Georgia Power Pole Attachment Agreement

In mid-2000, Georgia Power Company informed Georgia`s cable operators that it was considering terminating its long-standing fattening fixing agreements. The distribution company informed the cable companies that if they wished to stay on the Georgia Power poles, they had to implement a substantially revised fattening fixing agreement (“New Agreement”). After several months of failed negotiations, Georgia Power refused to extend the duration of the existing agreement, informed the cable operators that they had “accepted” the terms of the new agreement and banned further annexes and upgrades until the cable operators signed the new agreement. On January 17, 2001, the Cable Television Association of Georgia (CTAG) filed a complaint with the FCC on behalf of its members.  The starting point for our analysis is the fundamental burden of proof obtained in the pole fixation rate dispute between Georgia Power and Teleport.   The FCC concluded that Georgia Power did not justify its proposed interest rate with an acceptable pricing formula.   See Final Order, 17 F.C.C.R. at 19.863, 12.   In its request for reconsideration, Georgia Power asserts that it duly justified its proposed sentence by filing for the first time an affidavit from Thomas G. Park and that Park`s affidavit was sufficient, in accordance with the Telecom Order rules in effect at the time.   In accordance with Telecom`s order, the FCC required each distribution undertaking to develop an assumed average number of fasteners and, upon request, to provide each ancillary undertaking with “the methodology and information according to which the presumption of a distribution undertaking has been determined”.

 Telecom Order, 13 F.C.C.R. 6777, 78. Since access to the pylons was compulsory and the physical occupation of part of the pylons included, we came to the conclusion that fattening fixtures, in accordance with the new Telecommunications Act, resulted in a levy that required fair compensation.   See Gulf Power 1, 187 F.3d at 1328.   We left it to the FCC to determine first what fair compensation would be.  Id. at 1333.   Subsequently, the distribution companies challenged, among other things, the FCC`s tariff formula for fattening fixtures, but since this was not a specific provision of the FCC, we refused to decide whether the FCC`s formula provided for fair compensation.

  See Gulf Power 2, 208 F.3d at 1272-73.   More recently, we have found that some of the pole fixing rates announced by the FCC offer fair compensation to distribution companies, at least in the absence of specific evidence to the contrary.   See Ala. Power, 311 F.3d at 1370-71. Georgian politicians often say that the Internet is almost as important as electricity in small communities, where many EMCs have been created to bring electricity and telephone services to remote areas. . . .