FCC Regulatory Update

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Tobias Dean
8 years ago
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1 FCC Regulatory Update Wisconsin Joint Use Conference 2005 April Wisconsin Dells, WI Shirley S. Fujimoto McDermott, Will & Emery LLP th Street NW Washington, DC (202)

Fujimoto McDermott, Will & Emery LLP 600 13th Street NW

2 Pole Attachment Timeline Pre-1978: No Pole Attachment Jurisdiction Pole Attachment Act Passed FCC Implementation of 1996 Act 1996 Telecommunications Act Passed, Amending Pole Attachments Act Challenges to FCC Rulemakings, Dockets 96-98, 97-98, , in 11 th Cir., DC Cir., U.S. Supreme Court Pole Attachment Responsibility Moves to Enforcement Bureau, Phase in of Telecom Rate Begins Emphasis on Mediation, Negotiation 2

Challenges to FCC Rulemakings, Dockets 96-98, 97-98, 97-151, in 11 th Cir., DC Cir., U.S.

3 Mediation Trend Reassignment of authority over pole attachments from Cable Services Bureau to Enforcement Bureau marks change in FCC treatment of cases to more mediationfocused resolution and fewer formal decisions Enforcement Bureau pole attachment staff background: formerly tasked with Common Carrier disputes under Section 201 of the Communications Act, which are largely resolved through mediation. This philosophy has now been imported into the pole attachment arena. Housed in the Market Disputes Resolution Division (MDRD) 3

background: formerly tasked with Common Carrier disputes under Section 201 of the Communications Act, which are largely resolved

4 Mediation Trend Pre-Complaint Mediation Purpose and Goals Satisfies good faith settlement requirement under the FCC s rules (47 C.F.R. Sec (k) Attempt to narrow and resolve issues if possible to focus/streamline any issues that end up in a formal complaint Post-Complaint Mediation Purpose and Goals Conserve Commission resources and allow companies to find a mutually agreeable resolution; avoid repeat or ongoing disputes More expedient than resolution by formal decision Promotes de-regulatory, commercial resolutions of conflicts 4

1404(k) Attempt to narrow and resolve issues if possible to focus/streamline any issues that end up in a formal complaint

5 Mediation Trend The Enforcement Bureau s Statement on Mediation: Parties are strongly encouraged to attempt to settle or narrow their dispute before filing a pole attachment complaint. To assist parties in this effort, MDRD emphasizes mediation of pole attachment disputes, preferably prior to the actual filing of a complaint to inform us of the impending proceeding, and for information regarding MDRD's mediation program. Mediations allow the parties to focus on a solution to their dispute, and not waste resources in costly and time-consuming litigation. The Division has had great success with its mediation efforts; many cases that would have been formal complaints have been resolved informally without further litigation with the help of MDRD staff. 5

for information regarding MDRD's mediation program. Mediations allow the parties to focus on a solution to their dispute, and not waste resources in costly and time-consuming litigation.

6 Mediation Trend Is there any guidance on the horizon? FCC Enforcement Trend: Mediation and Negotiated Settlement Before and After a Complaint is Filed (No written decisions issued) 9 out of the last 10 pole attachment Orders issued by the Enforcement Bureau have been non-substantive dismissals of cases pursuant to negotiated settlement agreements among the parties American Fiber v. KCPL PAA Status of Fiber Provider FiberTech v. Duquesne PAA Status of Fiber Provider, Cost of engineering surveys RCN v. PECO Make-ready and engineering costs Virginia Cable v. VEPCO Make-ready costs, Telecom rate elements, burdens (average number of attachers) No Substantive Orders issued since November 2003 No Substantive Orders, No Appellate Review 6

Enforcement Bureau have been non-substantive dismissals of cases pursuant to negotiated settlement agreements among the parties American Fiber v.

7 Issues in Pending Cases Just Compensation (Florida Cable Ass n v. Gulf Power) Application of the Telecommunications Rate (Texas Cable v. CenterPoint, CenterPoint v. Texas Cable) Utility Engineering Standards and Inspection Practices (ACTA v. Entergy Arkansas) 7

8 Just Compensation Florida Cable Telecommunications Ass n v. Gulf Power Co. (EB ) Background Alabama Power v. FCC Before seeking just compensation, utility must show: Pole is at full capacity; and either: another buyer is waiting in the wings, or the utility has a higher-valued use for the space. Cert. Denied, October

FCC Before seeking just compensation, utility must show: Pole is at full capacity;

9 Just Compensation Florida Cable Telecommunications Ass n v. Gulf Power Co. (EB ) Designated for Hearing before Administrative Law Judge Richard Sippel Proceeding in Discovery Interrogatories exchanged Each seeking detailed information on the opposing parties networks and infrastructure Focus on capacity of poles Pole count proceeding over cable companies objection Hearing Scheduled March 28,

Discovery Interrogatories exchanged Each seeking detailed information on the opposing parties

10 Telecom Rate Application CenterPoint/Time Warner (2 Cases) Supplemental briefing completed in November 2004 Is the Telecom Rate charged according to the character of the attachment, or the character of the entity? CenterPoint s contamination theory Offering v. Used to Provide services 10

according to the character of the attachment, or the character of the

11 Telecom Rate Application Who is a telecommunications carrier? Certification by the State authority Provision of cable modem services Provision of VoIP Use of/option to use network by an affiliate Telecom Rate Issues - Average Number of Attaching Entities/Burden of Proof When must the FCC s presumptions be used? Who must rebut them? 11

VoIP Use of/option to use network by an affiliate Telecom Rate Issues - Average

12 Engineering and Inspections ACTA v. Entergy Arkansas Sample safety inspections conducted as a result of damages and outages traceable to cable plant Full Inspections conducted after sample inspections showed high incidents of engineering violations of the pole agreement and NESC standards Cable Operators primarily object to: Overall cost of inspections Apportionment of costs Engineering standards in excess of the NESC 12

cable plant Full Inspections conducted after sample inspections showed high incidents of engineering

13 Engineering and Inspections Who is entitled to dictate engineering standards? Does the FCC have jurisdiction or expertise to regulate? Are standards in excess of the NESC reasonable? Should cable operators be entitled to dictate who a utility uses to inspect its facilities? May safety inspections be conducted more than one year after installation, or outside of the routine inspection process? 13

Are standards in excess of the NESC reasonable?

14 Other Controversies Wireless Attachments Are within the Pole Attachments Act Rates must be just and reasonable Reasonableness determined on a case-by-case basis No formula or agency application of standard Recent Public Notice reminding utilities of their obligations to wireless providers as the FCC is aware of a number of wireless disputes 14

formula or agency application of standard Recent Public Notice reminding utilities of

15 FCC Action Related Rulemakings Broadband over Power Lines IP-Enabled Services NPA on Tower Siting 15

16 Q & A 16

Pole Attachments and Rights-of-Way: Rights and Opportunities

Pole Attachments and Rights-of-Way: Rights and Opportunities UTC Telecom 2005 May 23, 2005 Long Beach, California Jeffrey L. Sheldon McDermott Will & Emery LLP 600 13th Street NW Washington, DC 20005-3096