[Federal Register Volume 64, Number 233 (Monday, December 6, 1999)]
[Rules and Regulations]
[Pages 68053-68054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31497]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[CC Docket No. 96-98; FCC 99-266]
Implementation of Local Competition Provisions of the
Telecommunications Act of 1996
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission analyzes petitioners'
requests for reconsideration or clarification of the access
requirements the Commission implemented pursuant to Section 224 of the
Communications Act, as amended by the 1996 Telecommunications Act,
including capacity expansion, the exercise of eminent domain,
reservation of space, utilities' access obligations, worker
qualifications, the timing and manner of notification of modifications,
allocation of modification costs, and state certification of access
regulation. The general requirements are designed to give parties
flexibility to reach agreements on access to utility-controlled poles,
ducts, conduits and rights-of-way, without the need for regulatory
intervention.
FOR FURTHER INFORMATION CONTACT: Nancy Stevenson, Cable Services Bureau
(202) 418-7200, TTY (202) 418-7172.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order
on Reconsideration in CC Docket No. 96-98, FCC 99-266, adopted October
20, 1999, and released October 26, 1999. In the Order on
Reconsideration, the Commission analyzes petitioners' requests for
reconsideration or clarification of the access requirements contained
in the First Report and Order (61 FR 45476-01), implemented pursuant to
the Notice of Proposed Rulemaking (61 FR 18311) and Section 224 of the
Communications Act, as amended by the 1996 Telecommunications Act. The
complete text of the Order on Reconsideration is available for
inspection and copying during normal business hours in the FCC
Reference Center, and may also be purchased from the Commission's copy
contractor, International Transcription Service (``ITS, Inc.''), (202)
857-3800, 1231 20th Street, NW, Washington, DC 20036. In addition, the
complete text of the Order on Reconsideration is available on the
Internet at http://www.fcc.gov/Bureaus/Cable/Orders/1999/fcc99266.txt.
Synopsis of the Order on Reconsideration
1. Section 224 of the Communications Act, as amended by the 1996
Act, imposes upon all utilities, including local exchange carriers
(``LECs''), the duty to ``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.'' The Local
Competition Order adopted general rules and guidelines regarding access
to utility-controlled poles, ducts, conduits, and rights-of-way. The
Order on Reconsideration analyzes petitioners' requests for
reconsideration or clarification of the access requirements of the
Local Competition Order.
2. Key findings:
Access to electric transmission facilities: Use of any utility
pole, duct, conduit, or right-of-way for wire communications triggers
access to all poles, ducts, conduits, and rights-of-way owned or
controlled by a utility, including those not currently used for wire
communications. To the extent an electric transmission facility is a
`pole, duct, conduit or right-of-way,' the facility would be subject to
the access provisions of section 224.
Eminent domain: The right to exercise eminent domain is generally a
matter of state law, exercised according to the varying limitations
imposed by particular states. Neither the statute nor its legislative
history offers convincing evidence that Congress intended for section
224 to compel a utility to exercise eminent domain. Accordingly, the
Order on Reconsideration finds that section 224 does not create a
federal requirement that a utility be forced to exercise eminent domain
on behalf of third party attachers.
Capacity Expansion: The principle of nondiscrimination established
by section 224(f)(1) requires a utility to take all reasonable steps to
expand capacity to accommodate requests for attachment, just as it
would expand capacity to meet its own needs. Before denying access
based on a lack of capacity, a utility must explore potential
accommodations in good faith with the party seeking access.
Reservation of Space: Attaching parties may use a utility's reserve
space until the utility has an actual need for the space. A utility may
recover the reserved capacity for its own use, based upon its actual
need for the reserved capacity. Capacity that is allocated or planned
for emergency purposes in a utility's contingency plan should not be
subject to the access obligations of reserved capacity in general. A
utility may reserve capacity to carry core utility communications
capacity that is essential to the proper operations of the utility
system.
Use of utility facilities for wire communications: Use of any
utility pole, duct, conduit, or right-of-way for wire communications
triggers access to all poles, ducts, conduits, and rights-of-way owned
or controlled by the utility, including those not currently used for
wire communications. In addition, internal communications are
considered ``wire communications'' that trigger access obligations.
Use of non-utility employees: While utilities may ensure that
individuals who work in proximity to electric lines to perform pole
attachments and related activities meet utility standards for the
performance of such work, utilities may not dictate the identity of the
workers who will perform the work itself.
Notice of modifications: Under most circumstances, a utility should
be able
[[Page 68054]]
to give 60-days' notice to attaching parties before facility
modifications are undertaken, even in instances where a government or a
government agency requires service to new customers in less that 60
days.
Allocation of costs: The statute does not require that an attaching
entity receive compensation for modification costs it incurred that
create excess rights-of-way that are later sold to other entrants by
utility.
State certification: States that have previously certified their
regulation of rates, terms and conditions of pole attachments need not
re-certify in order to assert their jurisdiction over access. However,
if a state that has not previously certified its authority over rates,
terms and conditions wishes to begin to assert such jurisdiction,
including jurisdiction over access pursuant to section 224(f), the
state must certify in order to assert jurisdiction.
Ordering Clauses
3. Pursuant to sections 224, 251 and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. 224, 251 and 303(r), the Order on
Reconsideration is Adopted.
4. Pursuant to section 405 of the Communications Act of 1934, as
amended, 47 U.S.C. 405, and section 1.106 of the Commission's rules, 47
CFR. 1.106 (1995), that the petitions for reconsideration or
clarification are Denied in Part and Granted in Part.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 99-31497 Filed 12-3-99; 8:45 am]
BILLING CODE 6712-01-P