DINF Web Posted on December 16, 1997
§ 224. Pole attachments
- (a) Definitions
As used in this section:
- (1) The term "utility" means any person whose rates or charges are regulated by the Federal Government or a State and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for wire communication. 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 to a pole, duct, conduit, or right-of-way owned or controlled by a utility.
- (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 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 cable television services, 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.
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