In re Salsgiver Telecom Inc.
| Decision Date | 24 May 2007 |
| Docket Number | EB-06-MD-002,DA 07-2150 |
| Parties | In the Matter of Salsgiver Telecom, Inc., Complainant, v. North Pittsburgh Telephone Company, Respondent. |
| Court | Federal Communications Commission Decisions |
Adopted: May 23, 2007
Kris Anne Monteith Chief, Enforcement Bureau
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we grant a pole attachment complaint[1] filed by Salsgiver Telecom, Inc. ("Salsgiver Telecom") against North Pittsburgh Telephone Company ("NPTC") pursuant to section 224 of the Communications Act of 1934, as amended ("the Act")[2] and sections 1.1401-1.1418 of the Commission's rules.[3] The Complaint alleges that NPTC violated section 224 by denying Salsgiver Telecom access to NPTC's poles, ducts, conduits, and rights-of-way for the placement of Salsgiver's attachments.[4] Salsgiver Telecom requests that the Commission order NPTC, inter alia, to provide Salsgiver Telecom with "immediate access to NPTC's poles."[5] For the reasons stated below, we grant Salsgiver's Complaint and order NPTC to provide Salsgiver immediately with nondiscriminatory access to NPTC's poles.
II. FACTUAL AND REGULATORY BACKGROUND
2. Salsgiver Telecom is authorized by Certificate of Public Convenience from the Pennsylvania Public Utility Commission ("PaPUC") to "offer, render, furnish or supply telecommunication services as a Competitive Access Provider ["CAP"] to the Public in the Commonwealth of Pennsylvania."[6] Salsgiver Telecom has filed with the PaPUC a tariff under which it offers intrastate wholesale dedicated access service to the public as a CAP ("CAP Tariff" or "Tariff").[7]Salsgiver Telecom offers this service to nonresidential users over its own facilities, or in combination with the facilities of other companies, on a point-to-point basis for the transmission of one-way and two-way communications at DS-3 speed (44.736 Mbps), or on a case-by-case basis, at another speed. Salsgiver Telecom offers to lease its dedicated and private line communications infrastructure under the Tariff to enterprise customers for high-bandwidth, secure, voice, video, and data networks.[8]
3. NPTC is an incumbent local exchange carrier providing telecommunications within the Commonwealth of Pennsylvania and thus is a "utility" within the meaning of section 224(a)(1) of the Act.[9] As a "utility, " NPTC must provide "a cable television system or any telecommunications carrier" with "nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it, "[10] unless it can show that a denial of access is justified due to "insufficient capacity" or "for reasons of safety, reliability and generally applicable engineering purposes."[11]
4. On October12, 2005, Salsgiver Telecom sent a letter to NPTC requesting access to NPTC's poles.[12] The letter informed NPTC that Salsgiver Telecom had PaPUC approval to provide telecommunication services as a CAP to the public in Pennsylvania, and sought immediately to commence pole attachment agreement negotiations with NPTC.[13] Following a telephone conversation between counsel, Salsgiver Telecom sent NPTC a letter on November 11, 2005 attaching a copy of a June 30, 2005 letter from the PaPUC provisionally approving Salsgiver Telecom's application to provide telecommunications services as a CAP in Pennsylvania.[14] In a November 23, 2005 response, NPTC declined Salsgiver Telecom's request for access asserting that under its Tariff, Salsgiver Telecom is "merely a lessor of a broadband transmission capacity" and therefore is not a "telecommunications carrier" entitled to access NPTC's poles under the Act.[15]
5. On February 7, 2006, Salsgiver Telecom filed the instant Complaint alleging that, because Salsgiver Telecom is a "telecommunications carrier, " NPTC's denial of access to its poles violates section 224 of the Act. The Complaint seeks an order requiring NPTC to grant Salsgiver Telecom immediate access to NPTC's poles.[16] In its Response to the Complaint, NPTC argues that Salsgiver Telecom is not entitled to such access under section 224, because Salsgiver Telecom has not demonstrated that it is a "telecommunications carrier" planning to provide "telecommunications services" over the requested attachments. NPTC also sought dismissal of the Complaint as untimely.[17]
6. The key question presented here is whether Salsgiver Telecom is a "telecommunications carrier" with statutory access rights to NPTC's poles under section 224(f)(1) of the Act.[18] Answering that question requires examination of certain statutory and common law definitions described below.
7. The Act defines "telecommunications carrier, " in pertinent part, as "any provider of telecommunications services . . ., " and specifies that "[a] telecommunications carrier shall be treated as a common carrier under this Act only to the extent that it is engaged in providing telecommunications services."[19] The term "telecommunications service" is defined as "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used."[20] "Telecommunications" is defined as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received."[21]
8. In interpreting those statutory definitions, the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) affirmed the Commission's conclusions that (i) the term "telecommunications service" "is intended to encompass only telecommunications provided on a common carrier basis, "[22] and (ii) the term "telecommunications carrier, " which was added to the Act in 1996, has essentially the same meaning as the pre-existing term "common carrier." [23] Courts construing "common carrier" have held, inter alia, that "the primary sine qua non of common carrier status is a quasi-public character, which arises out of the undertaking to carry for all people indifferently;" and a "second prerequisite to common carrier status" is that "'customers transmit intelligence of their own design and choosing."[24] Such offering of service indiscriminately to the public may be either a wholesale offering to other carriers or a retail offering to end users.[25]
III. DISCUSSION
9. In a case such as this challenging a denial of access, section 1.1409(b) of our rules provides that the complainant bears the burden of establishing a prima facie case that the denial of access violates section 224(f) of the Act.[26] Once the complainant establishes a prima facie case, the defendant utility has the burden of proving that its denial was lawful.[27] Therefore, Salsgiver Telecom bears an initial burden to establish a prima facie case that it is a "telecommunications carrier" with a right of access within the meaning of the Act. As discussed below, we conclude that Salsgiver Telecom has met that burden by showing that it possesses a valid state authorization to provide telecommunications services, and has filed a state tariff offering such services to the public.
10. Salsgiver Telecom has offered proof of its status as a "telecommunications carrier" in NPTC's territory by submitting in the record (i) its Certificate of Public Convenience to provide telecommunications services as a CAP to the public within the Commonwealth of Pennsylvania;[28] (ii) the June 30, 2005 Secretarial Letter granting Salsgiver Telecom provisional authority to provide telecommunications services as a CAP to the public in the Commonwealth of Pennsylvania, [29] and (iii) the CAP Tariff it filed with the PaPUC.[30] We find that the decisions of the PaPUC authorizing Salsgiver Telecom to "offer, render, furnish or supply telecommunications services"[31] to the public as a CAP and permitting its Tariff to become effective, reflect judgments by an expert regulatory agency that the services set forth in Salsgiver's proposed Tariff constitute "telecommunications services."[32] Moreover, NPTC has not identified any material differences between the meaning of the terms "telecommunications carrier" and "telecommunications service" under Pennsylvania law and the definitions of those terms in the Act; and we are aware of none. [33] Accordingly, Salsgiver Telecom may rely on the PaPUC's authorization of its right to provide "telecommunications service" as a CAP, together with the PaPUC's acceptance of Salsgiver Telecom's Tariff, to establish its prima facie case under section 224(f)(1) of the Act.
11. In holding that Salsgiver Telecom has established a prima facie case that it is a "telecommunications carrier" with pole attachment rights under section 224(f) of the Act, our reliance on the PaPUC's actions finds support in precedent addressing the prerequisites for the analogous process of establishing that an entity is a "cable television system" with pole attachment rights under section 224(f). In Paragon Cable Television Inc. v. FCC, the D.C. Circuit upheld a Commission ruling that possession of a valid cable franchise is a reasonable precondition for pole attachments. In so holding, the D.C Circuit found that the Commission could apply a "presumption of validity" to decisions by the local franchising authority concerning the attacher's status as an approved franchisee.[34] Similarly, in Texas Util. Elec. Co v. FCC, the D.C. Circuit upheld a Commission ruling that section 224 of the Act conferred jurisdiction over those pole attachments within the franchise service area...
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