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A. 1. a.(1)(a) i) a) 1. a. i.(1)(a)(i) 1) a)OrderCD(#҇In the Matter of Texas Cable and Telecommunications Association, Complainant " v. GTE Southwest Incorporated, Respondent. " , * *,, " j) j) j) j) j) j) j) j) l l"i , * *,,m "         File No. PA 96006Rh, * *,,.t A 4 * *,,Rԯ S6 -T ORDER j  S -ԇ" U Adopted: February 16, 1999 hh,hhhh" , * *,," " , * *,,"  S - Released: February 18, 1999 R , * *,,.   * *,,Rԯ By the Chief, Cable Services Bureau:   S-- I. INTRODUCTION ă  S-  4 a1Order1.` ` The Commission has before it a complaint ("Complaint") filed by Texas Cable and  Sk-  Telecommunications Association ("Complainant") on behalf of certain Association members, kX yO-  ԍ Members of Texas Cable and Telecommunications Association represented in this complaint are: Paragon Cable, Texas Community Antenna, Teleservices of America, Friendship Cable of Texas, Inc., and Post Newsweek Cable.  pursuant to  S8-  ?Section 224 of the Comunications Act of 1934, as amended, ("Act");8 X yO-ԍ 47 U.S.C. 224.; and Part 1, Subpart J of the  S-  [Commission's Rules,KX yOU-ԍ 47 C.F.R. 1.1400 1.1418.K against GTE Southwest Incorporated ("Respondent"). Complainant requests that   we declare the rate charged by Respondent for pole attachments by cable systems to be unjust and   unreasonable. Complainant further asks that we impose a rate and order a refund of all payments made   in excess of that rate. Complainant also requests that certain fees be declared unjust and unreasonable and   that we order that any payment made of those fees be refunded. Lastly, Complainant requests that we   grant them payment of their costs and attorneys' fees in prosecuting this action. We grant all relief requested except for costs and attorneys' fees.  Sm-  ` a1Order2.` ` Commonwealth Edison Company, Duke Power Company, and Northern States Power Company ("Electric Utilities") have filed a motion to intervene in this proceeding. We deny that motion.  S-40 II. BACKGROUND ă  Sn-   a1Order3.` ` Complainant is a trade association representing the interests of cable television operators   in the 4State of Texas. Respondent owns and controls poles that are used to provide wire communications   in the State of Texas. On November 7, 1996, Complainant filed the Complaint alleging that Respondent's   pole attachment rates exceed the maximum permissible. The pole attachment rates range from $2.52 to   >$2.58 per pole per year with the exception of one community, in which the cable operator is charged   $5.00 per pole per year. Complainant also alleges in the Complaint that three fees charged by Respondent"o"@, * *,,%"   yin addition to the annual pole attachment fee are unjust and unreasonable. These fees are a "Billing Event  S-  Fee" of $25.00, a "CATV Pole License Agreement" fee of $400.00, and an "Assignment Agreement" fee of $200.00.  S4-  ` a1Order4.` ` Respondent did not file a response to the Complaint by December 7, 1996, as required  S-  jby Section 1.1407(a) of the Commission's Rules.A yOi-ԍ 47 C.F.R. 1.1407(a).A On January 27, 1997, Complainant filed a Motion for   Default Judgment. Respondent filed an opposition to the motion ("Opposition") on February 6, 1997,   .alleging that the Complaint had not been properly served and that service had not become effective until   LJanuary 30, 1997, when Respondent received the Motion for Default Judgment. On February 28, 1997, Respondent filed a Response to the Complaint. On March 20, 1997, Complainant filed its Reply.  S-  3 a1Order5.` ` The Electric Utilities filed a motion to intervene on May 9, 1997. Complainant filed a   j"Motion to Strike or Opposition to the Motion to Intervene" (Motion to Strike) on May 19, 1997. The   Electric Utilities filed a reply to the Motion to Strike on May 30, 1997, to which Complainant responded on June 9, 1997.  S -3 III. DISCUSSION ă  Sj-A.Procedural Issues  S-|31. Motion to Interveneă  S-  _ a1Order6.` `  The Electric Utilities state that they own electric energy distribution systems that include   millions of distribution poles which are used to provide electric power service to millions of residential   and business customers. They further state that to the extent that their poles are used for communication   and, therefore, are subject to regulation, any ruling by the Commission concerning pole attachment fees   imposed by telecommunications companies is applicable to the Electric Utilities. Should we grant their   motion, the Electric Utilities would request that the Commission reject any suggestion by Complainant   that the additional fees be found unlawful under Section 224 of the Act. The Electric Utilities maintain   \that they are entitled to recover expenses, through additional charges such as applications fees, to the   extent that the pole attachment formula does not provide for the recovery of certain expenses resulting from the administration of pole attachment agreements.  Sm-  ~ a1Order7.` `  Complainant asserts the motion is untimely filed, unauthorized, and makes no attempt   jto fulfill any of the Commission's criteria for party in interest status. Complainant alleges that to permit   the Electric Utilities to intervene seven months after the Complaint has been filed would undermine   .congressional intent to establish a simple and expeditious pole attachment program. Complainant argues   Mthat, at a minimum, the Electric Utilities should satisfy the Commission's standards for discretionary  Sn-  intervention in a hearing as prescribed in Section 1.223 of the Commission's Rules.=nX yOf"-ԍ 47 C.F.R. 1.223.= Further, Complainant   asserts that the Electric Utilities should not be allowed to intervene because they make no claim as to their   direct financial interest in this proceeding, nor any direct adversarial interest in this proceeding, or how their participation will assist in the resolution of the issues. "!,l(l(,,%"Ԍ S-  D a1Order8.` ` The Electric Utilities acknowledge that the only rule which expressly addresses  S-  >intervention applies only when a matter has been designated for hearing2 {O5-ԍ Id.2 and that there is no specific  S-  Commission rule governing intervention in pole attachment complaint proceedings.Z yO-  jԍ Reply to Complainants' Motion to Strike or Opposition to Motion to Intervene, para.3, May 30, 1997 [hereinafter Reply to Motion to Strike]. MEMO  Rather, they rely on  Sg-  Heritage Cablevisiong yO-  ԍ Heritage Cablevision Associates of Dallas, L.P., and Texas Cable TV Association, Inc., v. Texas Utilities Electric Company, PA 89!002, Memorandum Opinion and Order, 7 FCC Rcd 4192 (1992). HERITAGE  as establishing a "de facto rule that intervention is permitted in pole attachment  S5-  complaint proceedings."q 5  {O -ԍ Reply to Motion to Strike, supra note  MEMO7 , at para. 5.q In Heritage Cablevision the Commission, among other things, dismissed a   Npetition filed by the United States Telephone Association ("USTA") seeking reconsideration of a   Memorandum Opinion and Order granting a pole attachment complaint because USTA had not shown   good reason why it was not possible for USTA to participate at an earlier stage of the proceeding. The   Commission noted that USTA had actual notice that the complaint was pending "and yet failed to attempt  S7-  to participate either as an intervenor or amicus."p 7 {Os-ԍ Heritage Cablevision, supra note HERITAGE8, at para. 7.p Another nonparty, Metropolitan Fiber Systems, Inc.,  S-  ("MFS") had sought permission to file an amicus brief and permission had been granted "in light of the  S-  broad policy issues at stake." .  yO-  ԍ Heritage Cablevision Associates of Dallas, L.P., and Texas Cable TV Association, Inc., v. Texas Utilities Electric Company, PA 89!002, Memorandum Opinion and Order, 6 FCC Rcd 7099, n. 13 (1991). The Electric Utilities aver that this implies that intervention is permissible in pole attachment complaint proceedings.  S8 -   a1Order9.` ` We agree with the Electric Utilities that the Commission has broad authority to "conduct  S -  yits proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of  S -  justice."g  {O-ԍ 47 U.S.C.  154(j). See also 47 C.F.R.  1.1415.g We further agree that the Commission may permit intervention in certain circumstances at some   [stage of a pole attachment proceeding under carefully prescribed conditions. But the Electric Utilities go   one step further. They speak of the "rights of a potential intervenor to be heard" and that these rights  S9-"should not be affected by the fortuity of whether a particular case is designated for a hearing."[ 9 {O-ԍ Reply to Motion to Strike, supra at para. 7.[  S-   a1Order 10.` ` The Electric Utilities do not purport to be a party in interest. Even in a hearing pursuant   Lto Section 1.223(b) of the Commission's Rules anyone who is not a party in interest may intervene only  Sm-  Mat the discretion of the Commission: "The presiding officer, in his discretion, may grant or deny such  S;-  >petition or may permit intervention by such person limited to a particular stage of the proceeding."R; yO$-ԍ 47 C.F.R.  1.223(b) (emphasis added).R ";:,l(l(,,"  S-  Under the Pole Attachment Complaint Procedures{ yOh-ԍ 47 C.F.R.  1.1400!1.1418 (Part 1, Subpart J of the Commission's Rules).{ the Commission has considerable discretion in fashioning an equitable resolution.  Sg-   a1Order 11.` ` As a pole attachment complaint proceeding involves contractual agreements between the   parties, the Commission has repeatedly expressed its preference that pole attachment rates be reached  S-  through negotiation.X\X {O-  ԍ See, e.g., Implementation of Section 703(E) of the Telecommunications Act of 1996, Amendment of the  {O-  Commission's Rules and Policies Governing Pole Attachments, Report and Order,13 FCC Rcd 6777, para. 10!21 (1998) [hereinafter "Telecomm Order"].X TCOMM  The informality of the process and the range of informal procedures available to   Lthe Commission underscore that resolution of disputes should be by mutual agreement, if at all possible.   Though the Commission may issue a decision based upon the filings, it also may, significantly, "require  Sh-  one or more informal meetings . . . to consider settlement of the dispute . . . ."?h| yO -ԍ 47 C.F.R.  1.1411.? It may also, again at its  S5-  discretion, order evidentiary proceedings upon any issues.25  {O-ԍ Id.2 The Commission has included its preference  S-  for settlement of disputes in its recent hearing designation orders on pole attachment complaints. {O@-  Zԍ See, e.g., TCA Management Co.; Teleservice Corporation of America; and TCA Cable of Amarillo, Inc. v.   Southwestern Public Service Company, PA 90!0002, 10 FCC Rcd 11832, at para. 1 (1995) (administrative law  {O-  judge directed to hold prehearing meeting to determine whether settlement can be reached.). See also Multimedia   MCablevision, Inc. v. Southwestern Bell Telephone Co., PA 95008, 11 FCC Rcd 11202, at para.1 (1995) (administrative law judge directed to hold prehearing meeting to determine whether settlement can be reached.). Given   \the nature of the atmosphere that the Commission would foster, intervention by others, especially at   particularly sensitive stages of the process, would be counterproductive. Furthermore, as pointed out by   Complainant, the pole attachment complaint process is intended to be simple and expeditious. The   Commission must, therefore, exercise its discretion in granting permission to intervene sparingly, under limited circumstances, and with limiting conditions.  S -   a1Order 12.` ` The Motion to Intervene will be denied. The Electric Utilities make no claim as to their   direct financial interest in this proceeding, nor any direct adversarial interest in this proceeding nor how   =their participation will assist in the resolution of the issues. We are confident that the parties have fully   yinformed the Commission of the relevant facts and arguments. Intervention by those who are not parties in interest would unnecessarily complicate the process without facilitating resolution of the complaint.  S8-g2. Motion for Default Judgmentă  S-   a1Order 13.` ` Complainant requests that the Commission enter a default judgment against gRespondent  S-  for its failure to respond within 30 days of the Complaint, pursuant to Section 1.1407(a).BR  yO$-ԍ 47 C.F.R.  1.1407(a).B Complainant",l(l(,,"  S-  [%notes that Section 1.1407(d)B yOh-ԍ 47 C.F.R.  1.1407(d).Bprovides that such a failure to respond may be deemed an admission of %the   material factual allegations contained in the Complaint. Complainant contends, therefore, that Respondent   should be deemed to have admitted that the maximum lawful pole attachment rate is $2.15 per pole per   year and that the additional fees are unlawful. Consequently, Complainant requests the Commission to enter summary judgment on its behalf.  S-  $ a1Order 14.` `  Respondent asserts that the Motion for Default Judgment must be denied because the   motion has not been made in accordance with the Commission's Rules. Respondent argues that   MSection1.1407(a) of the Commission's Rules provides that "no filings, and no motions other than for   extensions of time will be considered unless authorized by the Commission" and that Complainant has  S-  made no showing of Commission authorization for its motion. Respondent further asserts that the motion   {fails to set forth any evidentiary support for its implicit claim that Respondent was served with a   Complaint and is thus obligated to respond. Further, Respondent alleges that Complainant did not, in fact,   \effect service of the Complaint on Respondent as required by Section 1.1404(b) of the Commission's  S6 -Rules.B6 X yO.-ԍ 47 C.F.R.  1.1404(b).B  S -  j` ` a. Issue: Whether the Motion for Default Judgment is permissible.   S7-  B a1Order15.` ` Complainant states that, in accordance with Section 1.41 of the Commission's Rules, a  S-  jperson may file an informal request for Commission action that sets forth the facts relied upon, the relief   sought, and the regulatory provisions under which relief is sought. Complainant argues that, according   @to Section 1.41, it was authorized to file a Motion For Default Judgment in a pole attachment  Sk-proceeding.=k yO&-ԍ 47 C.F.R.  1.41.=  S-  3 a1Order16.` ` A Motion for Default Judgment does not fall within Section 1.41 of the Commission's  S-  =Rules as a request for informal action. The Commission's Rules do not provide for default judgment per  S-  se, although a summary decision process is provided in a hearing.= yO-ԍ 47 C.F.R. 1.251.= There is no Commission precedent   interpreting a motion for default judgment as an informal action. Such a motion goes directly to the   merits of the case. If such a motion is granted, the respondents are denied an opportunity to present their defense.  S-   a1Order17.` ` Section 1.1407(a) of the Commission's Rules provides for a response to a complaint and   a reply by the complainant to the response. It further provides that "no filings, and no motions other than  S<-  .for extensions of time will be considered unless authorized by the Commission".B<; yO#-ԍ 47 C.F.R.  1.1407(a).B Complainant did not seek Commission authorization to file the Motion for Default Judgment. ",l(l(,,"Ԍ S-   a1Order18.` ` There have been instances where the Commission has waived the requirement for  S-  authorization to file an additional pleading in pole attachment cases.$ {O5-  ԍ See In the Matter of Selkirk Communications, Inc. v. Florida Power and Light, 8 FCC Rcd 387, n. 5 (1993);  {O-  Television Cable Service, Inc. v. Monongahela Power Co., 88 F.C.C. 2d 63, app. I, paras. 710 (1981); but see   Teleprompter Corp. v. Alabama Power, 49 Rad. Reg. 2d 1410 (1981) (Bureau rejected unauthorized response to a  yO-reply and a request for hearing).#Xj\  P6G;ynXP# Those decisions involved the   unauthorized filing of supplemental pleadings, where the Commission found that none of the parties would   .be prejudiced by waiver. The Motion for Default Judgment is a request for a decision on the merits and can in no way be considered a supplemental proceeding.  S-   a1Order19.` ` The only pleadings permissible here are a response to the Complaint and a reply to that  S-  response. But the response in this case is silence. Section 1.1407(d) of the Commission's Rules provides   Lfor a summary procedure in that "Failure to respond may be deemed an admission of the material factual  S5-  [allegations contained in the complaint."A5 yO -ԍ 47 C.F.R. 1.1407(d).A This is the procedure that Complainant asks us to apply in its   motion. Where no response is made to the complaint within 30 days as prescribed by the rule, we find   that an appropriate reply under Section 1.1407(a) of the Commission's Rules is a pleading in the nature   of a motion for default or summary judgment seeking application of Section 1.1407(d) and resolution of the complaint.  S -  ` ` b. Issue: Whether the Complaint was effectively served on Respondent.   Sj-  # a1Order20.` ` Respondent states that Complainant, when mailing a copy of the Complaint, addressed it   to Respondent by name, but used the street address of "GTE Telephone Operations" at 600 Hidden Ridge,   Irving, Texas. Respondent alleges that Respondent is a whollyowned subsidiary of GTE Corporation and  S-  zis completely separate from GTE Telephone Operations.QD yO-ԍ Declaration of David J. Gudino, para. 6.Q Respondent advises us that its address is   500East Carpenter Freeway, Irving, Texas. Respondent states that no cover letter or other explanation   accompanied the mailing received by GTE Telephone Operations to indicate that Complainant considered  S8-  the mailing to be formal service of the Complaint on Respondent.?8 yO-ԍ Opposition at para. 5.? The attorney who received the   Complaint at GTE Telephone Operations on November 10, 1996, Mr.DavidJ. Gudino, states that he  S-  believed the document he received was a courtesy copy, personal to him.@d  yO-ԍ Declaration at para. 2.@ He furthers states that, when   he received another copy with a transmittal memo two weeks later, he thought it was another courtesy   -copy. Mr. Gudino asserts that at that time he had no indication that Complainant was attempting to serve,  S9-  or believed it had served, the Complaint on Respondent.;9  {O#-ԍ Id at para.3; Not until it received the Motion for Default   Judgment on January 30, 1997, Respondent asserts, did it occur to Respondent that Complainant had been  S-  attempting to serve the Complaint. Mr. Gudino states that at that time he contacted counsel for   >Complainant and offered to contact Respondent to accept service on its behalf and to respond to the" ,l(l(,,z"  S-  =Complaint within 30 days of January 30, 1997.=  {Oh-ԍ Id at para. 4.= Respondent filed its Response on February 28, 1997. Mr Gudino is the attorney of record on the Response.  Sg-  R a1Order21.` ` Complainant asserts that Respondent was properly served with a signed and dated   Complaint, which included a signed and dated certificate of service. It states that GTE Southwest  S-  [Incorporated is a wholly owned subsidiary of GTE Telephone Operations and that the 600 Hidden Ride   -address is listed by GTE in the Federal Communications Association Bar Association Telephone Directory  S-  Mas the address for all GTE operations.!Z yO -  ԍ Reply to Opposition of GTE Southwest Incorporated, Motion For Default Judgment, para. 5, (filed February 21, 1997). Complainant further alleges that an attorney responsible for   jresponding to pole attachment complaints for GTE Southwest, that is Mr Gudino, had in his possession  S5-a copy of the Complaint three days after it had been submitted to the Commission.G"5 {O -ԍ See id at notes 2 and 3.G  S-   a1Order22.` ` We take note of several pertinent facts. First, four of the pole attachment agreements   attached to the Complaint give 500 East Carpenter Freeway, Irving, Texas, as the address for Respondent.   Second, a letter dated January 30, 1997, attached to Respondent's opposition to the Motion for Summary   Judgment addressed to Complainant's counsel and signed by Paul J. Gudino acknowledges having litigated   similar cases with Complainant's counsel in the past. Third, the Response gives Mr. Gudino as the   attorney of record. Fourth, the cover of an "Annual Report" received by the Commission on May 4, 1995,   submitted as part of Exhibit 4 of the Complaint gives the address of Respondent as the 600 Hidden Ride address.  S-  B a1Order23.` ` Section 1.47(d) of the Commission's Rules provides that, "(d)ocuments may be served   upon a party, his attorney, or other duly constituted agent by delivering a copy or by mailing a copy to  S-  the last known address."?#D yO-ԍ 47 C.F.R. 1.47(d).? The Complaint before us was accompanied by a certificate of service   ycontaining the address of GTE Telephone Operations. This address is also the address listed on the 1994   ARMIS report as the address of Respondent. The Complaint was mailed to and received by the parent   <company of Respondent. It was brought to the attention of an attorney employed in the Legal Department   of GTE Telephone Operations who later also received a copy sent directly to him. This same attorney   was known by Complainant's counsel to handle pole attachment complaints for GTE Corporation and its   subsidiaries. That attorney subsequently filed the response for Respondent. Though the Complaint may   =have been more properly mailed to the address given for Respondent in the pole attachment agreements, we find that Respondent received actual service of the Complaint.  S-4` ` c. Decision   S:-   a1Order24.` ` The Motion for Default Judgment is granted to the extent it requests that the material   factual allegations contained in the Complaint are deemed admitted.4 The relief requested, however, will   not be summarily granted. Complainant asks that we accept as admitted that the rate proposed in the   Complaint is the maximum permissible rate and that the fees at issue are unlawful. These, however, are not factual allegations, but conclusions of law, which we must decide based upon the facts available. ";#,l(l(,,""Ԍ B. Substantive Issues  S-&?1. Maximum Rateă  S4-  } a1Order25.` ` Complainant asserts that $2.15 per annum per pole is the appropriate rate for Respondent  S-  .to charge cable systems for pole attachments under Section 224(d) of the Act>$ yOi-ԍ 47 U.S.C. 224(d).> and Section 1.1409(c) of  S-  the Commission's Rules.A%X yO-ԍ 47 C.F.R. 1.1409(c).A Complainant supports this by a copy of a spreadsheet (Exhibit 3 of the   !Complaint) using data extracted from the 1994 ARMIS report received by the Commission from  Sh-  Respondent on May 4, 1998 (Exhibit 4 of the Complaint).&h yO -  ԍ Exhibit 4 contains only those tables from the report that present data necessary for calculating the pole attachment rate. Complainant submits no data shedding light   upon the method used by Respondent to calculate the rate. There is nothing in the record to indicate that  S-  any such data was requested from Respondent. We note that the 1994 ARMIS report includes two tables  S-  wherein data is broken out by state;'@ yO-  ԍ Table B6 of FCC Report 4302 (Summary of Investment and Accumulated Depreciation by Jurisdiction) and Table I.A of FCC Report 4308 (Outside Plant StatisticsCable and Wire Facilities). all other tables do not give such a break out. The states indicated in the two tables are Arkansas, New Mexico, Oklahoma, and Texas.  S6 -  B a1Order26.` ` Respondent, in its latefiled Response, submits a calculation of the appropriate rate as   $2.62 per annum per pole. It provides a spreadsheet similar to that of Complainant. Respondent uses   1995 ARMIS data for the calculation. In its Reply, Complainant points out that Respondent improperly  S -  yincludes certain accounts in calculating the administrative element of the carrying charges.(   yO-  Kԍ Reply at para. 10. It is unclear precisely what amounts are from accounts that should not be included. For   some it is clear as the entire category of accounts is improperly included. On the other hand, Accounts 6710 and   6720 should be used, but the spreadsheet gives only a total for a category listed as "67XX." We do not know what portion of the total would belong in Accounts 6710 and 6720. Complainant   points out that Respondent's calculation used data for Texas only and that the data used is not publicly   available. Complainant further asserts that internal information may not be used. Because of the use of  S-  improper, internal data, Complainant informs us, a higher rate results.:)  yO$-ԍ Reply at para. 9.: Complainant, in the Reply,   provides us with a revised calculation, based upon 1995 ARMIS data, giving $2.29 annually per pole as the maximum rate.  S8-  D a1Order27.` ` Section 1.1404(g) of the Commission's Rules describes the requirements for the  S-  .submission of data.A* yO#-ԍ 47 C.F.R. 1.1404(g).A It states that data and information should be based upon historical or original cost  S-  [methodology. Data should be derived from FCC Form M, FERC 1, + yO&-  ;ԍ Form 1 is the Annual Report that electric utilities file with the Federal Energy Regulatory Commission. Form  yO&-1 contains both financial and operational data.#Xj\  P6G;ynXP#  or other reports filed with state or"+,l(l(,,C"   federal regulatory agencies. Calculations made in connection with figures should also be submitted.  S-  <Section 1.404(h)A, yO5-ԍ 47 C.F.R. 1.1404(h).A anticipates, however, that information may be available only from the utility. It provides   /that, when the cable operator makes a showing that reasonable requests for the information were not   kfulfilled by the utility, the complaint will not be denied for failure to include the information. Section  S4-  ?1.1406 of the Commission's Rules,>-4X yO,-ԍ 47 C.F.R. 1.1406.> reasserts that a complaint will not be dismissed if necessary   information is not available from public records or from the utility upon reasonable request. Section  S-  1409(a) of the Commission's RulesA. yOV -ԍ 47 C.F.R. 1.1409(a).A also provides that publicly available data may be relied upon by the  S-Commission when insufficient data is available in the record upon which to base its determination.  S5-   a1Order28.` `  The Commission has expressed a preference for using publicly available data to calculate  S-  the maximum rate.4/Zx {O-  ԍ See Report and Order, CC Docket No. 86212, Amendment of Rules and Policies Governing the Attachment   of Cable Television Hardware to Utility Poles, 2 FCC Rcd 4387, at paras. 37, 47, and 52 (1987) [hereinafter Second Proceeding].4 SECOND  Nevertheless, we do not require that only publicly available data be used. The   provisions in the rules requiring utilities to provide data to attachers anticipate that some data may be  S -  =available only from the utility. Complainant cites Television Cable Service, Inc. v. Monongahela Power  Sj -  jCo.,0j  yO-  yԍ Television Cable Services., Inc. v. Monongahela Power Co., 88 F.C.C. 2d 63, modified, 88 F.C.C. 2d 56 (1981). in support of its assertion, "that the Commission must base its decisions in pole cases on publicly  S8 -  0available data, not the utility's private internal cost data.":18  yO-ԍ Reply at para. 8.: In Television Cable Service, Inc., the  S -  Commission expressed its preference for "data developed for regulatory purposes."M2  yO(-ԍ Television Cable Services at para.20M The Commission   cited the first pole attachment proceeding wherein it stated, "the bulk of the information which must be  S -  [provided to the cable company will as a practical matter be readily retrievable by the utilities either from  Sn-  their internal records or from documents they have filed with this Commission or other regulatory  S<-bodies."3< yO-  ԍ Memorandum Opinion and Order, CC Docket 78144, Adoption of the Rules for the Regulation of Cable Television Pole Attachments, 77 F.C.C. 2d 187 (1980) (emphasis added) (footnote omitted).  S-  p a1Order29.` ` In complaint proceedings, where the Commission may take notice of information in   /publicly available filings made by the parties, it is our practice "in the absence of supported carrying  Sp-  charges . . . to use the figure from publicly available information."l4pj yOz$-ԍ Teleprompter v. C&P of West Virginia, 79 F.C.C. 2d 232 at para. 17.l The data in the Response is not   properly before us. Neither does the Response offer support for the data it presents, especially the   Linclusion of certain accounts. We will use the systemwide data as that is the only reliable data available   to us. Further, we will use the 1995 rather than 1994 ARMIS data provided in the Reply as the 1995 data" 4,l(l(,,a"   was available and current at the time the Complaint was filed. Upon review of this data we agree with   Complainant's calculation of the permitted rate. Therefore, we set the maximum permissible rate at $2.29 per annum per pole.  S4-Y2. Feesă  S-   a1Order30.` ` Respondent has unilaterally imposed upon Complainant cable companies three fees from   which they seek relief. Invoices submitted to the cable companies in February 1996 included a "Billing   Event Fee" of $25.00. By letter dated January 16, 1996, which, according to its language, was included   with invoices for 1996 pole attachment fees, Respondent imposed a "CATV Pole License Agreement" fee   \of $400.00 for the origination of a new pole license agreement and an "Assignment Agreement" fee of   L$200.00 for the assignment of pole license agreements less than twelve months old. The letter states the   =reason for the imposition of the fees is "to recover some of the increasing expense of administering these  Si -Agreements . . . ." Respondent has suspended the fees pending the outcome of this proceeding.>5i  yO -ԍ Response at para. 12.>  S -  ~ a1Order31.` ` Complainant asserts that Respondent is imposing incremental costs in addition to fully   =allocated costs, which is impermissible. Respondent denies the assertion and argues that the fees are for costs that are not recovered through the current annual rate.  S7-   a1Order32.` ` A just and reasonable pole attachment rate assures a utility recovery of not less than the  S-  incremental cost of providing pole attachments nor more than the fully allocated costs.6X yO-  ԍ In the Matter of Adoption of Rules for the Regulation of Cable Television Pole Attachments, 72 FCC 2d 59 (1979). A rate that is   comprised of both incremental and fully allocated components is not per se unreasonable or unjust nor  S-  does the Commission view the mandate set out in Section 224(d)(1) of the ActA7 yO-ԍ 47 U.S.C. 224(d)(1).A as requiring a utility to  Sk-  charge rates that are based either on incremental cost or fully allocated costs.8k@ yOK-  ԍ In the Matter of Amendment of Rules and Policies Governing Pole Attachments, 68 FCC 2d 1585, para. 42 (1978). Incremental costs may  S8-  consist of both recurring and nonrecurring costs.98 yOp-  ԍ Memorandum Opinion and Second Report and Order, CC Docket 78144, Adoption of the Rules for the Regulation of Cable Television Pole Attachments, 72 F.C.C. 2d 59, para. 28 30 (1979). Nonrecurring incremental costs are outofpocket   Kexpenses attributable to pole attachments. They include preconstruction, survey, engineering, makeready,  S-  =and changeout (nonbetterment) costs. Nonrecurring incremental costs are directly reimbursable to the  S-  mutility and are excluded from the incremental rate.>:  {O/"-ԍ Id at para. 29.> A separate fee for recurring costs such as  Sl-  applications processing or periodic inspections is not justified, if the costs are included in a rate based"l :,l(l(,,"  S-  upon fully allocated costs.m; {Oh-ԍ Second Proceeding, supra note SECOND47, at para. 44.m We will look closely at makeready and other charges to ensure that there  S-is no double recovery for expenses for which the utility has been reimbursed through the annual fee.<Z {O-ԍ See, e.g., Teleprompter Corp. v. Houston Lighting and Power Co., 49 Rad. Reg. 2d 1301(1981).  Sg-   a1Order 33.` ` The record contains no explanation of the fees contested by the Complainant. The late  filed Response simply says the fees represent costs not otherwise recovered by Respondent. The "Billing   Event Fee" appears to be an administrative fee for costs associated with the billing process. It also   appears to be a recurring cost recoverable through the annual fee. These costs, however, are included in   the carrying charges when calculating the maximum rate. The "Billing Event Fee" effectively increases   [the annual fee beyond the maximum permissible rate and, therefore, results in an annual fee that is unjust   and unreasonable. The "CATV Pole License Agreement" fee and the "Assignment Agreement" fee   represent nonrecurring administrative costs. These are costs usually included in the carrying charges used   to calculate the maximum rate. Such charges might be reasonable to the extent they represented actual   lcosts for each individual agreement and if, and only if, the amount reimbursed to the utility is not   included in the accounts used to calculate the annual rate. The fees, as presented in this proceeding do   lnot reflect actual costs related to any particular agreement. Further, they are an attempt to obtain   [reimbursement of portions of administrative accounts included in the carrying charges by allocating them to various agreements. We find that the fees are an unjust and unreasonable rate, term, or condition.  Sj-M3. Remediesă  S-   a1Order!34.` ` Section 47 CFR  1.1410(c) prescribes that any refund must be calculated from the date   the Complaint was filed. Complainant requests the Commission to calculate refunds, from the date of imposition of the rate. The request is denied.  S8-   a1Order"35.` ` Complainant requests that we grant payment of its costs and attorneys' fees. In pole  S-  yattachment proceedings, the Commission does not have the authority to grant costs and attorneys' fees.=Z yO-  Jԍ Multimedia Cablevision, Inc., v. Southwestern Bell Telephone Company,11 FCC Rcd 11202, para. 16 (1996);  {OY-  Newport News Cablevision, Ltd v. Virginia Electric Power Co., 7 FCC Rcd 2610, para. 19 (1992); See Comark Cable Fund III v. Northwestern Indiana Telephone Co., 100 FCC 2d 1244, 1257, n. 51 (1985). The request is denied.  Sl-   a1Order#36.` ` The Commission has determined previously that the current interest rate for Federal tax  S9-  \refunds and additional tax payments is the appropriate rate of interest on the overcharges.>9 yO-  ԍ Teleprompter of Fairmont, Inc. v. Chesapeake and Potomac Telephone Co. of West Virginia, 79 F.C.C. 2d232, para. 24 (1980), recon. 85 F.C.C. 2d 243 (1981). We take   official notice that the Commissioner of Internal Revenue has set a daily compounded rate of 8 percent   zper annum from October 1, 1996, until March 31, 1998 and of 7 percent per annum effective April 1,  S-1998, through December 31, 1998L?f  yO$-ԍ Rev. Rul. 9846, 199839 I.R.B. 10.L. "m ?,l(l(,,L"Ԍ S-i 0 IV. CONCLUSION ă  S-  S-   a1Order$37.` ` Complainant cable operators are entitled to the imposition of a rate of $2.29 per annum   per pole. They are entitled to reimbursement of any fee paid in excess of that amount since November   y7, 1996. They are also entitled to a refund of all sums paid as "Billing Event Fees," "CATV Pole License Agreement" fees, or "Assignment Agreement" fees.  S- V. ORDERING CLAUSES ă  S5-   a1Order%38.` ` Accordingly, IT IS ORDERED, pursuant to Sections 0.321 and 1.14011.1413 of the   Commission's Rules, 47 C.F.R. 0.321 and 1.14011.1413, that the complaint of Texas Cable and Telecommunications Association IS GRANTED to the extent indicated above. i  Si -   a1Order&39.` ` IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1415 of the Commission's Rules, 47 C.F.R. 0.321 and 1.1415, that the Motion to Intervene IS DISMISSED.  S -  5 a1Order'40.` ` IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1407(a) of the Commission's Rules, that the Motion for Default Judgment IS GRANTED IN PART.  S7-  D a1Order(41.` ` IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1407(d) of the Commission's Rules, that the material allegations of the complaint ARE DEEMED ADMITTED.  S-  5 a1Order)42.` ` KIT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1410(a) of the   =Commission's Rules, that the existing annual rate for each pole attachment arising out of the Agreements   between each of Paragon Cable; Texas Community Antenna; Teleservices of America; Friendship Cable   of Texas, Inc.; and Post Newsweek Cable and GTE Southwest Incorporated IS TERMINATED, effective upon the release of this Order.  Sl-  D a1Order*43.` ` IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1410(b) of the   Commission's Rules, that the annual rate of $2.29 for each pole attachment IS SUBSTITUTED for the existing rate in each of the Agreements described in paragraph  K42 , effective upon release of this Order.  S-  5 a1Order+44.` ` IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1410(c) of the   Commission's Rules, that GTE Southwest Incorporated SHALL REFUND, within thirty (30) days of   jrelease of this Order, to Paragon Cable; Texas Community Antenna; Teleservices of America; Friendship   .Cable of Texas, Inc.; and Post Newsweek Cable excess payments for service received after November 7,   N1996. These excess payments for which a refund is ordered consist of the difference between the   payments made and the payments that would have been made based on the maximum annual rate of $2.29.   This refund shall consist of the excess portions included in the payment due February 18, 1996, prorated from November 7, 1996, and all subsequent payments made after November 7, 1996.  S -  5 a1Order,45.` ` IT IS FURTHER ORDERED, pursuant to Sections 0.321 and 1.1410(c) of the   Commission's Rules, that GTE Southwest Incorporated SHALL REFUND, within thirty (30) days of   \release of this Order, to each of Paragon Cable; Texas Community Antenna; Teleservices of America;   Friendship Cable of Texas, Inc.; and Post Newsweek Cable all monies paid to it by each of them after   November 7, 1996, as Billing Event Fees, CATV Pole License Agreement fees, or Assignment Agreement fees. "% ?,l(l(,,O)"Ԍ S-  6  a1Order-46.` ` IT IS FURTHER ORDERED that all refunds shall bear interest an annual rate of 8 percent   interest, compounded daily, from November 7, 1996, through March 31, 1998, and an annual rate of 7   .percent interest, compounded daily, from April 1, 1998 until the date of full payment to Paragon Cable;   Texas Community Antenna; Teleservices of America; Friendship Cable of Texas, Inc.; and Post Newsweek Cable.   FEDERAL COMMUNICATIONS COMMISSION  Q&XK   Q&XK  Deborah A. Lathen Chief, Cable Services Bureau   6