Case Background
The 2021
Legislature amended Section 366.04, Florida Statutes (F.S.), Jurisdiction of
Commission, to add subsection (8) that requires the Commission to hear and
resolve complaints concerning rates, charges, terms, conditions, voluntary
agreements, or any denial of access relative to pole attachments. Section
366.04(8)(g), F.S., required the Commission to propose procedural rules to
administer and implement Section 366.04(8), F.S., no later than January 1,
2022. In accordance with this statutory mandate, the Commission proposed Rule
25-18.010, Florida Administrative Code (F.A.C.), Pole Attachment Complaints, on November 4, 2021, by publication in the
Florida Administrative Register (F.A.R.).
After
considering evidence and argument at two rule hearings, the Commission voted to
make changes to the proposed rule, and a Notice of Change was published in the
F.A.R. on March 3, 2022. On March 11, 2022, AT&T filed a rule challenge at the
Division of Administrative Hearings (DOAH), alleging that Proposed Rule
25-18.010 was an unlawful delegation of legislative authority under Section
120.52(8), F.S. By Final Order issued on May 19, 2022, DOAH dismissed
AT&T's petition, finding that Proposed Rule 25-18.010 does not constitute
an invalid exercise of delegated legislative authority as to the objections
raised by AT&T.
On May 19, 2022,
Rule 25-18.010, F.A.C., was filed for adoption with the Department of State and
will become effective on June 8, 2022. Section 366.04(8)(g), F.S., requires that upon
adoption of the procedural rule, the Commission must provide its certification
to the Federal Communications Commission (FCC) pursuant to 47 U.S.C. §
224(c)(2).
Section 224(c)(2) of 47 U.S.C. states:
(c)
State Regulatory Authority Over Rates, Terms, and Conditions; Preemption;
Certification; Circumstances Constituting State Regulation
(2) Each
State which regulates the rates, terms, and conditions for pole attachments
shall certify to the Commission that—
(A) it regulates such rates, terms, and
conditions; and
(B) in so
regulating such rates, terms, and conditions, the State has the authority to
consider and does consider the interests of the subscribers of the services
offered via such attachments, as well as the interests of the consumers of the
utility services.
Additional
detail on the certification requirement of 47 U.S.C. § 224(c)(2)(A) is given in
47 U.S.C. § 224(c)(3)(A), which provides that a State shall not be considered
to “regulate the rates, terms, and conditions” for pole attachments unless the
State “has issued and made effective rules and regulations implementing the
State’s regulatory authority over pole attachments.” A federal regulation implementing 47 U.S.C. §
224(c)(3)(A), 47 C.F.R. § 1.1405(b)(3), gives further guidance and states that
it will be rebuttably presumed that the state is not regulating pole
attachments if the FCC does not receive certification from a state that:
It has issued and made effective rules and
regulations implementing the state’s regulatory authority over pole attachments
(including a specific methodology for such regulation which has been made
publicly available in the state).
This recommendation
addresses the next step in the required process set out in Section 366.04(8),
F.S., which is for the Commission to provide its certification to the FCC
pursuant to 47 U.S.C. § 224(c)(2). The Commission has jurisdiction under
Section 366.04(8), F.S.
Discussion
of Issues
Issue 1:
Should the Commission provide its certification to
the FCC pursuant to 47 U.S.C. § 224(c)(2), as required by Section 366.04(8)(g),
F.S.?
Recommendation:
Yes. As
required by Section 366.04(8)(g), F.S., the Commission should file its
certification with the FCC as set forth in Attachment A once the rule becomes
effective on June 8, 2022. (Cowdery, Hinton)
Staff Analysis:
As described in the Case Background, under 47 U.S.C.
§ 224(c)(2), the Commission must certify to two things, which are:
(A) it regulates such rates, terms, and conditions for
pole attachments; and
(B) in so regulating such rates, terms, and
conditions, the State has the authority to consider and does consider the
interests of the subscribers of the services offered via such attachments, as
well as the interests of the consumers of the utility services.
As explained in more detail below, the Commission can and
should make its certification to the FCC via the order appended as Attachment
A.
The plain language of Section 366.04(8)(a), F.S., shows
that the Legislature delegated to the Commission the power and duty to
“regulate and enforce rates, charges, terms, and conditions for pole
attachments,” as set forth in 47 U.S.C. § 224(c)(2)(A) and directed the
Commission, in so regulating, to consider the interests of subscribers and
consumers as required by 47 U.S.C. § 224(c)(2)(B). The Commission regulates
rates, terms, and conditions for pole attachments as required by 47 U.S.C. §
224(c)(2)(A), as further detailed in 47 U.S.C. § 224(c)(3)(A) and 47 C.F.R. §
1.1405(b)(3), through the requirements of Rule 25-18.010 and Section 366.04(8),
F.S.
Rule 25-18.010 implements the State’s regulatory authority
over pole attachments by identifying the information that needs to be in a pole
attachment complaint and response; explaining how a filing date is set; and
establishing the time limits for the Commission to take final action on a
complaint. This procedure sets forth a specific methodology for filing a
complaint to initiate the complaint resolution process. As stated in the Case
Background, in order for the Commission to be considered to regulate the rates,
terms, and conditions for pole attachments, 47 U.S.C. § 224(c)(3)(A) requires
the rules implementing the State’s regulatory authority over pole attachments
to be “effective.” Rule 25-18.010 becomes effective on June 8, 2022.
Section 366.04(8), F.S., sets forth requirements that the
Commission must follow concerning resolving pole attachment complaints. Among
other requirements, Section 366.04(8)(d), F.S., provides that a party’s right
to nondiscriminatory access to a pole is identical to the rights afforded under
47 U.S.C. § 224(f)(1). Section 366.04(8)(e), F.S., specifies what information the
Commission must consider and apply in determining just and reasonable pole
attachment rates, terms, and conditions. Section 366.04(8)(f), F.S., requires
the Commission in the administration and implementation of subsection (8) to follow
a specified procedure in conducting administrative proceedings to determine
pole attachments rates under Section 366.04(8), F.S., including that the
“initial four proceedings are intended to provide [C]ommission precedent on the
establishment of pole attachment rates by the [C]ommission and help guide
negotiations toward voluntary pole attachment agreements.” All these
requirements and procedures, along with Rule 25-18.010, F.A.C., constitute a
specific methodology which has been made publically available in Florida.
Conclusion
As required by Section 366.04(8)(g), F.S., the Commission
should file its certification to the FCC as set forth in Attachment A once the
rule becomes effective on June 8, 2022.
Issue 2:
Should this docket be closed?
Recommendation:
Yes. This docket should be closed upon filing of the
47 U.S.C. § 224(c) Certification with the FCC. (Cowdery)
Staff Analysis:
This docket should be closed upon filing of the 47
U.S.C. § 224(c) Certification with the FCC.
DRAFT
BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
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In
re: Proposed adoption of Rule 25-18.010, F.A.C., Pole
Attachment Complaints.
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DOCKET NO. 20210137-PU
ORDER
NO.
ISSUED:
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The following Commissioners participated in the
disposition of this matter:
ANDREW GILES FAY,
Chairman
ART GRAHAM
GARY F. CLARK
MIKE LA ROSA
GABRIELLA PASSIDOMO
47 U.S.C. §224(c) CERTIFICATION TO THE
FEDERAL
COMMUNICATIONS COMMISSION
BY THE COMMISSION:
The Florida Public Service Commission
hereby certifies to the Federal Communications Commission pursuant to 47 U.S.C.
§ 224(c) that the Florida Public Service Commission as an agency of the State
of Florida and as authorized by Section 366.04(8), Florida Statutes (2021):
(1)
Regulates the rates, terms, and conditions for pole
attachments;
(2)
In so regulating has the authority to consider and does
consider the interests of the subscribers of the services offered via such
attachments, as well as the interests of the consumers of the utility services;
and
(3)
Has issued and made effective rules and regulations
implementing the State of Florida’s regulatory authority over pole attachments
(including a specific methodology for such regulation which has been made
publicly available in the state).
By
ORDER of the Florida Public Service Commission this
day of ,
.
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ADAM J. TEITZMAN
Commission Clerk
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Florida Public Service Commission
2540 Shumard Oak Boulevard
Tallahassee, Florida 32399
(850) 413‑6770
www.floridapsc.com
Copies furnished:
A copy of this document is provided to the parties of record at the time
of issuance and, if applicable, interested persons.
KGWC
A rule is each
agency statement of general applicability that describes a procedure or
practice. § 120.52(16). Thus, Rule 25-18.010, F.A.C., is a collection of
sub-units, containing a number individual rules and regulations.
