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U.S. Code as of:
01/19/04
Section 224. Pole attachments
(a) Definitions
As used in this section:
(1) The term "utility" means any person who is a local exchange
carrier or an electric, gas, water, steam, or other public utility,
and who owns or controls poles, ducts, conduits, or rights-of-way
used, in whole or in part, for any wire communications. Such term
does not include any railroad, any person who is cooperatively
organized, or any person owned by the Federal Government or any
State.
(2) The term "Federal Government" means the Government of the
United States or any agency or instrumentality thereof.
(3) The term "State" means any State, territory, or possession of
the United States, the District of Columbia, or any political
subdivision, agency, or instrumentality thereof.
(4) 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.
(5) For purposes of this section, the term "telecommunications
carrier" (as defined in section 153 of this title) does not include
any incumbent local exchange carrier as defined in section 251(h)
of this title.
(b) Authority of Commission to regulate rates, terms, and
conditions; enforcement powers; promulgation of regulations
(1) Subject to the provisions of subsection (c) of this section,
the Commission shall regulate the rates, terms, and conditions for
pole attachments to provide that such rates, terms, and conditions
are just and reasonable, and shall adopt procedures necessary and
appropriate to hear and resolve complaints concerning such rates,
terms, and conditions. For purposes of enforcing any determinations
resulting from complaint procedures established pursuant to this
subsection, the Commission shall take such action as it deems
appropriate and necessary, including issuing cease and desist
orders, as authorized by section 312(b) of this title.
(2) The Commission shall prescribe by rule regulations to carry
out the provisions of this section.
(c) State regulatory authority over rates, terms, and conditions;
preemption; certification; circumstances constituting State
regulation
(1) 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) of this section, for pole attachments
in any case where such matters are regulated by a State.
(2) Each State which regulates the rates, terms, and conditions
for pole attachments shall certify to the Commission that -
(A) it regulates such rates, terms, and conditions; and
(B) in so regulating such rates, terms, and conditions, the
State has the authority to consider and does consider the
interests of the subscribers of the services offered via such
attachments, as well as the interests of the consumers of the
utility services.
(3) For purposes of this subsection, a State shall not be
considered to regulate the rates, terms, and conditions for pole
attachments -
(A) unless the State has issued and made effective rules and
regulations implementing the State's regulatory authority over
pole attachments; and
(B) with respect to any individual matter, unless the State
takes final action on a complaint regarding such matter -
(i) within 180 days after the complaint is filed with the
State, or
(ii) within the applicable period prescribed for such final
action in such rules and regulations of the State, if the
prescribed period does not extend beyond 360 days after the
filing of such complaint.
(d) Determination of just and reasonable rates; "usable space"
defined
(1) For purposes of subsection (b) of this section, 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.
(2) As used in this subsection, the term "usable space" means the
space above the minimum grade level which can be used for the
attachment of wires, cables, and associated equipment.
(3) This subsection shall apply to the rate for any pole
attachment used by a cable television system solely to provide
cable service. Until the effective date of the regulations required
under subsection (e) of this section, this subsection shall also
apply to the rate for any pole attachment used by a cable system or
any telecommunications carrier (to the extent such carrier is not a
party to a pole attachment agreement) to provide any
telecommunications service.
(e) Regulations governing charges; apportionment of costs of
providing space
(1) The Commission shall, no later than 2 years after February 8,
1996, prescribe regulations in accordance with this subsection to
govern the charges for pole attachments used by telecommunications
carriers to provide telecommunications services, when the parties
fail to resolve a dispute over such charges. Such regulations shall
ensure that a utility charges just, reasonable, and
nondiscriminatory rates for pole attachments.
(2) A utility shall apportion the cost of providing space on a
pole, duct, conduit, or right-of-way other than the usable space
among entities so that such apportionment equals two-thirds of the
costs of providing space other than the usable space that would be
allocated to such entity under an equal apportionment of such costs
among all attaching entities.
(3) A utility shall apportion the cost of providing usable space
among all entities according to the percentage of usable space
required for each entity.
(4) The regulations required under paragraph (1) shall become
effective 5 years after February 8, 1996. Any increase in the rates
for pole attachments that result from the adoption of the
regulations required by this subsection shall be phased in equal
annual increments over a period of 5 years beginning on the
effective date of such regulations.
(f) Nondiscriminatory access
(1) 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.
(2) Notwithstanding paragraph (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 (!1) basis where there is
insufficient capacity and for reasons of safety, reliability and
generally applicable engineering purposes.
(g) Imputation to costs of pole attachment rate
A utility that engages in the provision of telecommunications
services or cable services shall impute to its costs of providing
such services (and charge any affiliate, subsidiary, or associate
company engaged in the provision of such services) an equal amount
to the pole attachment rate for which such company would be liable
under this section.
(h) Modification or alteration of pole, duct, conduit, or
right-of-way
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.
(i) Costs of rearranging or replacing attachment
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, duct, conduit, or
right-of-way).
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