(a) With respect to the formula referenced in § 1.1406(d)(2), a utility shall apportion the cost of providing unusable space on a pole so that such apportionment equals two-thirds of the costs of providing unusable space that would be allocated to such entity under an equal apportionment of such costs among all attaching entities.
(b) All attaching entities attached to the pole shall be counted for purposes of apportioning the cost of unusable space.
(c) Utilities may use the following rebuttable presumptive averages when calculating the number of attaching entities with respect to the formula referenced in § 1.1406(d)(2). For non-urbanized service areas (under 50,000 population), a presumptive average number of attaching entities of three. For urbanized service areas (50,000 or higher population), a presumptive average number of attaching entities of five. If any part of the utility's service area within the state has a designation of urbanized (50,000 or higher population) by the Bureau of Census, United States Department of Commerce, then all of that service area shall be designated as urbanized for purposes of determining the presumptive average number of attaching entities.
(d) A utility may establish its own presumptive average number of attaching entities for its urbanized and non-urbanized service area as follows:
(1) Each utility shall, upon request, provide all attaching entities and all entities seeking access the methodology and information upon which the utilities presumptive average number of attachers is based.
(2) Each utility is required to exercise good faith in establishing and updating its presumptive average number of attachers.
(3) The presumptive average number of attachers may be challenged by an attaching entity by submitting information demonstrating why the utility's presumptive average is incorrect. The attaching entity should also submit what it believes should be the presumptive average and the methodology used. Where a complete inspection is impractical, a statistically sound survey may be submitted.
(4) Upon successful challenge of the existing presumptive average number of attachers, the resulting data determined shall be used by the utility as the presumptive number of attachers within the rate formula.
[63 FR 12026, Mar. 12, 1998, as amended at 66 FR 34581, June 29, 2001. Redesignated and amended at 83 FR 44841, Sept. 4, 2018]
Notes of Decisions
CPS Energy v. Pub. Util. Comm'n, 537 S.W.3d 157 (Tex. App. 2017).
· cites it 4× “The FCC Telecom Formula is stated as follows: *164 [[Image here]] 47 C.F.R. § 1.1409 (e). On September 1, 2006, as required by PURA Section 54.”
Ameren Corp. v. Fed. Commc'ns Comm'n, 865 F.3d 1009 (8th Cir. 2017).
· cites it 2× “47 C.F.R. § 1.1409 (e)(1). Congress amended § 224 in 1996, expanding it to cover pole attachments by telecommunications providers.”
Am. Elec. Power Serv. Corp. v. Fed. Commc'ns Comm'n, 708 F.3d 183 (D.C. Cir. 2013).
“First, the 1996 Act amended § 224 to define a “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.”
Gulf Power Co. Alabama Power Co. v. Fed. Commc'ns Comm'n & United States of Am., Tampa Elec. Co. v. Fed. Commc'ns Comm'n & United States of Am., Florida Power & Light Co. v. Fed. Commc'ns Comm'n & United States of Am., Commonwealth Edison Co. v. Fed. Commc'ns Comm'n & United States of Am., Potomac Elec. Power Co. v. Fed. Commc'ns Comm'n & United States of Am., Texas Utils. Elec. Co. v. Fed. Commc'ns Comm'n & United States of Am., Union Elec. Co., D.B.A. Amerenue v. Fed. Commc'ns Comm'n & United States of Am., Am. Elec. Power Servs. Corp. v. Fed. Commc'ns Comm'n & United States of Am., Duke Energy Corp. v. Fed. Commc'ns Comm'n & United States of Am., Virginia Elec. & Power Co. v. Fed. Commc'ns Comm'n & United States of Am., Carolina Power & Light Co. v. Fed. Commc'ns Comm'n & United States of Am., Duquesne Light Co. v. Fed. Commc'ns Comm'n & United States of Am., Delmarva Power & Light Co. v. Fed. Commc'ns Comm'n & United States of Am., 208 F.3d 1263 (11th Cir. 2000).
· cites it 2× “; (2) factors to be considered by the administrative law judge in determining the lawfulness of the rent or conditions the utility sought, see id.”
Gulf Power Co. v. Fed. Commc'ns Comm'n, 208 F.3d 1263 (11th Cir. 2000).
· cites it 4× “; and (3) a formula for determining the maximum rent the utility could receive, see 47 C.F.R. § 1.1409 . Under the formula, the maximum rent a utility could charge was the attacher's proportionate share8 of the bare costs of maintaining the pole and the "carrying charges"9…”
Alabama Power Co. v. Fed. Commc'ns Comm'n, 311 F.3d 1357 (11th Cir. 2002).
“The mathematical expression of the Commission's rules, found in 47 C.F.R. § 1.1409 (e)(1), is as follows: Maximum Rate = (Space Occupied by Attachment 4- Total Usable Space) x Net Cost of Bare Pole x Carrying Charge Rate 2 .”
Alabama Power Co. v. Fed. Commc'ns Comm'n, 773 F.2d 362 (D.C. Cir. 1985).
· cites it 3× “”) at 152; see also 47 C.F.R. § 1.1409 (1984). In practice, however, the Commission first determines the net cost of the pole, then multiplies that amount by a percentage figure that reflects operating expenses (also referred to as “carrying charges”), and then multiplies the…”
— 47 C.F.R. § 1.1409(e) — 3 cases
CPS Energy v. Pub. Util. Comm'n, 537 S.W.3d 157 (Tex. App. 2017).
“The FCC Telecom Formula is stated as follows: *164 [[Image here]] 47 C.F.R. § 1.1409 (e). On September 1, 2006, as required by PURA Section 54.”
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