§ 1.1413   Complaints by incumbent local exchange carriers.

   (a) A complaint by an incumbent local exchange carrier (as defined in
   47 U.S.C. 251(h)) or an association of incumbent local exchange
   carriers alleging that it has been denied access to a pole, duct,
   conduit, or right-of-way owned or controlled by a local exchange
   carrier or that a utility's rate, term, or condition for a pole
   attachment is not just and reasonable shall follow the same complaint
   procedures specified for other pole attachment complaints in this part.

   (b) In complaint proceedings challenging utility pole attachment rates,
   terms, and conditions for pole attachment contracts entered into or
   renewed after the effective date of this section, there is a
   presumption that an incumbent local exchange carrier (or an association
   of incumbent local exchange carriers) is similarly situated to an
   attacher that is a telecommunications carrier (as defined in 47 U.S.C.
   251(a)(5)) or a cable television system providing telecommunications
   services for purposes of obtaining comparable rates, terms, or
   conditions. In such complaint proceedings challenging pole attachment
   rates, there is a presumption that incumbent local exchange carriers
   (or an association of incumbent local exchange carriers) may be charged
   no higher than the rate determined in accordance with § 1.1406(e)(2). A
   utility can rebut either or both of the two presumptions in this
   paragraph (b) with clear and convincing evidence that the incumbent
   local exchange carrier receives benefits under its pole attachment
   agreement with a utility that materially advantages the incumbent local
   exchange carrier over other telecommunications carriers or cable
   television systems providing telecommunications services on the same
   poles.

   [ 83 FR 46840 , Sept. 14, 2018]

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