§  1.1406   Commission consideration of the complaint.

   (a) The complainant shall have the burden of establishing a prima facie
   case that the rate, term, or condition is not just and reasonable or
   that the denial of access violates 47 U.S.C. 224(f). If, however, a
   utility argues that the proposed rate is lower than its incremental
   costs, the utility has the burden of establishing that such rate is
   below the statutory minimum just and reasonable rate. In a case
   involving a denial of access, the utility shall have the burden of
   proving that the denial was lawful, once a prima facie case is
   established by the complainant.

   (b) The Commission shall determine whether the rate, term or condition
   complained of is just and reasonable. For the purposes of this
   paragraph, a rate is just and reasonable if it assures a utility the
   recovery of not less than the additional costs of providing pole
   attachments, nor more than an amount determined by multiplying the
   percentage of the total usable space, or the percentage of the total
   duct or conduit capacity, which is occupied by the pole attachment by
   the sum of the operating expenses and actual capital costs of the
   utility attributable to the entire pole, duct, conduit, or
   right-of-way. The Commission shall exclude from actual capital costs
   those reimbursements received by the utility from cable operators and
   telecommunications carriers for non-recurring costs.

   (c) The Commission shall deny the complaint if it determines that the
   complainant has not established a prima facie case, or that the rate,
   term or condition is just and reasonable, or that the denial of access
   was lawful.

   (d) The Commission will apply the following formulas for determining a
   maximum just and reasonable rate:

   (1) The following formula shall apply to attachments to poles by cable
   operators providing cable services. This formula shall also apply to
   attachments to poles by any telecommunications carrier (to the extent
   such carrier is not a party to a pole attachment agreement) or cable
   operator providing telecommunications services until February 8, 2001:
   eCFR graphic er04se18.000.gif

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   (2) With respect to attachments to poles by any telecommunications
   carrier or cable operator providing telecommunications services, the
   maximum just and reasonable rate shall be the higher of the rate
   yielded by paragraphs (d)(2)(i) or (d)(2)(ii) of this section.

   (i) The following formula applies to the extent that it yields a rate
   higher than that yielded by the applicable formula in paragraph
   (d)(2)(ii) of this section:

   Rate = Space Factor × Cost

   Where Cost

   in Service Areas where the number of Attaching Entities is 5 = 0.66 ×
   (Net Cost of a Bare Pole × Carrying Charge Rate)

   in Service Areas where the number of Attaching Entities is 4 = 0.56 ×
   (Net Cost of a Bare Pole × Carrying Charge Rate)

   in Service Areas where the number of Attaching Entities is 3 = 0.44 ×
   (Net Cost of a Bare Pole × Carrying Charge Rate)

   in Service Areas where the number of Attaching Entities is 2 = 0.31 ×
   (Net Cost of a Bare Pole × Carrying Charge Rate)

   in Service Areas where the number of Attaching Entities is not a whole
   number = N × (Net Cost of a Bare Pole × Carrying Charge Rate), where N
   is interpolated from the cost allocator associated with the nearest
   whole numbers above and below the number of Attaching Entities.
   eCFR graphic er04se18.001.gif

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   (ii) The following formula applies to the extent that it yields a rate
   higher than that yielded by the applicable formula in paragraph
   (d)(2)(i) of this section:
   eCFR graphic er04se18.002.gif

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   (3) The following formula shall apply to attachments to conduit by
   cable operators and telecommunications carriers:
   eCFR graphic er04se18.003.gif

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   simplified as:
   eCFR graphic er04se18.004.gif

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   (4) If no inner-duct is installed the fraction, “1 Duct divided by the
   No. of Inner-Ducts” is presumed to be 1⁄2 .

   (e) A price cap company, or a rate-of-return carrier electing to
   provide service pursuant to § 61.50 of this chapter, that opts-out of
   part 32 of this chapter may calculate attachment rates for its poles,
   ducts, conduits, and rights of way using either part 32 accounting data
   or GAAP accounting data. A company using GAAP accounting data to
   compute rates to attach to its poles, ducts, conduits, and rights of
   way in any of the first twelve years after opting-out must adjust
   (increase or decrease) its annually computed GAAP-based rates by an
   Implementation Rate Difference for each of the remaining years in the
   period. The Implementation Rate Difference means the difference between
   attachment rates calculated by the carrier under part 32 and under GAAP
   as of the last full year preceding the carrier's initial opting-out of
   part 32 USOA accounting requirements.

   [ 83 FR 44840 , Sept. 4, 2018, as amended at  83 FR 67121 , Dec. 28, 2018]