*Pages 1--13 from Microsoft Word - 21893.doc* Federal Communications Commission FCC 02- 270 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Teleport Communications Atlanta, Inc. Complainant, v. Georgia Power Company, Respondent Application for Review ) ) ) ) ) ) ) ) ) ) ) File No. PA 00- 005 ORDER ON REVIEW Adopted: September 27, 2002 Released: October 8, 2002 By the Commission: I. INTRODUCTION 1. In this Order, we deny an application for review (" Application") of a Cable Services Bureau (" Bureau") Order, DA 01- 2653 (" Bureau Order"), 1 released under delegated authority. The Bureau Order granted a pole attachment complaint filed by Teleport Communications Atlanta, Inc. (" Teleport") against Georgia Power Company (" GPC") pursuant to Section 224 of the Communications Act of 1934, as amended (" Pole Attachment Act") 2 and Subpart J of Part 1 of the Commission's rules. 3 The Bureau found GPC’s annual pole attachment rate of $53.35 to be unjust and unreasonable pursuant to the Pole Attachment Act and calculated a just and reasonable annual pole attachment rate. We affirm the Bureau Order. II. BACKGROUND 2. Pursuant to the Pole Attachment Act, the Commission has the authority to regulate the rates, terms, and conditions for attachments by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right- of- way owned or controlled by a utility. 4 1 Teleport Communications Atlanta, Inc. v. Georgia Power Company, DA 01- 2653, 16 FCC Rcd 20238 (2001). 2 47 U. S. C. § 224. 3 47 C. F. R. §§ 1.1401– 1.1418. GPC also filed a petition for review of the Bureau Order with the U. S. Court of Appeals for the 11th Circuit while its Application for Review is pending before the Commission. See Georgia Power v. Federal Communications Commission, No. 02- 10222- B (filed January 11, 2002). 4 47 U. S. C. § 224 (b) (1). 1 2 Federal Communications Commission FCC 02- 270 The Pole Attachment Act grants the Commission general authority to regulate such rates, terms and conditions, except where such matters are regulated by a State. 5 The Commission is authorized to adopt procedures necessary to resolve complaints concerning such rates, terms, and conditions. 6 A utility may not charge more than the maximum amount permitted by the formula developed by the Commission to ensure that rates are just and reasonable. We have concluded that "where onerous terms or conditions are found to exist on the basis of the evidence, a cable company may be entitled to a rate adjustment or the term or condition may be invalidated." 7 3. The Commission developed a formula, known as the Cable Formula, to be used in resolving complaints by cable systems concerning pole attachment rates. 8 The Telecommunications Act of 1996 (" 1996 Act") 9 directed the Commission to prescribe similar regulations for attachments by telecommunications carriers. 10 Pending the implementation of those regulations, the Commission was directed to apply the Cable Formula to rates for pole attachments made by telecommunications carriers. 11 The Commission adopted a Telecommunications Formula (" Telecom Formula") that became effective February 8, 2001, with any increases in rates as compared to the Cable Formula to be phased in over five years. 12 The two formulas differ in only one respect, namely their methodologies for determining the proportion of unusable space on a pole that is attributable to the attachment. Our Cable Formula attributes unusable space to an attachment based on the portion of usable space occupied by the attachment, while our Telecom Formula attributes unusable space to a telecommunications attachment 5 47 U. S. C. § 224 (b) and (c). Georgia has not certified that it regulates rates, terms and conditions of pole attachments. See Public Notice, "States That Have Certified That They Regulate Pole Attachments," 7 FCC Rcd 1498 (1992). 6 47 U. S. C. § 224 (b)( 1). The Commission has developed a formula methodology to determine the maximum allowable pole attachment rate. See Adoption of Rules for the Regulation of Cable Television Pole Attachments, First Report and Order, 68 F. C. C. 2d 1585 (1978); Second Report and Order, 72 F. C. C. 2d 59 (1979); Memorandum and Order, 77 F. C. C. 2d 187 (1980), aff'd, Monongahela Power Co. v. FCC, 655 F. 2d 1254 (D. C. Cir. 1985) (per curiam); and Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, 2 FCC Rcd 4387 (1987). See also, Implementation of Section 703( e) of the Telecommunications Act of 1996, 13 FCC Rcd 6777 (1998) and Amendment of Rules and Policies Governing Pole Attachments, 15 FCC Rcd 6453 (2000), pet. for recon. denied in part, Amendment of Commission's Rules and Policies Governing Pole Attachments, CS Docket No. 97- 98; Implementation of Section 703( e) of the Telecommunications Act of 1996, FCC 01- 170, 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01- 1326 (D. C. Cir., filed July 26, 2001). 7 Amendment of Rules and Policies Governing the Attachment of Cable Television Hardware to Utility Poles, Memorandum Order and Opinion on Reconsideration, 4 FCC Rcd 468, 471 at ¶ 26 (1989). 8 See 47 C. F. R. § 1.1409 (e)( 1). 9 Pub. L. No. 104- 104, 110 Stat. 56 (1996). 10 47 U. S. C. § 224 (e). 11 See 47 C. F. R. § 1.1409 (e)( 1); 47 U. S. C. § 224 (d) (3). 12 See 47 C. F. R. § 1.1409 (e)( 2), (f). 2 3 Federal Communications Commission FCC 02- 270 based on the total number of attaching entities. 13 The total space occupied by an attacher, both usable and unusable, is referred to as the Space Factor in our formulas. 14 4. The attachments at issue in this case are for telecommunications services. The Cable Formula applies to the attachments until February 8, 2001, after which one- fifth of the differential between the Cable Formula rate and the Telecom Formula rate is to be phased in annually for five years. III. BUREAU ORDER 5. In granting Teleport’s complaint, the Bureau rejected a proposal by GPC to use an alternative methodology for calculating pole attachment rates. 15 The Bureau also denied GPC's request to provide supplemental material in support of the alternative methodology because, among other reasons, the Commission had already rejected that methodology. 16 The Bureau found that GPC provided no compelling reason why the Commission’s procedural rules should be waived to allow an additional filing that contained no new arguments or evidence specific to the present dispute. Because GPC had the opportunity to raise the issues addressed in its supplemental filing in the rulemaking process, and the specific issues were raised and addressed previously by the Commission, the Bureau found that there was not good cause to re- examine those issues in this case. 13 Id. at ¶ 53- 56. 14 47 C. F. R. § 1.1409 (e). 15 Bureau Order at ¶ 11. The Bureau rejected GPC’s alternative because GPC calculated a rate of $53.35 per pole, using replacement costs rather than historical costs as required by the Commission. Since the inception of pole attachment regulation in 1978, the Commission has consistently rejected the use of replacement costs in the formula, for a number of reasons that remain valid today. See Amendment of Commission's Rules and Policies Governing Pole Attachments, FCC 01- 170, 16 FCC Rcd 12103 at ¶¶ 15- 25 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01- 1326 (D. C. Cir., filed July 26, 2001) (" the continued use of historical costs accomplishes key objectives of assuring, to both the utility and the attaching parties, just and reasonable rates; establishes accountability for prior cost recoveries; and accords with generally accepted accounting principles" Id. ¶ 15); see also Alabama Cable Telecommunications Association, et al. v. Alabama Power Company, FCC 01- 181, 16 FCC Rcd 12209 at ¶¶ 32- 58 (2001), appeal pending sub nom. Alabama Power Company v. FCC, Case No. 00- 14763- I (11 th Cir., filed Sept. 13, 2000) (" Because the utility's interest in the property is not completely destroyed, requiring the use of replacement costs as a measure of just compensation is inappropriate." Id. ¶ 57); see also Amendment of Rules and Policies Governing Pole Attachments, FCC 00- 116, 15 FCC Rcd 6453 (2000). In addition, GPC included in its calculations Federal Energy Regulatory Commission (" FERC") accounts which are not approved by the Commission for inclusion in the formula because the costs recorded in those accounts are not sufficiently attributable to the poles. GPC used a proposed 30 percent "space allocation" factor rather than the Commission’s formula presumption of 7.4 percent for the cable rate or maximum 24 percent for the telecom rate in the rare circumstance of only two attachers. 16 Bureau Order at ¶ 6, citing Amendment of Commission's Rules and Policies Governing Pole Attachments, FCC 01- 170, 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01- 1326 (D. C. Cir., filed July 26, 2001); Alabama Cable Telecommunications Association, et al. v. Alabama Power Company, File No. PA 00- 003, FCC 01- 181, 16 FCC Rcd 12209 (2001), appeal pending sub nom. Alabama Power Company v. FCC, Case No. 00- 14763- I (11 th Cir., filed Sept. 13, 2000). 3 4 Federal Communications Commission FCC 02- 270 6. The Bureau Order also rejected GPC's argument that our existing formula does not provide just compensation as required by the Fifth Amendment to the United States Constitution. 17 The Bureau based its decision on the Commission's reasoning in Alabama Cable v. Alabama Power (" Alabama Power") 18 in which the Commission concluded that the pole attachment formulas, together with the payment of make- ready expenses, provide compensation that exceeds just compensation. Because the pole attachment complaint procedures are intended to ensure a simple and expeditious process for resolving complaints, 19 the Bureau also rejected GPC's request for an evidentiary hearing, concluding that the record in this matter contains sufficient information to determine a just and reasonable pole attachment rate. 7. Finally, the Bureau rejected GPC's specific rate calculations because GPC failed to support its deviations from the Cable and Telecom Formulas. For example, GPC asserted that the average number of attaching entities to be used in calculating the Space Factor for its alternative formula is 1.5922 per pole. The Bureau rejected that number for use in its calculation of the maximum just and reasonable rate using the Telecom Formula because the Commission has concluded that the minimum possible number of attachers to be used in the Telecom Formula is two. 20 The Bureau substituted a presumptive average number of attaching entities, three for non- urbanized (less than 50,000 population) areas and five for urbanized (more than 50,000 population) areas, 21 in its calculation of the Telecom Formula and provided a pole attachment rate for either situation. The Bureau calculated a maximum just and reasonable annual rate of $6.56 per pole attachment up to February 8, 2001, and, beginning February 8, 2001, a first year rate of $7.23 for areas with an average of five attachers, and a first year rate of $8.24 for areas with an average of three attachers. The Bureau concluded that GPC's pole attachment rate of $53.35 is not just and reasonable. IV. APPLICATION FOR REVIEW 8. In its Application, GPC argues that the Bureau mishandled this case procedurally because the parties were not required to engage in additional negotiations before the Bureau resolved the Complaint, because GPC was not allowed to supplement its pleadings with additional material, and because an evidentiary hearing was not conducted. GPC also argues that the Commission should use this opportunity to reverse its decision in Alabama Power because that decision inhibits the deployment of broadband technology and violates GPC's constitutional right to just compensation. GPC further argues 17 Bureau Order at ¶ 7. 18 Alabama Cable Telecommunications Association, et al. v. Alabama Power Company, File No. PA 00- 003, FCC 01- 181, 16 FCC Rcd 12209 at ¶¶ 32- 61 (2001), appeal pending sub nom. Alabama Power Company v. FCC, Case No. 00- 14763- I (11 th Cir., filed Sept. 13, 2000). 19 See Adoption of the Rules for the Regulation of Cable Television Pole Attachments, 68 F. C. C. 2d 1585 at ¶ 36 (1978). 20 See Amendment of Commission's Rules and Policies Governing Pole Attachments, FCC 01- 170, 16 FCC Rcd 12103 at ¶ 60 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01- 1326 (D. C. Cir., filed July 26, 2001). 21 Id. at ¶¶ 71- 72. 4 5 Federal Communications Commission FCC 02- 270 that the Bureau improperly used presumptions outlined in the Consolidated Order 22 that were incorrect, and applied those presumptions retroactively. 9. In its Opposition, Teleport asserts that GPC not only had the opportunity but the duty to provide, in response to the complaint, sufficient evidence to support its pole attachment rate increase. Teleport argues that GPC failed to engage in good faith negotiations, choosing instead to enact a unilateral rate increase. Teleport asserts that GPC was not denied due process by the Commission’s established pleading cycle and therefore was not entitled to an evidentiary hearing. Teleport argues that GPC improperly disregarded the Commission’s formulas in calculating its pole rental rates, ignoring the Commission’s explicit rulings and including FERC accounts 23 that the Commission previously excluded. Teleport asserts that GPC offers no new arguments to support its claim that the Bureau erred in terminating the $53.35 rate. 10. In its Reply, GPC asserts that it will illustrate the Bureau's numerous errors in computing the maximum just and reasonable pole attachment rate by providing an explanation of its use of 1.5922 as the average number of attachers in its proposed formula. GPC claims that its calculation was made in a manner that is consistent with the Consolidated Order, and that the Bureau had no legal basis to reject its calculation and impose presumptive numbers. GPC also reiterates its argument in favor of an alternative formula to calculate pole attachment rates. 11. Teleport filed a motion to strike GPC's reply and its attached exhibits because they violate Section 1.115( c) of the Commission’s rules, 24 which states that no application for review will be granted if the application relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass. Teleport asserts that the data and calculations accompanying GPC's reply were never submitted to the Bureau. In opposition, GPC argues that the issue of average number of attachers was addressed below and it should be allowed to provide the underlying data in support of its original calculation. Moreover, GPC asserts that the Bureau should have requested that GPC provide this data before rejecting GPC's 1.5922 calculation. Finally, GPC argues that it is in the public interest to include the additional new data because it provides a useful and informative case study for calculating an average number of attachers. V. DISCUSSION 12. A review of the record reveals that GPC did not make any effort to justify its pole attachment rate using either the Cable Formula, in effect prior to February 8, 2001, or the Telecom Formula, in effect beginning February 8, 2001, in response to the complaint. Instead, GPC substituted its 22 Amendment of Rules and Policies Governing Pole Attachments, FCC 01- 170, 16 FCC Rcd 12103 (2001) ), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01- 1326 (D. C. Cir., filed July 26, 2001). 23 For electric utilities, the accounts to be used to determine the maximum allowable rate for pole attachments are reported on the Federal Energy Regulatory Commission (" FERC") Form 1. A description of the FERC accounts is contained in 18 C. F. R. Part 101. 24 47 C. F. R. § 1.115( c). 5 6 Federal Communications Commission FCC 02- 270 own formula for calculating pole attachment rates. 25 When the Bureau reviewed GPC's filing, it concluded that GPC had not met its burden to calculate a just and reasonable rate using the formulas as promulgated by our orders. 13. In the Consolidated Order, the Commission resolved a number of petitions for reconsideration of our two most recent rulemakings concerning pole attachment regulation, the Telecom Order 26 and the Fee Order. 27 GPC argues that the Bureau should have required GPC to update its response following the release of the Consolidated Order in May 2001. In fact, the Bureau released an order on June 1, 2001, 28 which specifically gave notice to GPC of the Consolidated Order and provided GPC with guidance on the type of supplemental material that would be considered by the Bureau in its review of a complaint. GPC had ample opportunity to update its filing prior to the release of the Bureau Order on November 14, 2001. Our rules state with particularity the information a utility must provide an attacher in order for the attacher to calculate a just and reasonable rate. GPC however, never provided, in addition to its own formula calculation, the information necessary for the Commission to calculate a maximum just and reasonable rate using the Commission's formulas. 29 GPC chose not to file supplemental material in response to the Bureau’s June 1, 2001 order. Instead, GPC insisted that it should be allowed to reargue the issues raised and rejected by the Commission in the Consolidated Order and Alabama Power. 30 14. Both Commission formulas include a Space Factor, which is used to calculate the portion of capital and operating costs attributable to the attaching party. 31 In the Telecom Order, we identified a methodology for determining the average number of attaching entities, an element of the Space Factor used in the Telecom Formula. Specifically, pursuant to the Telecom Order, for pole attachment rates for telecommunications providers beginning February 8, 2001, GPC was under an obligation to provide, as part of the Space Factor calculation using the Commission's Telecom Formula, a "presumptive average number of attaching entities . . . reflecting where the service is being provided . . .[ with] a range of presumptive averages depending on rural, urban, or urbanized areas . . ." 32 Even before the Consolidated Order was released, in which we reconsidered and clarified the methodology identified in the Telecom Order for determining the average number of attaching entities, GPC was obligated to include itself in this average number. 33 25 See n. 15 above. 26 Implementation of Section 703( e) of the Telecommunications Act of 1996, 13 FCC Rcd 6777 (1998). 27 Amendment of Rules and Policies Governing Pole Attachments, 15 FCC Rcd 6453 (2000). 28 See Teleport Communications Atlanta, Inc., v. Georgia Power Co., DA 01- 1332, 16 FCC Rcd 11831 (2001). 29 See n. 15 above. See also, 47 C. F. R. § 1.1401- 1.1418. 30 See n. 15 above. 31 See 47 C. F. R. § 1.1409. 32 Telecom Order at ¶ 77. 33 GPC is affiliated with a telecommunications provider. See id. at ¶ 51. GPC admits that it has two affiliates that 6 7 Federal Communications Commission FCC 02- 270 15. In addition, GPC was required to "upon request, provide all attaching entities and all entities seeking access the methodology and information by which [the] presumption was determined." 34 Once the complaint was filed, GPC was under an obligation to provide this documentation in support of its rate calculation. 35 The sole explanation provided by GPC in support of the 1.5922 figure, which represented the average number of attaching entities in its proposed alternative formula, was as follows: "Avg. # of Attachments (no. of poles with cable attach. & no. of poles with telecom attach. divided by total no. of poles with both cable and telecom attach.)." 36 This explanation articulates a number that reflects only the ratio of the number of poles with either a cable or telecommunications attachment to the number of poles with both types of attachments. It is meaningless for the purpose of supporting an average number of attaching entities per pole. Thus, GPC did not meet its initial burden to provide the methodology and information by which its presumption was determined. 16. The Telecom Order also provided that "[ c] hallenges to the presumptive average number of attaching entities by the telecommunications carrier or cable operator may be made in the same manner as challenges presently are undertaken. The challenging party will initially be required to identify and calculate the number of attachments on the poles and submit to the utility what it believes to be an appropriate average. Where the number of poles is large, and complete inspection impractical, a statistically sound survey should be submitted. The pole owner will be afforded an opportunity to justify the presumption. Where a presumption is successfully challenged, the resulting figure will be deemed to be the number of attaching entities." 37 Teleport identified three and five as the average number of attachers when it filed its complaint. GPC had the opportunity to refute Teleport's proposed figures in its response to the complaint, but did not provide any information to do so. Instead, GPC proposed a different formula entirely which in fact included a component that might be considered to be analogous to the average number of attaching entities component used in the Telecom Formula. As noted above, however, GPC provided no meaningful explanation of its alternative calculation. provide telecommunications related services: Southern Communications Services, Inc. d/ b/ a Southern LINC, a wireless provider, and Southern Telecom, Inc., an exempt telecommunications company that has developed fiber optic projects for non- affiliate carriers. See Reply to Opposition to Application at Affidavit of Thomas G. Park. If there was any doubt about whether GPC should be counted, we clarified in the Consolidated Order that a utility pole owner was so obligated, whether or not it was affiliated with a telecommunications provider. GPC continues to object to the pole owner being included in the average number of attaching entities under any circumstances. However, GPC admits that on its average pole, the electric utility uses an average 7.5 feet of usable space, whereas a cable attacher uses one foot. See Response at Affidavit of Thomas G. Park. Applying the policy espoused by GPC to a pole with only two attachments, an electric utility attachment and a cable attachment that provides telecommunications service, the attacher would be required to pay 2/ 3 of the cost of unusable space, whereas the electric utility would pay only 1/ 3. The inequity of this result is even more pronounced when one considers that the electric utility pole owner is using over seven times as much usable space on the pole. 34 Telecom Order at ¶ 78. 35 See 47 C. F. R. § 1.1404 (j) (". . . the utility shall supply this information in response to the complaint.") Teleport also requested this information by letter to GPC at the same time that it filed its complaint. See Reply at Exhibit 3. 36 See Response at Affidavit of Thomas G. Park. 37 Telecom Order at ¶ 79. 7 8 Federal Communications Commission FCC 02- 270 17. Even though GPC did not include a justification of its post February 8, 2001 pole attachment rate using the Commission's Telecom Formula, the Bureau examined the material provided by GPC to determine if any of the information would be useful in calculating the maximum rate permissible under the Pole Attachment Act. The Bureau rejected GPC's average number of attachments figure of 1.5922 because the minimum possible number of attachers to be used in the Telecom Formula is two. 38 Although the Bureau cited the Consolidated Order in support of its conclusion, the same result was mandated by the Telecom Order, because, as we noted above, GPC was required to include itself in the count. In addition, the Bureau could have rejected the 1.5922 figure because GPC provided no reasonable explanation or supporting documentation to substantiate the number. Also, the Bureau could have rejected GPC's number outright because GPC did not even proffer the number to be used as the average number of attaching entities in the Telecom Formula. 18. In the Consolidated Order, in order to expedite the process of developing average numbers of attaching entities, and allow utilities to avert the expense of developing location specific averages, we provided two rebuttable presumptive averages for use in our Telecom Formula. 39 Thus, utilities have the option of not conducting a potentially costly and burdensome exercise necessary to develop averages based on their company specific records. We concluded that, as with all our presumptions, either party may rebut this presumption with a statistically valid survey or actual data. In other words, a utility can rebut the presumptions by providing the same information it was obligated to provide under the Telecom Order in support of its own average number of attaching entities. The only difference is that now, the utility has the option of declining to rebut the presumptions. 19. After rejecting GPC's 1.5922 figure as the average number of attaching entities to be used in the Telecom Formula calculation, the Bureau substituted presumptions of three and five, in accordance with the Consolidated Order. As noted above, these presumptions were also the same numbers proffered by Teleport in its formula calculations. GPC objects to the use of the presumptions because they were identified by the Commission in the Consolidated Order. As we stated above, had it chosen to do so, GPC had ample opportunity to supplement its response to the complaint in the appropriate way following the issuance of the Consolidated Order. Moreover, even before the Consolidated Order was released, GPC was aware that Teleport had proffered, in its complaint, presumptions of three and five for the average number of attaching entities. Thus, even if the Commission had not adopted presumptions in the Consolidated Order, the Bureau reasonably could rely on the presumptions proffered by Teleport, particularly in the absence of any evidence by GPC in support of a different average number. 40 Under the standard elucidated in both the Telecom Order and the Consolidated Order, GPC completely failed to support its proposed calculation of the average number of attaching entities and the Bureau acted properly when it inserted the presumptive numbers in its calculation of the maximum permissible rate under the 38 See Bureau Order at ¶ 11, citing the Consolidated Order at ¶ 60. 39 Consolidated Order at ¶ 69. 40 47 C. F. R. § 1.1409 (a) (" 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."). 8 9 Federal Communications Commission FCC 02- 270 Pole Attachment Act. 41 20. We therefore conclude that, even in the absence of the Consolidated Order, we would find the Bureau's decision to be reasonable. Although the Consolidated Order, adopting the presumptions of 3 to 5 attaching entities, was released subsequent to the complaint being filed in this matter, we hereby independently adopt these presumptions, based on the fact that they were proffered by Teleport in this case and were not refuted by GPC. We also conclude that the rationale set forth in the Consolidated Order also applies here. As we stated in the Consolidated Order, it is reasonable to presume that in a non- urbanized area (less than 50,000 population) there would be electric, telephone and cable attachers. 42 In an urbanized area (50,000 or higher population), which is more developed commercially than a non-urbanized area, and in which we expect both residential and business commercial competition to flourish, it is reasonable to presume the following possible attaching entities: electric, telephone, cable, competitive telecommunications service providers and governmental agencies. 43 Thus, the presumption as applied to GPC in this adjudicatory proceeding does not constitute impermissible retroactive application of our rules because under our decision here, we do not rely on the Consolidated Order. 44 Moreover, as discussed above, the maximum permissible rate established by the Bureau would have been the same here even if the case had been decided prior to the release of the Consolidated Order. Therefore, to the extent the Bureau relied on the Consolidated Order, it was harmless error, particularly in light of our decision not to rely on it. 21. GPC argues that the Bureau should have required that the parties engage in additional negotiations before it resolved the Complaint. While we encourage all parties to negotiate prior to seeking recourse with the Commission, 45 in this case, GPC imposed a unilateral rate increase on Teleport without negotiation and without using the Commission's formulas as a benchmark for negotiation. GPC admittedly based its rate on its own alternative methodology and declined to provide supporting documentation to Teleport upon request. 46 We think it was reasonable for Teleport to conclude that further efforts at negotiation were fruitless in the absence of Commission intervention. Therefore, we are not persuaded by GPC's argument that further negotiations between the parties were required prior to a resolution of the complaint. 41 This case illustrates the importance of presumptions in maintaining a minimal and efficient rate- setting process. Without presumptions, a responding party is more likely to withhold the information necessary to calculate the maximum just and reasonable rate. A party may always choose to present probative direct evidence regarding an acceptable alternative to a presumption in order to reflect its unique circumstances. 42 Consolidated Order at ¶ 71. 43 Id. at ¶ 72. 44 See, e. g., Celtronix Telemetry, Inc. v. FCC, 272 F. 3d 585 (D. C. Cir. 2001), rehearing and rehearing en banc denied Jan 10, 2002, petition for certiorari filed April 10, 2002, citing Landgraf v. USI Film Products, Inc., 511 U. S. 244 (1994) and Bowen v. Georgetown University Hospital, 488 U. S. 204 (1988), Scalia, J., concurring). 45 See, for example, Telecom Order at ¶¶ 10, 16- 21; Consolidated Order at ¶ 13. See also, 47 C. F. R. § 1.1404 (k). 46 Teleport also requested the information by letter to GPC at the same time it filed its complaint. See Reply at Exhibit 3. 9 10 Federal Communications Commission FCC 02- 270 22. GPC argues that it was entitled to file supplemental pleadings and was entitled to an evidentiary hearing. The pole attachment process is designed to be efficient but allow all parties to fully express their positions. The decision to allow additional filings or request an evidentiary hearing is discretionary. 47 Because most of the information necessary to determine a just and reasonable rate is culled from publicly filed documents, there is seldom any need to hold an evidentiary hearing concerning a rate calculation. 48 Where information is not available from public documents, we have established guidelines for the parties to follow. 49 The Bureau found that the material facts available in the record in written form, such as GPC's FERC Form 1 filings and accounting records, were sufficient to support a decision. GPC had ample opportunity to respond in writing to the complaint. The Bureau was not required to hold a hearing and we find that it did not abuse its discretion in declining to do so. 50 In addition, the Bureau found that GPC included no factual information in its supplemental material necessary to calculate of a just and reasonable pole attachment rate using the Commission’s existing rules and policies. Rather, the entire supplement consisted of materials in support of GPC's argument for an alternative methodology for calculating pole attachment rates, a methodology that has been rejected by the Commission. 51 GPC has provided no compelling reason why the Commission’s procedural rules should have been waived to allow an additional filing that contained no new arguments or evidence specific to the present dispute. 23. GPC also argues that we should abandon the rules and policies elucidated in the Consolidated Order and Alabama Power. 52 We see no reason to revisit the issues that were thoroughly addressed in those orders. The Consolidated Order was the Commission's final ruling on multiple pole attachment issues arising from the implementation of the 1996 Act and the Commission's experience in 47 See 47 C. F. R. § 1.1407 (". . . no other filings . . . will be considered unless authorized by the Commission."); and 47 C. F. R. § 1.1411 (" The Commission may decide each complaint upon the filings and information before it, may require one or more informal meetings with the parties to clarify the issues or to consider settlement of the dispute, or may, in its discretion, order evidentiary procedures upon any issues it finds to have been raised by the filings."). 48 See, for example, Texas Utilities Elec. Co. v. FCC, 997 F. 2d 925 (D. C. Cir. 1993) (It is not necessary for the Commission to conduct an evidentiary proceeding to determine just and reasonable rates under the Pole Attachment Act). 49 See 47 C. F. R. §§ 1.1401- 1.1418. 50 Although the Eleventh Circuit Court of Appeals held, in Gulf Power v. United States, 187 F. 3d 1324 (1999), that the 1996 Act’s mandatory access amendment to the Pole Attachment Act effected a taking of property, the Court found that there is an adequate process for obtaining just compensation. 51 See Amendment of Commission's Rules and Policies Governing Pole Attachments, FCC 01- 170, 16 FCC Rcd 12103 (2001), appeal pending sub nom. Southern Company Services, Inc. et al. v. FCC, Case No. 01- 1326 (D. C. Cir., filed July 26, 2001); Alabama Cable Telecommunications Association, et al. v. Alabama Power Company, File No. PA 00- 003, FCC 01- 181, 16 FCC Rcd 12209 (2001), appeal pending sub nom. Alabama Power Company v. FCC, Case No. 00- 14763- I (11 th Cir., filed Sept. 13, 2000). 52 In support of this contention, GPC asserts that "[ a] rational public policy analysis would indicate that cable and phone customers, particularly at the high end, should be required to pay a higher share of infrastructure costs to lower the costs of essential services, such as electricity, to consumers of those services." Application at pp. 6- 7. 10 11 Federal Communications Commission FCC 02- 270 applying the pole attachments rules and formulas. It was a thorough notice and comment rulemaking proceeding and included a review of the materials and issues raised by GPC. GPC has provided no compelling reason why those issues should be revisited in this adjudication. In Alabama Power, we concluded that our pole attachment formulas, together with the payment of make- ready expenses, provide compensation that exceeds just compensation. GPC makes no new arguments and provides no new information that would cause us to revisit that issue in this case. Therefore, we reject GPC's request that we reverse those decisions. 24. Finally, we consider GPC's reply and the additional information contained in it. GPC asserts that is has now included the underlying data in support of its original calculation and that it is consistent with the Consolidated Order. GPC argues that it is in the public interest to include the additional new data because it provides a useful and informative case study for calculating average number of attachers. However, the data and calculations accompanying GPC's reply were never submitted to the Bureau. This is the type of information that GPC should have provided in response to the complaint. We cannot condone GPC's failure to provide the appropriate information at the required time. Section 1.115( c) of the Commission's rules states that: "[ N] o application for review will be granted if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass. 53 GPC provides no adequate explanation for its failure to provide a reasonable explanation for its average number of attaching entities at the time it responded to the complaint. Therefore, we will not consider the new factual material. 54 25. In any event, we note that the factual material supplied by GPC does not comport with its original calculation. For example, GPC submits, for the first time, a "December 2000 Spread Sheet" that purports to support its original calculation of 1.5922 for the average number of attaching entities. 55 Although the description of its calculation is identical to the description submitted with the complaint, it does not reflect GPC's actual methodology. In essence, GPC multiplied a number of poles by the number of attachments per pole, added the gross number of attachments together and divided that figure by the total number of poles included in the equation. Even if GPC had submitted this entire explanation with its response, it would not have been adequate to support an average number of attaching entities because it provides no explanation of the source for GPC's calculation. For example, an attacher is only responsible to pay its Telecom Formula share of the costs of unusable space for the poles to which it is actually attached. 56 Therefore, using a survey to calculate an average number of attachers provides an efficient solution to the problem of calculating a rate for each individual pole to which an attacher is affixed. In order to be a reasonable reflection of the actual poles to which an attacher is affixed, the average must reflect only those poles in areas where the attacher is actually affixed. 57 GPC asserts that Teleport targets 53 47 C. F. R. § 1.115 (c). 54 As the Commission has stated before, "[ w] e cannot allow a party to 'sit back and hope that a decision will be in its favor and, when it isn't, to parry with an offer of more evidence. No judging process in any branch of government could operate efficiently or accurately if such a procedure were allowed. '" See Canyon Area Residents, FCC 99- 123, 14 FCC Rcd 8152 at ¶ 7 (1999), quoting Colorado Radio Corp. v. FCC, 118 F. 2d 24, 26 (D. C. Cir. 1941). 55 See Park Reply Declaration at Exhibit 2. 56 47 U. S. C. § 224 (e)( 2). 57 See Consolidated Order at ¶ 66, n. 277 (" The service area must be representative of the area for which pole 11 12 Federal Communications Commission FCC 02- 270 only local business telephone customers in urban areas. 58 This tends to support the use of a smaller, denser representative area to calculate the average number of attachers. GPC provides absolutely no explanation in support of its inclusion of poles to which Teleport is not attached. Nor does GPC explain why the number of poles with multiple telephone attachments is not representative of the poles to which Teleport, a competitive local telephone carrier, is attached. 59 26. Finally, GPC provides what it describes as updated figures in its "January 2002 Spread Sheet." 60 This is GPC's first attempt to provide even a minimal showing in support of a presumptive average number of attaching entities. Once again, GPC fails to provide an adequate explanation for the source of its numbers. For example, GPC includes a number that represents the number of "paying attachments" 61 without explaining how this number was derived. GPC admits that it does not include itself or government attachments in its count. And, while GPC does attempt to divide its service areas into urban and rural, it does not indicate the specific service areas in which Teleport is actually attached. Indeed, there is no indication that Teleport is included in the count of attachments. We encourage GPC to develop a presumptive average that accurately reflects the Teleport service area and that can be used in its future negotiations with Teleport. As stated above, however, we decline to accept GPC's newly filed information in support of its Application. VI. CONCLUSION AND ORDERING CLAUSE 27. For the reasons discussed above, we conclude that Applicant's application for review should be denied. 28. Accordingly, IT IS ORDERED, pursuant to Section 1.115 of the Commission's rules, 47 C. F. R. § 1.115, that the Application for Review of Teleport Communications Atlanta, Inc. v. Georgia Power Co., DA 01- 2653, 16 FCC Rcd 20238 (2001) IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch attachment rates are being set."). 58 Application at p. 2; Park Reply Declaration at p. 5. 59 GPC's analogy to splitting a three person dinner tab five ways is inapposite to the facts in issue. See Park Reply Declaration at p. 7. It is relevant, however, to highlighting the need to have the average number of attachers reflect the number of attachers in the service area in which the attaching party has actual attachments. Using the same analogy as GPC, it would be unreasonable to split a dinner tab based on the number of diners sitting at a different table. 60 See Park Reply Declaration at Exhibit 3. 61 See Park Reply Declaration at p. 8. 12 13 Federal Communications Commission FCC 02- 270 Secretary 13