El acceso a las tecnologías de la información y la comunicación

111. As discussed above, Congress first directed the Commission to ensure that the rates, terms, and conditions for pole attachments by cable television systems were just and reasonable in 1978 when it added section 224 to the Act.295 In a series of orders, the Commission implemented a formula

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about attachers’ incentives to engage in bona fide, good faith negotiations warrant re-visiting the issue. See, e.g., PacifiCorp et al. Reply Comments at 22-23; FPL et al. Reply Commentsat 13.

292

See, e.g., Time Warner Cable Reply Comments at 60.

293

See Appendix B at 4 (proposed amendment to rule 1.1404(d)).

294

See generally Section IV.B.

295

Pole Attachment Act of 1978, Pub. L. No. 95-234, 92 Stat. 33 (1978). Congress reacted to an apparent need in the cable television industry to resolve conflicts between such providers, then known as “CATV systems,” and (continued….)

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that cable television system attachers and utilities could use to determine a just and reasonable rate, and procedures for resolving rate complaints.296 In 1987, the U.S. Supreme Court found that the formula the Commission devised for pole attachments by cable television systems (the cable rate formula) provides pole owners with adequate compensation, and thus did not result in an unconstitutional “taking.”297

112. Congress expanded the reach of section 224 in the 1996 Act. Among other things, Congress added “telecommunications carrier” as a category of attacher entitled to pole attachments on just and reasonable rates, terms, and conditions under section 224.298 For purposes of section 224, Congress excluded incumbent LECs from the definition of “telecommunications carriers.”299 In prior orders, the Commission interpreted the exclusion of incumbent LECs from the term “telecommunications carrier” (and from the corresponding statutory right to attach to utility poles) to mean that section 224 does not apply to attachment rates paid by incumbent LECs,300 which own many poles themselves, and historically have obtained access to other utilities’ poles within their incumbent LEC service territory through “joint use” or other agreements.301

113. By virtue of the 1996 Act revisions, section 224 of the Act now sets forth two separate formulas to determine the maximum rates for pole attachments—one applies to pole attachments used by providers of telecommunications services (the telecom rate formula), and the other to pole attachments

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utility pole, duct, and conduit owners over the charges for use of such facilities. See generally S. Rep. No. 95-580, 95th Cong., 1st Sess. (1977).

296

See, e.g., Pole Attachments First Report and Order, CC Docket No. 78-144, 68 FCC 2d 1585 (adopting

complaint procedures); Adoption of Rules for the Regulation of Cable Television Pole Attachments, CC Docket No. 78-144, Memorandum Opinion and Order, 77 FCC 2d 187 (1980) (defining, e.g., safety space, average usable space, attachment as occupying 12 inches of space, make-ready as non-recurring cost); Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, CC Docket No. 86-212, Report and Order, 2 FCC Rcd 4387 (1987) (1987 Rate Order), rev’d,Florida Power Corp. v. FCC, 772 F.2d 1537 (11thCir. 1985) (Florida Power Corp. v. FCC ), rev’d,FCC v. Florida Power Corp., 480 U.S. 245 (1987).

297

FCC v. Florida Power Corp., 480 U.S. 245 (1987); see also Alabama Cable Telecomm. Ass'n v. Alabama Power Co., File No. PA 00-003, Order, 16 FCC Rcd 12209 (2001).

298

47 U.S.C. § 224(a)(4).

299

47 U.S.C. § 224(a)(5).

300

See, e.g., Local Competition Order, 11 FCC Rcd at 16103-04, para. 16103; 1998Implementation Order, 13 FCC Rcd at 6781, para. 5 (“Because, for purposes of Section 224, an ILEC is a utility but is not a telecommunications carrier, an ILEC must grant other telecommunications carriers and cable television systems access to its poles, even though the ILEC has no rights under Section 224 with respect to the poles of other utilities.”);47 U.S.C. § 224(f)(1) (stating that “[a] utility shall provide . . . any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it”); 47 U.S.C. § 224(a)(5) (stating that “[f]or purposes of this section, the term ‘telecommunications carrier’ . . . does not include any incumbent local exchange carrier.”); 47 C.F.R. § 1.1401 (“Purpose: The rules and regulations contained in . . . this part provide complaint and enforcement procedures to ensure that telecommunications carriers and cable system operators have nondiscriminatory access to utility poles, ducts, conduits, and rights-of-way on rates, terms, and conditions that are just and reasonable.”).

301

Outside of the carrier’s incumbent LEC service territory, it would be subject to the same pole attachment regulations as any other telecommunications carrier. See 47 U.S.C. § 224(a)(5) (excluding from the definition of “telecommunications carrier” for purposes of section 224 “any incumbent local exchange carrier as defined in section 251(h)”); 47 U.S.C. § 251(h)(1) (defining “incumbent local exchange carriers” in terms of their status with respect to a particular area).

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used “solely to provide cable service” (the cable rate formula).302 As the Commission has implemented these statutory formulas, the telecom rate formula generally results in higher pole rental rates than the cable rate formula. The difference between the two formulas under current Commission rules is the manner in which they allocate the costs associated with the unusable portion of the pole303—that is, the space on the pole that cannot be used for attachments.304 The cable rate formula and the telecom rate formula both allocate the costs of usable space on a pole based on the fraction of the usable space that an attachment occupies.305 Under the cable rate formula, the costs of unusable space on a pole are allocated in the same way, i.e., based on the portion of usable space an attachment occupies.306 Under the telecom rate formula, however, two-thirds of the costs of the unusable space is allocated equally among the number of attachers, including the owner, and the remaining one third of these costs is allocated solely to the pole owner.307

114. At the same time that the Commission adopted a rule implementing the telecom rate formula, it addressed the issues of cable attachments used to offer commingled cable and Internet access services. In particular, the Commission held that cable television systems that offer commingled cable and Internet access service should continue to pay the cable rate.308 In 2000, the Supreme Court upheld this decision, finding that section 224(b) gives the Commission authority to adopt just and reasonable rates for attachments within the general scope of section 224 of the Act, but outside the “self-described scope” of the telecom rate formula or cable rate formula as specified under sections 224(d) and (e).309