In its order, the FCC also clarified the appropriate inclusion of nuclear fuels and materials in gross fixed capital formation in both the numerator and denominator when calculating the maintenance costs (taxes, depreciation, maintenance, and administration) of its pole rate formula. The FCC has agreed that the rates are inappropriate and that Telekom is entitled to a tariff that does not exceed the old one. However, the agency noted that AT&T is not eligible for the new rate (set in 2018) because it receives benefits from the JUA, which gives it advantages over other endearing ones. For example, the JUA allocates three feet of space on the parties` common masts for AT&T`s exclusive use and allows telecommunications to expand beyond the allocated space when space is available. According to the FCC`s 2018 Pole Garnishment Order, a CELT should apply to agreements entered into after September 11, 2018. In March 2019, he is entitled to the new telecommunications tariff, unless he receives a material advantage over other telecommunications attachés on the same masts. The FCC noted that the deal offers AT&T a number of advantages that « significantly favor AT&T over other telecommunications attaches on the same masts. » For example, AT&T had the guaranteed right to be attached to all shared-use poles and to use additional space not intended for other fasteners. AT&T was also granted many operational benefits, including a predetermined schedule for mast replacement costs, predictability of billing, lowest pole position, and no need to obtain prior approval for mast fixing or pay a permit fee. For these reasons, the FCC noted that for the period covered by the 2018 Pole Seizure Order, AT&T was « only eligible for a tariff that did not exceed the old telecommunications tariff. » The FCC states in its decision that under the JUA, Duke charges AT&T mast mounting rates that are « significantly higher » than the rates Duke charges competing LECs and the price of the cable to be attached to the same masts. The actual rates are redacted. AT&T claimed that Duke at&T has « long since » charged « unfair and inappropriate » polishing rates and is entitled to a rate that does not exceed the new rate announced by the commission in 2011. In making its decision, the FCC had to consider the applicability of its 2018 Pole Garnishment Order to the automatic (or « evergreen ») renewal of contracts such as the one at issue in this case.
As with many joint user agreements, the contract between AT&T and Duke – which first came into effect in 2001 – would be terminated by one of the parties, and such termination could only occur with one year`s notice. Similar to the Commission`s analysis in Verizon Maryland LLC v. Potomac Edison, the Commission concluded that « the one-year notice period » in the Duke-AT&T agreement « effectively creates a set of one-year contracts that have automatically renewed and extended [the agreement] since the date of entry into force of the agreement on 1 January 2001 ». And since neither party issued such notice or requested termination, the FCC noted that the agreement was automatically « renewed » each year once it went into effect. The FCC therefore concluded that AT&T was entitled to relief under Section 47 C.F.R. Section 1.1413(b), which provides that the rebuttable presumption applies to rates applicable to contracts for the seizure of piles « entered into or renewed after the date of coming into force of this Division ». The Commission concluded that the Joint User Agreement between AT&T and Duke was automatically renewed on January 1, 2020, after the effective date of the 2018 rule changes, March 11, 2019. Conversely, rates calculated by Duke prior to January 2020 should be assessed in accordance with the Pole Attachment Order 2011. In its 2018 Pole Seizure Order, the FCC assumed a rebuttable presumption that ILECs in new or recently renewed agreements are « similar to other telecommunications attaches » and therefore subject to FCC rules and orders, including « fair and reasonable » rates under Section 224(b)(1) of the Federal Communications Act.
In its at-t v. Duke Order noted to the FCC that the prices charged by Duke AT&T were much higher than those that Duke charged LECs and competing cable companies to attach to the same masts. The FCC also found that the rate paid by AT&T is « about 75% of the rate Duke pays to AT&T, even though Duke`s attachments take up much more space on the poles, » meaning that « AT&T pays much more than Duke per foot. » This disproportionate distribution of costs, along with Duke`s ownership advantage of five for one pole, gave Duke greater bargaining power and made negotiations on lower rates very unlikely. After reviewing these factors, the FCC concluded that the rates charged by Duke AT&T were « unfair and inappropriate » and ordered Duke to refund AT&T`s overpayments for the past three years and to charge for future payments according to the FCC`s tariff formulas. Flags can be allowed on streetlights through a lighting fixation agreement with Duke Energy. But these agreements are separate from the agreements on electricity poles. Duke and AT&T disagreed on many issues, including the amount of space AT&T uses on each pole. The FCC claims that at&T proved it occupied one foot and that Duke did not provide « reliable evidence » to deny it. Duke regularly inspects power poles. The utility is legally licensed and obligated to maintain power towers on other people`s property, and it can hire contractors for inspections. In 2011, the FCC revised the formula for calculating the rate in the Schedule to Section 224(e), which applies to competing LECs.
This resulted in a new lower pole fixation rate for competitive LECs. .