deviation from the general rule and such deviation would better serve the public interest than strict adherence to the general rule.37 10. AT&T has failed to show special circumstances justifying waiver of our 90 day limitation on promotional offerings. AT&T's request is supported only by generalized allegations of competitive harm of the type that were specifically considered and rejected by the Commission in adopting rules implementing section 254(g). AT&T has demonstrated no circumstances significantly different from those contemplated by the Commission in considering its requests for exceptions to the rate averaging requirements. Further, we do not find that granting the requested waiver would serve the public interest. AT&T has failed to show in this particular case that the benefit to the public of allowing it to match Bell Atlantic's rates in the corridors outweigh the benefits of the national policy of geographic averaging embodied in section 254(g) of the Act and our implementing regulations.38 11. We will not address either the issues concerning Bell Atlantic's compliance with the Rate Averaging Order or the requests that we declare Bell Atlantic, NYNEX, and other incumbent LECs non-dominant in their provision of corridors services. Those issues are outside the scope of the instant waiver request. V. ORDERING CLAUSE 12. Accordingly, IT IS ORDERED, pursuant to section 0.291 of the Commission's Rules, 47 C.F.R. § 0.291, that AT&T's Petition for Waiver and Request for Expedited Consideration IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Regina M. Keeney Chief, Common Carrier Bureau 37 Northeast Cellular, 897 F.2d at 1166. 38 AT&T has raised on reconsideration of the Rate Averaging Order the issue of competitive exceptions to geographic rates averaging. USA FEDERAL COMMUNICATIONS COMMISSION 1919 M STREET, N.W. WASHINGTON, D.C. 20554 News media information 202/418-0500 Fax-On-Demand 202/418-2830 Internet: http://www.fcc.gov ftp.fcc.gov DA 97-130 January 17, 1997 THIRD QUARTER 1996 INFLATION ADJUSTMENT FIGURE As described in the instructions for FCC Form 1240, cable operators may adjust the nonexternal cost portion of their rates for inflation based on quarterly figures released by the Commission. The Third Quarter 1996 Inflation Factor for operators using FCC Form 1240 is 2.21%. The adjustment factor of 2.21% is a measure of the annualized change in prices occurring over the period from July 1, 1996 to September 30, 1996. The factor is based on the changes in the quarterly Gross National Product Price Index (GNP-PI) published by the Bureau of Economic Analysis (BEA) of the United States Department of Commerce. The indexes used, the Gross National Product: Chain-type price indexes for the second quarter 1996 and the third quarter 1996, were obtained from Table 4 of the BEA news release dated December 20, 1996 (BEA 96-40). The inflation adjustment factor is calculated by taking the GNP-PI from the third quarter of 1996 (110.2) and dividing by the GNP-PI for the second quarter of 1996 (109.6). The result of this calculation is converted from a quarterly change measurement factor to an annual change measurement factor by raising it to the fourth power. Operators calculating the Inflation Factor for a True-Up Period which includes some portion of the third quarter of 1996 should enter the inflation factor on the appropriate lines of Worksheet 1 of FCC Form 1240 as "0.0221". Operators using this factor for calculating the Projected Period Inflation Segment of FCC Form 1240 should enter this number on Line C3 as "1.0221". To date the Commission has released five quarterly inflation factors for use with FCC Form 1240. The following table lists these factors: The Commission releases a new quarterly inflation factor for operators using FCC Form 1240 four times each year. The inflation factor for a given quarter is usually released between three and four months after the end of the quarter, depending on the schedule of the Department of Commerce. The release of a new factor is posted on the Commission's Internet site at: http://www.fcc.gov/Bureau/Cable/WWW/csb.html. Media contact: Morgan Broman (202) 418-2358. Cable Services Bureau Contact: Hugh Boyle (202) 418-2286. --FCC- COMMISSION Danny E. Adams, Esq. 1200 19th Street, N.W. Suite 500 Washington, DC 20036 Washington, DC. 20554 January 17, 1997 DA 97-131 Released: January 17, 1997 Dear Mr. Adams: This letter is in response to your request for a letter ruling on an interpretation of Section 224 of the Communications Act of 1934, as amended.' Specifically, you seek an opinion as to whether it would be unreasonable per se under Section 224(b) for a covered utility to demand a requesting telecommunications company, as a condition of entering into a pole attachment agreement, to waive all legal rights and remedies under Section 224. Your letter provides a hypothetical involving negotiations between a telecommunications carrier and a utility over the terms of a proposed pole attachment agreement. In your example, the parties have agreed to all issues, except for the inclusion of the following clause: By execution of the Agreement by its duly authorized representative, Licensee Section 224 was enacted in 1978 in response to concerns raised by cable operators regarding unfair utility pole attachment practices. The intent was to minimize the effect of unjust or unreasonable pole attachment practices on the wider development of cable television service to the public. Amendments to Section 224 in the Telecommunications Act of 1996 1 47 U.S.C. § 224. ("1996 Act") were designed to address similar concerns arising from the anticipated entry of competitive telecommunications providers. Section 224, as originally enacted and as amended. acknowledges that parties in a pole attachment relationship do not have equal bargaining positions, and that the potential for barriers to competitive entry emanating from the lack of access or unreasonable rates is significant. Section 224(b)(1) states that "[s]ubject to the provisions of subsection (c) of this section. the Commission shall regulate the rates. terms and conditions for pole attachments to provide that such rates, terms and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms and conditions." The provisions of Section 224(c) indicates that the Commission shall not regulate such rates, terms or conditions "where such matters are regulated by a State." Aside from this one exception, there is no other indication that the Commission need not regulate these issues. In Implementation of the Local Competition Provisions in the Telecommunications Act of 1996 ("Interconnection Order"), the Commission interpreted Section 224(f)(1) as a "directive" that requires a utility to "grant telecommunications carriers and cable operators nondiscriminatory access to all poles, ducts, conduits, and rights-of-way owned or controlled by the utility." The Commission explained that Section 224(f)(1) "seeks to ensure that no party can use its control of the enumerated facilities and property to impede, inadvertently or otherwise, the installation and maintenance of telecommunications and cable equipment by those seeking to compete in those fields." The 1996 Act also added Section 251 to the Communications Act. Section 251(b)(4) requires each local exchange carrier (LEC) "to afford access to the poles. ducts. conduits. and rights-of-way of such carrier to competing providers of telecommunications services on rates. terms, and conditions that are consistent with section 224. Together, Sections 224 and 251 indicate a Congressional intent that access responsibilities apply to LECS in the some fashion that they do to utilities. The Commission has previously indicated a preference for negotiations in the pole attachment context, however we also anticipate that negotiations for access and the resulting rates, terms and conditions will be conducted in good faith. As you have noted in your letter. 3 5 61 FR 45476. FCC 96-325 at para. 1123 (released August 8, 1996) (slip op.). ld. 47 U.S.C. § 251(b)(4). Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles. 4 FCC Rcd 468, 472 (1989). |