public and agency comments are due

October 21, 1996. Comments should address: (a) Whether the proposed

collection of information is necessary for the proper performance of

the functions of the Commission, including whether the information

shall have practical utility; (b) the accuracy of the Commission's

burden estimates; (c) ways to enhance the quality, utility, and clarity

of the information collected; and (d) ways to minimize the burden of

the collection of information on the respondents, including the use of

automated collection techniques or other forms of information

technology.

OMB Approval Number: 3060-0392.

Title: 47 CFR 1.1401 through 1.1416 Pole Attachment Procedures.

Type of Review: Revision of existing collection.

Respondents: Businesses or other for-profit entities.

Number of Respondents: 83.

Estimated Time Per Response: 1-25 hours.

Total Annual Burden: 449 hours. Notices: 36 sets of notices x 2

hours each = 72 hours. Petitions for Stay: 10 Petitions x 8 hours

each = 80 hours. Complaints, responses and replies: 10 complaint cases

(20 parties). 50% of parties will use in-house legal assistance with an

average burden of 25 hours per case. 10 parties x 25 hours = 250

hours. 50% of parties will use outside legal counsel with an average

burden of 4 hours to coordinate information with outside legal counsel.

10 parties x 4 hours = 40 hours. State certifications: 7

certifications x 1 hour = 7 hours.

Total Annual Cost to Respondents: $41,100. Notices: 36 sets of

notices x $100 each for postage and stationery = $3,600. Complaints,

responses and replies: 50% of parties will use outside legal counsel

paid at $150 per hour. 10 parties x 25 hours per case x $150 per

hour = $37,500.

Needs and Uses: Initial pole attachment provisions were mandated by

Congress pursuant to Section 224 of the Communications Act of 1934.

Among other things, Section 224 initially mandated the following: The

Commission was required to establish rules to ensure that the rates,

terms and conditions under which cable television system operators

attach their hardware to utility poles are just and reasonable.

Utilities shall provide a cable television system operator no less than

60 days written notice prior to (1) removal of facilities or

termination of any service to those facilities, such removal or

termination arising out of a rate, term or condition of a cable

television pole attachment agreement, or (2) any increase in pole

attachment rates. The Commission was required to establish a Petition

for Stay process for the action contained in the notice. The Commission

was required to establish a complaint resolution process regarding pole

attachments. The Commission was required to establish a certification

process for states to use to make notice of their authority to regulate

the rates, terms and conditions for pole attachments. The provisions in

Section 224 were initially only applicable to cable television system

operators. However, Section 703 of the Telecommunications Act of 1996

amends Section 224 to expand the scope of the pole attachment

provisions to include telecommunications carriers as well as cable

television system operators. The Commission's rules for pole attachment

provisions are contained in 47 CFR 1.1401 through 1.1416.

Accordingly, It is ordered that pursuant to Section 703 of the

Telecommunications Act of 1996 (Section 224 of the Communications Act

of 1934, as amended, 47 U.S.C. 224), and to Sections 4(i) and 303(r) of

the Communications Act of 1934 as amended, 47 U.S.C. 154(i), 303(r),

Subpart J of Part 1 of the Commission's Rules is amended as set forth

below. The rule changes will become effective August 20, 1996.

List of Subjects in 47 CFR Part 1

Administrative practice and procedure, Communications common

carriers, Investigations, Lawyers, Penalties, Reporting and

recordkeeping requirements, Telecommunications.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rules Changes

Part 1 of Title 47 of the Code of Federal Regulations is amended as

follows:

PART 1--PRACTICE AND PROCEDURE

1. The authority citation for Part 1 continues to read as follows:

Authority: 47 U.S.C. 151, 154, 303 and 309(j) unless otherwise

noted.

Subpart J--Pole Attachment Complaint Procedures

2. Section 1.1401 is revised to read as follows:

Sec. 1.1401 Purpose.

The rules and regulations contained in this subpart J provide

complaint and enforcement procedures to ensure that the rates, terms

and conditions for pole attachments of cable television systems and

telecommunications carriers are just and reasonable.

3. Section 1.1402 is amended by revising paragraphs (a), (b), (d),

(e), and (f) and adding a new paragraph (h) to read as follows:

Sec. 1.1402 Definitions.

(a) The term utility means any person that is a local exchange

carrier or an electric, gas, water, steam, or other public utility, and

who owns or controls poles, ducts, conduits, or rights-of-way used, in

whole or in part, for any wire communications. Such term does not

include any railroad, any person that is cooperatively organized, or

any person owned by the Federal Government or any State.

(b) The term pole attachment means any attachment by a cable

television system or provider of telecommunications service to a pole,

[[Page 43025]]

duct, conduit, or right-of-way owned or controlled by a utility.

* * * * *

(d) The term complaint means a filing by a cable television system

operator, a cable television system association, a utility, an

association of utilities, a telecommunications carrier, or an

association of telecommunications carriers alleging that a rate, term,

or condition for a pole attachment is not just and reasonable.

(e) The term complainant means a cable television system operator,

a cable television system association, a utility, an association of

utilities, a telecommunications carrier, or an association of

telecommunications carriers who files a complaint.

(f) The term respondent means a cable television system operator, a

utility, or a telecommunications carrier against whom a complaint is

filed.

* * * * *

(h) For purposes of this subpart, the term telecommunications

carrier means any provider of telecommunications services, except that

the term does not include aggregators of telecommunications services

(as defined in 47 U.S.C. 226) or incumbent local exchange carriers (as

defined in 47 U.S.C. 251(h)).

4. Section 1.1403 is revised to read as follows:

Sec. 1.1403 Notice of removal and petition for temporary stay.

(a) A utility shall provide a cable television system operator or

telecommunications carrier no less than 60 days written notice prior

to:

(1) 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 cable television system operator's or

telecommunications carrier's pole attachment agreement; or

(2) Any increase in pole attachment rates.

(b) A cable television system operator or telecommunications

carrier may file a ``Petition for Temporary Stay'' of the action

contained in a notice received pursuant to paragraph (a) of this

section within 15 days of receipt of such notice. Such submission shall

not be considered unless it includes, in concise terms, the relief

sought, the reasons for such relief, including a showing of irreparable

harm and likely cessation of cable television service or

telecommunication service, a copy of the notice, and certification of

service as required by Sec. 1.1404(b). The named respondent may file an

answer within 7 days of the date the Petition for Temporary Stay was

filed. No further filings under this section will be considered unless

requested or authorized by the Commission and no extensions of time

will be granted unless justified pursuant to Sec. 1.46.

5. Section 1.1404 is amended by revising paragraphs (a), (d)

introductory text and (d) (2) to read as follows:

Sec. 1.1404 Complaint.

(a) The complaint shall contain the name and address of the

complainant, name and address of the respondent, and shall contain a

verification (in the form in Sec. 1.721(b)), signed by the complainant

or officer thereof if complainant is a corporation, showing

complainant's direct interest in the matter complained of. Counsel for

the complainant may sign the complaint. Complainants may join together

to file a joint complaint. Complaints filed by associations shall

specifically identify each utility, cable television system operator,

or telecommunications carrier who is a party to the complaint and shall

be accompanied by a document from each identified member certifying

that the complaint is being filed on its behalf.

* * * * *

(d) The complaint shall be accompanied by a copy of the pole

attachment agreement, if any, between the cable system operator or

telecommunications carrier and the utility. If there is no present pole

attachment agreement, the complaint shall contain:

* * * * *

(2) A statement that the cable television system operator or

telecommunications carrier currently has attachments on the poles,

ducts, conduits, or rights-of-way.

* * * * *

6. Section 1.1409 is amended by adding a new paragraph (e) to read

as follows:

Sec. 1.1409 Commission consideration of the complaint.

* * * * *

(e) Section 1.1404 shall apply to the rate for any pole attachment

used by a cable system operator solely to provide cable service. Until

47 U.S.C. 224(e) is implemented, Sec. 1.1404 shall also apply to the

rate for any pole attachment used by a cable system or any

telecommunications carrier (to the extent such carrier is not a party

to a pole attachment agreement) to provide any telecommunications

service.

7. A new Section 1.1416 is added to subpart J to read as follows:

Sec. 1.1416 Access provisions for telecommunication carriers and cable

systems.

(a) A utility that engages in the provision of telecommunications

services or cable services shall impute to its costs of providing such

services (and charge any affiliate, subsidiary, or associate company

engaged in the provision of such services) an equal amount to the pole

attachment rate for which such company would be liable under this

section.

(b) An entity that obtains an attachment to a pole, conduit, or

right-of-way shall not be required to bear any of the costs of

rearranging or replacing its attachment, if such rearrangement or

replacement is required as a result of an additional attachment or the

modification of an existing attachment sought by any other entity

(including the owner of such pole, duct, conduit, or right-of-way).

[FR Doc. 96-20901 Filed 8-19-96; 8:45 am]

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