Common carrier services: Telecommunications Act of l996; implementation— Local competition provisions,

[Federal Register: December 6, 1999 (Volume 64, Number 233)]

[Rules and Regulations]

[Page 68053-68054]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr06de99-19]

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[CC Docket No. 96-98; FCC 99-266]

Implementation of Local Competition Provisions of the Telecommunications Act of 1996

AGENCY: Federal Communications Commission.

ACTION: Final rule.

SUMMARY: In this document, the Commission analyzes petitioners' requests for reconsideration or clarification of the access requirements the Commission implemented pursuant to Section 224 of the Communications Act, as amended by the 1996 Telecommunications Act, including capacity expansion, the exercise of eminent domain, reservation of space, utilities' access obligations, worker qualifications, the timing and manner of notification of modifications, allocation of modification costs, and state certification of access regulation. The general requirements are designed to give parties flexibility to reach agreements on access to utility-controlled poles, ducts, conduits and rights-of-way, without the need for regulatory intervention.

FOR FURTHER INFORMATION CONTACT: Nancy Stevenson, Cable Services Bureau (202) 418-7200, TTY (202) 418-7172.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order on Reconsideration in CC Docket No. 96-98, FCC 99-266, adopted October 20, 1999, and released October 26, 1999. In the Order on Reconsideration, the Commission analyzes petitioners' requests for reconsideration or clarification of the access requirements contained in the First Report and Order (61 FR 45476-01), implemented pursuant to the Notice of Proposed Rulemaking (61 FR 18311) and Section 224 of the Communications Act, as amended by the 1996 Telecommunications Act. The complete text of the Order on Reconsideration is available for inspection and copying during normal business hours in the FCC Reference Center, and may also be purchased from the Commission's copy contractor, International Transcription Service (``ITS, Inc.''), (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036. In addition, the complete text of the Order on Reconsideration is available on the Internet at http://www.fcc.gov/Bureaus/Cable/Orders/1999/fcc99266.txt.

Synopsis of the Order on Reconsideration

1. Section 224 of the Communications Act, as amended by the 1996 Act, imposes upon all utilities, including local exchange carriers (``LECs''), the duty to ``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.'' The Local Competition Order adopted general rules and guidelines regarding access to utility-controlled poles, ducts, conduits, and rights-of-way. The Order on Reconsideration analyzes petitioners' requests for reconsideration or clarification of the access requirements of the Local Competition Order.

2. Key findings:

   Access to electric transmission facilities: Use of any utility pole, duct, conduit, or right-of-way for wire communications triggers access to all poles, ducts, conduits, and rights-of-way owned or controlled by a utility, including those not currently used for wire communications. To the extent an electric transmission facility is a `pole, duct, conduit or right-of-way,' the facility would be subject to the access provisions of section 224.

   Eminent domain: The right to exercise eminent domain is generally a matter of state law, exercised according to the varying limitations imposed by particular states. Neither the statute nor its legislative history offers convincing evidence that Congress intended for section 224 to compel a utility to exercise eminent domain. Accordingly, the Order on Reconsideration finds that section 224 does not create a federal requirement that a utility be forced to exercise eminent domain on behalf of third party attachers.

   Capacity Expansion: The principle of nondiscrimination established by section 224(f)(1) requires a utility to take all reasonable steps to expand capacity to accommodate requests for attachment, just as it would expand capacity to meet its own needs. Before denying access based on a lack of capacity, a utility must explore potential accommodations in good faith with the party seeking access.

   Reservation of Space: Attaching parties may use a utility's reserve space until the utility has an actual need for the space. A utility may recover the reserved capacity for its own use, based upon its actual need for the reserved capacity. Capacity that is allocated or planned for emergency purposes in a utility's contingency plan should not be subject to the access obligations of reserved capacity in general. A utility may reserve capacity to carry core utility communications capacity that is essential to the proper operations of the utility system.

   Use of utility facilities for wire communications: Use of any utility pole, duct, conduit, or right-of-way for wire communications triggers access to all poles, ducts, conduits, and rights-of-way owned or controlled by the utility, including those not currently used for wire communications. In addition, internal communications are considered ``wire communications'' that trigger access obligations.

   Use of non-utility employees: While utilities may ensure that individuals who work in proximity to electric lines to perform pole attachments and related activities meet utility standards for the performance of such work, utilities may not dictate the identity of the workers who will perform the work itself.

   Notice of modifications: Under most circumstances, a utility should be able

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   to give 60-days' notice to attaching parties before facility modifications are undertaken, even in instances where a government or a government agency requires service to new customers in less that 60 days.

   Allocation of costs: The statute does not require that an attaching entity receive compensation for modification costs it incurred that create excess rights-of-way that are later sold to other entrants by utility.

   State certification: States that have previously certified their regulation of rates, terms and conditions of pole attachments need not re-certify in order to assert their jurisdiction over access. However, if a state that has not previously certified its authority over rates, terms and conditions wishes to begin to assert such jurisdiction, including jurisdiction over access pursuant to section 224(f), the state must certify in order to assert jurisdiction.

   Ordering Clauses

3. Pursuant to sections 224, 251 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 224, 251 and 303(r), the Order on Reconsideration is Adopted.

4. Pursuant to section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and section 1.106 of the Commission's rules, 47 CFR. 1.106 (1995), that the petitions for reconsideration or clarification are Denied in Part and Granted in Part.

   Federal Communications Commission. Magalie Roman Salas, Secretary.

   [FR Doc. 99-31497Filed12-3-99; 8:45 am]

   BILLING CODE 6712-01-P