Goto Section: 1.1403 | 1.1405 | Table of Contents
FCC 1.1404
Revised as of October 1, 2011
Goto Year:2010 |
2012
§ 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 § 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.
(b) The complaint shall be accompanied by a certification of service on
the named respondent, and each of the Federal, State, and local
governmental agencies that regulate any aspect of the services provided
by the complainant or respondent.
(c) In a case where it is claimed that a rate, term, or condition is
unjust or unreasonable, the complaint shall contain a statement that
the State has not certified to the Commission that it regulates the
rates, terms and conditions for pole attachments. The complaint shall
include a statement that the utility is not owned by any railroad, any
person who is cooperatively organized or any person owned by the
Federal Government or any State.
(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:
(1) A statement that the utility uses or controls poles, ducts, or
conduits used or designated, in whole or in part, for wire
communication; and
(2) A statement that the cable television system operator or
telecommunications carrier currently has attachments on the poles,
ducts, conduits, or rights-of-way.
(e) The complaint shall state with specificity the pole attachment
rate, term or condition which is claimed to be unjust or unreasonable.
(f) In any case, where it is claimed that a term or condition is unjust
or unreasonable, the claim shall specify all information and argument
relied upon to justify said claim.
(g) For attachments to poles, where it is claimed that either a rate is
unjust or unreasonable, or a term or condition is unjust or
unreasonable and examination of such term or condition requires review
of the associated rate, the complaint shall provide data and
information in support of said claim.
(1) The data and information shall include, where applicable:
(i) The gross investment by the utility for pole lines;
(ii) The investment in crossarms and other items which do not reflect
the cost of owning and maintaining poles, if available;
(iii) The depreciation reserve from the gross pole line investment;
(iv) The depreciation reserve from the investment in crossarms and
other items which do not reflect the cost of owning and maintaining
poles, if available;
(v) The total number of poles:
(A) Owned; and
(B) Controlled or used by the utility. If any of these poles are
jointly owned, the complaint shall specify the number of such jointly
owned poles and the percentage of each joint pole or the number of
equivalent poles owned by the subject utility;
(vi) The total number of poles which are the subject of the complaint;
(vii) The number of poles included in paragraph (g)(1)(vi) of this
section that are controlled or used by the utility through lease
between the utility and other owner(s), and the annual amounts paid by
the utility for such rental;
(viii) The number of poles included in paragraph (g)(1)(vi) of this
section that are owned by the utility and that are leased to other
users by the utility, and the annual amounts paid to the utility for
such rental;
(ix) The annual carrying charges attributable to the cost of owning a
pole. The utility shall submit these charges separately for each of the
following categories: Depreciation, rate of return, taxes, maintenance,
and administrative. These charges may be expressed as a percentage of
the net pole investment. With its pleading, the utility shall file a
copy of the latest decision of the state regulatory body or state court
that determines the treatment of accumulated deferred taxes if it is at
issue in the proceeding and shall note the section that specifically
determines the treatment and amount of accumulated deferred taxes.
(x) The rate of return authorized for the utility for intrastate
service. With its pleading, the utility shall file a copy of the latest
decision of the state regulatory body or state court which establishes
this authorized rate of return if the rate of return is at issue in the
proceeding and shall note the section which specifically establishes
this authorized rate and whether the decision is subject to further
proceedings before the state regulatory body or a court. In the absence
of a state authorized rate of return, the rate of return set by the
Commission for local exchange carriers shall be used as a default rate
of return;
(xi) The average amount of usable space per pole for those poles used
for pole attachments (13.5 feet may be in lieu of actual measurement,
but may be rebutted);
(xii) The average amount of unusable space per pole for those poles
used for pole attachments (a 24 foot presumption may be used in lieu of
actual measurement, but the presumption may be rebutted); and
(xiii) Reimbursements received from CATV operators and
telecommunications carriers for non-recurring costs.
(2) Data and information should be based upon historical or original
cost methodology, insofar as possible. Data should be derived from
ARMIS, FERC 1, or other reports filed with state or federal regulatory
agencies (identify source). Calculations made in connection with these
figures should be provided to the complainant. The complainant shall
also specify any other information and argument relied upon to attempt
to establish that a rate, term, or condition is not just and
reasonable.
(h) With respect to attachments within a duct or conduit system, where
it is claimed that either a rate is unjust or unreasonable, or a term
or condition is unjust or unreasonable and examination of such term or
condition requires review of the associated rate, the complaint shall
provide data and information in support of said claim.
(1) The data and information shall include, where applicable:
(i) The gross investment by the utility for conduit;
(ii) The accumulated depreciation from the gross conduit investment;
(iii) The system duct length or system conduit length and the method
used to determine it;
(iv) The length of the conduit subject to the complaint;
(v) The number of ducts in the conduit subject to the complaint;
(vi) The number of inner-ducts in the duct occupied, if any. If there
are no inner-ducts, the attachment is presumed to occupy one-half duct.
(vii) The annual carrying charges attributable to the cost of owning
conduit. These charges may be expressed as a percentage of the net
linear cost of a conduit. With its pleading, the utility shall file a
copy of the latest decision of the state regulatory body or state court
which determines the treatment of accumulated deferred taxes if it is
at issue in the proceeding and shall note the section which
specifically determines the treatment and amount of accumulated
deferred taxes.
(viii) The rate of return authorized for the utility for intrastate
service. With its pleading, the utility shall file a copy of the latest
decision of the state regulatory body or state court which establishes
this authorized rate of return if the rate of return is at issue in the
proceeding and shall note the section which specifically establishes
this authorized rate and whether the decision is subject to further
proceedings before the state regulatory body or a court. In the absence
of a state authorized rate of return, the rate of return set by the
Commission for local exchange carriers shall be used as a default rate
of return; and
(ix) Reimbursements received by utilities from CATV operators and
telecommunications carriers for non-recurring costs.
(2) Data and information should be based upon historical or original
cost methodology, insofar as possible. Data should be derived from
ARMIS, FERC 1, or other reports filed with state or federal regulatory
agencies (identify source). Calculations made in connection with these
figures should be provided to the complainant. The complainant shall
also specify any other information and argument relied upon to attempt
to establish that a rate, term, or condition is not just and
reasonable.
(i) With respect to rights-of-way, where it is claimed that either a
rate is unjust or unreasonable, or a term or condition is unjust or
unreasonable and examination of such term or condition requires review
of the associated rate, the complaint shall provide data and
information in support of said claim. The data and information shall
include, where applicable, equivalent information as specified in
paragraph (g) of this section.
(j) If any of the information and data required in paragraphs (g), (h)
and (i) of this section is not provided to the cable television
operator or telecommunications carrier by the utility upon reasonable
request, the cable television operator or telecommunications carrier
shall include a statement indicating the steps taken to obtain the
information from the utility, including the dates of all requests. No
complaint filed by a cable television operator or telecommunications
carrier shall be dismissed where the utility has failed to provide the
information required under paragraphs (g), (h) or (i) of this section,
as applicable, after such reasonable request. A utility must supply a
cable television operator or telecommunications carrier the information
required in paragraph (g), (h) or (i) of this section, as applicable,
along with the supporting pages from its ARMIS, FERC Form 1, or other
report to a regulatory body, within 30 days of the request by the cable
television operator or telecommunications carrier. The cable television
operator or telecommunications carrier, in turn, shall submit these
pages with its complaint. If the utility did not supply these pages to
the cable television operator or telecommunications carrier in response
to the information request, the utility shall supply this information
in its response to the complaint.
(k) The complaint shall include a certification that the complainant
has, in good faith, engaged or attempted to engage in executive-level
discussions with the respondent to resolve the pole attachment dispute.
Executive-level discussions are discussions among representatives of
the parties who have sufficient authority to make binding decisions on
behalf of the company they represent regarding the subject matter of
the discussions. Such certification shall include a statement that,
prior to the filing of the complaint, the complainant mailed a
certified letter to the respondent outlining the allegations that form
the basis of the complaint it anticipated filing with the Commission,
inviting a response within a reasonable period of time, and offering to
hold executive-level discussions regarding the dispute. A refusal by a
respondent to engage in the discussions contemplated by this rule shall
constitute an unreasonable practice under section 224 of the Act.
(l) Factual allegations shall be supported by affidavit of a person or
persons with actual knowledge of the facts, and exhibits shall be
verified by the person who prepares them.
(m) In a case where a cable television system operator or
telecommunications carrier as defined in 47 U.S.C. 224(a)(5) claims
that it has been denied access to a pole, duct, conduit or right-of-way
despite a request made pursuant to section 47 U.S.C. 224(f), the
complaint shall include the data and information necessary to support
the claim, including:
(1) The reasons given for the denial of access to the utility's poles,
ducts, conduits, or rights-of-way;
(2) The basis for the complainant's claim that the denial of access is
unlawful;
(3) The remedy sought by the complainant;
(4) A copy of the written request to the utility for access to its
poles, ducts, conduits, or rights-of-way; and
(5) A copy of the utility's response to the written request including
all information given by the utility to support its denial of access. A
complaint alleging unlawful denial of access will not be dismissed if
the complainant is unable to obtain a utility's written response, or if
the utility denies the complainant any other information needed to
establish a prima facie case.
[ 43 FR 36094 , Aug. 15, 1978, as amended at 44 FR 31649 , June 1, 1979;
45 FR 17014 , Mar. 17, 1980; 52 FR 31770 , Aug. 24, 1987; 61 FR 43025 ,
Aug. 20, 1996; 61 FR 45619 , Aug. 29, 1996; 63 FR 12025 , Mar. 12, 1998;
65 FR 31282 , May 17, 2000; 65 FR 34820 , May 31, 2000; 76 FR 26638 , May
9, 2011]
Effective Date Note 1: At 63 FR 12025 , Mar. 12, 1998, § 1.1404 was
amended by redesignating paragraphs (g)(12) and (h) through (k) as
(g)(13) and (k) through (n) and adding new paragraphs (g)(12) and (h)
through (j). The added text contains information collection and
recordkeeping requirements and will not become effective until approval
has been given by the Office of Management and Budget.
Effective Date Note 2: At 65 FR 31282 , May 17, 2000, § 1.1404 was
amended by removing paragraph (k), redesignating paragraphs (l), (m),
and (n) as (k), (l), and (m), respectively, and revising paragraphs
(g), (h), and the third sentence of paragraph (j). The revised text
contains information collection and recordkeeping requirements and will
not become effective until approval has been given by the Office of
Management and Budget.
Goto Section: 1.1403 | 1.1405
Goto Year: 2010 |
2012
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