47 U.S.C. § 224 — Pole attachments

submitted 92 years ago by Pub. L. 95-234 to r/title-47-TELECOMMUNICATIONS · 1,293 words · no verdicts yet

in plain englishAI-generated · not legal advice

The FCC regulates the rates, terms, and conditions utilities charge cable and telecom companies to attach equipment to their poles, ducts, conduits, and rights-of-way, unless a state certifies that it regulates these instead. The law sets formulas for calculating a just and reasonable rate, requires nondiscriminatory access, and assigns costs when poles are modified or new attachments require rearranging existing ones.

(a) Definitions. A "utility" is a local exchange carrier or an electric, gas, water, steam, or other public utility that owns or controls poles, ducts, conduits, or rights-of-way used at least partly for wire communications - but not a railroad, a cooperatively organized entity, or one owned by the federal government or a state. "Federal Government" means the U.S. government or its agencies. "State" means any state, territory, U.S. possession, the District of Columbia, or their political subdivisions and agencies. A "pole attachment" is any attachment a cable TV system or telecommunications service provider makes to a utility's pole, duct, conduit, or right-of-way. For this section, "telecommunications carrier" does not include an incumbent local exchange carrier as defined in section 251(h). (b) Authority of Commission. The FCC must make sure the rates, terms, and conditions for pole attachments are just and reasonable, and must set up procedures to hear and resolve complaints about them, including enforcement powers like cease-and-desist orders. The FCC must issue rules to carry this out. (c) State regulatory authority. This section does not give the FCC jurisdiction over pole attachment rates, terms, and conditions in a state that regulates those matters itself. A state that wants to regulate pole attachments must certify to the FCC that it does so, and that in doing so it considers both the interests of the people who subscribe to services using the attachments and the interests of the utility's own customers. A state only counts as regulating pole attachments if it has issued and put into effect its own rules, and if it takes final action on a complaint within 180 days of filing (or within its own rule's deadline, as long as that deadline is no more than 360 days after filing). (d) Determination of just and reasonable rates. A rate is just and reasonable if it gives the utility at least its added costs from the pole attachment, but no more than an amount based on the share of "usable space" (or duct/conduit capacity) the attachment occupies, multiplied by the utility's operating expenses and capital costs for that pole, duct, conduit, or right-of-way. "Usable space" means the space above the minimum grade level that can hold wires, cables, and equipment. This rate formula applies to attachments a cable system uses solely for cable service, and - until new regulations under subsection (e) take effect - also to attachments used by a cable system or a telecom carrier (not already covered by a pole attachment agreement) to provide telecom service. (e) Regulations governing charges. Within 2 years after February 8, 1996, the FCC must issue regulations governing pole attachment charges for telecom carriers when the utility and the carrier cannot agree, ensuring the rates are just, reasonable, and nondiscriminatory. A utility must split the cost of space other than "usable space" so each entity pays two-thirds of what an equal split among all attaching entities would give it. A utility must split the cost of usable space among all entities based on the percentage of usable space each one needs. These regulations take effect 5 years after February 8, 1996, and any resulting rate increase must be phased in equally over 5 years starting on that effective date. (f) Nondiscriminatory access. A utility must give cable TV systems and telecom carriers nondiscriminatory access to its poles, ducts, conduits, and rights-of-way. But a utility providing electric service can deny access if there is not enough room, or for safety, reliability, or standard engineering reasons - as long as it denies access the same way to everyone. (g) Imputation to costs of pole attachment rate. If a utility itself provides telecom or cable services, it must count in its own costs (and charge any affiliated company that provides those services) the same pole attachment rate it would charge someone else under this section. (h) Modification or alteration of pole, duct, conduit, or right-of-way. If the owner plans to modify or change a pole, duct, conduit, or right-of-way, the owner must give written notice to anyone who already has an attachment there, so that entity has a fair chance to add to or change its own attachment. Any entity that does add to or change its attachment after getting notice must pay its fair share of the owner's cost of making the change. (i) Costs of rearranging or replacing attachment. An entity that has an attachment does not have to pay to rearrange or replace it just because someone else added a new attachment or changed an existing one - that cost falls on whoever's new or changed attachment caused the need.

the actual law source: uscode.house.gov ↗public domain

(a) Definitions

As used in this section:

(1)

The term “utility” means any person who 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 who is cooperatively organized, or any person owned by the Federal Government or any State.

(2)

The term “Federal Government” means the Government of the United States or any agency or instrumentality thereof.

(3)

The term “State” means any State, territory, or possession of the United States, the District of Columbia, or any political subdivision, agency, or instrumentality thereof.

(4)

The term “pole attachment” means 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.

(5)

For purposes of this section, the term “telecommunications carrier” (as defined in section 153 of this title) does not include any incumbent local exchange carrier as defined in section 251(h) of this title.

(b) Authority of Commission to regulate rates, terms, and conditions; enforcement powers; promulgation of regulations

(1)

Subject to the provisions of subsection (c) of this section, the Commission shall regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. For purposes of enforcing any determinations resulting from complaint procedures established pursuant to this subsection, the Commission shall take such action as it deems appropriate and necessary, including issuing cease and desist orders, as authorized by section 312(b) of this title.

(2)

The Commission shall prescribe by rule regulations to carry out the provisions of this section.

(c) State regulatory authority over rates, terms, and conditions; preemption; certification; circumstances constituting State regulation

(1)

Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and rights-of-way as provided in subsection (f), for pole attachments in any case where such matters are regulated by a State.

(2)

Each State which regulates the rates, terms, and conditions for pole attachments shall certify to the Commission that—

(A)

it regulates such rates, terms, and conditions; and

(B)

in so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the utility services.

(3)

For purposes of this subsection, a State shall not be considered to regulate the rates, terms, and conditions for pole attachments—

(A)

unless the State has issued and made effective rules and regulations implementing the State’s regulatory authority over pole attachments; and

(B)

with respect to any individual matter, unless the State takes final action on a complaint regarding such matter—

(i)

within 180 days after the complaint is filed with the State, or

(ii)

within the applicable period prescribed for such final action in such rules and regulations of the State, if the prescribed period does not extend beyond 360 days after the filing of such complaint.

(d) Determination of just and reasonable rates; “usable space” defined

(1)

For purposes of subsection (b) of this section, 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.

(2)

As used in this subsection, the term “usable space” means the space above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment.

(3)

This subsection shall apply to the rate for any pole attachment used by a cable television system solely to provide cable service. Until the effective date of the regulations required under subsection (e), this subsection 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.

(e) Regulations governing charges; apportionment of costs of providing space

(1)

The Commission shall, no later than 2 years after February 8, 1996, prescribe regulations in accordance with this subsection to govern the charges for pole attachments used by telecommunications carriers to provide telecommunications services, when the parties fail to resolve a dispute over such charges. Such regulations shall ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments.

(2)

A utility shall apportion the cost of providing space on a pole, duct, conduit, or right-of-way other than the usable space among entities so that such apportionment equals two-thirds of the costs of providing space other than the usable space that would be allocated to such entity under an equal apportionment of such costs among all attaching entities.

(3)

A utility shall apportion the cost of providing usable space among all entities according to the percentage of usable space required for each entity.

(4)

The regulations required under paragraph (1) shall become effective 5 years after February 8, 1996. Any increase in the rates for pole attachments that result from the adoption of the regulations required by this subsection shall be phased in equal annual increments over a period of 5 years beginning on the effective date of such regulations.

(f) Nondiscriminatory access

(1)

A utility shall 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.

(2)

Notwithstanding paragraph (1), a utility providing electric service may deny a cable television system or any telecommunications carrier access to its poles, ducts, conduits, or rights-of-way, on a non-discriminatory 1 basis where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes.

(g) Imputation to costs of pole attachment rate

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.

(h) Modification or alteration of pole, duct, conduit, or right-of-way

Whenever the owner of a pole, duct, conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or right-of-way, the owner shall provide written notification of such action to any entity that has obtained an attachment to such conduit or right-of-way so that such entity may have a reasonable opportunity to add to or modify its existing attachment. Any entity that adds to or modifies its existing attachment after receiving such notification shall bear a proportionate share of the costs incurred by the owner in making such pole, duct, conduit, or right-of-way accessible.

(i) Costs of rearranging or replacing attachment

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).

Source credit: (June 19, 1934, ch. 652, title II, § 224, as added Pub. L. 95–234, § 6, Feb. 21, 1978, 92 Stat. 35; amended Pub. L. 97–259, title I, § 106, Sept. 13, 1982, 96 Stat. 1091; Pub. L. 98–549, § 4, Oct. 30, 1984, 98 Stat. 2801; Pub. L. 103–414, title III, § 304(a)(7), Oct. 25, 1994, 108 Stat. 4297; Pub. L. 104–104, title VII, § 703, Feb. 8, 1996, 110 Stat. 149.)

history & why it existsrecord from the source credit

1934Enacted · Pub. L. 95-234 · 92 Stat. 35
1982Amended · Pub. L. 97-259 · 96 Stat. 1091
1984Amended · Pub. L. 98-549 · 98 Stat. 2801
1994Amended · Pub. L. 103-414 · 108 Stat. 4297
1996Amended · Pub. L. 104-104 · 110 Stat. 149

A history note hasn’t been published yet. The record shows enactment by Pub. L. 95-234 on 1934-06-19.

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