§ 1.1409   Commission consideration of the complaint.

   (a)  In  its  consideration of the complaint, response, and reply, the
   Commission  may  take  notice of any information contained in publicly
   available filings made by the parties and may accept, subject to rebuttal,
   studies that have been conducted. The Commission may also request that one
   or  more  of the parties make additional filings or provide additional
   information. Where one of the parties has failed to provide information
   required to be provided by these rules or requested by the Commission, or
   where costs, values or amounts are disputed, the Commission may estimate
   such  costs,  values or amounts it considers reasonable, or may decide
   adversely to a party who has failed to supply requested information which is
   readily available to it, or both.

   (b) 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.

   (c) 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.

   (d)  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.

   (e)  When parties fail to resolve a dispute regarding charges for pole
   attachments and the Commission's complaint procedures under Section 1.1404
   are  invoked,  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 er29jn01.011.gif

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   eCFR graphic er29jn01.012.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
   (e)(2)(i) or (e)(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 1.1409(e)(2)(ii) of
   this section:

   Rate = Space Factor × Cost

   Where Cost

   in Urbanized Service Areas = 0.66 × (Net Cost of a Bare Pole × Carrying
   Charge Rate)

   in Non-Urbanized Service Areas = 0.44 × (Net Cost of a Bare Pole × Carrying
   Charge Rate).
   eCFR graphic er09my11.024.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
   1.1409(e)(2)(i) of this section:
   eCFR graphic er09my11.025.gif

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   (3) The following formula shall apply to attachments to conduit by cable
   operators and telecommunications carriers:
   eCFR graphic er29jn01.014.gif

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   simplified as:
   eCFR graphic er29jn01.015.gif

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

   (f) Paragraph (e)(2) of this section shall become effective February 8, 2001
   (i.e., five years after the effective date of the Telecommunications Act of
   1996). Any increase in the rates for pole attachments that results from the
   adoption of such regulations shall be phased in over a period of five years
   beginning  on  the  effective date of such regulations in equal annual
   increments. The five-year phase-in is to apply to rate increases only. Rate
   reductions are to be implemented immediately. The determination of any rate
   increase shall be based on data currently available at the time of the
   calculation of the rate increase.

   [ 43 FR 36094 , Aug. 15, 1978, as amended at  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;  66 FR 34580 , June 29, 2001;  76 FR 26639 ,
   May 9, 2011]

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