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CATV Pole Attachment Rights
Stay Effective Date of Rules

Stay of effective date of rules and policies set forth in 72 FCC 2d 59 (relating to the adoption of rules for the regulation of cable television pole attachments), denied. Petitioner alleges it will prevail on the merits and will suffer irreparable injury if stay is not granted, but required showing was not made. CC 78_144

FCC 79-478

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

In the Matter of

Adoption of Rules for the Regulation of Cable Television Pole Attachments

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CC Docket No.
78-144

MEMORANDUM OPINION AND ORDER

(Adopted: August 1, 1979; Released: August 14, 1979) BY THE COMMISSION: COMMISSIONER LEE ABSENT.

1. Presently before the Commission is a “Request for Stay" filed by GTE Service Corporation and its affiliated domestic telephone companies (GTE) on June 29, 1979. GTE requests that the Commission stay the effectiveness of the amendments and modifications made to its rules and policies set forth in the Memorandum Opinion and Second Report and Order in CC Docket No. 78–144, FCC 79-308, released May 23, 1979 (Second Report) pending Commission action on the petitions for reconsideration filed by GTE and other parties.

2. GTE argues that it meets the criteria for a stay established by the court in Virginia Petroleum Jobbers Ass'n.1 GTE alleges that it 1 259 F.2d 921 (D.C. Cir. 1958). The court indicated that the following issues must be addressed in deciding whether to stay an order:

"(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal?

.. (2) Has the petitioner shown that without such relief, it will be irreparably injured?

...(3) Would the issuance of a stay substantially harm other parties interested in the proceedings?

will prevail on the merits, that it will suffer irreparable injury, that both interstate and intrastate ratepayers will be harmed without a stay, and that public interest calls for issuance of a stay. More specifically, it maintains that the rules and modifications contained in the Second Report are indefensible and not only deny due process but also conflict with the plain language of Section 224 of the Communications Act, 47 U.S.C. $224, and the intent of Congress in enacting that section. It contends that these defects are such that there must be a complete review of these rules, and that making them effective pending this review would cause GTE irreparable injury. It explains that GTE companies have been subjected to numerous data requests under the rules adopted in the First Report and Order in CC Docket No. 78–144, 68 FCC 2d 1585 (1978), (First Report), and expects that since the rules adopted in the Second Report would lead to a dramatic reduction in current pole attachment rates, enforcement of those rules would lead to additional demands for production of extensive data. This would require a substantial commitment of resources to comply with "wholly unreasonable demands” from CATV operators and would prejudice GTE's rights as well as damage interests of both interstate and intrastate ratepayers. GTE concludes that denial of a stay would clearly conflict with the public interest.

3. We have considered the arguments raised by GTE and find that a stay should not be issued for the reasons discussed below. First, we are unable to find that GTE has made a substantial showing that it is likely to prevail on the merits.2 The rules set forth in the First and Second Reports were adopted only after careful consideration of Section 22A and Congressional intent as indicated in the legislative history of P.L. No. 95–234 (which enacted Section 224). GTE, in its stay petition, has not convinced us that these rules are in clear conflict with Section 224 or the public interest. Therefore, it has not made a substantial case that it is likely to prevail upon the merits of a petition for reconsideration.

4. Second, we cannot find that GTE would be irreparably injured should we not grant the stay. Since the refund remedy of Section 1.1410 of the Rules is retroactive to the date a complaint is filed, there is an incentive for cable companies to proceed with contemplated complaints independent of any modifications to the Commission's Rules which might result from reconsideration of the Second Report. Moreover, even if a stay of the Second Report were granted, cable

..(4) Where lies the public interest?" Id. at 925. ? We recognize that the proponents of a stay are not required to establish that there is a probability that 'hey will prevail on the merits if the other three factors listed in Virginia Petroleum Jobbers Ass'n, supra, strongly favor a stay and if the petitioners have made a substantial case on the merits. Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 559 F.2d 841 (1977). Not only has GTE not made the requisite showing on the merits, but also it has not attempted to show that issuance of a stay would not harm other parties interested in the proceedings.

companies would still be entitled to request information consistent with rules adopted in the First Report. We do not perceive any significant change in these informational requirements as a result of the rule modifications contained in the Second Report. Thus, there is no apparent likelihood that a "deluge" of data requests will occur should the stay not be granted.3 Our experience with the approximately 40 complaints filed since release of the First Report does not lead us to expect such an onslaught of information demands. However, even if the demands were to substantially increase, we do not believe that responding to CATV operators' data requests will impose an undue burden on utility companies. We believe that the bulk of the information needed to fulfill these requests should be available to the utilities either from their internal records or from documents they have filed with this Commission or other regulatory bodies. Therefore, we reject GTE's arguments that denial of the stay would cause irreparable injury to either GTE or the utility ratepayers.

5. We find that, on balance, GTE has not met its burden of demonstrating that a stay would serve the public interest.

6. Accordingly, GTE's “Request for Stay" IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION,

WILLIAM J. TRICARICO, Secretary.

3 Indeed it would appear that there is no widespread concern about this since, of all the utilities affected by the Second Report, only GTE has filed a stay request arguing irreparable injury because of this (or any other) burden.

Fee Refund
Fee Schedule
Inquiry By FCC, see also Investigation or Notice Of Inquiry

The FCC is continuing its inquiry into refunds of fees collected
from 1970–76. This second notice of inquiry deals with fees that
were $20 and less. The FCC is taking this action in response to
decision of the U.S. Court of Appeals for the District of Columbia
Circuit. GN 78 316

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SECOND NOTICE OF INQUIRY (Adopted: August 1, 1979; Released: August 10, 1979) BY THE COMMISSION: COMMISSIONER LEE ABSENT; COMMISSIONER

JONES CONCURRING AND ISSUING A STATEMENT. In a Notice of Inquiry released October 6, 1978, the Commission instituted this proceeding to consider both the refund of previously collected fees and the adoption of a new fee schedule for future applicability. (See 43 Fed. Reg. 46658, 69 FCC 28 741). That Notice announced that the refund portion of this proceeding would be divided into two phases: Phase I dealing with fees which were greater than $20 and Phase II dealing with the smaller fees of $20 and less. In a First Report and Order released March 29, 1979 (44 Fed. Reg. 21267), the Commission adopted the final refund amounts and procedures to implement Phase I of the refund program. Refund request forms for Phase I were distributed in June 1979 and that program is now underway. The purpose of this Second Notice is to solicit public comment on the proposed procedures and refund amounts which have been developed for Phase II of the refund program.

Identification of Services In developing a recalculated schedule of fees for Phase II of the refund program,we have used essentially identical methods as were employed in Phase I. In constructing the recalculated schedule, we have retained a structure in which categories of services for which fees are charged closely parallel those used in previous fee schedules. This was done for three reasons. First, these services, which typically involve processing applications and authorizations which are necessary for orderly management of the radio spectrum are clearly identifiable and unambiguously confer special benefits from services rendered. Second, the courts have reviewed our statutory authority to collect fees for virtually all of these activities and have not explicitly criticized our classification of reimbursable services. Finally, timely resolution of this matter necessitates that services defined in our retrospective fee schedule closely resemble those activities for which fees were previously assessed.

The Court of Appeals has established relatively explicit requirements for compliance with 31 U.S.C. 483a.1 The requirement is basically in three parts: (1) Assessment of a fee must be justified by a clear statement of the service which it is intended to reimburse. (2) The cost basis for each fee must be calculated based on an allocation of direct and indirect costs, exclusion of expenses incurred to serve an independent public interest, and an explanation of the criteria used to include or exclude particular items. (3) The fee must be set at a rate which reflects the identified costs of services performed and value conferred on the recipient of the service.

The basic costing analysis undertaken by the bureaus and offices (which are available for inspection in the public reference room in this docket) provides a significant level of detail on the nature of the services for which fees are being charged which should satisfy the first requirement established by the court. We with to point out, however, that changes in the regulatory environment since 1970 likely will warrant redefinition of certain regulatory activities for which we expect to be reimbursed in years ahead. We propose to carefully review these definitions and, if necessary, make appropriate changes to be incorporated in a new, prospective fee schedule which was discussed in Section C of the Notice of Inquiry. 69 FCC 2d at 757.

Having defined those services which confer special benefits it was then necessary to explicitly account for all costs incurred by the Commission in processing license applications and other authorizations. As we noted earlier, the Court has been fairly explicit in establishing requirements for adoption of fees, which naturally apply whether the Commission is developing a new fee schedule for future application or recalculating past costs for purposes of making a refund.

Pursuant to this directive, the staff has derived direct and indirect costs of providing services for which fees were collected between 1970 and 1976. Preliminary estimates of these costs are summarized in Appendix A of this Notice. It must be emphasized that these estimates

1 The Commission's authority for collection is presently provided by Title V of the Independent Office Appropriations Act of 1952, 31 U.S.C. 488.

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