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Florida Cable Telecommunications Association, Inc; Comcast Cablevision of Panama City, Inc.; Mediacom Southeast , L.L.C.; and Cox Communications Gulf, L.L.C., Cable Operators, v. Gulf Power Company, Respondent

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Released: May 16, 2011

Federal Communications Commission

FCC 11-44

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Florida Cable Telecommunications Association, )
Inc.; Comcast Cablevision of Panama City,

)
EB Docket No. 04-381

Inc.; Mediacom Southeast, L.L.C.; and Cox

)

Communications Gulf, L.L.C.,

)
)

Cable Operators,
)
)

v.
)
)

Gulf Power Company

,
)
)

Respondent.
)
)

DECISION

Appearances

John D. Seiver, Christopher A. Fedeli, and Beth Keating, on behalf of Florida Cable
Telecommunications Association, Inc., et al; J. Russell Campbell, Eric B. Langley,
Allen M. Estes and Ralph A. Peterson, on behalf of Gulf Power Company; Lisa Griffin,
Rhonda Lien, and James W. Shook, on behalf of the Enforcement Bureau.

Adopted: March 16, 2011

Released: April 12, 2011

By the Commission:

I.

INTRODUCTION

1. In this decision, we affirm the Initial Decision of Chief Administrative Law Judge (ALJ)
Richard Sippel, who determined that Gulf Power Company (Gulf Power) is not entitled to compensation
above the regulated rate for any attachments to its poles by Comcast Cablevision of Panama City, Inc.;
Mediacom Southeast, L.L.C.; and Cox Communications Gulf, L.L.C. (the "Cable Operators").1 We find
that Gulf Power failed to meet its burden of proof under the test adopted by the United States Court of
Appeals for the Eleventh Circuit in Alabama Power Co. v. FCC,2 which identified circumstances under
which a utility would be entitled to compensation above the regulated rate.


1 Florida Cable Telecomm'ns Ass'n, Inc. v. Gulf Power Co., Initial Decision of Chief Administrative Law Judge
Richard L. Sippel, 22 FCC Rcd 1997 (ALJ 2007) (Initial Decision).
2 311 F.3d 1357 (11th Cir. 2002).

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II.

BACKGROUND

A.

The Pole Attachments Act

2.
The Pole Attachments Act,3 codified in Section 224 of the Communications Act, as
amended,4 authorizes the Commission to regulate the rates, terms, and conditions of access for attachment
by cable operators and telecommunications carriers to utility poles, ducts, and rights-of-way. The Pole
Attachments Act requires that such rates, terms, and conditions be just and reasonable.5 Section 224(d)(1)
establishes a zone of reasonableness for rates bounded on the lower end by incremental costs and on the
upper end by fully allocated costs.6 Pursuant to Section 224(b)(1), the Commission developed a cost
methodology to determine the maximum allowable pole attachment rate under Section 224(d)(1). This
methodology, known as the Cable Formula or Cable Rate, is codified at 47 C.F.R. 1.1409(e)(1).7
3.
In 1987, in FCC v. Florida Power Corporation, the Supreme Court rejected a Fifth
Amendment takings challenge to the Pole Attachments Act.8 The Court held that the Act was not a per se
taking because it did not, at that time, require utility companies to give cable operators access to space on
utility poles.9 Consequently, the Cable Rate would not violate the Fifth Amendment unless it was
"confiscatory."10 The Court concluded that the Cable Rate, as applied in that case, was not confiscatory
because it provided for "the recovery of fully allocated cost, including the actual cost of capital."11
Accordingly, the Court held that the Act did not "effect a taking of property under the Fifth
Amendment."12
4.
In the Telecommunications Act of 1996, Congress added Section 224(f)(1), which
requires a public utility to give a cable television system "nondiscriminatory access to any pole, duct,


3 Pub. L. No. 95-234, 92 Stat. 35 (1978).
4 47 U.S.C. 224.
5 Id. 224(b)(1) (providing 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, and shall adopt procedures necessary and
appropriate to hear and resolve complaints concerning such rates, terms, and conditions").
6 Id. 224(d)(1) (providing 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 . . . which is occupied by the pole attachment by the sum of the operating expenses and
actual capital costs attributable to the entire pole"). In the pole attachment context, incremental costs are those that
the utility would not have incurred "but for" the cable attachment. Amendment of the Commission's Rules and
Policies Governing Pole Attachments
, Consolidated Partial Order on Reconsideration, 16 FCC Rcd 12103, 12109
para. 9 & n.37 (2001) (Consolidated Partial Order on Reconsideration); Amendment of the Rules and Policies
Governing the Attachment of Cable Television Hardware to Utility Poles
, Report and Order, 2 FCC Rcd 4387, 4388,
para. 4 (1987) (Pole Attachment Fee Order); S. Rep. No. 580, 95th Cong., 1st Sess. at 20 (1977).
7 See Amendment of Rules and Policies Governing Pole Attachments, Report and Order, 15 FCC Rcd 6453, 6457,
para. 5 (2000) (2000 Report and Order); review denied sub nom. Southern Co. Servs., Inc. v. FCC, 313 F.3d 574
(D.C. Cir. 2002); Consolidated Partial Order on Reconsideration, 16 FCC Rcd at 12110, para. 10. Section
1.1409(e)(1) specifies the following formula for the maximum rate: Maximum Rate = (Space Occupied by
Attachment/Total Usable Space) x Net Cost of Bare Pole x Carrying Charge Rate.
8 480 U.S. 245 (1987).
9 Id. at 251-52.
10 Id. at 253.
11 Id. at 254. The Court did not consider the constitutionality of the minimum rate allowable under the Act. See id.
at n.7.
12 Id. at 254.
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FCC 11-44

conduit, or right-of-way owned or controlled by it."13 Congress enacted an exception to that requirement
in Section 224(f)(2), which provides that a utility may deny a cable television system nondiscriminatory
access to any of its poles when "there is insufficient capacity and for reasons of safety, reliability and
generally applicable engineering purposes."14 The 1996 Act did not amend the range of reasonable rates
prescribed by Section 224(d).
5.
In June 2002, in Southern Company v. FCC,15 the United States Court of Appeals for the
Eleventh Circuit vacated Commission rules that required utilities to expand pole capacity to accommodate
new attachments when the parties agree that capacity on a given pole would otherwise be insufficient.16
The court held that the rules violated the plain language of 224(f)(2), which authorizes a utility to deny
access to a pole when there is insufficient capacity.17 The court also held that the term "insufficient
capacity" is ambiguous, and that utilities do not have "unfettered discretion to determine when capacity is
insufficient."18 The court affirmed the Commission's interpretation of the term "insufficient capacity" to
mean "the actual absence of usable physical space on a pole."19
6.
Five months later, in Alabama Power v. FCC, the Eleventh Circuit rejected a Fifth
Amendment challenge to the compulsory access regime Congress adopted in 1996. The court affirmed
the Commission's finding that the Cable Rate provides just compensation for the use of space on utility
poles by cable operators.20 The court held that, despite the more rigorous standard for just compensation
that the court deemed applicable to the per se physical taking effected by Section 224(f)(1),21 the Cable
Rate meets the government's obligation to put the aggrieved party "`into the same position monetarily as
it would have occupied if the property had not been taken.'"22 Because the Cable Rate enables utilities to
recover more than the marginal costs they incur to accommodate a new attachment, it "necessarily
provides just compensation."23
7.
The court distinguished space on utility poles from ordinary property, such as land, which
is "rivalrous its possession by one party results in a gain that precisely corresponds to the loss endured
by the other party."24 In contrast, a utility pole can potentially serve several attachers at the same time.25
Because utilities can and routinely do perform "make-ready" work26 to accommodate new attachers,


13 47 U.S.C. 224(f)(1).
14 Id. 224(f)(2).
15 293 F.3d 1338 (11th Cir. 2002).
16 Id. at 1346-47.
17 Id. at 1346.
18 Id. at 1348.
19 Id. at 1349.
20 311 F.3d at 1368-71.
21 Id. at 1367-68.
22 Id. at 1370 (quoting Metropolitan Transp. Auth. v. ICC, 792 F.2d 287, 297 (2d Cir. 1986)).
23 Id. at 1371.
24 Id. at 1369.
25 Id.
26 "Make-ready" generally refers to the modification of poles or lines or the installation of equipment to
accommodate new attachments. A "change-out" is the replacement of a pole with a longer pole. See, e.g., Salsgiver
Communications, Inc. v. North Pittsburgh Tel. Co.
, 22 FCC Rcd 20536, 20542, para. 20 (2007); 2000 Report and
(continued....)
3

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FCC 11-44

space on utility poles is "nonrivalrous," which "means that use by one entity does not necessarily
diminish the use and enjoyment of others."27 Consequently, requiring utilities to allow attachments by
cable companies does not result in any "lost opportunity" to the utilities, and reimbursement of marginal
costs provides just compensation.28
8.
The Eleventh Circuit held that a utility would be entitled to compensation above the
Cable Rate only if it could demonstrate rivalry for pole space. To meet the burden, a utility must show
with regard to each pole that "(1) the pole is at full capacity and (2) either (a) another buyer of the space is
waiting in the wings or (b) the power company is able to put the space to a higher-valued use in its own
operations."29 Referring to Section 224(f)(2), which confers an exemption to the forced-attachment
regime "where there is insufficient capacity," the court noted that "Congress contemplated a scenario in
which poles would reach full capacity."30 In the "full capacity" situation, the court explained, "it is the
zero-sum nature of pole space, like land, that is key."31 "When a pole is full and another entity wants to
attach, the government taking forecloses an opportunity to sell space to another bidding firm a missed
opportunity that does not exist in the nonrivalrous scenario."32 On the other hand, absent evidence that a
pole is at full capacity and that a buyer is waiting in the wings or the power company has a higher valued
use, pole space is nonrivalrous and the recovery of the Cable Rate is constitutionally sufficient.33
Alabama Power had no claim, the court concluded, because it had not "allege[d] that [its] network of
poles is currently crowded" and, as such, had not met its burden of establishing loss attributable to the
claimed taking that was not adequately compensated by the Cable Rate.34

B.

The Parties' Dispute

9.
The Cable Operators provide service throughout Florida. They entered into pole
attachment contracts with Gulf Power and, pursuant to the Cable Formula, paid annual pole attachment
rates of roughly $6.00 per pole.35 In addition, the contracts required the Cable Operators to pay the cost
of all make-ready work necessary to accommodate their attachments, plus a 15 percent markup if Gulf
Power performed the make-ready work.36 Because the Cable Operators directly compensated Gulf Power


(...continued from previous page)
Order, 15 FCC Rcd at 6459, para. 7 n.40; Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996
, Order on Reconsideration, 14 FCC Rcd 18049, 18056, para. 21 n.50 (1999)
(subsequent history omitted).
27 311 F.3d at 1369.
28 Id. at 1371.
29 Id. at 1370-71.
30 Id. at 1370.
31 Id.
32 Id.
33 Id. at 1370-71.
34 Id. at 1370 (citing United States v. John J. Felin & Co., 334 U.S. 624, 641 (1940) (holding that the burden of
proving loss, as well as the amount of any loss, is upon the party claiming to have experienced a taking)). The court
also dismissed for lack of standing a petition for review filed by Gulf Power, which, like Alabama Power, is an
affiliate of the Southern Company. Id. at 1366.
35 Initial Decision, 22 FCC Rcd at 2000-01, paras. 9-10; see also Florida Cable Telecomm'ns Ass'n. Inc. v. Gulf
Power Co.
, Memorandum Opinion and Order, 18 FCC Rcd 9599, 9601, para. 2 (Enf. Bur. 2003) (Florida Cable v.
Gulf Power
).
36 Initial Decision, 22 FCC Rcd at 2001, para. 11.
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for make-ready costs, Gulf Power was required to exclude those costs from the Cable Formula to ensure
that the Cable Operators were not charged twice for the same costs.37
10.
In 2000, Gulf Power sent the Cable Operators notices that their annual pole attachment
rates would increase to $38.06, which exceeds the Cable Rate by more than 500 percent.38 The Cable
Operators responded by filing a complaint against Gulf Power for violating Section 224 of the Act and the
Commission's pole attachment rules.39 The complaint alleged that Gulf Power unilaterally terminated
existing pole attachment agreements, forced the cable operators to execute new pole attachment
agreements containing much higher pole attachment rates, and refused to negotiate new agreements in
good faith in accordance with the Cable Formula. In response, Gulf Power argued, inter alia, that the
Commission's Cable Formula would not provide just compensation as required by the Fifth Amendment
and that an alternative cost methodology should be employed to calculate an appropriate rate.
11.
The Enforcement Bureau granted the complaint.40 The Bureau determined that Gulf
Power's proposed rate of $38.06 was unjust and unreasonable and ordered the parties to negotiate new
pole attachment agreements, using the formula in Section 1.1409(e) of the Commission's rules41 as a
guide for determining a reasonable rate. In particular, the Bureau rejected Gulf Power's assertion that the
Cable Formula does not provide just compensation and therefore violates the Takings Clause of the Fifth
Amendment. The Bureau relied on the Commission's determination, as affirmed by the Eleventh Circuit
in Alabama Power v. FCC, that the Cable Formula provides just compensation.
12.
Gulf Power did not base the proposed $38.06 rate on the Cable Formula, or submit any
evidence to satisfy the test articulated in Alabama Power for justifying compensation above the Cable
Rate. Thus, the Bureau ordered Gulf Power to allow the cable operators to remain attached to Gulf
Power's poles at the rates under their former contracts pending the negotiation of new contracts. It also
ordered Gulf Power to refund amounts charged over the amounts specified in the parties' prior pole
attachment agreements.42
13.
In response to a petition for reconsideration and request for evidentiary hearing filed by
Gulf Power, the Enforcement Bureau designated the above-captioned complaint proceeding for hearing
before an ALJ to consider "the facts Gulf Power intends to proffer in an effort to satisfy the Alabama
Power Decision's
standard."43 The Hearing Designation Order directed the ALJ to determine "[w]hether
Gulf Power is entitled to receive compensation above marginal costs for any attachments to its poles


37 See Adoption of Rules for the Regulation of Cable Television Pole Attachments, 72 FCC 2d 59, 72, para. 27
(1979) ("[W]here a utility has been directly reimbursed by a CATV operator for non-recurring costs, . . . such costs
must be subtracted from the utility's corresponding pole line capital account to insure that CATV operators are not
charged twice for the same costs."); Consolidated Partial Order on Reconsideration, 16 FCC Rcd at 12103, para. 77
("Make-ready costs are non-recurring costs for which the utility is directly compensated and as such are excluded
from expenses used in the rate calculation.").
38 Initial Decision, 22 FCC Rcd at 1999, para. 4 & n.5.
39 Pursuant to the Pole Attachments Act, the Commission has adopted rules that authorize aggrieved parties to file
complaints when they have a dispute with a utility concerning pole attachments. See 47 C.F.R. 1.1401-1.1418.
40 Florida Cable v. Gulf Power, 18 FCC Rcd at 9599; see also 47 C.F.R. 1.1401-1.1418 (Pole Attachment
Complaint Procedures); 47 C.F.R. 0.111(a)(12), 0.311 (authority delegated to the Enforcement Bureau to resolve
complaints regarding pole attachments filed under Section 224 of the Communications Act).
41 47 C.F.R. 1.1409(e).
42 18 FCC Rcd at 9609, paras. 3-5.
43 Florida Cable Telecomm'ns Ass'n, Inc. v. Gulf Power Co., Hearing Designation Order, 19 FCC Rcd 18718,
18722 n.21 (Enf. Bur. 2004).
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belonging to the Cable Operators, and, if so, the amount of any such compensation."44 In accordance with
Alabama Power, the Hearing Designation Order assigned to Gulf Power "the burden of proving it is
entitled to compensation above marginal cost with respect to specific poles."45

C.

The ALJ's Initial Decision

14.
After an evidentiary hearing, the ALJ determined that Gulf Power had not made the
requisite showing under Alabama Power to receive compensation above the Cable Rate for any of the
attachments belonging to the Cable Operators. The ALJ found that Gulf Power failed to satisfy the
Alabama Power test because it "failed to show that any pole is at full capacity and that (1) the Cable
Formula has cost it an opportunity to rent space to someone else at a higher rate or that (2) it is prevented
from putting the space to a higher valued use within its own operations."46 Gulf Power failed to identify
any instance in which "it was prevented from accommodating an attachment because of cable
attachments."47 Gulf Power admitted that "a rearrangeable pole would not be at full capacity" and that its
practice was to perform any necessary make-ready work whenever possible.48 Gulf Power also failed to
offer "proof that potential users will pay higher rent, or proof of higher valued uses of the space by Gulf
Power which were foreclosed by Complainants' cable attachments."49 Consequently, the ALJ held, "Gulf
Power has not lost any opportunity."50
15.
Gulf Power relied on a survey known as the "Osmose study" to show that its poles were
at full capacity. Osmose surveyed 9,663 of Gulf Power's poles and concluded that 7,120 poles were
"crowded" because adding a new attachment to those poles, without any make-ready work, would result
in a safety code violation.51 The record also includes evidence concerning 100 exemplar poles. Like the
Osmose survey, Gulf Power assumed that these poles are at full capacity if any make-ready work would
be required to accommodate a new attacher.52 The ALJ concluded that Gulf Power could not meet its
burden under the Alabama Power test by "merely pointing to the need for rearrangement of existing
attachments and/or compliance with safety codes in order to accommodate new attachments."53 The ALJ
held that when capacity is available through rearrangement of existing attachments or expansion of a
pole's height, the pole is not full because no entity is excluded from the pole and there is no foreclosed or
missed opportunity. Make-ready work, the ALJ found, is the means of providing space for new
attachments on poles with the capacity to expand, and practically all of Gulf Power's poles have this
capacity.54 Given that a showing of lost opportunity is critical under Alabama Power, the ALJ reasoned


44 Id. at 18722, para. 11.
45 Id. at 18721-22, para. 8 & n.26; see also Alabama Power, 311 F.3d at 1370 (noting that "the burden of proving
loss, as well as the amount of any loss, is upon the party claiming to have experienced a taking") (citing U.S. v. John
J. Felin & Co.
, 334 U.S. at 641).
46 Initial Decision, 22 FCC Rcd at 2006, para. 26.
47 Id. at 2005, para. 23.
48 Id. at 2005, paras. 22-23.
49 Id. at 2004, para. 20.
50 Id.
51 Id. at 2002, para. 16.
52 See Gulf Power's Proposed Findings of Fact and Conclusions of Law at 20-21, paras. 43, 46 ("Gulf Power's
Proposed Findings").
53 Initial Decision, 22 FCC Rcd at 2003, para. 19.
54 Id. at 2006, para. 25. Referring specifically to the 15% above cost Gulf Power receives for any make-ready work
it performs, which is the responsibility of the attaching cable operator under the parties' pole attachment agreements
(continued....)
6

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that a pole that can be readily expanded to accommodate new users, at no out-of-pocket cost to Gulf
Power, did not demonstrate the sort of crowding that would render pole space rivalrous and enable its
owner to seek more than the regulated rate.55 The ALJ concluded that Gulf Power's "historical
willingness to accommodate new attachers by performing make-ready [work]," which Gulf Power had
admitted during discovery, must be taken into account in determining whether a pole's insufficient
capacity resulted in a missed opportunity.56 "Gulf Power always has the ability to adjust poles at the
expense of new attachers thus showing that Gulf Power's poles lack full capacity and are nonrivalrous."57
16.
The ALJ distinguished the Eleventh Circuit's holding in Southern Company v. FCC that a
utility may not be required to provide access to a pole "[w]hen it is agreed that capacity is insufficient."58
The ALJ found this holding was not significant to any specified issue because there was never an
agreement between the Cable Operators and Gulf Power regarding pole capacity.59 The ALJ also noted
that Southern Company held that the statutory term "insufficient capacity" in Section 224(f)(2), which
exempts a utility from having to provide access to its poles, does not give utilities unfettered discretion to
decide when capacity is insufficient.60
17.
The ALJ did not determine the level of compensation that would have been appropriate
had Gulf Power made the requisite showing under the Alabama Power test that it was entitled to
compensation above marginal costs for one or more specific poles.61 The ALJ found that Gulf Power
failed to prove that there was "insufficient capacity" on any of its poles within the meaning of Section
224(f)(2), or that it lost an opportunity to put space on its poles to a higher valued use.62 The ALJ
reasoned that when capacity is available through routine make-ready work, the pole is not full, there has
been no exclusion or lost opportunity, and remuneration based on the Cable Formula provides sufficient
compensation.63 The evidence showed that the Cable Operators occupy pole space that would otherwise
be vacant, so the regulated rate, which provides for the recovery of allocated costs, provides a fair
return.64 Because Gulf Power had not met its burden of proving by a preponderance of the evidence that
but for the Commission's mandatory pole attachment regulation it would have been able to rent space to
someone else at a higher rate, or use the space for its own higher-valued use, the ALJ found that the Cable
Rate provides just compensation.65


(...continued from previous page)
and which is not incorporated into the Cable Rate, the ALJ commented that Gulf Power is not operating at a
financial loss in complying with the Cable Rate. Id. at 2001, para. 11.
55 Id. at 2003-04, paras. 19-20.
56 Id. at 2005, para. 24 (citing Interlocutory Order, FCC 05M-50 (Oct. 12, 2005) at 2).
57 Initial Decision, 22 FCC Rcd at 2004, para. 20.
58 293 F.3d at 1347.
59 Initial Decision, 22 FCC Rcd at 2005, para. 24.
60 Id. (citing 293 F.3d at 1348).
61 Initial Decision, 22 FCC Rcd at 2006, paras. 26, 28.
62 Id. at 2003-06.
63 Id.
64 Id. at 2006, para. 27.
65 Id. at 2006.
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D.

Gulf Power's Exceptions to the ALJ's Initial Decision

18.
On March 2, 2007, Gulf Power filed exceptions to the Initial Decision.66 Gulf Power
contends that "[t]he most critical error in the Initial Decision is the determination that there is no such
thing as a `full capacity' pole, so long as capacity can be expanded to accommodate a new attacher
including actually taking a pole out of the ground and replacing it with a larger pole."67 Gulf Power
asserts that if, as the ALJ determined, a pole is not at full capacity if it can be rearranged or changed-out
to accommodate new attachments, there is no practical or economically meaningful set of circumstances
in which a utility is entitled to rates in excess of the Cable Rate.68 It posits that the ALJ's ruling is
inconsistent with Alabama Power, in which the court stated that "a power company whose poles are, in
fact, full can seek just compensation."69 Gulf Power argues that the ALJ's decision likewise cannot be
reconciled with Section 224(f)(2) and the Eleventh Circuit's opinion in Southern Company, which
invalidated a Commission rule requiring utilities to expand capacity on poles as contrary to the plain
meaning of Section 224(f)(2).70 Gulf Power claims that the invalidated rule defined capacity expansion to
include steps taken "to rearrange or changeout existing facilities" and required that a utility expand
capacity at the request of an attaching cable system.71
19.
Gulf Power argues that the ALJ's attempts to distinguish Southern Company are invalid.
Even assuming that the ALJ correctly read the decision to apply only where there is an agreement
regarding pole capacity, Gulf Power claims that the ALJ ignored undisputed record evidence that there is
virtually never a disagreement between Gulf Power and the Cable Operators as to whether make-ready
work is required on a given pole.72 Gulf Power also points out that the portion of Southern Company
cited in the Initial Decision, in which the court found ambiguity in the statutory term "insufficient
capacity," did not relate to the court's discussion of the capacity expansion issue. Rather, it related to
another regulation specifying the conditions under which a utility may reserve pole space for future use.73
The court upheld the Commission's construction of the term "insufficient capacity" to mean "the actual
absence of usable space on a pole."74
20.
Gulf Power believes that poles requiring expansion are "full" for purposes of the
Alabama Power standard. Gulf Power claims that the ALJ erred by focusing on "hypothetical" poles,
contrary to the Alabama Power court's evident concern with the current condition of actual poles,75 and


66 See Gulf Power Company's Exceptions To The Initial Decision (Mar. 2, 2007) (Exceptions). The Cable
Operators filed a Reply Brief on March 12, 2007. Also pending before the Commission is Gulf Power's Request for
Oral Argument on Exceptions to Initial Decision, which was filed on March 19, 2007. Gulf Power requests that the
Commission hear oral argument on two issues: (1) the definition of "crowded" or "full capacity" under Alabama
Power
; and (2) the proof required for a utility to obtain pole attachment rents higher than the regulated rate once a
pole (or pole network) is shown to be "crowded" or at "full capacity."
67 Exceptions at 1.
68 Id. at 4-5.
69 Id. at 6 (citing 311 F.3d at 1371).
70 Id. at 6-9.
71 Id. at 7.
72 Id. at 8.
73 Id. at 8-9.
74 Id. at 8-9 (citing 293 F.3d at 1349).
75 See Exceptions at 9-10. In support, Gulf Power cites references in the Alabama Power court's opinion to poles
either being "currently crowded" or to their "present" capacity. These include the court's ultimate rejection of the
power company's claim because "[n]owhere in the record did [it] allege that [its] network of poles is currently
(continued....)
8

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compounded the error by relying on Gulf Power's historical practice of performing the make-ready work
necessary to accommodate new attachments.76 It maintains that the ALJ erred by suggesting that safety
standards "have nothing to do with capacity."77 Gulf Power also faults the ALJ for ignoring expert
testimony defining a full-capacity pole as one that requires any make-ready work to accommodate a new
attachment.78 Gulf Power contends that the ALJ partially quoted the record in concluding that Gulf
Power admitted that "a rearrangeable pole would not be at full capacity,"79 since the witness clarified on
redirect that "if a pole requires make-ready it is crowded" and explained that "make-ready" includes
"rearrangement or replacement." 80
21.
Finally, Gulf Power claims that there are other potential users of its pole space waiting in
the wings who are willing to pay higher rent than the Cable Rate. To support this argument, Gulf Power
relies on evidence that the Cable Operators pay higher rates to another utility, and that three other
attachers pay more than $40 per attachment on Gulf Power's poles.81 Gulf Power also submitted
testimony that prices in an unregulated market were upwards of $20 per attachment.82 Gulf Power claims
that we should interpret Alabama Power to mean that once a utility shows rivalry, it is entitled to
compensation in the form of fair market value (or an acceptable proxy).83

E.

The Section 224 Order

22.
On May 20, 2010, the Commission released an Order and Further Notice of Proposed
Rulemaking concerning implementation of section 224 of the Act (Section 224 Order).84 In the Order,


(...continued from previous page)
crowded," 311 F.3d at 1370, and its observation that "the Cable Bureau and the full Commission might have been
advised to inquire about the level of capacity presently on APCo's poles," id. at 1371.
76 Exceptions at 10; see also 22 FCC Rcd at 2005, para. 24.
77 Exceptions at 10 (citing 22 FCC Rcd at 2002, para. 14).
78 Exceptions at 12-13.
79 22 FCC Rcd at 2005, para. 22.
80 Exceptions at 12 & n.7 (citing Dunn Re-Direct, Tr. 849-50).
81 Exceptions at 17.
82 Id.
83 Id. at 6.
84 Implementation of Section 224 of the Act, Order and Further Notice of Proposed Rulemaking, 25 FCC Rcd 11864
(2010), clarified, Report and Order and Order on Reconsideration, FCC 11-50 (rel. Apr. 7, 2011) (Order on
Reconsideration
). Several parties filed petitions for reconsideration or clarification of the Section 224 Order.
Petition for Reconsideration and Request for Clarification of the Florida Investor-Owned Electric Utilities, WC
Docket No. 07-245, GN Docket No. 09-51 (Sept. 2, 2010) (asking the Commission to clarify that utilities are not
required to perform make-ready within the electric space on a pole to accommodate new attachments, and seeking
reconsideration on other points); Petition for Reconsideration of the Coalition of Concerned Utilities, WC Docket
No. 07-245, GN Docket No. 09-51 (Sept. 2, 2010) (seeking reconsideration or clarification that the
nondiscriminatory access requirement only applies within the communications space, among other findings);
Petition for Reconsideration and Request for Clarification of Oncor Electric Delivery Company LLC, WC Docket
No. 07-245, GN Docket No. 09-51 (Sept. 2, 2010) (joining the petitions of the Florida Investor-Owned Utilities and
the Coalition of Concerned Utilities); Petition for Reconsideration or Clarification of the Alabama Cable
Telecommunications Association et al., WC Docket No. 07-245, GN Docket No. 09-51 (Sept. 2, 2010) (seeking a
requirement that utilities replace poles when taller poles are needed to accommodate attachments). On
reconsideration, the Commission clarified that a utility's use of an attachment technique in the electric space does
not obligate it to allow the same technique in the communications space. See Order on Reconsideration at para.
299. The Commission also clarified that there is not "insufficient capacity" simply because a utility must rearrange
(continued....)
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the Commission determined that the nondiscriminatory access obligation in section 224(f)(1) requires a
utility to allow cable operators to use pole attachment techniques, such as boxing and bracketing,85 that
the utility itself uses in similar circumstances, subject to applicable safety codes.86 The Commission
acknowledged the Eleventh Circuit's ruling in Southern Company that utilities are not obligated to
provide access to a pole when it is agreed that the pole's capacity is insufficient to accommodate a
proposed attachment, but concluded that a pole does not have "insufficient capacity" for purposes of
section 224(f)(2) if a utility could accommodate another attachment using conventional methods that it
employs in its own operations.87 The Commission noted that techniques like boxing and bracketing take
advantage of usable physical space on an existing pole.88

III.

DISCUSSION

23.
The central issue to be decided here is whether Gulf Power made the evidentiary showing
required by the Eleventh Circuit's opinion in Alabama Power to seek compensation in excess of the
Cable Rate for the Cable Operators' attachments. We find that Gulf Power did not satisfy the test
elucidated by the court because it failed to prove that it suffered a "lost opportunity" for which it was not
justly compensated.89 We affirm the ALJ's determination that Gulf Power failed to adduce persuasive
evidence that any specific poles were at full capacity. The ALJ found, and Gulf Power does not dispute,
that the record reflects no instance in which Gulf Power was unable to accommodate a new attachment
because of cable attachments.90 We likewise affirm the ALJ's determination that Gulf Power failed to
show either that another potential user of the Cable Operators' space was waiting in the wings or that Gulf
Power would have been able to put the space to a higher-valued use in its own operations.91 We therefore
find that the Cable Rate provides just compensation to Gulf Power for the use of pole space by the Cable
Operators.

A.

Gulf Power Failed To Show That Its Poles Are at Full Capacity

24.
To meet its burden of proof, Gulf Power relied on the Osmose survey, which assumed
that a pole is full if, in its current state, without any make-ready work, adding a new attachment would
result in a code violation. Gulf Power made the same assumption with respect to exemplar poles that
were included in the record.92 We reject that assumption. In accord with our Section 224 Order and
Order on Reconsideration, we find that when an electric utility can accommodate a new attachment, in
compliance with applicable safety codes, by using conventional techniques that the utility uses in its own
operations, the pole cannot reasonably be described as having "insufficient capacity" within the meaning


(...continued from previous page)
its electric facilities to accommodate an attachment. See id. para. 231. Rather, "where rearrangement of a pole's
facilities--whether in the communications space or the electric space--can accommodate an attachment, there is not
`insufficient capacity' under section 224(f)(2)." Id.
85 "Boxing" refers to the installation of communications on both sides of the same pole at approximately the same
height. "Bracketing" refers to the installation of "extension arms," which extend from the pole to support
communications lines at the same level as existing lines attached to the pole. Id. at para. 8 nn.36-37.
86 Id. at paras. 8-13.
87 Id. at para. 14.
88 Id. at paras. 14-16.
89 Alabama Power, 311 F.3d at 1371.
90 Initial Decision, 22 FCC Rcd at 2005, para. 23.
91 Id. at 2005-06, paras. 20, 26.
92 See supra para. 15.
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of section 224(f)(2), or described as "at full capacity" within the meaning of the Alabama Power
decision.93 When a new attacher could be accommodated by rearranging existing attachments or with
conventional attachment techniques to the same extent that the utility uses them, such as boxing and
bracketing, the pole is not at full capacity.94 Indeed, as the ALJ noted, a witness for Gulf Power
"admitted that `a rearrangeable pole would not be at full capacity.'"95 We therefore affirm the ALJ's
finding that "merely pointing to the need for rearrangement of existing attachments and/or compliance
with safety codes in order to accommodate new attachments [does] not meet Gulf Power's burden."96
This finding reflects the reality that repositioning existing attachments is a routine practice. In reaching
this finding, we do not rely on the ALJ's conclusion that a pole is not at full capacity when a utility can
change it out and replace it with a longer pole.97
25.
Gulf Power had the burden of proving full capacity "with regard to each pole."98 The
fundamental flaw in Gulf Power's evidentiary case is that Gulf Power assumed that a pole is at full
capacity whenever any make-ready work would be required to accommodate a new attachment, and did
not differentiate between poles that would require mere repositioning of existing attachments or use of
conventional attachment techniques versus poles that would require replacement.99 The Osmose study
did not address the amount of make-ready work that would be required to make room for a new
attachment on any given pole. Rather, the study assumed that a pole is at full capacity if any make-ready
would be required, no matter how insignificant.100 Gulf Power made the same assumption with respect to
the 100 exemplar poles in the record.101 Because we find that a pole is not at full capacity if a new
attachment could be accommodated with techniques that Gulf Power uses in its own operations, to meet
its burden of proof Gulf Power needed to identify poles that could not accommodate a new attachment


93 See, e.g., Order on Reconsideration at para. 232 ("We do not equate capacity expansion with facility
rearrangement in existing space.").
94 For purposes of our analysis, we accept Gulf Power's argument that it intended the word "crowded," as used in
the Osmose study, to be synonymous with "full capacity" under Alabama Power. See Exceptions at 5. The
Alabama Power court used these terms interchangeably to describe poles on which space is rivalrous. See 311 F.3d
at 1370. Thus, we find that a pole is "crowded" if Gulf Power could not accommodate another attacher using
conventional attachment techniques to the same extent that Gulf Power uses them in its own operations. To the
extent the ALJ drew a distinction between the terms "crowded" and "full capacity," we do not rely on that
distinction.
95 22 FCC Rcd at 2005, para. 22. We recognize that Gulf Power attempted to rehabilitate its witness on redirect
examination. See Exceptions at 12 n.7. Nevertheless, we find that the witness's admission on cross-examination is
correct a pole is not at full capacity when a utility can accommodate an additional attachment by rearranging
existing attachments.
96 Id. at 2003, para. 19.
97 Cf. Order on Reconsideration at para. 226 (declining to address petition for clarification requesting that the
Commission "clarify that pole owners may not refuse to replace or change out an existing pole with a taller
replacement pole where a taller pole is needed to accommodate existing or prospective attachers").
98 Alabama Power, 311 F.3d at 1370.
99 See Gulf Power's Proposed Findings at 3, para. 3 ("a rivalrous condition exists on any pole where make-ready
would be required in order to accommodate an additional attacher").
100 Id. at 25, para. 53 ("The Osmose Poles are examples of the varying conditions in the field, with at least one thing
in common each would require make-ready (ranging from rearrangement of existing facilities to poles being
changed out) to accommodate an additional attachment").
101 Id. at 21, para. 46 ("Gulf Power asserts that if make-ready must be performed to host an additional attachment,
the pole is rivalrous").
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unless Gulf Power employed a unique attachment technique or the pole was changed out.102 Gulf Power
did not meet that burden. Indeed, Gulf Power conceded that "[a] correct finding may well be that a small
percentage of poles require change-out (as opposed to rearrangement)."103 We cannot identify, based on
the evidence in the record, any specific Gulf Power poles that are at full capacity in the sense that a new
attacher could not be accommodated though rearrangement of existing attachments or use of conventional
attachment techniques. We therefore find that Gulf Power failed to meet its burden of proof.104
26.
We reject Gulf Power's argument that this approach is somehow inconsistent with the
Eleventh Circuit's decision in Southern Company and Section 224(f)(2), which authorizes a utility to
deny access to its utility poles "where there is insufficient capacity." In Southern Company, the court
invalidated Commission regulations that required utilities, when the parties agreed that capacity on a
given pole was insufficient, to expand capacity to accommodate a proposed attachment. The court
reasoned that "Section 224(f)(2) carves out a plain exception to the general rule that a utility must make
its plant available to third-party attachers."105 Consequently, "the FCC lacks authority to order utilities to
expand the capacity of their infrastructure to accommodate third-party attachers in situations where it is
agreed that existing capacity is insufficient."106 The court also recognized, however, that the meaning of
the term "insufficient capacity" is ambiguous, and upheld the Commission's interpretation of the term to
mean "the actual absence of usable physical space on a pole."107 In the Section 224 Order, we concluded
that a pole does not have "insufficient capacity" if it could accommodate an additional attachment using
conventional methods of attachment to the same extent that a utility uses them in its own operations, such
as boxing and bracketing.108 These techniques take advantage of usable physical space on the existing
pole.109
27.
Our decision in this proceeding is consistent with the Eleventh Circuit's interpretation of
Section 224(f)(2). We find that when a utility can make room for a new attachment using conventional
techniques, as described above, there is usable physical space on the pole, i.e., there is sufficient capacity.


102 See Section 224 Order at paras. 8-13; Order on Reconsideration at paras. 231-36 (explaining that utilities must
allow cable operators to use the same attachment techniques that the utility uses in its own operations in similar
circumstances). Even if Gulf Power were correct that certain of its poles are at full capacity, Gulf Power would not
be entitled to compensation above the regulated rate for the independent reason that it also failed to show that other
attachers were "waiting in the wings" or that it could have put attachment space to a higher-valued use within its
own operations. See infra part II.B.
103 Gulf Power's Reply to Complainants' Proposed Findings of Fact and Conclusions of Law at 11, para. 20.
104 Gulf Power claims that it showed "structural" and "systemic" rivalry on its poles. Exceptions at 2. Gulf Power
alleges that "structural" rivalry exists because a typical joint use pole has 11.5 feet of usable space for attachments,
and "systemic" rivalry exists because of the spacing requirements that apply when a pole has multiple attachers. See
Gulf Power's Proposed Findings at 15-20. These facts do not show rivalry. Gulf Power can and does accommodate
multiple attachers on its poles, and it failed to identify a single instance when it was unable to accommodate a new
attacher because of existing cable attachments. Consequently, Gulf Power failed to meet its burden of showing that
the mandatory access requirement in section 224 foreclosed "an opportunity to sell space to another bidding firm a
missed opportunity that does not exist in the nonrivalrous scenario." Alabama Power, 311 F.3d at 1370. Moreover,
the notion of "systemic" rivalry is inconsistent with the Alabama Power test, which requires a showing of rivalry
"with regard to each pole." Id.
105 Southern Company, 293 F.3d at 1346-47.
106 Id. at 1352.
107 Id. at 1349.
108 Section 224 Order at para. 14.
109 We disagree with Gulf Power's claim that the Commission previously defined "capacity expansion" to include
rearrangement of connections on a pole. See id. at para. 16 n.56.
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Gulf Power's argument that the Southern Company court affirmed the Commission's interpretation of
Section 224(f)(2) with regard to a different rule, which governed reserved space on poles, is irrelevant.110
The court upheld the Commission's interpretation of the statute. We are applying the same interpretation
of the same statutory term here. We find that a pole has insufficient capacity only when there is no usable
space on the pole.
28.
Gulf Power also claims that the ALJ erred by suggesting that "routine changes are made .
. . to observe safety standards which are conditions requiring correction having nothing to do with
capacity."111 We agree with Gulf Power that safety codes may be relevant in determining whether a pole
is at full capacity, but that is not grounds for reversal of the ALJ's ultimate finding that Gulf Power failed
to meet its burden of proof. In determining whether a new attachment can be accommodated, a utility
may not assume, as Gulf Power did in this case, that its existing attachments on a pole are static. We find
that if a utility could accommodate a new attachment by repositioning existing attachments or by using
attachment methods to the same extent that that Gulf Power itself uses such methods, in full compliance
with applicable safety codes, the pole is not at full capacity. We reject Gulf Power's contrary view
because it would give utilities the ability to avoid their statutory obligation to provide access to useable
pole space based solely on the placement of their own attachments. We do not believe that Congress
intended that perverse result, which would reward inefficient use of available pole space.
29.
Gulf Power's remaining exceptions with regard to this issue can be resolved quickly.
Gulf Power contends that the ALJ erred by focusing on "hypothetical" poles.112 Our decision, however, is
based on the record generated concerning the current condition of poles, not hypothetical extensions of
poles. There is nothing hypothetical about measuring pole capacity in terms of whether there is sufficient
space to accommodate a new attachment. Gulf Power claims that the ALJ further erred by referencing its
historical practice of performing make-ready work when necessary to accommodate new attachments.113
We find that Gulf Power's historical practices are relevant insofar as they demonstrate that Gulf Power
can reasonably make room for additional attachments by repositioning existing attachments.
30.
Gulf Power also faults the ALJ for ignoring expert testimony defining a full-capacity pole
as one that requires any make-ready work to accommodate a new attachment.114 We view the issue of
what constitutes a "full" pole for purposes of just compensation under the Alabama Power test to be a
legal, rather than a factual, determination, for it arises under (and is properly resolved by) this agency's
reasonable interpretation of the statutory phrase "insufficient capacity." In resolving that issue, we have
adopted a commonsense approach to what constitutes "full capacity" and have not relied on conflicting
expert testimony. Gulf Power does not dispute that make-ready work in the form of repositioning
existing attachments does facilitate access.
31.
Finally, Gulf Power claims that its poles are not essential facilities,115 but does not
explain how that allegation relates to the issues before us. Section 224 requires Gulf Power to give the
Cable Operators nondiscriminatory access to its poles. The Eleventh Circuit held in Alabama Power that
this access requirement does not run afoul of the Fifth Amendment, and that a utility would be entitled to
compensation above the Cable Rate only if it could show that a specific pole is at full capacity and
another potential user of space occupied by cable companies is waiting in the wings. We have concluded


110 Exceptions at 8-9.
111 22 FCC Rcd at 2002, para. 14; see Exceptions at 10-11.
112 Exceptions at 9-10.
113 Id. at 10; see also 22 FCC Rcd at 2005 para. 24.
114 Exceptions at 12-13.
115 Id. at 14-15.
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that Gulf Power failed to make the requisite showing. The essential facilities doctrine is not relevant to
that conclusion.

B.

Gulf Power Failed To Show That Other Buyers Were Waiting in the Wings or That
It Had a Higher Valued Use for the Cable Operators' Space on Its Poles

32.
We also find that Gulf Power failed to satisfy the second prong of the Alabama Power
test. Specifically, Gulf Power failed to show with respect to any poles at full capacity that other attachers
were waiting in the wings to use the Cable Operators' space, or that Gulf Power would be able to put the
Cable Operators' space to a higher-valued use in its own operations.
33.
The linchpin of the Alabama Power test is proof of rivalry for pole space. To meet its
burden of proof, Gulf Power had to adduce evidence that someone was competing with the Cable
Operators for space on poles that were at full capacity. "In the `full capacity' situation, it is the zero sum
nature of pole space . . . that is key."116 "By forcing the power company to rent space that could be
occupied by another firm (or put to use by the power company itself)," the Pole Attachments Act
"forecloses an opportunity to sell space to another bidding firm."117 Absent evidence of rivalry for pole
space, "there is no `lost opportunity' foreclosed by the government."118
34.
Gulf Power failed to meet its burden of proof. Gulf Power failed to adduce evidence that
anyone (including Gulf Power) is competing for the use of space occupied by the Cable Operators on
poles that are at full capacity. Gulf Power's evidence that the Cable Operators pay rates above the Cable
Rate to another utility119 sheds no light on whether there is rivalry for space on Gulf Power poles
occupied by the Cable Operators. Equally unpersuasive is Gulf Power's evidence that three other
attachers pay more than $40 per attachment on Gulf Power's poles.120 This evidence likewise fails to
demonstrate that, as a result of the Cable Operators' attachments, someone is being denied an opportunity
to use space on Gulf Power poles. Gulf Power also submitted testimony that prices in an unregulated
market were upwards of $20 per attachment,121 but the relevant market in this case is regulated, as
directed by Congress. Absent evidence that the Pole Attachments Act prevented Gulf Power from leasing
space on a pole at full capacity to someone other than the Cable Operators, Gulf Power has not suffered a
lost opportunity. Since Gulf Power failed to adduce such evidence, the Cable Rate provides just
compensation.
35.
We reject Gulf Power's suggestion that a buyer "waiting in the wings" is a hypothetical
buyer, not an actual buyer.122 To meet its burden of proof, Gulf Power had to show that "a pole is full and
another entity wants to attach."123 Absent evidence that an actual buyer is waiting in the wings, "there is
no `lost opportunity' foreclosed by the government";124 the possession of pole space by the Cable


116 Alabama Power, 311 F.3d at 1370.
117 Id.
118 Id. at 1371.
119 Exceptions at 17.
120 Id.
121 Id.
122 Id. at 18; see also Gulf Power's Proposed Findings at 39-40, para. 80. Rivalry for space on poles at full capacity
must be real, not hypothetical. Otherwise, Gulf Power has not suffered any lost opportunity.
123 Alabama Power, 311 F.3d at 1370.
124 Id. at 1371.
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Operators does not result "in a gain that precisely corresponds to the loss endured" by another party.125
Consequently, the Cable Rate provides just compensation because it puts Gulf Power in the same position
monetarily as it would have occupied if the Cable Operators' attachments did not exist.126 Because Gulf
Power failed to adduce any evidence identifying a specific lost opportunity caused by the Cable
Operators' attachments, it failed to meet its burden of proof.
36.
Instead of "point[ing] out with particularity alleged material errors in the decision," as
required by Rule 1.277(a),127 Gulf Power in its Exceptions claims generally that the ALJ "erred by not
adopting Gulf Power's Proposed Findings," as well as its Reply Findings.128 Although our rules do not
provide for incorporation by reference,129 we have closely examined the referenced material and find no
error.
37.
The record demonstrates that, through a combination of the Cable Rate and contractual
provisions covering make-ready costs, Gulf Power was fully compensated for all costs associated with the
Cable Operators' attachments. The evidence shows that Gulf Power was put in the same position it
would have been in, but for the Cable Operators' attachments. Consequently, Gulf Power has not met its
burden of proof to show that it is entitled to compensation above the Cable Rate.

C.

Gulf Power's Other Arguments Lack Merit

38.
We reject Gulf Power's argument that the ALJ abused his broad discretion in refusing to
strike the pre-filed testimony of Cable Operators' witness, Patricia D. Kravtin.130 As an economist,
Kravtin was qualified to address the economic analysis arising from the Alabama Power decision and in
particular the concept of rivalry.131 The ALJ cited Kravtin's testimony for the conclusions that through
customary make-ready engineering "Gulf Power has historically been able to accommodate an additional
attacher" and that there is no resulting exclusion on a pole "if the additional attacher is or can be
accommodated on the pole."132 Although Gulf Power claims that this testimony related to issues that are
outside of Kravtin's area of expertise, Gulf Power conceded its historical willingness to perform make-
ready work so long as there is no engineering or safety reason for not allowing the attachment.133


125 Id. at 1369.
126 Id. at 1369-71.
127 47 C.F.R. 1.277(a).
128 Gulf Power Exceptions at 18-20.
129 Chameleon Radio Corp., Decision, 13 FCC Rcd 13549, 13554 (1998) (citing United Broadcasting Co., Decision,
93 FCC 2d 482, 505 n.97 (1983)).
130 Exceptions at 19-21.
131 See 47 C.F.R. 1.313 (except as provided otherwise formal hearings will be governed by the rules of evidence
applicable to civil proceedings in matters not involving jury trials in the courts of the United States). The
admissibility of expert testimony is governed by Fed. R. Evid. 702, providing generally that opinions offered by an
expert witness are admissible if the witness is qualified as an expert in scientific, technical or specialized matters and
offers testimony that will assist the trier of fact to understand the evidence or resolve a disputed issue.
132 Initial Decision, 22 FCC Rcd at 2005, para. 22 n.11.
133 Id. at paras. 23-24; see also Gulf Power's Motion to Reconsider Limited Portions of Second Discovery Order at 2
(Sept. 30, 2005) ("Gulf Power repeatedly has admitted its historical willingness to accommodate attachers by
performing make-ready").
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Moreover, as noted above, we view the question of what constitutes a pole at full capacity under Alabama
Power
to be essentially a legal issue.134 Thus, we have not relied on Kravtin's testimony on that question.
39.
We also find no error in the ALJ's refusal to afford Gulf Power an opportunity to cross-
examine four Cable Operator representatives, whose depositions were excerpted and designated as part of
the Cable Operators' case-in-chief. The ALJ initially directed that two of the representatives be available
for cross-examination, but ultimately determined that it was in the best interest of adjudicating this case
not to allow cross-examination, because "[t]he areas of cross-examination cited by Gulf Power would be
fly-specking in the extreme in light of the theory of recovery advanced by Gulf Power in its `Pre-Trial
Brief'" and would be repetitious of other evidence already admitted and in the excerpted deposition
testimony.135 Gulf Power maintains that it was unfairly deprived of the right to cross-examine witnesses
on testimony designated as part of Cable Operators' direct case, as permitted by Section 1.321(d)(3) of
our rules.136 The ALJ's ruling, however, was without prejudice to Gulf Power's right to request their
cross-examination on rebuttal upon a solid showing of need. Gulf Power, which had an opportunity to
question the witnesses during their depositions, did not show any particular need to further question the
four deponents or what purpose would have been served by requiring their presence at the hearing. Gulf
Power has not identified any material factual issue that might have been decided differently if it had
cross-examined the witnesses at the hearing. Notably, the Initial Decision does not cite or otherwise rely
on any of the deposition excerpts in question. In these circumstances, the ALJ did not abuse his broad
discretion to control the course of the evidentiary proceeding137 in not requiring the deponents' presence
at the hearing. Gulf Power has not shown that it was prejudiced in any way by the ALJ's decision.138
40.
Finally, we reject Gulf Power's request for oral argument on its exceptions to the ALJ's
Initial Decision. We find that oral argument is not necessary and would not assist the Commission in its
resolution of the issues raised by Gulf Power.139


134 See supra para. 30.
135 Order, FCC 06M-11, at 2 & n.1 (Apr. 21, 2006) (noting that the questions on cross-examination would cover
such topics as Cable Operators' identified poles, pole measurements, and pole attachment agreement and
procedures, and that such proof is available by other evidence).
136 47 C.F.R. 1.321(d)(3) (To the extent that the affirmative direct case of a party is made in writing, the deposition
of any witness may be used by any party for any purpose provided the witness is made available for cross-
examination).
137 Family Broadcasting, Inc., Memorandum Opinion and Order, 17 FCC Rcd 19332, 19334, para. 11 (2002)
(stating that the Commission accords its administrative law judges discretion in regulating the course of evidentiary
hearings (citing Hillebrand Broadcasting, Inc., Order, 1 FCC Rcd 419, 419, para. 3 (1986))).
138 Gulf Power also claims that the ALJ erred by excluding from evidence an American Public Power Association
Pole Attachment workbook relied upon by Gulf Power's valuation expert. See Exceptions at 21. Because we find
that Gulf Power did not meet its burden of proof under the Alabama Power test, we need not consider what rate
other than the Cable Rate would have been appropriate. Consequently, Gulf Power was not prejudiced by exclusion
of this evidence.
139 See 47 C.F.R. 1.277(c) ("The Commission or delegated authority, in its discretion, will grant oral argument by
order only in cases where such oral presentations will assist in the resolution of the issues presented"). We have not
considered the merits of any substantive arguments presented in Gulf Power's request for oral argument. These
arguments, by supplementing Gulf Power's 23-page Exceptions, exceed the page limit prescribed by Section
1.277(c) and in any event are untimely because Gulf Power submitted them after the time period for filing
Exceptions set forth in Section 1.276(a). See 47 C.F.R. 1.277(c) and 1.276(a).
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IV.

ORDERING CLAUSES

41.
ACCORDINGLY, IT IS ORDERED, That the Exceptions to the Initial Decision, filed on
March 2, 2007, by Gulf Power Company ARE DENIED and that the Initial Decision of Chief
Administrative Law Judge Richard L. Sippel in Florida Cable Telecommunications Association, Inc., et
al. v. Gulf Power Company
(FCC 07D-01), 22 FCC Rcd 1997 (ALJ 2007), IS AFFIRMED to the extent
provided herein.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
17

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