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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Salsgiver Telecom, Inc., )
Complainant, )
File No. EB-06-MD-002
v. )
North Pittsburgh Telephone Company, )
Respondent. )
)
)
MEMORANDUM OPINION AND ORDER
Adopted: May 23, 2007 Released: May 24, 2007
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Memorandum Opinion and Order, we grant a pole attachment
complaint filed by Salsgiver Telecom, Inc. ("Salsgiver Telecom")
against North Pittsburgh Telephone Company ("NPTC") pursuant to
section 224 of the Communications Act of 1934, as amended ("the Act")
and sections 1.1401-1.1418 of the Commission's rules. The Complaint
alleges that NPTC violated section 224 by denying Salsgiver Telecom
access to NPTC's poles, ducts, conduits, and rights-of-way for the
placement of Salsgiver's attachments. Salsgiver Telecom requests that
the Commission order NPTC, inter alia, to provide Salsgiver Telecom
with "immediate access to NPTC's poles." For the reasons stated below,
we grant Salsgiver's Complaint and order NPTC to provide Salsgiver
immediately with nondiscriminatory access to NPTC's poles.
II. Factual and regulatory BACKGROUND
2. Salsgiver Telecom is authorized by Certificate of Public Convenience
from the Pennsylvania Public Utility Commission ("PaPUC") to "offer,
render, furnish or supply telecommunication services as a Competitive
Access Provider ["CAP"] to the Public in the Commonwealth of
Pennsylvania." Salsgiver Telecom has filed with the PaPUC a tariff
under which it offers intrastate wholesale dedicated access service to
the public as a CAP ("CAP Tariff" or "Tariff"). Salsgiver Telecom
offers this service to nonresidential users over its own facilities,
or in combination with the facilities of other companies, on a
point-to-point basis for the transmission of one-way and two-way
communications at DS-3 speed (44.736 Mbps), or on a case-by-case
basis, at another speed. Salsgiver Telecom offers to lease its
dedicated and private line communications infrastructure under the
Tariff to enterprise customers for high-bandwidth, secure, voice,
video, and data networks.
3. NPTC is an incumbent local exchange carrier providing
telecommunications within the Commonwealth of Pennsylvania, and thus
is a "utility" within the meaning of section 224(a)(1) of the Act. As
a "utility," NPTC must provide "a cable television system or any
telecommunications carrier" with "nondiscriminatory access to any
pole, duct, conduit, or right-of-way owned or controlled by it,"
unless it can show that a denial of access is justified due to
"insufficient capacity" or "for reasons of safety, reliability and
generally applicable engineering purposes."
4. On October12, 2005, Salsgiver Telecom sent a letter to NPTC requesting
access to NPTC's poles. The letter informed NPTC that Salsgiver
Telecom had PaPUC approval to provide telecommunication services as a
CAP to the public in Pennsylvania, and sought immediately to commence
pole attachment agreement negotiations with NPTC. Following a
telephone conversation between counsel, Salsgiver Telecom sent NPTC a
letter on November 11, 2005 attaching a copy of a June 30, 2005 letter
from the PaPUC provisionally approving Salsgiver Telecom's application
to provide telecommunications services as a CAP in Pennsylvania. In a
November 23, 2005 response, NPTC declined Salsgiver Telecom's request
for access, asserting that under its Tariff, Salsgiver Telecom is
"merely a lessor of a broadband transmission capacity" and therefore
is not a "telecommunications carrier" entitled to access NPTC's poles
under the Act.
5. On February 7, 2006, Salsgiver Telecom filed the instant Complaint
alleging that, because Salsgiver Telecom is a "telecommunications
carrier," NPTC's denial of access to its poles violates section 224 of
the Act. The Complaint seeks an order requiring NPTC to grant
Salsgiver Telecom immediate access to NPTC's poles. In its Response to
the Complaint, NPTC argues that Salsgiver Telecom is not entitled to
such access under section 224, because Salsgiver Telecom has not
demonstrated that it is a "telecommunications carrier" planning to
provide "telecommunications services" over the requested attachments.
NPTC also sought dismissal of the Complaint as untimely.
6. The key question presented here is whether Salsgiver Telecom is a
"telecommunications carrier" with statutory access rights to NPTC's
poles under section 224(f)(1) of the Act. Answering that question
requires examination of certain statutory and common law definitions
described below.
7. The Act defines "telecommunications carrier," in pertinent part, as
"any provider of telecommunications services . . .," and specifies
that "[a] telecommunications carrier shall be treated as a common
carrier under this Act only to the extent that it is engaged in
providing telecommunications services." The term "telecommunications
service" is defined as "the offering of telecommunications for a fee
directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the
facilities used." "Telecommunications" is defined as "the
transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or
content of the information as sent and received."
8. In interpreting those statutory definitions, the U.S. Court of Appeals
for the D.C. Circuit (D.C. Circuit) affirmed the Commission's
conclusions that (i) the term "telecommunications service" "is
intended to encompass only telecommunications provided on a common
carrier basis," and (ii) the term "telecommunications carrier," which
was added to the Act in 1996, has essentially the same meaning as the
pre-existing term "common carrier." Courts construing "common
carrier" have held, inter alia, that "the primary sine qua non of
common carrier status is a quasi-public character, which arises out of
the undertaking to carry for all people indifferently;" and a "second
prerequisite to common carrier status" is that "`customers transmit
intelligence of their own design and choosing." Such offering of
service indiscriminately to the public may be either a wholesale
offering to other carriers or a retail offering to end users.
III. discussion
A. Salsgiver Telecom Has Established a Prima Facie Case That It Is
a "Telecommunications Carrier" with a Right of Access to NPTC's
Poles Under Section 224(f)(1) of the Act
9. In a case such as this challenging a denial of access, section
1.1409(b) of our rules provides that the complainant bears the burden
of establishing a prima facie case that the denial of access violates
section 224(f) of the Act. Once the complainant establishes a prima
facie case, the defendant utility has the burden of proving that its
denial was lawful. Therefore, Salsgiver Telecom bears an initial
burden to establish a prima facie case that it is a
"telecommunications carrier" with a right of access within the meaning
of the Act. As discussed below, we conclude that Salsgiver Telecom has
met that burden by showing that it possesses a valid state
authorization to provide telecommunications services, and has filed a
state tariff offering such services to the public.
1. Salsgiver Telecom has offered proof of its status as a
"telecommunications carrier" in NPTC's territory by submitting in the
record (i) its Certificate of Public Convenience to provide
telecommunications services as a CAP to the public within the
Commonwealth of Pennsylvania; (ii) the June 30, 2005 Secretarial
Letter granting Salsgiver Telecom provisional authority to provide
telecommunications services as a CAP to the public in the Commonwealth
of Pennsylvania, and (iii) the CAP Tariff it filed with the PaPUC. We
find that the decisions of the PaPUC authorizing Salsgiver Telecom to
"offer, render, furnish or supply telecommunications services" to the
public as a CAP and permitting its Tariff to become effective, reflect
judgments by an expert regulatory agency that the services set forth
in Salsgiver's proposed Tariff constitute "telecommunications
services." Moreover, NPTC has not identified any material differences
between the meaning of the terms "telecommunications carrier" and
"telecommunications service" under Pennsylvania law and the
definitions of those terms in the Act; and we are aware of none.
Accordingly, Salsgiver Telecom may rely on the PaPUC's authorization
of its right to provide "telecommunications service" as a CAP,
together with the PaPUC's acceptance of Salsgiver Telecom's Tariff, to
establish its prima facie case under section 224(f)(1) of the Act.
10. In holding that Salsgiver Telecom has established a prima facie case
that it is a "telecommunications carrier" with pole attachment rights
under section 224(f) of the Act, our reliance on the PaPUC's actions
finds support in precedent addressing the prerequisites for the
analogous process of establishing that an entity is a "cable
television system" with pole attachment rights under section 224(f).
In Paragon Cable Television Inc. v. FCC, the D.C. Circuit upheld a
Commission ruling that possession of a valid cable franchise is a
reasonable precondition for pole attachments. In so holding, the D.C.
Circuit found that the Commission could apply a "presumption of
validity" to decisions by the local franchising authority concerning
the attacher's status as an approved franchisee. Similarly, in Texas
Util. Elec. Co v. FCC, the D.C. Circuit upheld a Commission ruling
that section 224 of the Act conferred jurisdiction over those pole
attachments within the franchise service area defined by the local
franchise authority. These cases suggest that attachers are entitled
to rely on decisions by responsible regulatory agencies, such as
franchise authorities in the case of cable system attachers, and
public utility commissions in the case of telecommunications carriers,
in establishing their status as entities entitled to access under
section 224(f) of the Act.
11. Based on the foregoing, we conclude that Salsgiver Telecom's
possession of a valid state authorization to provide
telecommunications service as a CAP, together with its associated
state tariff filing, constitutes presumptive evidence of its status as
a "telecommunications carrier" within the meaning of the Act. In our
view, therefore, Salsgiver Telecom has made a prima facie showing that
it is a "telecommunications carrier" entitled to nondiscriminatory
access to NPTC's poles under section 224(f)(1) of the Act.
A. NPTC Has Failed to Show That Its Denial of Access Was Lawful
12. Because Salsgiver Telecom has established a prima facie case, the
burden shifts to NPTC to demonstrate that its denial of access was
lawful. NPTC argues that it lawfully denied access to Salsgiver
Telecom because Salsgiver Telecom purportedly does not qualify as a
"telecommunications carrier" with a right of attachment under section
224(f). We have examined NPTC's arguments and conclude, for the
reasons set forth below, that NPTC has failed to show that Salsgiver
Telecom is not a "telecommunications carrier" under the Act, and thus
it cannot justify its denial of access on that basis.
1. Salsgiver's Tariffed Private Line Services Are "Telecommunications
Services" Under the Act
13. NPTC suggests that the dedicated (i.e., private line) services that
Salsgiver Telecom offers to business customers do not qualify as
"telecommunications services made available to the public," and
therefore Salsgiver Telecom "may not be deemed a telecommunications
carrier" with pole access rights under section 224. However, the
Commission has long regulated as common carrier services the provision
of "private line" services, which the Commission defines as
"facilities or network transmission capacity dedicated to the use of
an individual customer." For example, the Commission's rules contain
general guidelines and rate structure requirements for the tariffed
private line services of dominant common carriers. Moreover, the
Commission has recognized that interstate private line services can
qualify as interstate telecommunications services for purposes of
universal service contributions. The Commission thus has recognized
that private line services may be offered on a common carrier basis,
and treats private line services offered under tariff as common
carrier offerings. Accordingly, the fact that Salsgiver Telecom offers
dedicated or "private line" services, standing alone, provides no
basis for NPTC's assertion that Salsgiver Telecom is not a
"telecommunications carrier" with pole attachment rights under section
224(f)(1) of the Act.
14. Moreover, Salsgiver Telecom's authorization to provide
telecommunications services as a CAP on a statewide basis, together
with its CAP Tariff, establish that Salsgiver Telecom is authorized to
and does offer to provide its private line CAP services
indiscriminately and indifferently to the public for a fee in NPTC's
territory. Indeed, the very term "tariff" means an offering to provide
service. And the text of Salsgiver Telecom's CAP Tariff reflects that
the services offered are "telecommunications." For example, the CAP
Tariff states that it applies to "intrastate services supplied to
Customers for origination and termination of traffic . . .. The
services offered under the Tariff are described generally as:
"wholesale competitive access services," including "the furnishing of
intrastate interLATA and intraLATA ... services" involving
"information transmission originating from nonresidential user points
within ... Pennsylvania." The Tariff further specifies that
"Transmission Service is offered via the Company's facilities for the
transmission of one-way and two-way communications." These terms
demonstrate that Salsgiver Telecom is offering to provide to the
public for a fee intrastate "telecommunications," that is, "the
transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or
content of the information as sent and received."
15. NPTC further suggests that its denial of pole access was lawful
because Salsgiver Telecom will be offering broadband transmission
capacity on "dark fiber." According to NPTC, dark fiber offerings are
not "telecommunications services," and Salsgiver Telecom therefore has
no right to attach to NPTC's poles for the purpose of providing dark
fiber. NPTC cites no evidence in the record, however, to support its
claim that Salsgiver Telecom intends to provide "dark fiber" services
in NPTC's territory. Such proof would be unavailing, in any event,
because Salsgiver Telecom has established that it is a
"telecommunications carrier" based on its offering of "lit" services
that indisputably qualify as "telecommunications services." Thus,
regardless of the status of dark fiber service under the Act - an
issue we need not and do not address here - Salsgiver Telecom is
entitled to access under section 224 based on its offering of "lit"
services, and the addition of a dark fiber offering would have no
impact on its pole attachment rights.
16. We also reject NPTC's suggestion that Salsgiver Telecom does not
qualify as a telecommunications carrier because its customers will
provide and install their own terminal equipment under its CAP Tariff.
NPTC has not cited -- and we are not aware of -- any authority
holding that an entity failed to qualify as a common carrier solely
because its customers were required to provide and install their own
terminal equipment (i.e., customer premises equipment or "CPE"). In
fact, contrary to NPTC's position, the Commission's rules expressly
contemplate that telecommunications carriers may (but need not)
separately provide transmission services that connect to
customer-supplied CPE. Nothing in the Commission's rules or policies
suggests that such providers of separate transmission services thereby
lose their status as "telecommunications carriers." NPTC, therefore,
may not lawfully deny Salsgiver Telecom access to its poles on the
ground that it is not a "telecommunications carrier" because its
customers are supplying their own CPE.
17. In sum, by offering to provide its dedicated (i.e., private line)
transmission service and point-to-point services via its CAP Tariff,
Salsgiver Telecom is holding itself out to the public as providing
those services indifferently and "indiscriminately" for a fee;
moreover, those services involve communications by wire and
transmission, between or among points specified by the user, of
information of the user's choosing, without change in the form or
content of the information as sent and received. Thus, Salsgiver
Telecom's tariffed private line services are clearly
"telecommunications services" within the meaning of section 153(46) of
the Act. Based on this record, NPTC has failed to meet its burden of
proving that Salsgiver Telecom does not qualify as a
"telecommunications carrier" with pole access rights under section
224(f)(1) of the Act.
1. Intrastate Carriers Such as Salsgiver Telecom Have Pole Attachment
Rights Under Section 224
18. NPTC argues that, because Salsgiver Telecom's authority to offer CAP
services is limited to the provision of intrastate service, it is not
a "telecommunications carrier" eligible for access to NPTC's poles
under section 224(f)(1). We conclude that, contrary to NPTC's
assertions, section 224 provides pole attachment rights to intrastate
carriers such as Salsgiver Telecom.
19. As previously described, section 224(f)(1) unambiguously states that
"[a] utility shall provide a cable television system or any
telecommunications carrier with nondiscriminatory access to any pole,
duct, conduit, or right-of-way owned or controlled by it." This
reference to "any" telecommunications carrier contains no exclusion of
intrastate carriers. The same is true of the statutory definitions of
"telecommunications carrier," telecommunications service," and
"telecommunications." Moreover, section 224(b) grants the Commission
broad jurisdiction over pole attachment issues, except in states that
certify that they regulate such issues pursuant to section 224(c); and
Pennsylvania has not so certified. Further, section 2(b) of the Act
explicitly recognizes the Commission's jurisdiction in connection with
intrastate communication service "as provided in sections 223 through
227 . . . ." In view of this plain statutory language, we conclude
that Salsgiver Telecom's status as an intrastate carrier provides no
basis for NPTC's assertion that Salsgiver Telecom is not a
"telecommunications carrier" with pole access rights under section
224(f)(1) of the Act.
A. Salsgiver Telecom's Complaint Should Not be Dismissed as Untimely
20. NPTC contends that, under section 1.1404(m) of the Commission's pole
attachment rules, Salsgiver Telecom was required to file the Complaint
within 30 days after NPTC's Nov. 23, 2005 Letter denying Salsgiver
Telecom's pole attachment request, i.e., by December 23, 2005. Because
Salsgiver Telecom did not file the Complaint until February 6, 2006,
approximately six weeks later, NPTC argues that the Complaint should
be dismissed as untimely. As explained below, we conclude that the
30-day time limit in section 1.1404(m) should be waived in this case,
and thus we decline to dismiss the Complaint as untimely.
21. Although section 1.1404(m) provides that a complainant shall file a
pole attachment complaint within 30 days of a denial of access, it
does not expressly bar the filing of a complaint after the 30 day
period has run, and the Commission has discretion to waive the 30-day
requirement in appropriate cases. This is such a case. The record
reveals that, within 30 days after NPTC's Nov. 23, 2005 denial of its
pole access request, Salsgiver Telecom contacted Commission staff to
seek informal assistance in reaching a negotiated resolution of the
dispute. This effort, although ultimately unsuccessful, was in keeping
with the Commission's policy of encouraging parties to pursue such
informal dispute resolution efforts before filing a formal complaint.
Further, NPTC does not allege that it has suffered any prejudice from
Salsgiver Telecom filing in February 2006 rather than December 2005;
nor do we see how NPTC could have been prejudiced, because Salsgiver
Telecom's pre-complaint correspondence advised NPTC of the very claims
later asserted in the Complaint. Under these circumstances, we find
that a short waiver of the 30-day time limit in section 1.1404(m) of
our rules is warranted in the interest of encouraging parties to
consider alternatives to formal complaint proceedings. We thus decline
to dismiss the Complaint as untimely.
A. Salsgiver Telecom Is Not Entitled to Extraordinary Relief
22. Salsgiver Telecom argues that we should award "extraordinary relief"
in the form of unspecified penalties and sanctions, because NPTC
allegedly is "systematically attempting to preclude entry of
facilities-based telecommunications competitors in its service area"
by denying access to its poles. Salsgiver Telecom charges that this
systematic effort is evidenced by recent denial of access complaints
against NPTC filed by two other telecommunications carriers in NPTC's
territory, and by Salsgiver Telecom's cable operator affiliate,
Salsgiver Communications.
23. Even if penalties and sanctions could be awarded in a complaint
proceeding (an issue we do not reach here), Salsgiver Telecom has
failed to show that extraordinary relief in the form of penalties or
sanctions is warranted. In particular, Salsgiver Telecom has not shown
that the arguments NPTC has made in this and the other cases Salsgiver
Telecom cites are so devoid of merit as to be frivolous. However, now
that we have provided explicit guidance on the showing a
telecommunications carrier is required to make regarding its status as
a "telecommunications carrier" when requesting pole access under
section 224, we expect NPTC to comply fully and expeditiously with its
statutory obligation to afford pole access to entities that make such
a showing.
IV. Conclusion
24. For the reasons stated above, we find that (i) Salsgiver Telecom has
carried its burden to establish a prima facie case demonstrating its
entitlement to attach to poles, ducts, conduits, and rights-of-way
owned or controlled by NPTC; and (ii) NPTC has failed to carry its
burden to establish that its denial of access was lawful on the
alleged ground that Salsgiver Telecom is not a "telecommunications
carrier" providing "telecommunications services," as those terms are
defined in the Act. We therefore also conclude that Salsgiver Telecom
is a "telecommunications carrier" entitled to pole attachments under
section 224(f) of the Act, and grant the relief requested in the
Complaint insofar as it requests an order requiring that NPTC promptly
negotiate in good faith nondiscriminatory rates, terms, and conditions
of access and attachments and take all actions reasonably necessary to
accommodate Salsgiver Telecom's access to its poles, as set forth
herein.
V. ordering clauseS
25. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), and
224 of the Communications Act of 1934, as amended, 47 U.S.C. SS 151,
154(i), 154(j), and 224, and sections 1.1401-1.1418 of the
Commission's rules, 47 C.F.R. SS 1.1401-1.1418, that the Complaint IS
GRANTED to the extent set forth herein, and is in all other respects
DENIED.
26. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), and 224 of
the Communications Act of 1934, as amended, 47 U.S.C. SS 151, 154(i),
154(j), and 224, and sections 1.1401-1.1418 of the Commission's Rules,
47 C.F.R. SS 1.1401-1.1418, that, to the extent that Salsgiver Telecom
continues to seek access to NPTC's facilities, Salsgiver Telecom and
NPTC SHALL PROMPTLY NEGOTIATE IN GOOD FAITH nondiscriminatory terms
and conditions of access and maximum just and reasonable rates for
pole attachments in accordance with 47 U.S.C. S 224 and the
Commission's rules.
27. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), and 224 of
the Communications Act of 1934, as amended, 47 U.S.C. SS 151, 154(i),
154(j), and 224, and sections 1.1401-1.1418 of the Commission's Rules,
47 C.F.R. SS 1.1401-1.1418, that, to the extent that Salsgiver Telecom
continues to seek access to NPTC's facilities, NPTC SHALL: (i)
immediately commence survey and engineering work on the poles in
NPTC's service area to which Salsgiver Telecom seeks to attach; (ii)
grant access to NPTC's poles without a formal agreement in the event
NPTC fails to complete a just and reasonable pole attachment agreement
within 60 days from the date of this Order; and (iii) commence
accepting and processing pole attachment applications and conducting
any necessary engineering or make-ready arrangements no later than 15
days from the date of this Order.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Complaint of Salsgiver Telecom, Inc., File No. EB-06-MD-002 (filed Feb. 7,
2006) ("Complaint").
47 U.S.C. S 224.
47 C.F.R. SS 1.1401-1418.
See, e.g., Complaint at 5-7, 9, PP 16, 19, 22-23, 31.
Complaint at 10, P 34. For ease of reference, "poles" as used herein
refers to all facilities and properties owned and/or controlled by NPTC
that are the subject of Salsgiver Telecom's request for access under
section 224.
Letter dated September 5, 2006 from J.D. Thomas, counsel to Salsgiver
Telecom, to Barbara Esbin, Market Disputes Resolution Division,
Enforcement Bureau ("Salsgiver Telecom Sept. 5, 2006 Letter"), File No.
EB-06-MD-002, attaching as Exhibit 2: Letter dated March 27, 2006 from
James J. McNulty, Secretary, Pennsylvania Public Utility Commission, File
No. A-311373, Application of Salsgiver Telecom, Inc. to provide
telecommunication services as a Competitive Access Provider to the Public
in the Commonwealth of Pennsylvania ("March 27, 2006 Secretarial Letter"),
and In the Matter of Application of Salsgiver Telecom, Inc. for approval
to offer, render, furnish, or supply telecommunications services as a
Competitive Access Provider, to the Public, in the Commonwealth of
Pennsylvania, Certificate of Public Convenience, adopted Jan. 27, 2006
("Certificate of Public Convenience").
CAP Tariff, Pa. P.U.C. Tariff No. 1, Effective Feb. 14, 2006, attached as
Exhibit 1 to Salsgiver Telecom Sept. 5, 2006 Letter, "Application of
Tariff" and "Service Offered," Page 4 of 28. See March 27, 2006
Secretarial Letter (permitting Salsgiver Telecom's CAP Tariff to become
effective on Feb. 14, 2006); Complaint at 3-4, PP 9-10. The PaPUC
provisionally approved Salsgiver Telecom's application to provide
telecommunications services as a CAP in Pennsylvania on June 30, 2005.
Complaint, Exhibit 1, Letter dated June 30, 2005 from James J. McNulty,
Secretary, Pennsylvania Public Utility Commission, File No. A-311373,
Application of Salsgiver Telecom, Inc. to provide telecommunication
services as a Competitive Access Provider to the public in the
Commonwealth of Pennsylvania ("June 30, 2005 Secretarial Letter").
Subsequently, on February 7, 2006, the PaPUC granted Salsgiver Telecom's
application to operate as a CAP subject to the conditions and limitations
set forth in the order, including specified revisions to Salsgiver
Telecom's proposed CAP Tariff. Response to Complaint filed by NPTC, File
No. EB-06-MD-002 (filed Mar. 10, 2006) ("Response") at 4, P 10, Exhibit 1,
Application of Salsgiver Telecom, Inc. for approval to offer, render,
furnish or supply telecommunication services as a Competitive Access
Provider to the Public in the Commonwealth of Pennsylvania, Order, Docket
No. A-311373, Feb. 7, 2006 ("Salsgiver CAP Authorization Order") at 2-6.
CAP Tariff, "Application of Tariff" and "Service Offered" and Sections
2.1.1., 3.1, Pages 4, 8 and 25 of 28.
Complaint at 1-2, P 3; Response at 2, P 3. Section 224(a)(1) of the Act
defines "utility," in pertinent part, as "a local exchange carrier ... who
owns or controls poles, ducts, conduits, or rights-of-way used, in whole
or in part, for any wire communications." 47 U.S.C. S 224(a)(1).
47 U.S.C. S 224(f)(1) (emphasis added). See 47 U.S.C. SS 224(a)(4)
(defining "pole attachment" as "any attachment by a cable television
system or provider of telecommunications service to a pole, duct, conduit,
or right-of-way owned or controlled by a utility").
47 U.S.C. S 224(f)(2).
Complaint at 4, P 11; Exhibit 4, Letter dated October 12, 2005 from Ralph
F. Manning, counsel to Salsgiver Telecom, to Kevin J. Albaugh, Vice
President-Regulatory Affairs ("Salsgiver Telecom Oct. 12, 2005 Letter") at
1; Response at 4, P 11.
Complaint at 4, P 12; Salsgiver Telecom Oct. 12, 2005 Letter at 1;
Complaint, Declaration of Loren Salsgiver, Chief Executive Officer of
Salsgiver Telecom, at 2-3, PP 7-8; Response at 4, P 12.
Complaint at 5, P 13; Exhibit 7, Letter dated November 11, 2005 from Ralph
F. Manning to John Alzamora, counsel to NPTC ("Salsgiver Telecom Nov. 11,
2005 Letter") at 1, attaching June 30, 2005 Secretarial Letter; Response
at 5, P 13.
Complaint at 5, P 14; Exhibit 8, Letter dated November 23, 2005 from John
Alzamora to Ralph F. Manning ("NPTC Nov. 23, 2005 Letter") at 2; Response
at 6, P 14.
Specifically, Salsgiver Telecom seeks an order, inter alia, requiring NPTC
to: (i) commence immediate good-faith negotiations for a pole attachment
agreement, with a directive to execute a new pole attachment agreement
within 30 days of the date of the Order; (ii) accept and process pole
attachment applications and conduct any necessary engineering or
make-ready work according to reasonable deadlines; and (iii) grant access
to NPTC's poles without a formal agreement in the event that NPTC fails to
timely complete a just and reasonable pole attachment agreement. Complaint
at 10-11, P 34. Salsgiver Telecom also requests that the Commission impose
penalties and sanctions, and grant an award of damages pursuant to 47
U.S.C. SS 206-209, 501, 503(a), (b) and 47 C.F.R. SS 1.1413, 1.80.
Complaint at 10-11, P 34. We address these requests in Section III.D.,
infra.
See, e.g., Response at 6, 12 PP 14, 41, 43-44.
Although section 224(f)(2) explicitly permits denial of access "where
there is insufficient capacity and for reasons of safety, reliability and
generally applicable engineering purposes," 47 U.S.C. S 224(f)(2), NPTC's
denial of access does not rest on any of these grounds, but rather solely
on NPTC's contention that Salsgiver is not a "telecommunications carrier"
with a right of access under section 224(f)(1).
47 U.S.C. S 153(44).
47 U.S.C. S 153(46).
47 U.S.C. S 153(43).
Virgin Islands Tel. Co. v. FCC, 198 F.3d 921, 927-30 (D.C. Cir. 1999)
("Vitelco") (emphasis added) (affirming AT&T Submarine Sys., Inc.,
Memorandum Opinion and Order, 13 FCC Rcd 21585 (1998)).
Vitelco, 198 F.3d at 924-27. See, e.g., Cable & Wireless plc, Memorandum
Opinion and Order, 12 FCC Rcd 8516, 8521-23 at PP 12-17 (1997);
Federal-State Joint Board on Universal Service, Report and Order, 12 FCC
Rcd 8776, 9177-78 at P 785 (1997) (subsequent history omitted) ("Universal
Service Order"). The Act defines "common carrier" or "carrier" as "any
person engaged as a common carrier for hire, in interstate or foreign
communication by wire or radio ... ." 47 U.S.C. S 153(10).
Southwestern Bell Telephone Co. v. Federal Communications Commission, 19
F.3d 1475, 1480 (D.C. Cir. 1994) (quoting National Ass'n of Regulatory
Util. Comm'rs v. FCC, 533 F.2d 601, 608-09 (D.C. Cir. 1976) (internal
quotes and footnotes omitted)). See, e.g., U.S. Telecom Ass'n v. FCC, 295
F.3d 1326, 1329 (D.C.Cir.2002); National Ass'n of Regulatory Util. Comm'rs
v. FCC, 525 F.2d 630 (D.C. Cir.), cert. denied, 425 U.S. 992 (1976).
See, e.g., Federal-State Joint Board on Universal Service, Report to
Congress, 13 FCC Rcd 11,501, 11,556 at P 115 (1998) ("Universal Service
Report to Congress"); Universal Service Order, 12 FCC Rcd at 9177-78, P
785 (holding that "[c]ommon carrier services include services offered to
other carriers, such as exchange access service, which is offered on a
common carrier basis, but is offered primarily to other carriers"). See
generally MTS and WATS Market Structure, Phase I, Third Report and Order,
93 FCC 2d 241, 246-47, 249-50 PP 13-14, 23 (1983) ("MTS/WATS Market
Structure Order") (stating that access charges are regulated services and
include "carrier's carrier" services).
47 C.F.R. S 1.1409(b).
Id.
Salsgiver Telecom Sept. 5, 2006 Letter, Exhibit 2, Certificate of Public
Convenience and March 27, 2006 Secretarial Letter. See Response, Exhibit
1, Salsgiver CAP Authorization Order.
Complaint, Exhibit 1, June 30, 2005 Secretarial Letter at 1. See Response,
Exhibit 1, Salsgiver CAP Authorization Order.
Salsgiver Telecom Sept. 5, 2006 Letter, Exhibit 1, CAP Tariff. See
Salsgiver Telecom Sept. 5, 2006 Letter, Exhibit 2, March 27, 2006
Secretarial Letter (permitting Salsgiver Telecom's CAP Tariff to become
effective on Feb. 14, 2006).
See Salsgiver Telecom Sept. 5, 2006 Letter, Exhibit 2.
See Salsgiver Telecom Sept. 5, 2006 Letter, Exhibit 2, March 27, 2006
Secretarial Letter (permitting Salsgiver Telecom's CAP Tariff to become
effective on Feb. 14, 2006) and Certificate of Public Convenience, issued
March 27, 2006. Although Salsgiver Telecom had received only provisional
authorization to operate as a CAP at the time it filed the Complaint, it
obtained final authorization from the PaPUC a few weeks later, on March
27, 2006. See supra at n. 6. The provisional nature of its authorizations
at the time of filing the Complaint does not change Salsgiver Telecom's
status as a "telecommunications carrier;" it merely indicates the
defeasibility of such status had Salsgiver Telecom failed to comply with
the PaPUC's instructions to file revisions to its proposed CAP Tariff. See
Letter Ruling dated August 29, 2006 from Barbara Esbin, Market Disputes
Resolution Division, Enforcement Bureau, to J.D. Thomas, Genevieve D.
Sapir, and Ralph F. Manning, Counsel to Complainant, and Kenneth E.
Hardman and John A. Alzamora, Counsel to Respondent, File No.
EB-06-MD-002, at 2.
We leave open the possibility that a state may define either
"telecommunications carrier" or "telecommunications service" under state
law in a manner so inconsistent with the definitions contained in sections
153(44) and 153(46) of the Act such that an entity could obtain state
certification and file state tariffs, yet not meet those federal statutory
definitions. Similarly, a state might authorize an entity to provide
telecommunications services only in some, but not all, portions of a state
such that additional evidence of the entity's status would be required to
demonstrate a right of attachment in those non-certificated portions of
the state. Neither situation, however, exists in this case, as far as our
record shows.
Paragon Cable Television Inc. v. FCC, 822 F.2d 152, 153-54 (D.C. Cir.
1987) (holding that the Commission properly refused to address the
attacher's arguments challenging the legality of the franchise authority's
decision to revoke the attacher's franchise, noting that it was
appropriate for the Commission to employ a "presumption of validity with
respect to the franchising authority's actions vis-`a-vis the franchise").
See id. at 154 & n.2 (citing Tele-Communications, Inc. v. South Carolina
Elec. & Gas Co., File No. PA-83-0027 (Com. Car. Bur. Apr. 19, 1985) as
holding that the utility could not substitute its judgment for the
franchising authority by removing pole attachments before such time as the
franchising authority's revocation actually took effect).
Texas Util. Elec. Co v. FCC, 997 F.2d 925, 934-35 (D.C. Cir. 1993).
Moreover, NPTC does not argue that it lacks adequate recourse at the state
level if it believes the PaPUC erred either in approving Salsgiver
Telecom's application to provide telecommunications services as a CAP, or
in accepting Salsgiver's CAP Tariff for filing. See generally, Response,
Exhibit 1, Salsgiver CAP Authorization Order at 2 ("The Company complied
with notice requirements set forth in our Application form. . . No
protests were filed. No hearings were held."); 52 Pa. Code S 54.36
(procedure for protests to applications); 52 Pa. Code S 5.572 (procedures
for petitions for relief following a final decision).
After it filed the instant Complaint, Salsgiver Telecom received
authorization from the PaPUC to provide -- in addition to CAP services --
certain other telecommunications services. See Complainant's Motion for
Leave to File Notice and Notice, File No. EB-06-MD-002 (filed June 20,
2006); Complainant's Erratum, File No. EB-06-MD-002 (filed June 30, 2006).
We need not and do not rely on that authorization, however, because we
have an adequate basis to resolve the instant Complaint, and do resolve
it, on the basis of the PaPUC service authorization Salsgiver Telecom
possessed at the time it filed the instant Complaint.
Salsgiver Telecom also claims that it is entitled to pole access on the
ground that it is a provider of interstate telecommunications services
pursuant to (i) the Commission's rules forbearing from requiring
non-dominant interexchange and local exchange carriers to file tariffs,
and (ii) the Commission's blanket authorization for non-dominant carriers
to enter interstate markets. Complaint at 3, P 9; Reply of Salsgiver
Telecom, Inc., File No. EB-06-MD-002 (filed Mar. 30, 2006) ("Reply") at 9,
14-16. NPTC, however, challenges the adequacy of Salsgiver Telecom's
factual showing that it is a provider of interstate telecommunications
services. Response at 13-14, PP 45-48, 49-55. Because we find that
Salsgiver Telecom is entitled to access NPTC's poles on the basis of its
intrastate telecommunications service authorizations and service
offerings, we need not and do not decide whether Salsgiver Telecom has
submitted sufficient proof of its status as a provider of interstate
telecommunications services.
47 C.F.R. S 1.1409(b).
See, e.g., Response at 6, P 14; 7, P 16; 12, P 43; 13-15, PP 50-54, 57-58.
See, e.g., Response at 14-15, PP 56-59.
See, e.g., Investigation of Special Access Tariffs of Local Exchange
Carriers, Memorandum Opinion and Order, 8 FCC Rcd 4712, 4712 at P 2 (1993)
("Special Access Tariff Investigation"); MTS and WATS Market Structure
Order, 93 FCC 2d at 249-50 at PP 20- 23; American Telephone & Telegraph
Company; Private Line Rate Structure and Volume Discount Practices, Notice
of Inquiry and Proposed Rulemaking, 74 FCC 2d 226 (1979) (investigating
whether the pricing of AT&T's competitive private line services was
consistent with 47 U.S.C S 202, which prohibits unjust discrimination by
common carriers).
Special Access Tariff Investigation, 8 FCC Rcd at 4712, P 2.
47 C.F.R. S 61.40 (providing rate structure requirements for the tariffed
private line services of dominant common carriers); Access Charge Reform,
Fifth Report and Order, 14 FCC Rcd 14221 (1999) (establishing pricing
flexibility rules for incumbent local exchange carrier ("ILEC") special
access - interstate private line - services, including circumstances in
which ILECs may offer such services on an individually tailored "contract
tariff' basis), aff'd sub nom. WorldCom v. FCC, 238 F.3d 449 (D.C. Cir.
2001); see Special Access Tariff Investigation, supra (investigating
certain issues related to duration of the Other Common Carrier (OCC) Rate
Equalization Plan adopted in connection with replacing local private line
services provisioned under tariff by AT&T prior to the advent of effective
special access tariffs).
See Universal Service Order, 12 FCC Rcd at 9175, P 780; 9355-56 at
Appendix I (stating that private line services qualify as
"telecommunications" and adopting rules providing for universal service
contributions by interstate telecommunications carriers); 47 C.F.R. S
54.706(a) (stating that entities that provide "interstate
telecommunications" -- including "private line service" -- to the public,
or to such classes of users as to be effectively available to the public,
for a fee will be considered "telecommunications carriers" providing
interstate telecommunications services and must contribute to the
universal service support mechanisms.).
In its August 19, 2005 Letter explaining its reasons for denying Salsgiver
Telecom access to its poles, NPTC cited Salsgiver Telecom's lack of
certification by the PaPUC as a "CLEC." Complaint, Exhibit 6 at 1;
Response at 7, P 13; 10, P 17. If NPTC is thereby contending that it may
deny pole access to Salsgiver Telecom merely because it is certified as a
"CAP" rather than as a "CLEC," we reject that position. For the reasons
described above, the "Competitive Access Provider" services listed in the
CAP Tariff qualify as "telecommunications services" under the Act.
Moreover, through its CAP Tariff, Salsgiver Telecom holds itself out to
provide the listed telecommunications services indiscriminately to the
public, for a fee. Thus, the fact that Salsgiver Telecom is a "CAP" rather
than a "CLEC" provides no lawful basis under the Act for NPTC to deny
Salsgiver access to NPTC's poles.
See, e.g., Integrated Services Digital Networks, First Report, 98 FCC2d
249, 278, n.77 (1984) ("A tariff for interstate service is a public offer
to provide service ... ."); Harry Newton, Harry Newton, Newton's Telecom
Dictionary 888 (22nd ed. 2006) (defining "tariff" in relevant part as a
"public document [that]details services, equipment and pricing offered by
the telephone company (a common carrier) to all potential customers")
(emphasis added).
See CAP Tariff, "Application of Tariff," Page 4 of 28.
CAP Tariff, "Service Offered," Page 4 of 28.
CAP Tariff, Sections 3 "Description of Service" at Section 3.1, Page 25 of
28. In addition, the Tariff specifies: "Digital channels over the
Company's network are furnished for full-duplex transmission of digital
signals ... ." Id. at Section 3.2, Page 25 of 28.
47 U.S.C. S 153 (43), (46). To the extent that NPTC's characterization of
Salsgiver's services as "broadband" services is intended to suggest that
they are information services, we disagree with that suggestion for the
reasons discussed above. See NPTC Nov. 23, 2005 Letter at 2; Response at
6, P 14.
Response at 6, 14-15, PP14, 56-59.
See National Cable & Telecommunications Ass'n, Inc. v. Gulf Power Co., 534
U.S. 327 (2002) (holding, in an analogous context, that the protections of
section 224 continue to apply to attachments by cable systems, even if the
attachments are simultaneously used to provide both cable service and a
non-cable service, such as high-speed Internet access).
Response at 6, 12, PP 14, 43-44. The Commission's rules define "Terminal
equipment" as: "[C]ommunications equipment located on the customer's
premises at the end of a communications link, used to permit the stations
involved to accomplish the provision of telecommunications or information
services." 47 C.F.R. S 68.3.
See, e.g., 47 C.F.R. S 68.100 ("[T]erminal equipment may be directly
connected to the public switched telephone network, including private line
services provided over wireline facilities that are owned by providers of
wireline telecommunications.") (emphasis added); 47 C.F.R. 68.106(a)
("Customers connecting terminal equipment or protective circuitry to the
public switched telephone network shall, upon request of the provider of
wireline telecommunications, inform the provider of wireline
telecommunications of the particular line(s) to which such connection is
made, and any other information required to be placed on the terminal
equipment ... ."); 47 C.F.R. S 64.702(e) ("Except as otherwise ordered by
the Commission, the carrier provision of customer premises equipment used
in conjunction with the interstate telecommunications network may be
offered in combination with the provision of common carrier communications
services, except that the customer premises equipment shall not be offered
on a tariffed basis.") (emphasis added). See generally, Policy and Rules
Concerning the Interstate, Interexchange Marketplace/Implementation of
Section 254(g) of the Communications Act of 1934, As Amended/1998 Biennial
Review - Review of the Customer Premises Equipment and Enhanced Services
Unbundling Rules in the Interexchange, Exchange Access and Local Exchange
Markets, Report and Order, 16 FCC Rcd 7418, 7428, 7437, PP 19, 32 (2001)
(eliminating requirement that non-dominant carriers unbundle CPE from
facilities and services).
47 U.S.C. S 153(46); see id. at S 153(44).
Response at 13-14, PP 49-55.
47 U.S.C. S 224(f) (emphasis supplied).
See 47 U.S.C. SS 153(44), (46), (43).
Id. at S 224(b) and (c); Complaint at 2, P 6; Response at 2, P 6. Public
Notice, States That Have Certified That They Regulate Pole Attachments, 7
FCC Rcd 1498 (1992).
See 47 U.S.C. S 152(b).
In support of its assertion that section 224 affords no pole attachment
rights to intrastate carriers, NPTC cites the definition of "common
carrier" in section 153(10) of the Act, which provides, in part, that a
"`common carrier' or `carrier' means any person engaged as a common
carrier for hire, in interstate or foreign communication by wire or radio
... ." 47 U.S.C. S 153(10)(emphasis supplied). See Response at 14, P 51.
We reject any implication that this definition of "common carrier" limits
the reach of section 224 to "telecommunications carriers" who operate
interstate. First, as stated above, the definition of "telecommunications
carrier" (including the related definitions of "telecommunications
service" and "telecommunications") contains no limitation to providers of
interstate communications. 47 U.S.C. SS 153(44),(46),(43). Moreover, such
a restrictive interpretation of the term "telecommunications carrier" as
used in section 224(f)(1) would eviscerate Congress' intent to open local
telecommunications markets to competition through the 1996 Act and would
undermine the Commission's policy of encouraging facilities-based
competitive entry. See, e.g., Review of the Section 251 Unbundling
Obligations of Incumbent Local Exchange Carriers, Implementation of the
Local Competition Provisions of the Telecommunications Act of 1996,
Deployment of Wireline Services Offering Advanced Telecommunications
Capability, Report and Order and Order on Remand and Further Notice of
Proposed Rulemaking, 18 FCC Rcd 16978, 16983-84 at PP 1-3 (2003)
("Triennial Review Order"), corrected by Triennial Review Order Errata, 18
FCC Rcd 19020 (2003) (subsequent history omitted).
See 47 U.S.C. S 1.1404 (m) (providing, in pertinent part: "[i]n a case
where a cable television system operator or telecommunications carrier
claims that it has been denied access to a pole, duct, conduit or
right-of-way despite a request made pursuant to section 47 U.S.C. S
224(f), the complaint shall be filed within 30 days of such denial.").
See Response at 10, P 19; NPTC Nov. 23, 2005 Letter.
See Implementation of Section 703(e) of the Telecommunications Act of
1996; Amendment of the Commission's Rules and Policies Governing Pole
Attachments, Report and Order, 13 FCC Rcd 6777, 6788-89, P 19 (1998)
(rejecting pole owners' proposal to impose a statute of limitations on
pole attachment complaints) (subsequent history omitted).
See 47 C.F.R. S 1.3 ("Any provision of the rules may be waived by the
Commission on its own motion or on petition if good cause therefor is
shown.").
Reply at 19-20; Reply, Declaration of Loren Salsgiver, Chief Executive
Officer of Salsgiver Telecom, at 2, PP 3, 4.
See, e.g., Implementation of the Telecommunications Act of 1996, Amendment
of Rules Governing Procedures to be Followed When Formal Complaints are
Filed Against Common Carriers, Order on Reconsideration, 16 FCC Rcd 5681,
5697, P 37 (2001) (noting, in the context of formal complaints filed under
section 208 of the Act, that staff-supervised pre-complaint mediation is
"highly recommend[ed]," because the "presence of Commission staff in
mediation and settlement talks has facilitated the achievement of mutually
agreeable solutions to disputes."); Kansas City Cable Partners v. Kansas
City Power & Light Co., Order, 14 FCC Rcd 11599, 11602 at P 6 (Cab. Serv.
Bur. 1999) ("Private negotiation is the preferred method for creating pole
attachment arrangements and for dispute resolution.") (footnotes omitted).
Response at 11-12, PP 36-41. Indeed, it appears that section 1.1404(m) was
promulgated to protect the interest of pole attachers in speedy resolution
of pole access disputes. See Implementation of Section 703(e) of the
Telecommunications Act of 1996; Amendment of the Commission's Rules and
Policies Governing Pole Attachments, Report and Order, 13 FCC Rcd 6777 at
6788, P 18 (noting the interest of cable operators in the swift resolution
of pole access disputes). It would thus be incongruous to penalize an
attacher for promptly seeking alternative dispute resolution before filing
a formal complaint.
We further note that, although NPTC's initial denial of Salsgiver
Telecom's written request for pole access occurred on November 23, 2005,
NPTC has continued to deny Salsgiver Telecom access to its poles. See
Supplemental Response of NPTC Regarding Salsgiver Telecom Response to
Letter Ruling Dated Aug. 29, 2006, File No. EB-06-MD-002 (filed Sept. 14,
2006) at 1-3. Dismissal of the instant Complaint based on an alleged
failure to comply with section 1.1404(m) would only serve to delay the
resolution of this dispute, because Salsgiver Telecom would be free to
submit another request for access to NPTC, and to file a new complaint,
once NPTC responded with another denial of access. Such a scenario would
result in a waste of resources for both the parties and the Commission.
Complaint at 8-9, PP 29-30 (citing 47 U.S.C. SS 501, 503(a) and (b); 47
C.F.R. SS 1.1413, 1.80); see id. at 10-11, P 34. Salsgiver Telecom also
asserted a request for damages, citing SS 206-209 of the Act, 47 U.S.C. SS
206-209. Complaint at 8-9, P 29. It did not, however, offer proof of any
alleged damages, nor did it comply with the Commission's rules for
bringing complaints for damages under sections 206-208 of the Act. See 47
C.F.R. SS 1.720 - 1.736. As a result of these deficiencies, we are unable
to assess the merits of Salsgiver Telecom's request for damages and
therefore deny it.
Complaint at 7-9, PP 24-30. See Fiber Technologies Networks, L.L.C. v.
North Pittsburgh Tel. Co., File No. EB-05-MD-014 (Complaint filed July 8,
2005); DQE Communications Network Servs. v. North Pittsburgh Tel. Co.,
File No. EB-05-MD-027 (Complaint filed Sept. 16, 2005); Salsgiver
Communications, Inc. v. North Pittsburgh Tel. Co., File No. EB-06-MD-004
(Complaint filed Mar. 20, 2006).
See DQE Communications Network Servs. v. North Pittsburgh Tel. Co.,
Memorandum Opinion and Order, 22 FCC Rcd 2112 (Enf. Bur. 2007); Fiber
Technologies Networks, L.L.C. v. North Pittsburgh Tel. Co., Memorandum
Opinion and Order, 2007 W.L. 580768 (Enf. Bur. 2007).
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(continued....)
Federal Communications Commission DA 07-2150
1
Federal Communications Commission FCC 00-XXX