FCC Affirms Invalidation of Georgia Power Company’s $53.35 Pole Attachment Rate

Yesterday, the Federal Communications Commission affirmed an earlier decision of the Commission’s Cable Services Bureau invalidating Georgia Power Company’s (“GPC”) attempt to charge Teleport Communications of Atlanta (a competitive local telecommunications affiliate of AT&T) an annual pole attachment rate of $53.35 per pole. In an unusual move in January of this year, GPC had filed a petition for review with the United States Court of Appeals for the 11th Circuit, before the full Commission had ruled on GPC’s pending FCC application for review. The 11th Circuit court allowed GPC’s judicial appeal to proceed, even though the full FCC had not reached a decision on the utility’s agency appeal of the bureau-level decision.

Yesterday’s decision sets the stage for oral argument before the 11th Circuit currently scheduled for later this month (but which may be delayed), and provides utilities and attaching parties alike with useful guidance in both the FCC’s methodology for the calculation of pole attachment rates for telecommunications attachments and the pole-complaint process.

Specifically, the Commission rejected every substantive and procedural justification that GPC attempted to interpose in its application for review, including:

• Rejecting the utility’s efforts to assign a 30 percent usable space allocation factor to attaching parties, particularly when the utility by its own admission uses more than seven times the usable space that communications providers use. 
  
  
• Repudiating GPC’s efforts to justify its reliance on an “average” of 1.5922 attaching entities per pole for the purposes of allocating unusable pole space under the telecommunications pole rate formula. (The Commission has established presumptions of three entities in rural areas and five in urban areas, and confirmed that the minimum possible number of entities is two).
  
  
• Dismissing GPC’s contention that Teleport should have attempted to negotiate the rate. The Commission concluded that the utility “unilaterally imposed” the rate based on a previously rejected methodology and that negotiations would have been “fruitless.” 
  
  
• Finding that the Bureau did not violate due process by denying GPC’s request for a hearing on issues that presented no new evidence or arguments that had not already been fully considered and rejected. 
  
  
• Refusing to overrule orders it had issued in other pole rulemaking and adjudicatory proceedings addressing similar issues. 
  
  
• Denying the utility’s efforts to introduce new evidence in the review process that GPC could have submitted to the Bureau but chose not to, thus intentionally depriving the Bureau the opportunity to rule on such evidence.

The Commission reiterated earlier findings that GPC must count itself as an “entity” for the purpose of allocating unusable space on a pole (with the Commission noting the utility’s relationship with multiple communications affiliates). The Commission also characterized the utility’s explanation of its 1.5922 entity figure before the Bureau as “meaningless.” The Commission criticized GPC’s eleventh-hour attempts at the review stage to justify the 1.5922 entity figure by including in its sample poles in areas where Teleport was not even attached, suggesting that “GPC . . . develop a presumptive average that accurately reflects the Teleport service area and that can be used in future negotiations with Teleport.”

The full text of the decision may be found at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-270A1.doc