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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

                                 
In the Matter of                )
                                )
Implementation of the Local Competition )         CC Docket No. 96-98
Provisions in the Telecommunications Act)
of 1996                         )
                                )
                                )
Interconnection between Local Exchange)      CC Docket No. 95-185
Carriers and Commercial Mobile Radio)
Service Providers               )
                                )


                    ORDER ON RECONSIDERATION

   Adopted:  October 20, 1999           Released:  October 26, 1999

By the Commission:  Commissioners Furchtgott-Roth and Powell concurring in part, and dissenting in part
                     and issuing separate statements.


I.   INTRODUCTION

     1.   In this Order on Reconsideration, we address petitions for reconsideration or clarification of
the Local Competition Order regarding the rules implementing access provisions of the Communications Act
of 1934 ("the Act"), as amended by the Telecommunications Act of 1996 ("1996 Act").  In the Local
Competition Order, the Commission established a program for nondiscriminatory access to utilities' poles,
ducts, conduits and rights-of-way, consistent with its obligation to institute a fair, efficient and expeditious
regulatory regime for determining just and reasonable pole attachment rates with a minimum of administrative
costs.  Herein we consider petitioners' requests for reconsideration or clarification of the access requirements
of the Local Competition Order, including requirements pertaining to capacity expansion and 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.

II.  BACKGROUND

     A.   Local Competition Order

     2.   Section 224 of the 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
1996 Act also added Section 251(b) to the Act, regarding interconnection obligations of all local exchange
carriers (LECs).  Section 251(b)(4) expressly imposes upon all LECs the duty to provide "access to the poles,
ducts, conduits, and rights-of-way of such carrier[s] to competing providers of telecommunications services
on rates, terms and conditions that are consistent with section 224." 

     3.   Section 224(b) grants the Commission its general authority to regulate the rates, terms, and
conditions for, and access to, poles owned or controlled by a utility for purposes of "pole attachments." 
Section 224(a)(4) defines "pole attachment" as "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."  Section
224(a)(1) defines "utility" to include any entity that owns or controls "poles, ducts, conduits, or rights-of-way
used, in whole or in part, for any wire communication."  Notwithstanding this general grant of authority,
section 224(c)(1) states that the Commission shall not regulate rates, terms, and conditions for, or access to,
pole attachments where such matters are regulated by the state.  

     4.   As summarized below, the Local Competition Order adopted general rules and guidelines
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.  The Local Competition Order also provides
for a dispute resolution mechanism when negotiations fail, and establishes requirements concerning
modifications to pole attachments and the allocation of the cost of such modifications.  In addition, we have
interpreted the revised requirements of section 224 governing rates, terms and conditions of telecommunications
carriers' pole attachments to utility poles in the Pole Attachment Telecommunications Rate Order. 

     5.   In the Local Competition Order, the Commission determined that "the reasonableness of
particular conditions of access imposed by a utility should be resolved on a case-specific basis."  The
Commission found that the large number of variables present with respect to poles and conduit nationwide
prevented it from creating a comprehensive set of specific rules.  Instead, the Commission adopted several
general rules, supplemented by guidelines and presumptions (summarized below) that are intended to facilitate
the negotiation and mutual performance of fair, pro-competitive access arrangements.  

     6.   Specific Rules.  In the Local Competition Order, we established five rules of general
applicability concerning access to a utility's poles, ducts, and rights-of-way.  The aim of these procedures is
to require utilities to justify any conditions they may place on access.  First, in evaluating a request for access,
a utility may continue to rely on widely-accepted codes, such as the National Electric Safety Code (NESC),
to prescribe standards with respect to capacity, safety, reliability, and general engineering principles.  Second,
federal requirements, such as those imposed by the Federal Energy Regulatory Commission (FERC) and the
Occupational Safety and Health Administration (OSHA), will continue to apply to utilities to the extent such
requirements affect requests for attachments to utility facilities under section 224(f)(1).  Third, the
Commission will presume state and local requirements affecting pole attachments to be reasonable, and are
entitled deference even if the state has not sought to preempt federal regulations under section 224(c).  Fourth,
the rates, terms, and conditions of mandated access must be applied to all attaching telecommunications carriers
and cable operators on a non-discriminatory basis.  The utility must charge all parties an attachment rate that
does not exceed the maximum amount permitted by the formula the Commission has devised for such use. 
Fifth, a utility may not favor itself over other parties with respect to the provision of telecommunications or
video programming services.

     7.   Guidelines  In addition to the five rules of general applicability, the Local Competition Order
established certain guidelines and presumptions addressing specific access issues that were raised in the record
of the Local Competition proceeding.  These guidelines may be summarized as follows:

     8.   Capacity Expansions:  In the Local Competition Order, we recognized that section 224(f)(2)
provides that an electric utility may deny access on a non-discriminatory basis "where there is insufficient
capacity and for reasons of safety, reliability and generally applicable engineering purposes."  We also
determined that non-electric utilities may take these factors into consideration when evaluating an access
request.  However, the lack of capacity on a particular facility does not automatically entitle a utility to deny
a request for access, since the modification costs to increase capacity will be borne only by the parties directly
benefitting from this modification.  If a telecommunications carrier or cable operator's request for access cannot
be accommodated due to a lack of available capacity, a utility must modify the facility to increase its capacity
under the principle of nondiscrimination.  Before denying access based upon a lack of capacity, a utility must
explore potential accommodations in good faith with the party seeking access.   Sections 224(f)(1) and
224(f)(2) require a utility to take all reasonable steps to accommodate access in these situations. 
Telecommunications carriers or cable operators seeking access are not required to exhaust any possibility of
leasing capacity from other providers before requesting a modification to expand capacity.  

     9.   Reservation of Space by Utility:  In the Local Competition Order, we recognized that a
balance needed to be struck between the non-discrimination principal of section 224(f), which prohibits a utility
from favoring itself with respect to the provision of telecommunications and video services, and the need for
a utility to be able to respond quickly to new circumstances affecting the provision of core utility service. 
Accordingly, we found that a utility may not reserve space for the provision of telecommunications or video
service to the detriment of a would-be entrant to the telecommunications or video market.  For example, an
electric utility may not reserve space to provide telecommunications service, and then force an attaching
telecommunications provider to bear the cost of modifying the facility to increase capacity.  An electric utility
may, however, designate space as reserved for its core utility service.  Such reservation must be consistent with
a bona fide development plan that reasonably and specifically projects a need for that space for the provision
of core electric service.  A utility must also permit cable operators and telecommunications carriers to use
the reserve space until the utility has an actual need for the space. At that time, the utility shall give the
displaced cable operator or telecommunications carrier the opportunity to pay for the cost of any modifications
needed to expand capacity and maintain the attachment.      

     10.  Access 'Triggers':  The access obligations of section 224(f) apply to a utility that uses its
poles, ducts conduits or other rights-of way "in whole or in part, for wire communications."  For example,
an electric utility would not be required to grant access under section 224(f) if its facilities are not used for wire
communications.  However, if a portion of the electric utility's poles, ducts, conduits or rights-of-way are used
for wire communication, access is triggered for all such facilities owned or controlled by the utility, including
those not used for wire communication.  In this context, 'wire communication' includes an electrical utility's
own internal communications.

     11.  Application of Section 224(f) to Non-Electric Utilities: The Commission concluded that the
statutory exception to access to electric utilities' poles, ducts, conduits and rights-of-way enunciated in section
224(f)(2) regarding denials based on capacity, safety, reliability, and generally applicable engineering purposes,
should also be available to other utilities, provided the assessment of such factors is done in a
nondiscriminatory manner.  The Commission cautioned that, with respect to non-electrical utilities' denials
of access, the issues will be very carefully scrutinized, particularly when the parties concerned have a
competitive relationship.  Thus, non-electrical utilities generally must accommodate requests for access,
except for reasons of capacity, safety, reliability and generally applicable engineering purposes that cannot
reasonably be ameliorated by modification.

     12.  Third-Party Property Owners:  In the Local Competition Order, we stated that the access
obligations of section 224(f) apply when, as a matter of state law, the utility owns or controls its right-of-way
to the extent that it is able to permit access.  A utility should exercise its eminent domain authority to expand
an existing right-of-way over private property to accommodate a request for access.

     13.  Qualified Workers:   A utility may require that individuals who work in the proximity of
electric lines have the same qualifications, in terms of training, as the utility's own workers, but the party
seeking access must be able to use any individual workers who meet these criteria.  

     14.  Modification Notification.  Section 224(h) requires any utility that intends to modify or alter
a pole, duct, conduit, or right-of-way to "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."  Absent a private agreement establishing notification procedures,
written notification of a modification must be provided to parties holding attachments on the facility to be
modified at least 60 days prior to the commencement of the physical modification itself. 

     15.  Allocation of Modification Costs.  To the extent the cost of a modification is incurred for the
specific benefit of any particular party, the benefitting party will be obligated to assume the cost of the
modification, or to bear its proportionate share of cost with all other attaching entities participating in the
modification.  If a user's modification affects the attachments of others who do not initiate or request the
modification, such as the movement of other attachments as part of a primary modification, the modification
cost will be covered by the initiating or requesting party.  Where multiple parties join in the modification, each
party's proportionate share of the total cost shall be based on the ratio of the amount of new space occupied
by that party to the total amount of new space occupied by all of the parties joining in the modification. 

     16.  In addition, the Local Competition Order found that if a party uses a proposed modification
as an opportunity to adjust its existing attachment, the party should share in the overall cost of the modification
to reflect its contribution to the resulting structural change.  A utility or other party that uses a modification
as an opportunity to bring its facilities into compliance with applicable safety or other requirements will be
deemed to be sharing in the modification and will be responsible for its share of the modification cost.  To
protect the initiators of modifications from absorbing costs that should be shared by others, the Local
Competition Order permitted the modifying party or parties to recover a proportionate share of the
modification costs from parties that later are able to obtain access as a result of the modification.

     17.  Dispute Resolution.  Under the procedures adopted in the order, a utility must grant or deny
a request for access within 45 days of a written request.  If the utility denies the request, it must do so in
writing, and the reasons given for the denial must relate to the permissible grounds for denying access (e.g.,
lack of capacity, safety, reliability, or engineering concerns). 

     18.  Just and Reasonable Rates.  Section 224(b)(1) states that "the Commission shall regulate the
rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and
reasonable."  Section 224 was adopted by Congress in 1978 to ensure that cable operators are charged just
and reasonable rates for attachments to utility poles, ducts, conduits, or rights-of-way.  In the 1996 Act,
Congress added telecommunications carriers as beneficiaries of the Commission's oversight of pole
attachments.  Section 224(e)(1) governs the rates for pole attachments used in the provision of
telecommunications services, including single attachments used jointly to provide both cable and
telecommunications service.  Under this section, the Commission must prescribe regulations to "ensure that a
utility charges just, reasonable, and nondiscriminatory rates for pole attachments" used by telecommunication
carriers to provide telecommunications services, when the parties fail to resolve a dispute over such charges. 


     19.  Pursuant to the directive in section 224(e)(1), the Commission adopted, in the Pole Attachment
Telecommunications Rate Order, regulations establishing the formula for rates governed by section 224(e). 
Until these requirements become effective on February 8, 2001 (five years after the enactment of the 1996
Act), Congress has directed that the cable operator rate methodology set forth in section 224(d)(1) shall also
govern pole attachments used by a telecommunications carrier, to the extent such carrier is not a party to a pole
attachment agreement, to provide any telecommunications service.

     20.  Section 224(d)(1) specifically provides that 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."

     21.  Currently, application of the section 224(d)(1) formula results in a rate that ranges from the
statutory minimum ("additional" costs) to the statutory maximum (fully allocated costs).  Additional costs
include pre-construction survey, engineering, make-ready and change-out costs incurred in preparing for pole
attachments.  Fully allocated costs refer to the portion of operating expenses and capital costs that a utility
incurs in owning and maintaining poles that is equal to the portion of usable pole space that is occupied by an
attacher.  In the Local Competition Order, the Commission stated that, "except as specifically provided herein,
the utility must charge all parties an attachment rate that does not exceed the maximum amount permitted by
the formula we have devised for such use, and that we will revise from time to time as necessary."

     B.   Petitions

     22.  Twelve petitions for reconsideration or clarification of the Local Competition Order raising
issues with respect to the "Access to Rights-of-Way" portion of the Order are addressed in this Order on
Reconsideration.  The issues raised fall into seven major areas:  (1) the scope of the right of access to utilities'
poles, ducts, conduits and rights-of-way; (2) the scope of the utilities' obligations with respect to expansion and
reservation of space; (3) the question of when a utility may be deemed to be providing "communications" over
its facilities so as to trigger the access obligation; (4) worker qualifications; (5) timing and manner of
notification of modifications; (6) allocation of modification costs; and (7) the need for States to certify their
regulation of access in order to assert jurisdiction pursuant to section 224(c).  We address these issues below
sequentially.

III. DISCUSSION

     A.   Access to Rights of Way

          1.   Access to Transmission Facilities 

               a.   Background
     
     23.  Section 224(f)(1) provides that 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."  Several electric utilities had asserted that high voltage transmission facilities should not
be accessible by telecommunications carriers or cable operators under section 224(f)(1), arguing that permitting
attachments to transmission facilities involves heightened safety and reliability concerns.  In the Local
Competition Order, we rejected these claims, stating that the breadth of the language contained in section
224(f)(1) precludes a blanket determination that Congress did not intend to include transmission facilities. 
To the extent safety and reliability concerns are greater at a transmission facility, the statute permits a utility
to impose stricter conditions on any grant of access or, in appropriate circumstances, to deny access if
legitimate safety or reliability concerns cannot be reasonably accommodated.
     
               b.   Positions of the Parties

     24.  On reconsideration, several utilities contend that the Commission's decision with respect to
electric transmission facilities is contrary to the intent of Congress and the plain language of the Act.  These
utilities argue that if Congress had intended to include transmission facilities in the scope of the infrastructure
covered by section 224(f), it would have specifically included "transmissions facilities" in the precise language
it used.  Several utilities contend that the use of the term "poles" refers only to distribution poles.  They
argue the legislative history of the 1978 Pole Attachment Act triggers Commission jurisdiction over pole
attachments only where space on a utility pole is actually being used for communications services by wire or
cable. Thus, transmission poles, which are not used for stringing communications wires, are not within the
scope of the Act.   

     25.  In its response, ALTS maintains that the utilities ignore the purpose of section 224, which is
to permit cable operators and telecommunications carriers to piggyback along distribution networks owned or
controlled by the utilities.  ALTS states that the Commission was aware of the technical issues involved in
access to transmission facilities and simply declined to exempt them from the access requirements.

     26.  The Joint Cable Parties assert that there is no engineering, safety or any other reason that
would justify a blanket prohibition on transmission structure access.  According to the Joint Cable Parties, it
is not uncommon for utilities to place both transmission circuits and distribution circuits on the same pole,
"underbuilding" the transmission lines with electric secondary distribution service lines.  In addition, several
parties argued, in ex parte presentations, that it is technically feasible to attach to electric transmission tower
facilities and conduit.  MCI argues that it presently has agreements with a number of electric utility
companies to attach either fiber optic ground wire (FOGWIRE) or all-dielectric self-supporting (ADSS) cable
to their high kilovolt transmission facilities.

               c.   Discussion

     27.  We reaffirm our decision in the Local Competition Order that electric transmission facilities
are not exempted from the pole attachment provisions of section 224.  We reject the argument that, because
a transmission pole is not used by the utility for stringing communications wires, it would not fall within the
access obligations of section 224(f)(1).  As discussed in paragraphs 79-80, infra, we reaffirm our conclusion
that 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.  We do not believe that commenters have demonstrated why electric transmission facilities
should be entitled to an automatic exemption from a utility's obligation under section 224.  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.  The utilities' arguments regarding safety were made and adequately considered in
the Local Competition Order.  Moreover, the record on reconsideration indicates a finding that electric
transmission facilities are currently used for communications attachments.

     28.  We are mindful of the potential technical issues, including heightened safety and reliability
concerns, involved in access to electric transmission facilities.  We reiterate that, as with any facility to which
access is sought, section 224(f)(2) permits a utility to impose conditions on access to transmission facilities,
if necessary, for reasons of safety and reliability.  To the extent safety and reliability concerns are greater at
a transmission facility, the statute permits a utility to impose conditions on access due to safety and reliability
concerns, or to deny access if those concerns cannot reasonably be accommodated.

          2.   Exercise of Eminent Domain to Accommodate a Request for Access
   
               a.   Background

     29.  The Local Competition Order stated that a utility should be expected to exercise its eminent
domain authority to expand an existing right-of-way over private property in order to accommodate a request
for access.  The order noted that Congress seems to have contemplated an exercise of eminent domain authority
in such cases when it made provisions for an owner of a right-of-way that "intends to modify or alter such .
. . right-of-way . . . ."   In addition, the Local Competition Order, recognizing that the scope of a utility's
ownership or control of an easement or right-of-way is a matter of state law, determined that the access
obligations of section 224(f) apply when, as a matter of state law, the utility owns or controls the right-of-way
to the extent necessary to permit such access.

               b.   Positions of the Parties

     30.  Several utilities urge the Commission to reconsider its decision requiring utilities to exercise
their authority of eminent domain on behalf of third parties.  They argue it is not within the jurisdiction of the
Commission to regulate or mandate the exercise of eminent domain.  Rather, they argue that the right to
exercise eminent domain is a matter of state law, and in many instances under state law eminent domain can
only be exercised by a utility for very limited purposes.  ConEd asserts the Commission is overstepping its
jurisdiction as there is no mention of eminent domain in either the law or the corresponding conference report. 
FP&L states that Congress expressly and clearly preserved the states' jurisdiction to determine who will
exercise eminent domain authority and the circumstances under which it will be exercised.  GTE asserts the
Commission has no authority under the Act, and has not articulated a statutory policy justifying preemption
of state law in requiring utility to use eminent domain for an attaching entity.  Duquesne contends the portion
of section 224(h) that the Commission relies upon establishes only notice requirements pertaining to an intended
modification, and thus the Commission's interpretation fails for not being a permissible construction of the
statute to which Congress would not object.  Duquesne argues that the Commission's action is based on an
interpretation of statutory silence rather than on an explicit grant of authority.

     31.  In addition, several utilities assert that state law precludes them from using eminent domain
powers for other than their core electric utility business operations.  The utilities argue that they would
therefore be precluded from using eminent domain authority on behalf of third parties.  According to
EEI/UTC, in some states, condemnation must be preceded by a corporate resolution based on the utilities'
"planning power."  Thus, condemnation for a third party would require access to that party's planning
process.  Delmarva states that in Delaware a utility can condemn property for transmitting electricity only
in limited circumstances, such as along a public highway.  Therefore, Delmarva argues, the Commission's
assumption that all electric utilities are authorized to exercise general eminent domain creates expectations that
utilities may not be able to satisfy.  EEI/UTC contends that the exercise of eminent domain under most state
laws is premised on an exclusive franchise.  Where there is no longer such a franchise, exercise is expensive
and lengthy.

     32.  EEI/UTC argue it would not be discriminatory to withhold the exercise of the right of eminent
domain for the benefit of third party telecommunications carriers or cable TV operators where an electric utility
has the right of eminent domain but uses it sparingly or not at all in connection with its electric operations. 
According to Duquesne, if the nondiscrimination principle is applied, the result would be that the use of eminent
domain for third parties should not be required if the utility does not exercise it for its own business purposes. 
Duquesne states that, at a minimum, the Commission should create a "safe haven" for utilities that have an
established corporate practice not to exercise eminent domain.
 
     33.  Duquesne argues that the forced exercise of eminent domain creates a taking of Duquesne's
intangible property, such as the direct costs of maintaining the takings action and the loss of goodwill. 
Duquesne states that the loss of goodwill could result in a loss of market share in the emerging competitive
market for electric services.  Margaretville asks the Commission to adopt a just compensation process that will
allow ILECs to recover the economic value of the competitive advantages that will be lost.  Duquesne also
requests that the Commission tailor its ruling to apply only where existing state law gives a utility taking power
on behalf of a third party non-utility.  Duquesne further states that a utility should not be required to exercise
eminent domain for a third party attacher who has taking power in its own right under state law.  Similarly,
LECC opposes the rule on the grounds that in many states, new entrants will enjoy the same rights as the
incumbent LEC, once they are certified, and can therefore exercise their own rights of condemnation.   

     34.  AEP asserts that the issue of condemning new properties through eminent domain should be
left between the carrier and the state, subject to the provisions of Section 253 of the Act.  AEP and FP&L
emphasize that eminent domain is a drastic remedy which is not casually exercised by utilities, and that they
exercise the right, if at all, as a last resort because of the company time and resources that could be expended
on the complex regulatory approval processes and litigation over property valuation. 

     35.  Joint Cable Parties respond that utilities' discomfort with exercise of eminent domain has more
to do with a misunderstanding of cable's easement rights than with agency overreaching.  Joint Cable Parties
state that historically, common law permitted cable operators to make use of compatible utility easements. 
According to Joint Cable Parties, some utilities nonetheless attempted to insert clauses in pole agreements
purporting to require cable to obtain their own easements.  After Congress codified the common law doctrine
in 1984, many utilities continued to ignore the law.  According to the Joint Cable Parties, if the utilities would
obey existing law, there would almost never be cause to exercise eminent domain for an attaching party because
parties can only attach to facilities which the utilities themselves have placed in compatible easements.  If
there is ever an occasion which departs from this common sense analysis, it is better addressed on a case-by-
case basis, rather than by blanket reconsideration.

     36.  NCTA argues that the Commission should uphold its decision to compel utilities to use their
eminent domain powers on behalf of telecommunications providers to the extent permitted under state law
pursuant to the right of access created by section 224(f)(1), which would be meaningless if utilities were
permitted to deny attachment requests based on space limitations while selectively using their power to
condemn additional space for their own purposes.

     37.  Similarly, AT&T and MCI argue that where a utility can use eminent domain authority to gain
capacity for itself, the nondiscrimination principle of section 224(f)(1) requires that the utility use that authority
to gain capacity for others.  MCI argues that if utilities were not required to use their authority on behalf of
third parties in the same manner they use it for themselves, they could fill their existing facilities with their own
competing telecommunications or cable wires.  This would allow the utilities to claim lack of capacity for
competitors seeking access, while also allowing them to obtain additional rights-of-way to serve electric
customers using their eminent domain power.   MCI states that the Commission recognized that state law
governs some of these issues, and that if state law precludes the use of eminent domain power, a utility clearly
cannot exercise it on its own behalf or on other parties' behalf.  AT&T asserts that the Commission can decide
whether a state law restricts eminent domain on a case-by-case basis in response to complaints filed under 47
C.F.R. Section 1.1414, or in the context of petitions for a declaratory ruling or Section 253 pre-emption
proceedings.

               c.   Discussion

     38.  Based upon the record before us, we agree with those commenters that argue that the right to
exercise eminent domain is generally a matter of state law, exercised according to the varying limitations
imposed by particular states.  We are persuaded that 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, on reconsideration, we find that section 224 does not create a federal requirement that a utility
be forced to exercise eminent domain on behalf of third party attachers. 

                         3.   Access for Wireless Equipment to "Poles, Ducts, Conduits, and Rights-of-Way."

               a.   Background

     39.  Section 224(a)(4) states that 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."  The Local Competition Order observed that the statute does not describe the specific
types of telecommunications or cable equipment that may be attached when access to utility facilities is
mandated, and that establishing an exhaustive list of such equipment would be neither advisable, nor possible. 
Instead, the Local Competition Order stated that the question of access should be decided, in accordance with
the statute, on the basis of capacity, safety, reliability, and engineering principles. 

               b.   Positions of the Parties 

     40.  Utilities generally seek to limit the nature of equipment that can be attached to utility
facilities.  Several argue that the only type of telecommunications equipment that may be attached under
section 224(f) is coaxial and fiber optic wire facilities.  They assert that the 1978 Pole Attachment Act was
intended to encompass pole attachments for wire communications, and that if Congress had intended to expand
the type of attachment covered under the 1996 Act, it would have done so explicitly.

     41.  For example, ConEd argues that wire cables are the only type of equipment that should be
attached to utility facilities because the intent of the law was to allow entities to attach wires along distribution
networks, and neither the 1996 Act nor the Local Competition Order discuss other equipment that can be
attached.  Duquesne maintains that wireless antenna and microwave dish attachments are more burdensome
than coaxial cable attachments, and could preclude the facility owner from permitting later attachments.

     42.  AT&T responds that the utilities' argument ignores Congress' change to the definition of "pole
attachment" to include any attachment of a "provider of telecommunications service."  Comcast states that
by expanding the pole attachment provisions to all telecommunications carriers, Congress refused to favor one
type of technology over another.  According to Comcast, there is no basis for the Commission to narrow the
application of pole access rules when these rules require only "reasonable" efforts to accommodate attachment
requests.  Comcast notes that currently, coaxial cable is not the only equipment found on utility poles.

     43.  Paging Network contends that CMRS carriers face siting obstacles due to local ordinances
that limit the ability of wireless carriers to site antennas.  Allowing access to existing utility sites could help
alleviate this problem.  Joint Cable Parties contend that a utility that bars wireless access to its facilities may
be attempting to reduce competition for its own commercial communications ventures.

               c.   Discussion

     44.  At the outset, we note that we have, since the record closed in this reconsideration proceeding,
addressed this issue in our recent Pole Attachments Telecommunications Rate Order, where we stated that
"wireless carriers are entitled to the benefits and protection of section 224.  We found that statutory
definitions and amendments by the 1996 Act demonstrate Congress' intent to expand the pole attachment
provisions beyond their 1978 origins.  In particular, we found that use of the word "any" in several portions
of section 224(d) and (e) "precludes a position that Congress intended to distinguish between wire and wireless
attachments."  The Pole Attachments Telecommunications Rate Order noted that wireless attachments may
include "an antenna or antenna clusters, a communications cabinet at the base of the pole, coaxial cables
connecting antennas to the cabinet, concrete pads to support the cabinet, ground wires and trenching, and wires
for telephone and electric service," but that there was no reason why the Commission's rules could not
accommodate wireless attachers' use of poles when negotiations fail.  We committed to examine issues on
a case-by-case basis where parties are unable to modify or adjust the rate formula to deal with the unique
nature of these attachments, and are unable to reach agreement through good faith negotiations.

     45.  We are presented with no new facts or arguments on the record before us in this proceeding
that warrant reconsideration of the decision in the Local Competition Order not to categorically restrict the
types of "pole attachments" that may be attached to utility poles and conduits pursuant to section 224(a)(4). 
Rather, as we stated in the Local Competition Order, when evaluating any attachment request, including a
wireless attachment, access determinations are to be based on the statutory factors of capacity, safety,
reliability, and engineering principles, which would presumably take into account such factors as the size and
weight of attaching equipment.
     
          4.   Clarification of the Definition of "Attachment"

     46.  Duquesne seeks clarification of the definition of "attachment" and proposes that the number
of attachments a given attaching entity makes is not necessarily determined by the number of physical
attachments made to the pole, but by determining the equivalent burden.  We sought comment on the issue
Duquesne raises in the Pole Attachments Telecommunications Rate proceeding, but determined that we would
instead address whether any of our existing pole attachment rate formulas should reflect factors such as weight
and wind load burdens in our Pole Attachment Fee rulemaking.  We again defer consideration of this issue
to that proceeding.

     B.   Capacity Expansions and Reservation of Space

               1.   Expansion of Capacity for the Benefit of Attaching parties. 

               a.   Background

     47.  In the Local Competition Order, we recognized that a utility is able to take the steps necessary
to expand capacity if its own needs required such expansion, and that the principle of nondiscrimination
established by section 224(f)(1) would require it to do likewise for telecommunications carriers and cable
operators.  However, we also recognized that the complexity of an expansion can vary given the particular
circumstances of an attachment request.  Accordingly, we declined to adopt a specific rule that would prescribe
when a utility could reasonably deny access based on difficulties posed by the expansion.  In the Local
Competition Order, we interpreted sections 224(f)(1) and (f)(2) to require utilities to take all reasonable steps
to accommodate requests for access and to explore potential accommodations in good faith with the party
seeking access.  In reaching these conclusions, the Commission rejected utilities' arguments that the failure of
section 224 to explicitly impose this requirement indicates that utilities need not expand or alter their facilities
to accommodate entities seeking to lease space.

               b.   Positions of the Parties

     48.  FP&L and AEP contend the Commission exceeded its statutory authority in its decision
requiring a utility to take all reasonable steps to expand capacity to accommodate requests for access just as
it would expand capacity to meet its own needs. They assert the Commission's decision is contrary to the plain
language of the statute.  They argue further that the Commission failed to recognize that section 224(f)(2)
gives utilities the right to deny access based on insufficient capacity.  While Congress specified that such
denials must be made on a nondiscriminatory basis, it did not further qualify that section.  According to
ConEd, that a particular expansion may be technically possible should not compel a utility to jeopardize its
operations by actually performing the work.

     49. In response, AT&T states that there is no legal or practical basis for utilities' arguments on
reconsideration.  AT&T notes that although section 224(f)(2) permits electric utilities to deny access based on
insufficient capacity, the Act does not define that term, and the Commission properly adopted the interpretation
that is most consistent with the nondiscriminatory provisions of the statute.
 
     50.  NCTA argues that section 224(f) creates a right of access to rights-of-way, and the absence
of spare capacity on a physical facility does not necessarily mean the right-of-way is full.  According to NCTA,
the amount of available space in a monopoly telecommunications environment should not constrain access in
a competitive environment.

               c.   Discussion

     51.  We are presented with no new facts or legal arguments to support the utilities' request for
reconsideration of the Local Competition Order's interpretation of the utilities' obligation to expand capacity
to accommodate telecommunications carriers and cable operator's requests to attach to the utilities' poles, ducts,
conduits and rights-of-way.  We reiterate that 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.  Furthermore, before denying access based
on a lack of capacity, a utility must explore potential accommodations in good faith with the party seeking
access.  Again, because modification costs will be borne only by the parties directly benefitting from the
modification, neither the utility nor its ratepayers will be harmed by the requirement that capacity expansions
be undertaken on a nondiscriminatory basis.

     52.  In the Local Competition Order, we recognized that a utility may deny access on a non-
discriminatory basis "where there is insufficient capacity and for reasons of safety, reliability and generally
applicable engineering purposes."  That a utility could ultimately find that it cannot grant an access request
based on capacity and safety concerns does not exempt it from the overall access requirement of section 224(f). 
When a utility denies access, as an exception to the access requirement of section 224, it must be able to
establish a prima facie case for the denial in the context of an access complaint.  As we stated in the Local
Competition Order, a utility that denies access to, for example, a 40 foot pole due to lack of capacity should
be able to demonstrate why there is no capacity and enumerate the specific reasons for declining to replace the
pole with a 45 foot pole.

     53.  It is worth noting in this regard, that utilities subject to pole attachment regulation have been
expected, since the beginning of pole attachment regulation to take steps to rearrange or change out existing
facilities at the expense of attaching parties in order to facilitate access.   The legislative history of the 1978
law that first included direct pole attachment regulation within the Communications Act makes specific
reference to the fact that "it may be necessary for the utility to replace an existing pole with a larger facility
in order to accommodate the CATV user" and discusses the rate treatment to be given these "change-out"
replacement costs.  This capacity expansion process then became a critical part of the Commission's
regulatory practice and there is no indication the legislative changes adopted in 1996, designed to expand the
scope of pole attachment access, reflected any intention to withdraw this existing process. 
 
                         2.   Use of Utility's Reserve Space by Attaching Parties Until Utility has an Actual
               Need for the Space.  

                         a.   Background

     54.  The Local Competition Order carved out a limited exception to the principle of
nondiscriminatory access, allowing a utility to reserve for itself some capacity, if such reservation is consistent
with a "bona fide development plan" that reasonably and specifically projects a need for that space in the
provision of its core utility service."  However, a  utility may not reserve or recover reserved capacity to
provide competing telecommunications or video programming service, and then force an attaching party to
incur the cost of modifying the facility to increase capacity, even if the reservation of capacity were pursuant
to a reasonable development plan.  A utility that reserves capacity must permit use of its reserved capacity by
cable operators and telecommunication carriers until such time as the utility has an actual need for the capacity. 
At that time, the utility may "recapture" the reserved capacity for its own use.  The utility shall give the
displaced cable operator or telecommunications carrier the opportunity to pay for the cost of any modifications
needed to expand capacity and to continue to maintain its attachment.  

               b.   Positions of the Parties 
 
     55.  Many of the parties' arguments regarding capacity expansions are also applied to the issue of
reserve space.  AEP and FP&L argue that requiring a utility to allow the use of its reserve space until it has
an actual need for the space is contrary to the intent of Congress.  They argue that Congress was aware of
a utility's need to reserve capacity when it gave them the right to deny access based on insufficient capacity,
and would have included specific language limiting this utility practice if such limitation was intended.  They
contend that Congress plainly and unambiguously gave electric utilities the right to make capacity
determinations when considering requests for access.

     56.  AEP and FP&L further argue that the Commission's decision to limit a utility's right to use
its reserve capacity where such reservation is consistent with a bona fide development plan that reasonably and
specifically projects a need for that capacity is vague, ambiguous and unworkable, and ignores the realities of
a utility's core business of providing electric service.  AEP maintains that utilities routinely allocate certain
space to be used in the event of an emergency, and that this space cannot be considered "reserve."  For example,
AEP states, if certain ducts collapse, the utility's contingency plan will call for the immediate substitution of
other ducts.  AEP urges that, at a minimum, the Commission must clarify that the obligation to provide access
does not extend to space that is needed for emergency purposes.

     57.  EEI/UTC and CP&L argue that being allowed to reserve space only as part of a "bona fide
development plan" is too restrictive, and that it is beyond the Commission's ability to establish the
reasonableness of such forecasts.  They contend that utilities have not generally been required to create and
submit for public scrutiny development plans respecting facility expansion.  EEI/UTC and CP&L argue it is
difficult to specify the amount of space that a utility could reserve, and that utilities would be required to spend
millions of dollars they might not recover to develop speculative pole-by-pole development plans, or face
repeated complaints from attaching entities disputing requests to vacate.  PG&E requests that utilities be
given the right to reserve capacity not specifically incorporated in a utility's bona fide development plans. 
 FP&L argues that by restricting its right to reserve capacity, the Commission is forcing FP&L to either expand
its business based on sheer speculation of load growth, or to face repeated complaints by entities seeking access
to reserve capacity.  

     58.  FP&L and AEP contend that the use of space by a party on an interim basis is impractical and
unworkable.  According to FP&L and AEP, once entities are using a utility's infrastructure, a utility would
not be able to recapture such reserved space in the time necessary to effectively serve its core business.  FP&L
and AEP assert that telecommunications carriers will not vacate a utility's facility short of litigation if the
withdrawal will likely result in interruption of service to telecommunications customers.  FP&L and AEP
state that the Commission's requirement that a utility provide the attaching entity an "opportunity to . . .
maintain its attachment" by expanding capacity when the utility seeks to recapture its reserve space would
obligate the utility to allow the user to stay on or in the facility until the utility constructed additional capacity
for itself.  FP&L and AEP assert that a utility's ability to provide dependable service would be severely
threatened by such an obligation because of the significant engineering and construction time involved in
expanding capacity.  PG&E states that the Commission should recognize the realities of electric distribution
utility facility planning, and allow electric utilities greater reserve capacity call-back authority for future core
electric service.

     59.  CP&L states the Commission must define procedures by which utility companies define
reserved capacity and notify entities with attachments on their poles that they are occupying reserve space. 
CP&L urges the Commission to grant a presumption that any available capacity be deemed reserve capacity
so utilities could avoid constructing new space a second or third time for future capacity because pole attachers
have taken all of the capacity.  According to CP&L, entities wanting to continue attachment to a particular pole
would pay the costs of capacity expansion to accommodate their pole attachments after accommodation of the
utility's core needs.  Any other result, CP&L argues, would force the utility to pay for new capacity when
existing capacity is taken by attaching entities.

     60.  EEI/UTC also seeks clarification of the policy of permitting a utility to recapture reserve
space, "if such reservation is consistent with a bona fide development plan that reasonably and specifically
projects a need for that space in the provision of its core utility service," when the utility has an actual need for
the space.  According to EEI/UTC, this policy must also be read in conjunction with section 224(i) regarding
the reimbursement of expenses when an attaching party requires a modification that causes other attaching
entities or the pole owner to rearrange their facilities.  EEI/UTC requests clarification that reimbursement
policy of section 224(i), as embodied in section 1.1416(b), applies to an attaching entity in the reserve space
who exercises the option of modifying the facility when the utility recovers the reserve space for its own use.

     61.  CP&L argues that the Commission should provide the same manner of preference for lines
which carry core business communications as is provided for electric lines.  CP&L claims the communications
capacity used by utilities is, in many ways, essential to the proper operations of the utility system.  CP&L
avers that much of the traffic carried over these lines is essential to the monitoring of load and demand
conditions, line breaks, and the integration of both utility and third party generators.  EEI/UTC asks the
Commission to clarify that a utility's installation of its own internal communications cables within the "electric"
space on the pole is consistent with the reservation of this space for utility use, and that denial of access to
unused space in order to accommodate a utility's near-term expected use of that space for its internal
communications needs would not be unreasonable.  EEI/UTC argues the Commission should establish a
presumption that it would be reasonable for an electric utility to reserve any space above what has been
traditionally referred to as "communications space."   

     62.  Teleport responds that the rules merely implement the plain language of statute, and the
Commission cannot change the statutory language.  Teleport argues the Commission has crafted a fair
approach that complies with the Act by permitting utilities to reserve space that they can reclaim from cable
operators and telecommunications carriers once they have a need for the space for core utility purposes.  The
attaching party will pay for the cost of expanded capacity and continued attachment. 

     63.  Similarly, NCTA maintains that the Local Competition Order strikes a fair balance between
the needs of utilities to expand to serve additional customers and the rights of cable operators and
telecommunications carriers to obtain space in the face of warehousing by pole owners.  NCTA argues that
the amount of right-of-way space that was available in a monopoly telecommunications environment should
not be expected to set the outer limit of space under a pro-competitive regulatory scheme.  Rather, right-of-
way space must be sufficient to accommodate the access needs generated by the proliferation of new
competitors envisioned by the 1996 Act.  NCTA urges the Commission to reject efforts to broaden
circumstances allowing utilities to exclude attaching parties from reserve space.  NCTA notes that the
arrangement mandated in the Local Competition Order ensures that attaching parties will pay an equitable
share of the costs associated with their attachments, including the costs of relocating the attachments as the
needs of both the owner and attaching party change.  Joint Cable Parties note that when a utility needs pole
space under a bona fide development plan that reasonably and specifically projects a need for that space in the
provision of its core utility service, it then can request that attaching third parties pay the costs associated with
the expansion of that capacity to remain on the poles.   Joint Cable Parties state the Commission's decision on
this point is generous, because it allows "recapture" of reserved space when the statute, on its face, does not. 
They contend it will require concerted vigilance by the Commission to make certain that a utility does not
recapture space for competitive purpose under the guise that such recapture is for the utility's "core"
business. 

     64.  MCI asserts that the utilities' objections are merely an attempt to fend off competition.  MCI
argues that the utilities are actually seeking an exclusive right to determine whether or not excess pole
attachment capacity exists, and priority access to any such capacity.  But, according to MCI, the Commission's
determination that utilities may reserve space for future electric service pursuant to a bona fide development
plan allows the utilities to make an initial calculation and representation as to both the amount of space
available and that which is necessary to hold in reserve.  MCI states that this allows a meaningful determination
of the amount of space available and prevents utilities from simply foreclosing competitive access by reserving
more space than is actually needed.  MCI further states that the Commission's determination that utilities allow
competitors access to reserve space until it is actually needed is similarly reasonable because it provides a
check on potential anti-competitive behavior while imposing no harm on the utility.  

               c.   Discussion

     65.  The Local Competition Order struck a balance between the utilities' right to reserve capacity
to meet anticipated future demand for their "core utility services," necessary if those utilities are to meet public
demand for their services, and the nondiscrimination requirement of section 224(f)(1), which prohibits a utility
from favoring itself or its affiliates with respect to the provision of telecommunications and video programming
services.  The Local Competition Order qualifies the utilities' ability to reserve capacity for their own uses
pursuant to a bona fide development plan that "reasonably and specifically projects a need for that space in the
provision of its core utility service."  The Commission specifically found these arrangements to be consistent
with the intent of the statute, stating that "allowing space to go unused when a cable operator or
telecommunications carrier could make use of it is directly contrary to the goals of Congress."

     66.  The utilities' challenges and requests for clarification fall into several categories.  First, they
argue that requiring a utility to allow attaching parties the use of its unused, reserved space until it has an
actual need for the space is contrary to Congressional intent.  Second, they argue that the requirement that
space reservations must be made pursuant to a "bona fide development plan" that reasonably and specifically
projects a need for the space in the provision of the utility's core utility service is unworkable, unduly
restrictive, and beyond the Commission's jurisdiction to administer.  Third, the utilities request further definition
of the procedures by which utilities are to define "reserved capacity" and notify entities with pole attachments
that they are occupying reserve space.  Fourth, clarification is requested regarding the treatment of a utility's
own internal communications attachments.

     67.  Use of Unused, Reserved Space.  We do not find sufficient basis in the record on
reconsideration to alter the balance struck in the Local Competition Order between the needs of the utilities
to reserve unused space for future core utility service needs, and the statutory mandate that attaching entities
be afforded nondiscriminatory access to a utility's poles, ducts, conduits and rights-of-way.  The rules permit
attaching entities to use the utility's unused, reserved space only until such time as the utility has an actual need
for that space.  At that point, the utility may seek to recover the reserved space for its own use, based upon its
actual need for the reserved space.  The reasonableness of such recapture of reserved space currently in use
by a telecommunications carriers or cable operator will depend upon the factual circumstances at the time of
the request.  We therefore decline to grant CP&L's request that we grant a general presumption that any
available capacity on a utility company's pole attachment infrastructure is reserved capacity.  In the usual case,
we believe that the question of what space is "reserved" and what space "available" will only arise if a request
for access is denied.  Any unresolved disputes over recapture of reserved space will need to be resolved on a
case-by-case basis.  We believe these rules represent a fair allocation of use of a valuable resource, that unduly
favors neither party, and is consistent with the express terms of section 224(f)(1).  

     68.  We will clarify several aspects of the Local Competition Order.   First, section 224(i) states
that 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, conduit, or right-of-way)."  In the Local Competition Order we stated that
those parties who do not initiate or request the modification are not required to share in the cost of the
modification.  We clarify that in the instance of a utility's recapture of reserve space occupied by an attaching
entity, the utility is not required to share in the modification costs the attaching entity may incur as a result of
the need to modify the facilities incident to the utilities' recapture of that space.  In such cases, an attacher
should not be relieved of its obligation to pay for modification costs merely because, for a time, the attacher
was able to use a utilities' reserve space, as opposed to initiating and bearing the cost of modifications that
would otherwise have been needed in the absence of the reserve space. 

     69.  In addition, we are persuaded that utilities are entitled to reserve capacity for the provision of
emergency service.  We therefore clarify that space that is allocated or planned for emergency purposes in a
utility's contingency plan should not be subject to the access obligations of reserved space in general.  This
allocation of space for emergency service purposes is distinct from, and does not include, any reservation for
projected growth pursuant to a bona fide development plan that reasonably and specifically projects a need for
space in the provision of its core utility service.

     70.  Bona Fide Development Plans.  Consistent with the foregoing, a utility may reserve space if
such reservation is consistent with a bona fide development plan that reasonably and specifically projects a
need for that space in the provision of its core utility, as opposed to telecommunications or video, service.  We
clarify that if a need arose for a utility to retrieve reserve capacity in order to provide its core utility services,
but the exact circumstance was not laid out in the utility's bona fide development plan, such recapture of
reserve space is permitted so long as it is consistent with the company's reasonable projections for growth as
reported in the utility's bona fide development plan.  The purpose of these safeguards is to ensure that utilities
are not permitted to recapture space for their own provision of competitive telecommunications and video
programming distribution purposes under the guise that such recapture is for the utility's "core" business.

     71.  Definitions of Reserve Capacity.  The record does not contain sufficient data for us to
establish a presumptively reasonable amount of pole, duct, conduit or right-of-way space that an utility may
reserve, as requested by several utilities.  As we stated in the Local Competition Order, if parties cannot agree,
disputes will be resolved on a case-by-case approach based on the reasonableness of the utility's forecast of
its future needs and any additional information that is relevant under the circumstances.  

     72.  Treatment of Utility Communications Attachments.  As requested by CP&L and EEI/UTC,
we clarify that a utility may reserve capacity to carry core utility communications capacity that is essential to
the proper operations of the utility system.  A utility's installation of its own internal communications cables
within the "electric" space on a pole is consistent with the reservation of this space for utility use.  A utility's
denial of access to reserved capacity in order to accommodate the utility's near-term expected need for that
space for its own internal communications needs would not be unreasonable.  We caution that, as with all
reservations of space for a utility's core functions, denials of access may not be made to accommodate a utility's
provision of competitive telecommunications or video programming distribution services.  We decline, however,
to grant EEI/UTC's request that we establish a presumption that it would be reasonable for an electric utility
to reserve any space above what has traditionally been referred to as "communications space" on a pole.  In
light of our clarification of the ability of utilities to reserve space for internal communications functions needed
to support the utility's "core" service functions, we do not perceive the need for such a presumption.

     C.   When Utility is Subject to Access Obligations  
     
                    1.   Use of a Utilities' Facilities for Wire Communications  

               a.   Background

     73.  The access obligations of section 224(f) apply to any "utility," defined as: "any person who
is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns of controls
poles, ducts, conduits, or other rights-of-way used, in whole or part, for any wire communications."  The
Local Competition Order concluded that use of any pole, duct, conduit, or right-of-way for wire
communications triggers access obligations for all poles, ducts, conduits, and rights-of-way owned or controlled
by the utility, including those not currently used for wire communications.  The Local Competition Order
specifically rejected utility arguments that they should be permitted to devote a portion of their poles, ducts,
conduits, and rights-of-way to wire communications without subjecting all such property to the access
obligations of section 224(f) on the ground that this interpretation was at odds with the plain language of the
statute.  The Commission further stated that, "[a]lthough internal communications are used solely to promote
the efficient distribution of electricity, the definition of 'wire communications' is broad and clearly encompasses
an electric utility's internal communications." 
     
               b.   Positions of the Parties

     74.  AEP and FP&L seek clarification that the use of one pole for wire communications should not
trigger access to other ducts and conduits that are not now and never have been used for wire
communications.  They argue that the Local Competition Order's interpretation of section 224(f) violates
the plain language of the Act by concluding that the use of any utility pole, duct, conduit or right of way for
wire communications triggers access to all utility poles, ducts, conduits or rights of way.  They claim the
Commission has misinterpreted the statutory phrase "used, in whole or in part, for wire communications."  AEP
asserts that Congress intended that Commission jurisdiction be invoked on a pole-by-pole basis, not a system-
wide basis.  In support, AEP and FP&L cite the legislative history of the 1978 Pole Attachments Act, and
assert that Congress identified two conditions precedent to Commission jurisdiction over pole attachments:  1)
that communications space be designated on the pole; and 2) that a CATV system use the communications
space, either alone or in conjunction with another communications entity.  They further argue that this
interpretation is consistent with the nature of access requests which are made on a specific route or segment
basis, depending on the needs of the requesting party.  These access requests may be granted consistent with
existing capacity, safety, reliability and generally applicable engineering purposes on a pole-by-pole basis. 

     75.  AEP and FP&L also maintain that the use of part of a utility's infrastructure for a private
communications network designed to support a safe and reliable electric service cannot be deemed to trigger
the nondiscriminatory access provisions of the 1996 Act.  They assert that the term, "wire communications,"
as used in this context, clearly refers to the provision of common carrier communications by
telecommunications carriers and cable service operators, and not to communications by wholly private carriers
and private networks.  According to these utilities, a utility using a private network to support its electric
operations is not a communications entity, and is not treated as such under the other provisions of section
224. 
   
     76.  Delmarva requests clarification "of the lengths to which a utility must go" in order to comply
with the Commission's statutory interpretation.  Delmarva questions whether a cable operator or
telecommunications carrier could demand that a utility install poles, ducts, or conduits on a completely
unimproved utility right-of-way in order to accommodate the needs of such providers solely on the basis that
the utility may own poles with wire communications attachments somewhere in its electric utility system.

     77.  In response, AT&T and MCI argue that section 224(a)(4) provides that if a company's poles,
ducts, conduits, or rights of way are used in whole or in part for wire communications, then it is a utility for
purposes of section 224.  According to AT&T, a utility's duties under section 224(f) are broad.  Specifically,
the utility must grant access to any pole, duct, conduit, or right-of-way owned or controlled by it.  MCI agrees
that the statute expressly states that the use of any part of a utility's facilities for the provision of any type of
wire communications brings an entity within the definition of utility, and thus within the nondiscriminatory
access requirement in section 224(f).  AT&T states that AEP's statutory argument that section 224 applies to
a given utility on a pole-by-pole basis is therefore without merit, as is AEP's further argument that an internal
communications network would not qualify as wire communications under the statute.  According to AT&T,
the statutory definition of wire communications is not limited to communication sold to the public.  Therefore,
argues AT&T, a utility with a private communications network clearly has facilities that are being used to
provide wire communications under the statute and thus the utility is subject to the duty to provide access. 
MCI asserts that this is the only result compelled by the plain language of the statute and it is also the only
equitable result.  If it is technically feasible for the facilities at issue to support telecommunications attachments
for internal purposes, argues MCI, it must be technically feasible to permit others to attach to provide
telecommunications services as well. 

     78.  Airtouch also argues that the Commission's interpretation of the statutory language is
consistent with the intent and purpose of the 1996 revisions to the Communications Act.  According to
Airtouch, section 224(f) provides all telecommunications carriers additional options for facility placement. 
Increased facilities presence within the local marketplace serves to enhance competition in that market.  This
is especially true since the number of CMRS providers seeking site locations has skyrocketed with the licensing
of the broadband PCS and narrowband  PCS spectrum.  Airtouch further states that there has been an
increasing amount of opposition to new CMRS facilities.  Therefore, Airtouch argues, the use of utility
facilities may be necessary for the quick deployment of these services.
     
               c.   Discussion

     79.  FP&L and AEP have presented no new facts or arguments on reconsideration to support their
contention that the access provisions of section 224(f) should be invoked on a pole-by-pole rather than a
system-wide basis.  We continue to believe the better statutory reading does not support the argument made
by some utilities that they should be permitted to devote a portion of their poles, ducts, conduits, and rights-of-
way to wire communications without subjecting all such property to the access obligations of section 224(f)(1). 
Those obligations apply to any "utility," which section 224(a)(1) defines to include an entity that controls
"poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications."  We reaffirm
the Local Competition Order's conclusion that the use of the phrase "in whole or in part" is best read to
indicate that Congress did not intend for a utility to be able to restrict access to the exact path used by the
utility for wire communications.  Further, we reaffirm the conclusion that 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. 

     80.  We also decline to modify our conclusion in the Local Competition Order with respect to an
electric utility's internal communications.  We continue to reject the contention that, because an electric utility's
internal communications do not pose a competitive threat to third-party cable operators or telecommunications
carriers, such internal communications are not "wire communications" and do not trigger access obligations. 
Although internal communications may be used solely to promote the efficient distribution of electricity, the
definition of "wire communication" is broad and clearly encompasses an electric utility's internal
communications.

     D.   Qualifications of Workers

               1.   Use of Non-Utility Employees.

                         a.   Background

     81.  The Local Competition Order stated that utilities should be able to require that only properly
trained persons perform work in the proximity of the utilities' lines, but did not require parties seeking to make
attachments to use either the utility's own employees or the contractors or pre-designated by the utility.  A
utility may require that individuals who will work in the proximity of electric lines have the same qualifications,
in terms of training, as the utility's own workers, but the party seeking access will be able to use any individual
workers who meet these criteria.  Permitting a utility to dictate that only specific employees or contractors be
used would impede the access that Congress sought to bestow on telecommunications carriers and cable
operators and could lead to disputes over rates to be paid to the workers. 
          
                    b.   Positions of the Parties

     82.  Several utilities seek reconsideration of the decision to permit non-utility workers to perform
work in proximity to the utility's electric lines.  AEP argues that the Commission's determination in this
regard is not supported by the statute, is arbitrary and capricious and reflects the Commission's failure to
comprehend fully the danger associated with such work.  AEP and CP&L argue that access by persons not
employed by the utilities creates hazards and exposes the utilities to uncontrollable risk for damage caused by
those acting on behalf of the attaching entities.  This is an issue both with respect to the workers themselves,
and with respect to the high costs associated with an electrical outage when accidents occur as a result of work
being performed by inadequately skilled or trained workers.  Duquesne also argues that permitting non-utility
workers in proximity of electric lines not only compromises worker safety, but also has the potential to affect
reliability of utilities' transmission and distribution systems.  If system reliability is degraded, Duquesne states,
it is the utility that will be blamed.  

     83.  If the Commission declines to reconsider the third-party worker requirements, Duquesne seeks
clarification that a utility has reasonable discretion to establish training requirements so long as they are applied
without discrimination.  According to Duquesne, that training also means actual experience performing required
work; a utility should be able to ask for demonstration of qualifications; and a utility must be able to insist on
indemnity from carrier, or post a bond, against damage to system and personal injury suits by workers. 
Similarly, CP&L maintains that the Commission must adopt rules to control risk, including minimum skills
and performance requirements for the technicians to perform work and requirement that parties provide
minimum insurance for risks.  CP&L also seeks authority to bar workers who do not meet the same safety
standards, training and safety culture that their own employees must meet.   
 
     84.  Delmarva also seeks clarification that utilities can establish and enforce reasonable worker
qualifications.  Delmarva suggests that the most efficient means for a utility to ensure that only qualified
workers gain access to underground ducts and conduits is for the utility to designate contractors sufficiently
skilled and knowledgeable about the utility's system.  An attaching entity may use the designated workers,
with supervision from the utility, for equipment installation.

     85.  In response, MCI defends the Commission's rules on "qualified workers" as sound.  MCI
characterizes AEP as arguing that anything less than complete control over electrical contractors and installers
would eliminate the electric utility's ability to take certain measures to minimize the risk and liability this
mandatory access may cause.  According to MCI, the argument that the Commission has completely eliminated
a utility's ability to minimize installation risk is specious.  MCI states that the Commission expressly allowed
the imposition of safety requirements, such as the ability of the utility to require that the attaching party's
workers have the same training as do the utility's workers.

               c.   Discussion

     86.   We have been presented with no facts or arguments that necessitate modification of the
Commission's decision that otherwise qualified, third-party workers may perform pole attachment and related
activities, such as make-ready work, in the proximity of electric lines.  In the alternative, several of the
utilities have sought clarification that a utility has reasonable discretion to establish training requirements.  We
also find that clarification on this point is unnecessary.  The Local Competition Order expressly gives a utility
the ability to require the same qualifications and training of individuals working in proximity to utility facilities
as a utility would impose on its own employees.  We reiterate that a utility may require that individuals who
will work attaching or making ready attachments of telecommunications or cable system facilities to utility
poles, in the proximity of electric lines, have the same qualifications, in terms of training, as the utility's own
workers, but the party seeking access will be able to use any individual workers who meet these criteria. 
Thus, 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, but the utilities may not dictate
the identity of the workers who will perform the work itself.  As we stated in the Local Competition Order,
allowing a utility to dictate that only specific employees or contractors be used would impede access and lead
to disputes over rates to be paid to the workers.

     87.  We recognize that utilities' requirements with respect to qualifications and training of
individuals working in proximity to utility facilities flow from such codes and requirements as the NESC and
OSHA.  Some utilities have training programs and qualifications that are more strict than the NESC or OSHA
would require.  We therefore disagree with CP&L that the Commission should adopt rules with respect to
minimum skills and performance requirements for technicians or that parties provide minimum insurance for
risks.    

     E.   Modifications

          a.   Background

     88.  Section 224(h) provides: 
          
          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.

     89.  The Local Competition Order established requirements regarding the manner and timing of
the notice that must be provided to third-party attachers to ensure a reasonable opportunity to add to or modify
an attachment.  In general we concluded that, absent a private agreement establishing notification procedures,
written notification of a modification must be provided to parties holding attachments on the facility to be
modified at least 60 days prior to the commencement of the physical modification.  In emergency situations
in which a 60 day notice would be impractical, we require that notice be given as soon as reasonably
practicable.  The 60 day notice is not required for routine maintenance activities.

     90.  In addition, the Local Competition Order established requirements apportioning the cost of
a modification among the various users of the modified facility.  Generally, we concluded that, to the extent
the cost of a modification is incurred for the specific benefit of any particular party, the benefiting party will
be obligated to assume the cost of the modification, or to bear its proportionate share of cost with all other
attaching entities participating in the modification.

          b.   Positions of the Parties
     
               (1)  Manner and timing of notice

     91.  EEI and UTC seek clarification that a utility's ability to promptly serve new customers is not
constrained by the requirement that written notification of a modification be given to parties holding
attachments on a facility 60 days prior to the commencement of the modification.  For example, according
to EEI and UTC, some states require utility service to new customers within three days.  EEI and UTC
contend that the utility would therefore be unable to comply with the state law if it were forced to delay work
for 60 days in order to comply with the notice requirement.  Additionally, according to EEI and UTC, the
60 day notification should only apply to major rebuilds. 

     92.  Similarly, Duquesne states that, in the case of modifications of facilities required by
governments and governmental agencies, the Commission should only require utilities to give as much notice
as practical under circumstances.  While some suggest simply shortening the 60 day notice period to one or
two weeks, others contend that the 60 day notice period is reasonable and reflects current industry
practices. 

               (2)  Allocation of costs
     
     93.  MCI requests that attaching entities be able to seek compensation for modification costs that
create excess capacity which is later sold to other entrants by the incumbent utility.  MCI contends that the
Commission's statement that the 1996 Act ". . . does not give that party any interest in the pole or conduit other
than access," is inconsistent with other statements contained within the same Local Competition Order. 
According to MCI, examples of this inconsistency are found in the portion of the Local Competition Order
that states that the Commission "will allow the modifying party or parties to recover a proportionate share of
the modification costs from parties that later are able to obtain access as a result of the modification" and in
the portion of the Local Competition Order that states that parties joining in a modification will be "responsible
for the resulting costs to maintain the facility on an ongoing basis." 
     
     94.  MCI asserts that the Commission's contention that it would be a "disincentive to add new
competitors" to not permit utilities to earn future revenues from excess capacity,  is tantamount to asserting
that competition is promoted by dis-incenting actual entrants in order to incent potential entrants.  MCI
proposes that a utility be required to establish an escrow account for revenues earned from this excess capacity
or, alternatively, to require new entrants requesting additional capacity to compensate the utility for the average
incremental cost of the addition, rather than the total incremental cost.  New entrants would therefore be
responsible for paying the annual depreciated value of their share of the additional facilities.  Finally, MCI
avers that, given the potential the utilities have for double recovering additional rights of way cost, the
Commission should require utilities to meet the same burdens of proof concerning claims of space exhaustion
for rights of way as it had adopted for collocation.

     95.  Bellsouth responds that compelling utilities to compensate modifiers for future revenues the
utility may earn as a result of the modification would necessarily result in complicated formulas and "rebate
mechanisms."  Likewise, EEI and UTC object to the creation of escrow accounts for future revenues
resulting from modifications.  EEI and UTC contend that the future revenues a utility may earn from added
capacity as a result of modifications for making facility accessible are irrelevant under statute.  Duquesne
states that because of burden of record keeping on hundreds of thousands of poles and other facilities,
Commission should clarify that it is the entity seeking reimbursements from future attaching entities, and not
the utility, that is required to maintain pertinent records for this purpose.  

     96.  EEI and UTC state that modifications arising from compliance with the NESC should not
obligate the utility to share in the cost of a proposed facility change-out where the only modifications are those
necessitated by changes in the NESC since the existing facilities were installed.  According to EEI and UTC,
the "grandfathering" provisions of the NESC allow utilities to delay modifications to meet code changes until
"more than a minimal amount of other work is done."  EEI and UTC contend that it would be unfair for
utilities to bear the cost of a safety compliance upgrade if the upgrade is triggered solely because of
modifications arising from utilities' obligations to allow attachments.  

     97.  Similarly, Duquesne states that a "grandfathered" facility is required to bring its facilities into
compliance with changes in the NESC only if it rebuilds its facilities, and therefore the facilities would not be
in violation of the NESC absent a change out.  According to Duquesne, a utility should not have to share in
the modification costs unless an actual violation exists, such as noncompliance with NESC at the time the
utility built its facility.  If such a violation exists, Duquesne asserts that a utility should likewise not be
required to share in costs of the modification if the violation could have been corrected on the old facility
without expanding the capacity used by the utility.

     98.  EEI and UTC seek clarification that agreements between utilities and attaching entities
regarding rearrangement of facilities and notifications of proposed facility modifications supersede FCC rules. 
Specifically, EEI and UTC seek clarification that parties may enter private agreements regarding allocation
of costs that may vary from the policies adopted in this proceeding.  In addition, EEI and UTC seek
clarification that a utility be able to recoup labor and administrative expenses incident to providing maps, plats,
and other data from entities making legitimate inquiries regarding access.  According to EEI and UTC, these
costs are expenses which traditionally are borne directly by beneficiaries of costs.  EEI and UTC also ask that
requesting party be required to sign a confidentiality agreement as a precondition of a utility providing such
information.

     99.  Duquesne states that, with respect to modifications of facilities required by governments and
governmental agencies (such as due to a road widening), attaching entities will claim they do not have to share
costs here because these modifications are not for their special benefit or initiated by them.  Duquesne seeks
clarification that attaching entities should share in cost of governmentally mandated pole movement because
the attachers should assume the same business risk as utilities that the government may require poles to be
moved.  GTE also requests clarification of cost sharing rules with respect to modifications to facilities caused
by government agencies. 

          c.   Discussion

     100. We decline to modify our decision in the Local Competition Order that requires, absent a
private agreement establishing notification procedures, written notification of a modification to be provided to
parties holding attachments on the facility to be modified at least 60 days prior to the commencement of the
physical modification itself.  We continue to believe that under most circumstances, a utility should be able
to comply with the 60 day notice requirement, even in instances where a government or a government agency
requires service to new customers in less that 60 days.  A utility would in most cases be aware well in
advance of, for example, a new building or road development planned in its service area.  In the unusual case
of a utility that did not know of, and could not reasonably be expected to have known of a governmentally
required facility modification 60 days before the governmentally mandated modification deadline, the utility
must give notice to attachers at the time it becomes aware of its obligation to modify the facility.  

     101. We continue to believe that a 60 day notification period strikes an appropriate balance between
avoiding unnecessary delays of modifications that would expedite  competition in telecommunications services,
and providing parties with preexisting attachments to a pole or conduit sufficient time to evaluate the effects
of the proposed modification, including whether the modification presents an opportunity to adjust the
attachment.  As stated in the Local Competition Order, if the contemplated modification involves an
emergency situation for which advanced written notice would prove impractical, notice should be given as soon
as reasonably practicable.  We also continue to believe that the burden of requiring specific written notice
of routine maintenance activities would not produce a commensurate benefit.  Rather, as we stated in the
Local Competition Order, utilities and parties with attachments are expected to exchange maintenance
handbooks or other written descriptions of their standard maintenance practices, and this information exchange
should be sufficient to apprise all parties of the status of their facilities.  

     102. We also decline to specifically limit the 60 day notice requirement to "major rebuilds," as EEI
and UTC suggest.  We believe that the parties themselves are best able to determine when and under what
circumstances notice would be reasonable and sufficient.  As we stated in the Local Competition Order, the
owner of a facility and parties with attachments are encouraged to negotiate acceptable notification terms. 
For example, smaller entities that are attaching parties and attaching parties in rural markets may need more
time to study facilities than larger facility users and those in urban markets.

     103. We decline to reconsider the Local Competition Order's decision that, in the case of facility
modifications initiated by third-party attachers that create excess capacity, the facility owner is not obligated
to use any later-earned revenues from that capacity to compensate the parties who paid for the modification,
even in cases in which the owner did not share in the costs of the modification.  Petitioners have presented no
new evidence or arguments that would cause us to change this conclusion on reconsideration.  As the Local
Competition Order notes, section 224(h) limits responsibility for modification costs to any party that "adds
to or modifies its existing attachment after receiving notice" of a proposed modification.  The statute does
not confer any interest to that party in the pole or conduit other than access.  We reiterate that creating a right
for that party to share in future revenues from the modification would be tantamount to bestowing an interest
that the statute withholds.  We continue to believe that a requirement that utilities pass additional attachment
fees back to parties with preexisting attachments may be a disincentive to add new competitors to modified
facilities, in direct contravention of the general intent of Congress.   

     104. We also disagree with MCI that our finding runs contrary to the decision to allow the
modifying party or parties to recover a proportionate share of the modification costs from parties that later are
able to obtain access as a result of the modification.  We likewise do not agree that the Commission's decision
to require parties requesting or joining in a modification to be responsible for resulting costs to maintain the
facility on an ongoing basis contradicts this policy.  The Local Competition Order merely declined, in the
absence of a congressional directive, to add facility owners to the category of responsible parties.  Because we
have declined to hold facility owners responsible for passing these additional attachment fees back to parties
with preexisting attachments, we strongly encourage those parties seeking compensation from future attaching
parties to maintain the records necessary to facilitate the collection of such compensation.  These records
should utilize generally accepted accounting procedures and, as stated in the Local Competition Order, should
take into account depreciation to the pole or facility that has occurred since the modification.  We will not,
however, require the facility owner to maintain records regarding modification costs for the benefit of attaching
entities.

     105. Pursuant to the Local Competition Order, a utility or other party that uses a modification as
an opportunity to bring its facilities into compliance with applicable safety or other requirements will be
deemed to be sharing in the modification and will be responsible for its share of the modification cost.  In
this context, our rule would require a utility that alters its facilities in accordance with the NESC at the time
of a modification to share in the costs of the modification.  EEI, UTC, and Duquesne seek clarification of this
requirement in the context of changes to the NESC since the facilities were built.  A utility must alter its
facilities in response to changes to the NESC at the time the NESC so requires.  This is a matter that we expect
to be well-established under current practices, and is in any case beyond the scope of this proceeding.

     106. We also clarify that attaching entities will not be responsible for sharing in the cost of
governmentally mandated pole or other facility modification.  In the case of a road widening, for example, a
utility would be required to move the pole or other facility even in the absence of attaching entities; such
expenses are not caused by the attaching party and would occur in any event.  The reasonably projected
incremental costs associated with movement of attaching entities' facilities should be factored into the standard
rent that attaching entities pay a utility, rather than be treated as a separate cost to be recovered.

     107. We further clarify that a utility may require an inquiring entity to reimburse the utility, on an
actual cost basis, for the actual labor and administrative costs incident to providing maps, plats, and other data
to entities making inquiries regarding access, because such one-time expenses would not typically be provided
for in an attaching entities' rent.   However, we would expect that utilities would have a standard quote for
ascertaining the availability of pole or conduit capacity.  Only in the case where a particular request for access
involves highly unusual expenses associated with evaluating a proposal, would cost recovery over-and-above
the standard rate be permissible. With respect to the confidentiality of such information, we reiterate that we
expect a utility to make its maps, plats and other relevant data available for inspection and copying by the
requesting party, subject to reasonable conditions to protect proprietary information.

     F.   State Certification

          a.   Background

     108. Prior to enactment of the 1996 Act, section 224(b)(1) gave the Commission jurisdiction to
"regulate the rates, terms, and conditions for pole attachments . . . ."  Under former section 224(c)(1), that
jurisdiction was preempted where a state regulated such matters.  Such "reverse preemption" was conditioned
upon the state following a certification procedure and meeting certain compliance requirements set forth in
sections 224(c)(2) and (3).  The 1996 Act expanded the Commission's jurisdiction to include not just rates,
terms, and conditions, but also the authority to regulate non-discriminatory access to poles, ducts, conduits and
rights-of-way under section 224(f).  At the same time, the 1996 Act expanded the preemptive authority of
states to match the expanded scope of the Commission's jurisdiction.  Section 224(c)(1) now provides:

                    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 the
          State.

     109. The Local Competition Order noted that Congress did not amend section 224(c)(2) to
prescribe a certification procedure with respect to access (as distinct from the rates, terms, and conditions of
access).  The Local Competition Order stated that, upon the filing of a section 224(f) access complaint with
the Commission, the defending party or the state itself should come forward to apprise the Commission whether
the state is regulating such matters.  If so, the Commission shall dismiss the complaint without prejudice to
it being brought in the appropriate state forum.  Pursuant to the Local Competition Order, a party seeking
to show that a state regulates access issues should cite to state laws and regulations governing access and
establishing a procedure for resolving access complaints in a state forum.

          b.   Positions of the Parties

     110. NCTA requests that the Commission reconsider its decision and require states to utilize the
same procedural mechanism for assuming jurisdiction over access that they must use to assume jurisdiction
over pole attachment rates, terms and conditions.  NCTA claims that not requiring a state to certify that it
regulates access in advance of a complaint will create uncertainty and will waste time determining the proper
forum to file a complaint.  NCTA also claims that the lack of state certification could undermine the choice
of a potential attaching party to vindicate rights as part of an overall Section 252 arbitration or as an
independent complaint under Section 224.

     111. NCTA notes that the Local Competition Order recognizes that "time is of the essence" in
resolving access disputes, and that the Act and the Commission's rules make clear that "denial of access . . .
is an exception to the general mandate of section 224(f)."  According to NCTA, since the Commission has
already determined a state's pole attachment access rules ultimately could be subject to preemption under
section 253(a), it should reduce uncertainty, transaction costs and potential litigation by requiring states to
certify they have actually adopted access rules in conformity with the strong Federal presumption favoring
access and the access guidelines adopted in the Local Competition Order.

     112. CompTel, along with EEI, UTC and PG&E request clarification that where a state has
certified that it regulates rates, terms and conditions for pole attachments, its regulations in this area are not
only entitled to deference but have preemptive effect to the extent they do not directly violate section 253, which
invalidates all state or local requirements that "prohibit or have the effect of prohibiting the ability of any entity
to provide any interstate or intrastate telecommunications service."  CCTA disagrees, arguing that such a
clarification would run contrary to the 1996 Act.  EEI, UTC and PG&E ask the Commission to revise
section 1.1414(a)(2) to conform with revised section 224(c)(2)(B) which requires states wishing to exercise
preemption authority to certify that they "consider the interest of the subscribers of the services offered via such
attachments."   

     113. EEI, UTC, and AEP urge rejection of NCTA's request to require states to certify, as a
precondition to regulating access, that they preempt FCC authority over rates, terms and conditions for
attachments.  According to AEP, the Commission properly held that the states are not required to certify as
to access matters because the Commission has no statutory authority to require states to certify as to access. 
AEP also opposes NCTA's request that if a state does preempt federal jurisdiction it should follow the federal
lead with respect to access to poles, ducts, conduits, and rights-of-way.      

          c.   Discussion

     114. In the Local Competition Order, we noted that the authority of a state is clear under section
224(c)(1) to preempt federal regulation for access requests arising solely under section 224(f)(1).  When a
telecommunications carrier seeks access to LEC facilities or property under section 251(b)(4), the reference
in section 251(b)(4) to section 224 incorporates all aspects of the latter section, including the state reverse
preemption authority of section 224(c)(1).  Thus, when a state has exercised its preemptive authority under
section 224(c)(1), a LEC satisfies its duty under section 251(b)(4) to afford access by complying with the
state's regulations.  If a state has not exercised such preemptive authority, the LEC must comply with the
federal rules.  The Local Competition Order noted that Congress did not amend section 224(c)(2) to
prescribe a certification procedure with respect to access (as distinct from the rates, terms, and conditions of
access).  Parties seeking reconsideration have provided no new facts or arguments to justify their requested
rule changes.  We note that, in a separate proceeding, we seek comment on whether additional certification is
needed to ascertain whether a State is regulating the rates, terms and conditions of access to facilities and
rights-of-way on multiple unit premises.  The issue of State certification of such jurisdiction was not raised
in this proceeding and is not decided herein.

     115. Rather than requiring states to undertake formal certification procedures that are not supported
by the text of section 224(c)(2), we determined that the burden of informing this Commission when a state has
exercised its reverse preemption authority should rest with the party seeking to rely upon such authority in
defending an access complaint filed before us.  Although we decline to reconsider this decision, we clarify that
this applies to those states that have previously certified their regulation of rates, terms and conditions of pole
attachments.  Our rule does not require such states to formally 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 its jurisdiction, as required under section 224(c)(2).  We are mindful of the potential
confusion and lack of certainty that could result in the absence of any certification, and do not believe that
Congress intended such a result.

     116. We reiterate that, upon the filing of an access complaint with this Commission, the defending
party or the state itself should come forward to apprise us whether the state is regulating such matters.  If
so, pursuant to the Local Competition Order, we shall dismiss the complaint without prejudice to it being
brought in the appropriate state forum.  We require any party seeking to demonstrate that a state regulates
access issues to cite the state laws and regulations governing access and establishing a procedure for resolving
access complaints in a state forum.  We continue to believe that these procedures are consistent with the
language and intent of the statute, and unduly burden neither the parties to an access complaint, nor the state
entities responsible for pole attachment regulation. 

     G.   Other Issues

          a.   45 DayTime Limit on Utility Evaluation of Attachment Request 

     117. The Local Competition Order stated that, because time is of the essence in access requests,
a utility must respond to a written request for access within 45 days.  If access is not granted within 45 days
of the request, the utility must confirm the denial in writing by the 45th day.  EEI and UTC request that we
clarify that an entity requesting access to utility facilities must provide clear and sufficient information in order
for the utility to evaluate the request, and the Commission should specify that 45-day time period to respond
to request does not start until all the necessary information is provided.  The Joint Cable Parties and NCTA
respond that giving more than 45 days would be unreasonable and contrary to industry practice.  According
to the Joint Cable Parties and NCTA, in the event a utility were to find that a particular request for access
would take longer than 45 days to evaluate, the utility should apply for a waiver of the 45 day limit.

     118. Based upon the record before us, we decline to reconsider the procedural rules under
discussion.  We expect that access requests would contain all pertinent and reasonably necessary information
for the utility's consideration of the request, and would follow established industry practices.  If the information
in the request is incomplete, a utility may require a second access request.  In such a case, we would also expect
the utility to notify the applicant of all pertinent defects in its application promptly.  It would not be acceptable
to object, in a piecemeal fashion, to an access request containing multiple defects.

     119. As we stated in the Local Competition Order, a telecommunications carrier or cable operator
filing a complaint with the Commission must establish a prima facie case.  A petitioner's complaint, in
addition to showing that it is timely filed, must state the grounds given for the denial of access, the reasons
those grounds are unjust or unreasonable, and the remedy sought.  The complaint must be supported by the
written request for access, the utility's response, and information supporting its position.  We believe that
an entity requesting access would provide the utility with sufficient information in its request, and this request
will be part of the record in the Commission's evaluation of a complaint regarding a denial of access.  We
reiterate that, "time is of the essence," and that by implementing specific complaint procedures for denial of
access cases, we have established swift and specific enforcement procedures that will allow for competition
where access can be provided.

          b.   Identification of Attachments

     120. Several commenters ask that the Commission require attaching entities to "tag" their
attachments, in order to facilitate easy identification of attachers lines.  We believe that, on a prospective
basis, reasonable tagging requirements may be included in agreements between utilities and attachers.  This
would help prevent confusion during modifications, would aid safety measures, and would help insure that
notice of modifications are sent to the correct parties.  Thus, we will permit utilities to require tagging in their
attachment agreements, as easy identification of attachers lines is in the best interests of the facility owner, the
attaching entity, and the consumers of all of these services.

IV.  ORDERING CLAUSES

     121. Accordingly, IT IS ORDERED that, 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.

     122. IT IS FURTHER ORDERED, 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 C.F.R.  1.106 (1995), that the
petitions for reconsideration or clarification are DENIED IN PART and GRANTED IN PART to the extent
indicated above.


                              FEDERAL COMMUNICATIONS COMMISSION



                              Magalie Roman Salas
                              Secretary                            APPENDIX A

Parties Filing Petitions and/or Oppositions and Comments on Petitions
                       CC Docket No. 96-98
                       CC Docket No. 95-185


Petitions for Reconsideration and/or Clarification Regarding Access to Rights-of Way

American Electric Power Service Corporation, Commonwealth Edison Company, Duke Power 
          Company, Energy Services, Inc., Northern States Power Company, The Southern
     Company and Wisconsin Electric Power Company (AEP)
Carolina Power & Light (CP&L)
Consolidated Edison Company of New York, Inc. (Con Edison)
Delmarva Power & Light Company (Delmarva)
Duquesne Light Company (Duquesne)
Edison Electric Institute and UTC, The Telecommunications Association (EEI/UTC)
     (joined and supported by letter by Pennsylvania Power & Light Company (PP&L))
Florida Power & Light Company (FP&L)
The Local Exchange Carrier Coalition (LECC)
MCI Communications Corporation (MCI)
Margaretville Telephone Company, Inc. (Margaretville)
National Cable Television Association, Inc. (NCTA)
Pacific Gas and Electric Company (PG&E)


Oppositions and Comments in Response to Petitions for Reconsideration and/or Clarification

AirTouch Communications, Inc. (AirTouch) (Comments)
American Electric Power Service Corporation, Commonwealth Edison Company, Duke Power 
          Company, Energy Services, Inc., Northern States Power Company, The Southern
     Company and Wisconsin Electric Power Company (AEP) (Opposition)
Ameritech (Opposition)
Association for Local Telecommunications Services (ALTS) (Reply)
AT&T Corporation (AT&T) (Opposition and Comments)
BellSouth Corporation, BellSouth Enterprises, Inc., and BellSouth Telecommunications, Inc. 
     (BellSouth) (Opposition and Comments)
California Cable Television Association (CCTA) (Opposition)
Cellular Telecommunications Industry Association (CTIA) (Opposition)
Comcast Cellular Communications, Inc., and Vanguard Cellular Systems, Inc. (Comcast)
(Comments)
Competitive Telecommunications Association (CompTel) (Comments)
Continental Cablevision, Inc., Jones Intercable, Inc., Century Communications Corp., Charter 
          Communications Group, Prime Cable, InterMedia Partners, TCA Cable TV, Inc.,
     Greater Media, Inc., Cable TV Association of Maryland, Delaware & the District
     of Columbia, Inc., Montana Cable TV Association, South Carolina Cable
     Television Association, Texas Cable & Telecommunications Association (Joint
     Cable Parties) (Opposition)
Cox Communications, Inc. (Cox) (Opposition and Response)
Duquesne Light Company (Duquesne) (Opposition)
Edison Electric Institute and UTC, The Telecommunications Association (EEI/UTC) (Comments)
GTE Service Corporation (GTE) (Opposition and Comments)
MCI Communications Corporation (MCI) (Response)
Margaretville Telephone Company, Inc. (Margaretville)(Reply)
National Cable Television Association, Inc. (NCTA) (Opposition)
NYNEX Telephone Companies (NYNEX) (Comments)
Paging Network, Inc. (Paging Network) (Comments)
Sprint Corporation (Sprint) (Opposition)
Teleport Communications Group, Inc. (Teleport) (Comments and Opposition)
United States Telephone Association (USTA) (Opposition)
US WEST, Inc. (US WEST) (Comments)

       Statement of Commissioner Harold W. Furchtgott-Roth,
            Concurring in Part and Dissenting in Part

      Implementation of the Local Competition Provisions in 
     the Telecommunications Act of 1996, CC Docket No. 96-98.

     Today we reconsider various aspects of the 1997 Local Competition Order, which
implemented section 224 of the Telecommunications Act of 1996.  I respectfully dissent from the
affirmation of these rules to the extent that they require utilities to expand capacity for the benefit of
attaching parties; limit utilities' ability to reserve space for themselves; and regulate labor and
employment practices with respect to attachments.  In these regards, I think the rules go far beyond
the dictates of the statute.  I concur in the rest of the Order, however -- especially in the decision not
to require the exercise of eminent domain on behalf of would-be attachers.

Capacity Expansions 

     I would not require any capacity expansions, as does today's decision.  See supra Part III.B. 
To be sure, section 224(f)(1) clearly requires non-discriminatory access, but to what? -- to "any pole,
duct, conduit, or right-of-way owned or controlled by" a utility, not to some future pole that the
utility could install, a duct that it theoretically could build, or a right-of-way different from the one
that exists at the time the request is made.  The latter type of facilities are not owned or controlled
by the utility; they are wholly imaginary facilities that simply do not exist.  Moreover, nothing in this
section speaks of a duty to build out, construct, or expand infrastructure.  It requires non-
discriminatory access, at regulated rates, but imposes no construction or expansion duties upon
utilities.  If Congress had meant to impose such a drastic requirement on utilities (forced access being
serious enough), I would think Congress would have done so expressly.   Given the lack of such
language in section 224(f)(1), I would not read a capacity expansion requirement into the statute for
utilities, electric or otherwise.

     If there were any reasonable doubt whether the plain language of 224(f)(1) requires capacity
expansions (and I do not think there is), the very next provision of the Act conclusively resolves it,
as far as electric utilities are concerned.  Mandating capacity expansions across the board seems flatly
contrary to section 224(f)(2), which provides that: "Notwithstanding [the access provision], a utility
providing electric service may deny a cable television system or any other telecommunications carrier
access to its poles, ducts, conduits, or rights-of-way, on a non-discriminatory basis where there is
insufficient capacity. . .".  47 U.S.C. section 224(f)(2)(emphasis added).  Where there is not enough
room for the access requester, this language makes clear that an electric utility is fully within its rights
to simply deny access, so long as it denies access to all other similarly-situated requesters. 

     The Commission never deals with the express language of 224(f)(1).  Instead, it points to the
non-discrimination "principle" of 224(f)(1) (this is all it can point to, since nothing in the text of
224(f)(1) mentions expansions), arguing that this section prohibits all utilities (electric or otherwise)
from refusing to build out for others if it would build out for itself.  

     I believe that the Commission misapprehends the group that is protected from discrimination,
and as against whom.  To my mind, "non-discrimination" is not about discrimination as between the
utility itself and the requesters, but discrimination by the utility as among requesters.  That is, non-
discrimination does not mean that the utility must treat all cable television systems and
telecommunications carriers just as it treats itself, but that the utility must treat all cable televisions
systems and telecommunications carriers just as it treats other cable television systems and
telecommunications carriers.  Simply put, cable television systems and telecommunications carriers
all have a federal right of access to the enumerated facilities, and the utility must grant that access on
a fair and equal basis, without favoring one requester over another.  But it does not require the utility
to give requesters the same treatment it gives itself.

     Significantly, where Congress meant to require that companies treat others as they treat
themselves -- as opposed to treating other parties similarly -- it said so directly, in addition to, and
independently of language mandating non-discrimination.  For example, in Title II, Congress required
that ILECS provide interconnection on "nondiscriminatory" rates, terms, and conditions, 47 U.S.C.
section 251(c)(2)(C), and then went on to say in the next provision that they must also provide
interconnection "that is at least equal in quality to that provided by the local exchange carrier to
itself," id. section 251(c)(2)(D).  If "non-discrimination" already included the principle of equal
treatment as between the regulated entity and others, however, the additional language in subsection
(D) would be mere surplusage, adding nothing to subsection (C). Here, there is no language requiring
equal treatment with respect to a utility's treatment of itself, and we should not read it into the "non-
discrimination" duty.

     The Commission also attempts to justify its creation of the capacity expansion duty by noting
that it had a "regulatory practice" of requiring expansion and arguing that nothing in the 1996
Telecommunications Act reflects an intent to eliminate that practice.  See supra at para. 52.5.  The
question here is not whether the Act reflects an intent to change administrative practices in effect at
the time of passage.  Any number of practices -- statutorily authorized or not -- could be in effect
when Congress legislates in an area; Congress is not required to make clear that those practices
should be stopped before one can conclude that the practice is statutorily unauthorized.  The question
is whether the Act reflects an intent to create a duty to expand capacity, above and beyond the
existing duty of nondiscriminatory access to existing facilities.  The text of section 224 yields no such
conclusion, past regulatory practice notwithstanding.

Reservation of Space

     I also would not compel utilities to present to the Commission "bona fide" development plans
in order to reserve capacity for themselves.  Supra Part III.B.  Again, I do not think the "non-
discrimination principle" mandates this scheme, since the issue is not whether the utility does things
for itself that it does not do for others, but whether it does things for some requesters that it does not
do for other requesters.  So, if a utility wants to reserve space for itself, that does not constitute
discrimination among would-be attachers. Moreover, these "reservation" regulations places the
Commission in the position of reviewing state utilities' business plans for legitimacy.  This is federal
micro-management, conducted by an agency wholly outside its area of expertise (we know little to
nothing about planning for the provision of utility services), and it is simply not required by the
statute.


Exercise of Eminent Domain to Accommodate a Request for Access

     The above-discussed capacity expansion requirement is not only outside the terms of the
statute, but its implementation creates wrinkles in state law, making it all the more clear that Congress
probably never intended such an obligation.  Specifically, because the Commission requires
expansions of existing rights-of-way, it must face the consequent issue whether utilities can be
required to exercise state-created, state-granted, and state-governed rights of eminent domain in
order to effectuate the perceived purposes of section 224. 

     Fortunately, the Commission reverses on reconsideration its original decision to mandate such
action, supra at Part III.A.2, for that decision represented an extraordinary assertion of federal
authority over the most traditional of state powers in order to advance a federal program.  As such,
I believe that the eminent domain requirement caused Tenth Amendment problems.  See U.S. Const.
Amdt. X "(The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.").  

     Under the old rules, the Commission would have pressed into service the core state power
of eminent domain, as delegated to its utilities.  Cf. Alden v. Maine, 119 S. Ct. 2240, 2264 (1999)
("A power to press a State's own courts into federal service to coerce the other branches of the State
. .  is the power first to turn the State against itself and ultimately to commandeer the entire political
machinery of the State against its will and at the behest of individuals.  Such plenary federal control
of state governmental processes denigrates the separate sovereignty of the States.") (citation
omitted); see also Printz v. United States 521 U.S. 898 (1997) (Brady Act violated the Tenth
Amendment because it imposed unconstitutional obligation on state officers to execute federal laws). 
The mandatory exercise of this power was considered necessary in order to achieve the goals of
purely federal regulatory program, not in order to effectuate any possible state interest.

     Eminent domain is a core and traditional power of sovereign States, one that was never
delegated by the Constitution to the federal government.  As such, it rests exclusively within the
province of the States, and I do not see how the Commission could have compelled the exercise of
such power.  As the Supreme Court has explained, "federal action [that] would 'commandeer' state
governments into the service of federal regulatory purposes" is "inconsistent with the Constitution's
division of authority between federal and state governments."  New York v. United States, 505 U.S.
144, 175 (1992).  The Commission thus does well to reconsider this aspect of pole attachment
regulations.

     (Of course, the statute evinces no more proof "that Congress intended for section 224 to
compel a utility to exercise eminent domain," supra at para. 38, than it does that Congress meant for
the statute to force a utility to build out its plant in the first place.  If the Commission stuck to this
approach to statutory construction, it would not find a capacity expansion requirement in the statute
either.)

Qualifications of Workers

     The Commission on reconsideration keeps intact its regulations regarding the types of
workers that can be used for the installation of requested attachments.  See supra at paras. 86-87. 
The Commission thus bars utilities from designating the workers that should be used to attach
equipment to their own facilities.  Put directly, I see nothing in section 224 that gives this Commission
authority to regulate the labor and employment practices of electric utilities.  This is simply not a case
of statutory ambiguity.

                    *         *         *

     For the reasons discussed above, it seems to me that these pole attachment regulations, by
requiring capacity expansions, limiting reservations of space by utilities, and regulating the
qualifications of workers who install pole attachments, go much further than the statute requires.  I
expressly support, however, the decision to repeal the regulations requiring utilities to exercise
eminent domain rights on behalf of third parties.

       SEPARATE STATEMENT OF COMMISSIONER MICHAEL POWELL,
             CONCURRING IN PART, DISSENTING IN PART

               Re:  Implementation of the Local Competition Provisions in the Telecommunications
          Act of 1996 (CC Docket No. 96-98)
               As I have articulated on many occasions, I fully support
          taking the steps necessary to promote and insure local
          competition.  To this end, our Local Competition Order, among
          other things, implemented the pole attachment provisions of the
          Telecommunications Act of 1996 so that cable television
          systems and telecommunications carriers have non-
          discriminatory access to poles, ducts, conduits, and rights-of-
          way owned by utilities or local exchange carriers.  Many of the
          decisions in the Order we adopt today reaffirm and recognize the importance of non-discriminatory access
          to the development of competition, and, in turn, the provision of choice to consumers.  That said, I must
          respectfully dissent to the extent that the Order requires a utility providing electric service to expand the
          capacity of its poles, ducts, conduits, and rights-of-way in order to accommodate a request for attachment. 
          I believe that such a requirement is contrary to the plain language of the statutory mandate.

     This Order addresses petitions for reconsideration or clarification of the access requirements of
the Local Competition Order.  Specifically, my concern lies in the portion of the item that relates to
capacity expansion.  Section 224(f)(1) of the Act, one of the provisions implemented in the Local
Competition Order, mandates that a utility provide either a telecommunications carrier or cable
television system "with non-discriminatory access to any pole, duct, conduit, or right-of-way owned or
controlled by it."  This Order reaffirms the finding of the Local Competition Order that requires a utility
to expand capacity at the request of a telecommunications carrier or cable television system, just as it
would to meet its own needs.  Generally I agree that the non-discrimination principle requires a utility
to expand capacity at the request of a telecommunications carrier or cable television system.  My specific
disagreement is that this Order ignores that Congress explicitly excepted electric utilities from this general
obligation.

     Although I concur in that the non-discrimination provision discussed in section 224(f)(1) can be
read to require that certain utilities expand capacity for a request of attachment, I believe that the Order
fails to sufficiently recognize the exemption discussed in section 224(f)(2), and incorrectly requires that
electric utilities provide for this capacity expansion against their will.  Section 224(f)(2) states that:

          "[n]otwithstanding paragraph [(f)] (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 basis where there is insufficient capacity and for reasons of
     safety, reliability and generally applicable engineering purposes."  

The language unambiguously reserves to electric utilities the right to deny access if there is not sufficient
capacity on its poles, or in its ducts or conduits, or in its rights-of-way.  There is nothing in the statute
from which to draw the conclusion that Congress meant the words "insufficient capacity" to mean
"insufficient expanded capacity," nor does this Order cite to any legislative history to support such a
position.

     Indeed, it is hard to see how you can give section 224(f)(2) any meaning at all if an electric utility
is required to expand its poles, ducts or conduits, or even expand its rights-of-way, to accommodate
requests for attachment.  There is no apparent point at which an electric utility could actually deny a
request.   Thus, the better reading is that upon a request for attachment, the electric utility is not
mandated to expand capacity of its poles under the non-discrimination principle drawn from section
224(f)(1).  Instead, the electric utility must only ensure that any denials of such requests are done so on
a non-discriminatory basis.  

     For the aforementioned reasons, I concur in part and dissent in part from this Order.