Case Background
By notice
appearing in the Florida Administrative Register (F.A.R.) on November 4, 2021,
the Commission proposed the adoption of new Rule 25-18.010, Florida
Administrative Code (F.A.C.), Pole Attachment Complaints, to implement and administer
Section 366.04(8), Florida Statutes (F.S.). The Commission proposed the rule
after going through the rule development process that involved the following
stakeholders: Florida Internet and Television Association, Inc. (FIT), Comcast Cable Communications,
LLC (Comcast), AT&T, CTIA, Crown Castle Fiber LLC (Crown Castle),
Duke Energy Florida (DEF), Florida Power & Light Company (FPL), Tampa
Electric Company (TECO), and Frontier Communications.
On
November 29, 2021, pursuant to Section 120.54(3)(c), F.S., a Joint Request for
a Hearing and Separate Proceeding on Proposed Rule 25-18.010, F.A.C.
(Petition), was filed with the Commission by FIT, Atlantic Broadband, Miami,
LLC (Atlantic), Charter Communications, Inc. (Charter), Comcast, and Cox
Communications Gulf Coast, LLC (Cox) (Petitioners). Atlantic, Charter, Comcast,
and Cox are all members of FIT. The Petition asked for a rule hearing to allow
the Petitioners the opportunity to address several problems it identified with
the proposed rule.
The
Petitioners argued that the proposed rule conflicts with Section 366.04(8)(e),
F.S., because it fails to recognize that the FCC’s decisions, orders, and
applicable appellate court decisions govern as the default rules applicable to
pole attachment complaints. The Petitioners further argued that the proposed
rule failed to articulate any standard or methodology to be followed by the
Commission in resolving pole attachment complaints, which they alleged is
required for certification to the FCC. Petitioners stated that, because the
proposed rule has no methodology or standard governing whether a pole
attachment rate is just and reasonable, the proposed rule is vague and lacking
in adequate standards, resulting in unbridled discretion in the Commission. The
Petitioners’ position was that the FCC’s rules should be set forth as the
default standard, and that failure to include the FCC’s decisions, orders, and
applicable appellate court decisions is contrary to the public interest and
will harm consumers. Petitioners also filed a rule challenge at the
Division of Administrative Hearings (DOAH) that is currently stayed.
A Section
120.54(3)(c)1., F.S., rule hearing was held at the Commission’s regularly
scheduled agenda on February 1, 2022, at which staff recommended changes to the
proposed Pole Attachment Complaints rule. The recommended changes were the
result of discussions by staff with Petitioners and comments received from stakeholders during this
rulemaking process. Staff’s focus was for the changes to continue to reflect
the authority and the direction given by the Legislature to the Commission set
forth in Section 366.04(8), F.S. At hearing, the recommended changes were
supported by Petitioners, FPL, TECO, and DEF. AT&T suggested
alternative changes to the proposed rule. The Commission did not vote on
whether changes should be made to the proposed rule and asked for the matter to
be brought back to the Commission for further consideration.
Section
366.04(8), Florida Statutes
The
2021 Florida Legislature amended Section 366.04, Florida Statutes (F.S.),
Jurisdiction of Commission, to add a new Section (8), which states:
(8)(a) The commission shall regulate
and enforce rates, charges, terms, and conditions of pole attachments,
including the types of attachments regulated under 47 U.S.C. s. 224(a)(4),
attachments to streetlight fixtures, attachments to poles owned by a public
utility, or attachments to poles owned by a communications services provider,
to ensure that such rates, charges, terms, and conditions are just and
reasonable. The commission’s authority under this subsection includes, but is
not limited to, the state regulatory authority referenced in 47 U.S.C. s.
224(c).
(b) In the development of rules
pursuant to paragraph (g), the commission shall consider the interests of the
subscribers and users of the services offered through such pole attachments, as
well as the interests of the consumers of any pole owner providing such attachments.
(c) It is the intent of the
Legislature to encourage parties to enter into voluntary pole attachment
agreements, and this subsection may not be construed to prevent parties from
voluntarily entering into pole attachment agreements without commission
approval.
(d) A party’s right to
nondiscriminatory access to a pole under this subsection is identical to the
rights afforded under 47 U.S.C. s. 224(f)(1). A pole owner may deny access to
its poles on a nondiscriminatory basis when there is insufficient capacity, for
reasons of safety and reliability, and when required by generally applicable
engineering purposes. A pole owner’s evaluation of capacity, safety,
reliability, and engineering requirements must consider relevant construction
and reliability standards approved by the commission.
(e) The
commission shall hear and resolve complaints concerning rates, charges, terms,
conditions, voluntary agreements, or any denial of access relative to pole
attachments. Federal Communications Commission precedent is not binding upon
the commission in the exercise of its authority under this subsection. When
taking action upon such complaints, the commission shall establish just and
reasonable cost-based rates, terms, and conditions for pole attachments and
shall apply the decisions and orders of the Federal Communications Commission
and any appellate court decisions reviewing an order of the Federal
Communications Commission regarding pole attachment rates, terms, or conditions
in determining just and reasonable pole attachment rates, terms, and conditions
unless a pole owner or attaching entity establishes by competent substantial
evidence pursuant to proceedings conducted pursuant to ss. 120.569 and
120.57
that an alternative cost-based pole attachment rate is just and reasonable and
in the public interest. (emphasis added)
(f) In the administration and
implementation of this subsection, the commission shall authorize any
petitioning pole owner or attaching entity to participate as an intervenor with
full party rights under chapter 120 in the first four formal administrative
proceedings conducted to determine pole attachment rates under this section.
These initial four proceedings are intended to provide commission precedent on
the establishment of pole attachment rates by the commission and help guide
negotiations toward voluntary pole attachment agreements. After the fourth such
formal administrative proceeding is concluded by final order, parties to
subsequent pole attachment rate proceedings are limited to the specific pole
owner and pole attaching entities involved in and directly affected by the
specific pole attachment rate.
(g) The
commission shall propose procedural rules to administer and implement this
subsection. The rules must be proposed for adoption no later than January 1,
2022, and, upon adoption of such rules, shall provide its certification to the
Federal Communications Commission pursuant to 47 U.S.C. s. 224(c)(2).
Paragraph
8(e) above provides the basis for the recommended language in Attachment A that
would resolve this rule challenge.
Pursuant to paragraph (8)(g) above, after the proposed rule is filed
with the Department of State and becomes effective, staff intends to bring a
recommendation to the next available Commission Conference for Commission
approval and issuance of a certification order to be provided to the FCC.
Rule
Hearing
This
item is being brought back to the Commission as a Section 120.54(3)(c)1., F.S.,
rule hearing, the purpose of which is for the Commission to decide whether to
change the language of the proposed Pole Attachment Complaints rule as shown in
Attachment A. The provisions of Section 120.54(3)(c)1., F.S., give affected
persons the opportunity to present evidence and argument on all issues under
consideration. The Commission in making its determination is required to
consider any material pertinent to the issues under consideration submitted to
it between the date of publication of the notice of proposed rule and the end
of the public hearing.
The
Commission has jurisdiction under Sections 120.54, 350.127(2), and 366.04(8),
F.S.
Discussion
of Issues
Issue 1:
Should the Commission make changes to proposed Rule
25-18.010, F.A.C., Pole Attachment Complaints?
Recommendation:
Yes. The Commission should change proposed Rule
25-18.010, F.A.C., Pole Attachment Complaints, as shown in Attachment A.
(Cowdery, Wendel)
Staff Analysis:
The
intent of proposed Rule 25-18.010, F.A.C., was to adopt a procedural rule that
would identify for complainants and respondents the information they would need
to file with the Commission in order for the Commission to process pole
attachment complaints pursuant to Section 366.04(8), F.S.
At the
February 1, 2022 rule hearing, AT&T made several suggested changes to the
proposed rule language. Staff agrees
with two of the suggested changes.
First, AT&T suggested that the word “requests” should be substituted
for the words “involves” and “proposes” in paragraphs (1)(f) and (4)(b). Second,
AT&T suggested that the word “decisions” should be added to those
paragraphs. The recommended changes to
the filing requirements in the proposed Pole Attachment Complaints rule are as
follows:
(1) A complaint filed with the Commission by a pole owner or
attaching entity pursuant to Section 366.04(8), F.S., must contain:
…
(f) If the complaint requires the
Commission to establish just and reasonable cost-based rates, terms, and
conditions for pole attachments, the complaint must contain an explanation of
the methodology the complainant is requesting the Commission to apply; If
the complaint requests the establishment of rates, charges, terms, or
conditions for pole attachments and the complainant proposes the application of
rates, terms, or conditions that are based upon Federal Communications
Commission (FCC) rules, decisions, orders, or appellate decisions, the
complainant must identify the specific applicable FCC rules, decisions, orders,
or appellate decisions that the Commission should apply pursuant to Section
366.04(8)(e), F.S.; provided, however, that if the complainant requests an
alternative cost-based rate, the complainant must identify the methodology and
explain how the alternative cost-based rate is just and reasonable and in the
public interest.
(4) A response filed under subsection (3) of this rule must
include the following:
…
(b) If the complaint requires the Commission to establish
just and reasonable cost-based rates, terms, and conditions for pole
attachments, the response must contain an explanation of the methodology the
respondent is requesting the Commission to apply. If the complaint requests the
establishment of rates, charges, terms, or conditions for pole attachments and
the respondent proposes the application of rates, terms or conditions that are
based upon FCC rules, decisions, orders, or appellate decisions, the respondent
must identify the specific applicable FCC rules, decisions, orders, or
appellate decisions that the Commission should apply pursuant to Section
366.04(8)(e), F.S.; provided, however, that if the respondent requests an
alternative cost-based rate, the respondent must identify the methodology and
explain how the alternative cost-based rate is just and reasonable and in the
public interest.
The
changes to the proposed rule language are consistent with Section 366.04(8)(e),
F.S., which requires the Commission in resolving complaints to apply the
decisions and orders of the FCC and any appellate court decisions reviewing an
order of the FCC regarding pole attachment rates, terms or conditions unless
a pole owner or attaching entity establishes by competent substantial evidence
“that an alternative cost-based pole attachment rate is just and reasonable and
in the public interest.” Staff believes that these changes give more
specificity to the filing requirements, while not changing the intent of the procedural
rule. Providing more specificity as to filing requirements gives more guidance
to parties to assure that the Commission gets the information it needs to
fulfill its statutory duty to hear and resolve complaints as set forth in
366.04(8), F.S.
Staff
does not recommend making the remaining changes suggested by AT&T at the
February 1, 2022 rule hearing because those changes are unnecessary and are not
consistent with the enabling legislation, Section 366.04(8)(e), F.S.
Conclusion
For the reasons set forth above, staff recommends that the
Commission should change proposed Rule 25-18.010, F.A.C., Pole Attachment
Complaints, as shown in Attachment A.
Issue 2:
Should this docket be closed?
Recommendation:
No. This docket should remain open pending further
rulemaking steps under Section 120.54, F.S. In addition, the docket should
remain open until the Commission provides certification to the FCC as required
by Section 366.04(8)(g), F.S. (Cowdery)
Staff Analysis:
This docket should remain open to take further
rulemaking steps under Section 120.54, F.S., in order to file the rule for
adoption with the Department of State. The rule will become effective 20 days
after it is filed for adoption.
In addition, the docket should remain open until the
Commission provides certification to the FCC as required by Section
366.04(8)(g), F.S. After the rule becomes effective, staff intends to bring a
recommendation to the next available Commission Conference for the Commission
to issue a certification as required by Section 366.04(8)(g), F.S., to be
provided to the FCC pursuant to 47 U.S.C. § 224(c)(2) and 47 C.F.R. § 1.1405.
25-18.010
Pole Attachment Complaints
(1)
A complaint filed with the Commission by a pole owner or attaching entity
pursuant to Section 366.04(8), F.S., must contain:
(a)
The name, address, email address, and telephone number of the complainant or
complainant’s attorney or qualified representative;
(b)
A statement describing the facts that give rise to the complaint;
(c)
Names of the party or parties against whom the complaint is filed;
(d)
A copy of the pole attachment agreement, if applicable, and identification of
the pole attachment rates, charges, terms, conditions, voluntary agreements, or
any denial of access relative to pole attachments that is the subject matter of
the complaint;
(e)
A statement of the disputed issues of material fact or a statement that there
are no disputed issues of material fact;
(f)
If the complaint requires the Commission to establish just and reasonable
cost-based rates, terms, and conditions for pole attachments, the complaint
must contain an explanation of the methodology the complainant is requesting
the Commission to apply; If the complaint requests the establishment of
rates, charges, terms, or conditions for pole attachments and the complainant
proposes the application of rates, terms, or conditions that are based upon
Federal Communications Commission (FCC) rules, decisions, orders, or appellate
decisions, the complainant must identify the specific applicable FCC rules, decisions,
orders, or appellate decisions that the Commission should apply pursuant to
Section 366.04(8)(e), F.S.; provided, however, that if the complainant requests
an alternative cost-based rate, the complainant must identify the methodology
and explain how the alternative cost-based rate is just and reasonable and in
the public interest.
(g)
If the complaint involves a dispute regarding rates or billing, a statement of
the dollar
amount in dispute, the dollar amount not
in dispute, whether the amount not in dispute has
been paid to the pole owner, and if not
paid the reasons why not;
(h)
A statement of the relief requested, including whether a Section 120.569 and 120.57, F.S.,
evidentiary hearing is being requested to resolve the complaint; and
(i)
A certificate of service that copies of the complaint have been furnished by
email to the party or parties identified in paragraph (1)(c) of this rule.
(2)
The filing date for the complaint is the date that a complaint is filed with
the Commission Clerk containing all required information set forth in
subsection (1) of this rule.
(3)
The pole owner or attaching entity that is the subject of the complaint may
file a response to the complaint. The
response must be filed with the Commission Clerk within 30 calendar days of the
date the complaint was served on the respondent, unless the Prehearing Officer
grants a motion for extension of time filed pursuant to Rule 28-106.204,
F.A.C., or Rule 28-106.303, F.A.C., as appropriate.
(4)
A response filed under subsection (3) of this rule must include the following:
(a)
A statement of whether a Section 120.569 and 120.57, F.S., evidentiary hearing
is being requested to resolve the complaint; and
(b)
If the complaint requires the Commission to establish just and reasonable
cost-based rates, terms, and conditions for pole attachments, the response must
contain an explanation of the methodology the respondent is requesting the
Commission to apply. If the complaint requests the establishment of
rates, charges, terms, or conditions for pole attachments and the respondent
proposes the application of rates, terms, or conditions that are based upon FCC
rules, decisions, orders, or appellate decisions, the respondent must identify
the specific applicable FCC rules, decisions, orders, or appellate decisions
that the Commission should apply pursuant to Section 366.04(8)(e), F.S.;
provided, however, that if the respondent requests an alternative cost-based
rate, the respondent must identify the methodology and explain how the alternative
cost-based rate is just and reasonable and in the public interest.
(5)
The Commission will take final action on a complaint concerning rates, charges,
terms, conditions, and voluntary agreements relative to pole attachments at a
Commission Conference no later than 360 days after the complaint’s filing date
as set forth in subsection (2) of this rule.
(6)
The Commission will take final action on a complaint limited to denial of
access relative to pole attachments at a Commission Conference no later than
180 days after the complaint’s filing date as established under subsection (2)
of this rule.
Rulemaking
Authority 350.127(2), 366.04(8)(g) FS.
Law Implemented 366.04(8) FS.
History-New__________
DOAH
granted the stay on the basis that moving forward with the DOAH proceeding
while the Commission is considering the request for a public hearing and
conducting same would be duplicative and could result in a waste of judicial
and other resources.
