§ 1.1404   Complaint.

   (a) The complaint shall contain the name, address, telephone number, and
   email address of the complainant; name, address, telephone number, and email
   address  of the respondent; and a verification (in accordance with the
   requirements of § 1.52), signed by the complainant or officer thereof if
   complainant is a corporation, showing complainant's direct interest in the
   matter complained of. Counsel for the complainant may sign the complaint.
   Complainants may join together to file a joint complaint. Complaints filed
   by associations shall specifically identify each utility, cable television
   system  operator,  or telecommunications carrier who is a party to the
   complaint and shall be accompanied by a document from each identified member
   certifying that the complaint is being filed on its behalf.

   (b) The complaint shall be accompanied by a certification of service on the
   named respondent, and each of the Federal, State, and local governmental
   agencies  that  regulate  any  aspect  of the services provided by the
   complainant or respondent.

   (c) In a case where it is claimed that a rate, term, or condition is unjust
   or unreasonable, the complaint shall contain a statement that the State has
   not certified to the Commission that it regulates the rates, terms and
   conditions for pole attachments. The complaint shall include a statement
   that  the  utility  is  not  owned  by any railroad, any person who is
   cooperatively organized or any person owned by the Federal Government or any
   State.

   (d) The complaint shall be accompanied by a copy of the pole attachment
   agreement, if any, between the cable system operator or telecommunications
   carrier and the utility. If there is no present pole attachment agreement,
   the complaint shall contain:

   (1) A statement that the utility uses or controls poles, ducts, or conduits
   used or designated, in whole or in part, for wire communication; and

   (2)   A  statement  that  the  cable  television  system  operator  or
   telecommunications carrier currently has attachments on the poles, ducts,
   conduits, or rights-of-way.

   (e) The complaint shall state with specificity the pole attachment rate,
   term or condition which is claimed to be unjust or unreasonable.

   (f) In any case, where it is claimed that a term or condition is unjust or
   unreasonable, the claim shall specify all information and argument relied
   upon to justify said claim.

   (g) For attachments to poles, where it is claimed that either a rate is
   unjust or unreasonable, or a term or condition is unjust or unreasonable and
   examination of such term or condition requires review of the associated
   rate, the complaint shall provide data and information in support of said
   claim.

   (1) The data and information shall include, where applicable:

   (i) The gross investment by the utility for pole lines;

   (ii) The investment in crossarms and other items which do not reflect the
   cost of owning and maintaining poles, if available;

   (iii) The depreciation reserve from the gross pole line investment;

   (iv) The depreciation reserve from the investment in crossarms and other
   items which do not reflect the cost of owning and maintaining poles, if
   available;

   (v) The total number of poles:

   (A) Owned; and

   (B) Controlled or used by the utility. If any of these poles are jointly
   owned, the complaint shall specify the number of such jointly owned poles
   and the percentage of each joint pole or the number of equivalent poles
   owned by the subject utility;

   (vi) The total number of poles which are the subject of the complaint;

   (vii) The number of poles included in paragraph (g)(1)(vi) of this section
   that are controlled or used by the utility through lease between the utility
   and other owner(s), and the annual amounts paid by the utility for such
   rental;

   (viii) The number of poles included in paragraph (g)(1)(vi) of this section
   that are owned by the utility and that are leased to other users by the
   utility, and the annual amounts paid to the utility for such rental;

   (ix) The annual carrying charges attributable to the cost of owning a pole.
   The utility shall submit these charges separately for each of the following
   categories:  Depreciation,  rate  of  return,  taxes, maintenance, and
   administrative. These charges may be expressed as a percentage of the net
   pole investment. With its pleading, the utility shall file a copy of the
   latest decision of the state regulatory body or state court that determines
   the  treatment  of accumulated deferred taxes if it is at issue in the
   proceeding and shall note the section that specifically determines the
   treatment and amount of accumulated deferred taxes.

   (x) The rate of return authorized for the utility for intrastate service.
   With its pleading, the utility shall file a copy of the latest decision of
   the state regulatory body or state court which establishes this authorized
   rate of return if the rate of return is at issue in the proceeding and shall
   note the section which specifically establishes this authorized rate and
   whether the decision is subject to further proceedings before the state
   regulatory body or a court. In the absence of a state authorized rate of
   return, the rate of return set by the Commission for local exchange carriers
   shall be used as a default rate of return;

   (xi) The average amount of usable space per pole for those poles used for
   pole attachments (13.5 feet may be in lieu of actual measurement, but may be
   rebutted);

   (xii) The average amount of unusable space per pole for those poles used for
   pole  attachments (a 24 foot presumption may be used in lieu of actual
   measurement, but the presumption may be rebutted); and

   (xiii) Reimbursements received from CATV operators and telecommunications
   carriers for non-recurring costs.

   (2) Data and information should be based upon historical or original cost
   methodology, insofar as possible. Data should be derived from ARMIS, FERC 1,
   or other reports filed with state or federal regulatory agencies (identify
   source).  Calculations made in connection with these figures should be
   provided to the complainant. The complainant shall also specify any other
   information and argument relied upon to attempt to establish that a rate,
   term, or condition is not just and reasonable.

   (h) With respect to attachments within a duct or conduit system, where it is
   claimed that either a rate is unjust or unreasonable, or a term or condition
   is unjust or unreasonable and examination of such term or condition requires
   review  of  the  associated rate, the complaint shall provide data and
   information in support of said claim.

   (1) The data and information shall include, where applicable:

   (i) The gross investment by the utility for conduit;

   (ii) The accumulated depreciation from the gross conduit investment;

   (iii) The system duct length or system conduit length and the method used to
   determine it;

   (iv) The length of the conduit subject to the complaint;

   (v) The number of ducts in the conduit subject to the complaint;

   (vi) The number of inner-ducts in the duct occupied, if any. If there are no
   inner-ducts, the attachment is presumed to occupy one-half duct.

   (vii)  The  annual carrying charges attributable to the cost of owning
   conduit. These charges may be expressed as a percentage of the net linear
   cost of a conduit. With its pleading, the utility shall file a copy of the
   latest decision of the state regulatory body or state court which determines
   the  treatment  of accumulated deferred taxes if it is at issue in the
   proceeding and shall note the section which specifically determines the
   treatment and amount of accumulated deferred taxes.

   (viii) The rate of return authorized for the utility for intrastate service.
   With its pleading, the utility shall file a copy of the latest decision of
   the state regulatory body or state court which establishes this authorized
   rate of return if the rate of return is at issue in the proceeding and shall
   note the section which specifically establishes this authorized rate and
   whether the decision is subject to further proceedings before the state
   regulatory body or a court. In the absence of a state authorized rate of
   return, the rate of return set by the Commission for local exchange carriers
   shall be used as a default rate of return; and

   (ix)  Reimbursements  received  by  utilities  from CATV operators and
   telecommunications carriers for non-recurring costs.

   (2) Data and information should be based upon historical or original cost
   methodology, insofar as possible. Data should be derived from ARMIS, FERC 1,
   or other reports filed with state or federal regulatory agencies (identify
   source).  Calculations made in connection with these figures should be
   provided to the complainant. The complainant shall also specify any other
   information and argument relied upon to attempt to establish that a rate,
   term, or condition is not just and reasonable.

   (i) With respect to rights-of-way, where it is claimed that either a rate is
   unjust or unreasonable, or a term or condition is unjust or unreasonable and
   examination of such term or condition requires review of the associated
   rate, the complaint shall provide data and information in support of said
   claim. The data and information shall include, where applicable, equivalent
   information as specified in paragraph (g) of this section.

   (j) If any of the information and data required in paragraphs (g), (h) and
   (i) of this section is not provided to the cable television operator or
   telecommunications carrier by the utility upon reasonable request, the cable
   television operator or telecommunications carrier shall include a statement
   indicating the steps taken to obtain the information from the utility,
   including  the  dates  of  all requests. No complaint filed by a cable
   television operator or telecommunications carrier shall be dismissed where
   the utility has failed to provide the information required under paragraphs
   (g),  (h) or (i) of this section, as applicable, after such reasonable
   request.  A  utility  must  supply  a  cable  television  operator  or
   telecommunications carrier the information required in paragraph (g), (h) or
   (i) of this section, as applicable, along with the supporting pages from its
   ARMIS, FERC Form 1, or other report to a regulatory body, within 30 days of
   the request by the cable television operator or telecommunications carrier.
   The cable television operator or telecommunications carrier, in turn, shall
   submit these pages with its complaint. If the utility did not supply these
   pages to the cable television operator or telecommunications carrier in
   response  to  the  information  request, the utility shall supply this
   information in its response to the complaint.

   (k) The complaint shall include a certification that the complainant has, in
   good faith, engaged or attempted to engage in executive-level discussions
   with the respondent to resolve the pole attachment dispute. Executive-level
   discussions are discussions among representatives of the parties who have
   sufficient authority to make binding decisions on behalf of the company they
   represent  regarding  the  subject  matter  of  the  discussions. Such
   certification shall include a statement that, prior to the filing of the
   complaint, the complainant mailed a certified letter to the respondent
   outlining  the  allegations  that  form  the basis of the complaint it
   anticipated  filing  with the Commission, inviting a response within a
   reasonable period of time, and offering to hold executive-level discussions
   regarding  the  dispute.  A  refusal  by a respondent to engage in the
   discussions contemplated by this rule shall constitute an unreasonable
   practice under section 224 of the Act.

   (l) Factual allegations shall be supported by affidavit of a person or
   persons with actual knowledge of the facts, and exhibits shall be verified
   by the person who prepares them.

   (m) In a case where a cable television system operator or telecommunications
   carrier as defined in 47 U.S.C. 224(a)(5) claims that it has been denied
   access to a pole, duct, conduit or right-of-way despite a request made
   pursuant to section 47 U.S.C. 224(f), the complaint shall include the data
   and information necessary to support the claim, including:

   (1) The reasons given for the denial of access to the utility's poles,
   ducts, conduits, or rights-of-way;

   (2) The basis for the complainant's claim that the denial of access is
   unlawful;

   (3) The remedy sought by the complainant;

   (4) A copy of the written request to the utility for access to its poles,
   ducts, conduits, or rights-of-way; and

   (5) A copy of the utility's response to the written request including all
   information  given  by  the utility to support its denial of access. A
   complaint alleging unlawful denial of access will not be dismissed if the
   complainant is unable to obtain a utility's written response, or if the
   utility denies the complainant any other information needed to establish a
   prima facie case.

   [ 43 FR 36094 , Aug. 15, 1978, as amended at  44 FR 31649 , June 1, 1979;  45 FR 17014 , Mar. 17, 1980;  52 FR 31770 , Aug. 24, 1987;  61 FR 43025 , Aug. 20,
   1996;  61 FR 45619 , Aug. 29, 1996;  63 FR 12025 , Mar. 12, 1998;  65 FR 31282 ,
   May 17, 2000;  65 FR 34820 , May 31, 2000;  76 FR 26638 , May 9, 2011;  79 FR 73847 , Dec. 12, 2014]

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