(a) No major Commission action (as defined in § 1.1305) granting an application (or authorizing construction on the basis of a narrative statement, pursuant to § 1.1311(c)) will be taken by the Commission earlier than 30 days following the Commission's issuance of a public notice stating that the application, the narrative statement, or a substantial amendment thereof has been accepted for filing. In the case of an application to which section 309(b) of the Communications Act applies, objections based on environmental considerations may be filed as petitions to deny (see section 309(d) of the Communications Act and § 1.580, 1.962, and 21.27 of this chapter). Informal objections to any major Commission action (as defined in § 1.1305) which are based on environmental considerations may be filed at any time prior to the action. Any person who wishes to raise a question concerning the effect of a grant on the quality of the environment should file either a petition to deny or an informal objection within the period prescribed. A subsequent opportunity to comment on a draft environmental impact statement will be afforded only if the application processing staff determines, on the basis of available information, that a grant would have a significant effect on the quality of the environment.

(b) When the application is reached for processing, the processing staff will review the statement required by § 1.1311 and any other available information bearing on the question of environmental effect and will determine whether a grant of the application will have a significant effect on the quality of the human environment. In connection with this review, the staff may require the applicant to furnish additional information bearing on the effect of a grant.

(1) If it is determined that grant of an application will not have significant environmental effect, the application will thereafter be processed without further consideration of environmental effect.

(2) If it is determined that a grant will or may have significant environmental effect, the staff may, before deciding to prepare a draft environmental impact statement, discuss matters of environmental concern with the applicant, concerned individuals and experts, in an effort to identify measures which could be taken to minimize adverse effect and alternatives which are not, or are less, objectionable. (The Advisory Council on Historic Preservation has adopted formal procedures for such consultation. See 39 FR 3366, January 25, 1974, 36 CFR 800.) The staff may direct that technical studies be made or that expert opinion be obtained concerning the effect of a grant and the environmental, communications and cost effects of measures or alternatives which could reduce, minimize or eliminate an environmental problem. The staff may also request that a person objecting to grant of an application on environmental grounds raise his objections with appropriate local, State or Federal land use authorities (if their views have not previously been sought) and, if he declines, may itself request the views of such authorities. The applicant may amend his application to reduce, minimize or eliminate such a problem. If such measures as are taken fail to eliminate the environmental problem, the staff will prepare a draft environmental impact statement. When a decision to prepare a statement is made, a public notice to that effect will be published in the Federal Register. The public notice will indicate the nature and location of the facilities and will advise interested persons that they may obtain a copy of the statement by submitting a written request to the Commission prior to the date on which the statement is duplicated for circulation to agencies.

(c) If it appears that grant of an application will not have significant environmental effect or that construction can proceed in part without such effect, and if all statutory requirements pertaining to such action are met, the Commission may waive the requirement for a construction permit, or may grant a temporary authorization, prior to final action on the application.

§ 1.1315 The draft environmental impact statement;

comments.

(a) The draft environmental impact statement will describe the facilities, the area affected and its uses. It will enumerate the environmental consequences and, to the extent possible, will evaluate their magnitude and significance. It will relate views expressed by persons opposing grant of the application on environmental grounds. It will describe alternatives considered by the applicant, advocated by persons opposing grant of the application or developed by the Commission, explain the basis for rejection of any alternative not considered feasible, and discuss the relative advantages and disadvantages of feasible alternatives. It will discuss measures which will or could be taken to minimize adverse effects and will indicate whether the applicant proposes to take such measures. It will deal specifically with any feature of the impacted area which has special environmental significance. Except as may be appropriate in assessing the feasibility of alternatives, it will not discuss non-environmental considerations, or draw conclusions as to whether a grant will serve the public interest. Such matters will be considered by the Commission in acting on the application after the final environmental impact statement has been prepared. The summary sheet set out as Appendix I to the CEQ Guidelines will accompany each draft statement.

(b) The draft statement will be prepared by the application processing staff before any action is taken on the application and before any recommendation regarding action is made to the Commission. The statement will not be adopted by the Commission.

(c) When a draft statement is prepared, the Commission will publish in the Federal Register a public notice containing the following information:

(1) The nature and location of the facilities.

(2) A brief statement regarding the nature of any environmental problem dealt with in the draft environmental impact statement.

(3) A statement that the draft statement is available for inspection at the Commission and that a limited number of copies will be made available upon request.

(4) A statement that comments on the draft statement may be filed within 45 days after publication of the notice. (The date of publication will be specified in the notice.)

(d) Before notice of the draft statement is published in the Federal Register, copies will be mailed, with a request for comment, to Federal and Federal-State agencies having jurisdiction by law or special expertise with respect to the environmental effects of the facilities. (See Appendix II to the CEQ Guidelines.) Five copies of the statement will be mailed to the Council on Environmental Quality. Copies of the statement will be mailed to the applicant and to individuals, groups and State and local agencies known to have an interest in the environmental consequences of a grant.

(e) Any person or agency may comment on the environmental impact of the facilities described in the environmental impact statement within 45 days after public notice of the

statement is published in the Federal Register. Comments shall be served on the applicant by the person who files them. An original and 6 copies of comments shall be submitted to the Commission. Five

(5) additional copies shall be forwarded by the person commenting to the Council on Environmental Quality. If a person submitting comments is specially qualified in any way to comment on the environmental impact of the facilities, a statement of his qualifications shall be set out in the comments. Comments submitted by an agency shall, in addition, specify the identity of the person(s) who prepared them.

(f) The applicant may file reply comments within 21 days after the time for filing comments has expired. Reply comments shall be served by the applicant on persons or agencies which filed comments. An original and six copies of reply comments shall be submitted to the Commission.

(g) Comments and reply comments shall be accompanied by a certificate of service. See § 1.47.

(h) The preparation of a draft environmental impact statement and request for comments shall not open the application to attack on other grounds.

(i) The application, the draft environmental impact statement, and all related papers, including agency comments, shall be routinely available for public inspection.

§ 1.1317 The final environmental impact statement.

(a) Upon consideration of the comments and reply comments, the application processing staff will prepare a final environmental impact statement. The final statement will contain a discussion of matters discussed in the draft statement (see § 1.1315(a)), taking into consideration all matters of substance raised in the comments and reply comments. If the comments show that the effect of the facilities will in fact not be significant, the final statement will state that conclusion. The summary sheet set out as Appendix I of the CEQ Guidelines will accompany each final statement.

(b) Copies of the final statement will be distributed to the applicant and to persons and agencies which submitted substantive comment on the draft statement. If practicable, copies of the comments and reply comments will be attached to and distributed with the final statement. Persons who submitted comments may be requested to furnish additional copies for this purpose. Five copies of the final statement and all comments will be submitted to the Council on Environmental Quality.

(c) The Commission will consider the final environmental impact statement in determining whether to grant the application or to designate it for hearing on an environmental issue. It may adopt or reject conclusions set out in the final statement relating to environmental consequences of the action or their significance. If the Commission adopts the final statement, it will be made a part of the opinion issued by the Commission in granting the application or designating it for hearing. If the Commission rejects all or part of the final statement and grants the application, the reasons for rejection of the statement will be stated in the opinion, and the statement will be associated with that opinion. If the Commission rejects all or part of the final statement and designates the application for hearing on an issue relating to the rejected statement or part, a supplementary final statement reflecting the Commission's determination will be prepared, circulated to interested persons and agencies and associated with the designation order before the hearing is commenced.

§ 1.1319 Consideration of the final environmental impact statement during the hearing and decision-making

process.

(a) If the application is designated for hearing on an environmental issue, the final (or supplementary final) environmental impact statement will be associated with the designation order and will be considered in delineating the scope of the environmental issue.

(b) Copies of comments from Federal, State and local agencies will be associated with the record of the hearing proceeding, shall be admissible in evidence for the limited purpose of showing the views of those agencies, and may be used in cross-examining witnesses on the environmental issue.

(c) Agencies and individuals who comment on environmental effect may be invited to participate as parties to the proceeding and, if not named as parties, may petition to intervene. Agencies which comment may be asked by Commission counsel or others to furnish expert witnesses to testify on matters of environmental impact. Subpoenas for the appearance of such agency experts will be issued, if necessary, when their testimony is required to lay a foundation for the admission of agency comments in evidence to show the truth of facts and the validity of conclusions contained therein.

(d) The burden of proceeding with the introduction of evidence on the environmental issue, as well as the burden of proof on that issue, shall be upon the applicant, except as otherwise provided in the designation order

Subpart J-Pole Attachment Complaint Procedures

SOURCE: 43 FR 36094, Aug. 15, 1978, unless otherwise noted.

§1.1401 Purpose.

The rules and regulations contained in Subpart J of this part provide complaint and enforcement procedures to ensure that rates, terms and conditions for cable television pole attachments are just and reasonable.

§ 1.1402 Definitions.

(a) The term "utility" means any person whose rates or charges are regulated by the Federal Government or a State and who owns or controls poles, ducts, conduits, or rights-ofway used, in whole or in part, for wire communications. Such term does not include any railroad, any person who is cooperatively organized, or any person owned by the Federal Government or any State.

(b) The term "pole attachment" means any attachment by a cable television system to a pole, duct, conduit, or right-ofway owned or controlled by a utility.

(c) The term "usable space" means the space on a utility pole above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment. (d) The term "complaint" means a filing by either a cable television system operator or a utility alleging that a rate, term, or condition for a pole attachment is not just and reasonable.

(e) The term "complainant" means a cable television system operator or a utility who files a complaint.

(f) The term "respondent" means a cable television system operator or a utility against whom a complaint is filed.

(g) The term "State" means any State, territory, or possession of the United States, the District of Columbia, or

any political subdivision, agency, or instrumentality thereof. § 1.1403 Notice of removal and petition for temporary stay. (a) A utility shall provide a cable television system operator no less than 60 days written notice prior to (1) removal of facilities or termination of any service to those facilities, such removal or termination arising out of a rate, term or condition of a cable television pole attachment agreement, or (2) any increase in pole attachment rates.

(b) A cable television system operator may file a "Petition for Temporary Stay" of the action contained in a notice received pursuant to paragraph

(a) of this section within 15 days of receipt of such notice. Such submission shall not be considered unless it includes, in concise terms, the relief sought, the reasons for such relief, including a showing of irreparable harm and likely cessation of cable television service, a copy of the notice, and certification of service as required by § 1.1404(b) of this subpart. The named respondent may file an answer within 7 days of the date the Petition for Temporary Stay was filed. No further filings under this section will be considered unless requested or authorized by the Commission and no extensions of time will be granted unless justified pursuant to /S 1.46.

§1.1404 Complaint.

(a) The complaint shall contain the name and address of the complainant, name and address of the respondent, and shall contain a verification (in the form set forth in § 1.721(b)), signed by the complainant or officer thereof if complainant is a corporation, showing complainant's direct interest in the matter complained of. Counsel for the complainant may sign the complaint. Complainants may join together to file a joint complaint.

(b) The complaint shall be accompanied by a certification of service on the named respondent and each State, Federal or local agency which regulates any aspect of service provided by the utility or cable television system named as either complainant or respondent.

(c) The complaint shall contain a statement that the State has not certified to the Commission that it regulates the rates, terms and conditions for pole attachments, and that the utility is not owned by any railroad, any person who is cooperatively organized or any person owned by the Federal Government or any State.

(d) The complaint shall be accompanied by a copy of the pole attachment agreement, if any, between the cable system operator and the utility. If there is no present pole attachment agreement, the complaint shall contain:

(1) A statement that the utility uses or controls poles, ducts or conduits used or designated, in whole or in part, for wire communication and such statement shall be accompanied by evidence of such use or designation, or by an explanation of why such evidence cannot be provided; and

(2) A statement that the cable television operator currently has attachments on the poles and such statement shall be accompanied by evidence of such attachment, or by an explanation of why such evidence cannot be provided.

(e) The complaint shall state with specificity the pole attachment rate, term or condition which is claimed to be unjust or unreasonable.

(f) In any case, where it is claimed that a term or condition is unjust or unreasonable, the claim shall specify all information and argument relied upon to justify said claim.

(g) In a case where it is claimed that either a rate is unjust

or unreasonable, or a term or condition is unjust or unreasonable and examination of such term or condition requires review of the associated rate, the complaint shall provide data and information in support of said claim. The data and information shall include, where applicable:

(1) The gross investment by the utility for pole lines; (2) The cross arm investment for pole lines;

(3) The depreciation reserve from the gross pole line investment;

(4) The depreciation reserve from the crossarm investment; (5) The total number of poles: (i) Owned; and (ii) Controlled or used by the utility;

(6) The total number of poles which are the subject of the complaint;

(7) The number of poles included in paragraph (6) of this section that are controlled or used by the utility through lease between the utility and other owner(s), and the annual amounts paid by the utility for such rental;

(8) The number of poles included in paragraph (6) of this section that are owned by the utility and that are leased to other users by the utility, and the annual amounts paid to the utility for such rental;

(9) The annual carrying charges attributable to the cost of owning a pole. These charges may be expressed as a percentage of the net pole investment;

(10) The rate of return authorized for the utility for intrastate service;

(11) The average amount of usable space per pole for those poles used for pole attachments (13.5 feet may be in lieu of actual measurement, but may be rebutted);

(12) Reimbursements received from CATV operators for non-recurring costs; and

Data and information should be based upon historical or original cost methodology, insofar as possible. Data should be derived from Form M, FERC 1, or other reports filed with state or federal regulatory agencies (identify source). Calculations made in connection with these figures should be provided to the complainant. Where the attachments involve ducts, conduits, or rights of way, in whole or in part, appropriate and equivalent data and information should be filed. The complainant shall also specify any other information and argument relied upon to attempt to establish that a rate, term, or condition is not just and reasonable.

(h) If any of the information required in paragraph (g) of this section is not provided to the cable television operator by the utility upon reasonable request, the cable television operator shall include a statement indicating the steps taken to obtain the information from the utility, including the dates of all requests. No complaint filed by a cable television operator shall be dismissed where the utility has failed to provide the information in (g) of this section after such reasonable request.

(i) The complaint shall include a brief summary of all steps taken to resolve the problem prior to filing.

(j) Factual allegations shall be supported by affidavit of a person or persons with actual knowledge of the facts, and exhibits shall be verified by the person who prepares them.

[43 FR 36094, Aug. 15, 1978, as amended at 44 FR 31649, June 1, 1979; 45 FR 17014, Mar. 17, 1980]

§1.1405 File numbers.

Each complaint which appears to be essentially complete under § 1.1404 will be accepted and assigned a file number. Such assignment is for administrative purposes only and does

not necessarily mean that the complaint has been found to be in full compliance with other sections in this Subpart. Petitions for temporary stay will also be assigned a file number upon receipt.

[44 FR 31650, June 1, 1979]

§1.1406 Dismissal of complaints.

(a) The complaint shall be dismissed for lack of jurisdiction in any case where a suitable certificate has been filed by a State pursuant to § 1.1414 of this subpart. Such certificate shall be conclusive proof of lack of jurisdiction of this Commission. A complaint against a utility shall also be dismissed if the utility does not use or control poles, ducts, or conduits used or designated, in whole or in part, for wire communication or if the utility does not meet the criteria of § 1.1402(a) of this subpart.

(b) If the complaint does not contain substantially all the information required under § 1.1404 the Commission may dismiss the complaint or may require the complainant to file additional information. The complaint shall not be dismissed if the information is not available from public records or from the respondent utility after reasonable request.

(c) Failure by the complainant to respond to official correspondence or a request for additional information will be cause for dismissal.

(d) Dismissal under provisions of paragraph (b) of this section above will be with prejudice if the complaint has been dismissed previously. Such a complaint may be refiled no earlier than six months from the date it was so dismissed. [43 FR 36094, Aug. 15, 1978, as amended at 44 FR 31650, June 1, 1979] § 1.1407 Response and reply.

(a) Respondent shall have 30 days from the date the complaint was filed within which to file a response. Complainant shall have 20 days from the date the response was filed within which to file a reply. Extensions of time to file are not contemplated unless justification is shown pursuant to /S 1.46. Except as otherwise provided in § 1.1403, no other filings and no motions other than for extension of time will be considered unless authorized by the Commission. The response should set forth justification for the rate, term, or condition alleged in the complaint not to be just and reasonable. Factual allegations shall be supported by affidavit of a person or persons with actual knowledge of the facts and exhibits shall be verified by the person who prepares them. The response, reply, and other pleadings may be signed by counsel.

(b) The response shall be served on the complainant and all parties listed in complainant's certificate of service.

(c) The reply shall be served on the respondent and all parties listed in respondent's certificate of service.

(d) Failure to respond may be deemed an admission of the material factual allegations contained in the complaint. [44 FR 31650, June 1, 1979]

§ 1.1408 Number of copies and form of pleadings.

(a) An original and three copies of the complaint, response, and reply shall be filed with the Commission.

(b) All papers filed in the complaint proceeding must be drawn in conformity with the requirements of § 1.49, 1.50 and 1.52.

§ 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.

(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) If the Commission determines that the complainant has not established a prima facie case or that the rate, term, or condition complained of is just and reasonable, it shall deny the complaint.

§1.1410 Remedies.

If the Commission determines that the rate, term, or condition complained of is not just and reasonable, it may prescribe a just and reasonable rate, term, or condition and may:

(a) Terminate the unjust and unreasonable rate, term, or condition;

(b) Substitute in the pole attachment agreement the just and reasonable rate, term, or condition established by the Commission; and

(c) Order a refund, or payment, if appropriate. The refund or payment will normally be the difference between the amount paid under the unjust and/or unreasonable rate, term, or condition and the amount that would have been paid under the rate, term, or condition established by the Commission from the date that the complaint, as acceptable, was filed, plus interest.

[44 FR 31650, June 1, 1979]

§ 1.1411 Meetings and hearings.

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.

§1.1412 Enforcement.

If the respondent fails to obey any order imposed under this subpart, the Commission on its own motion or by motion of the complainant may order the respondent to show cause why it should not cease and desist from violating the Commission's order.

§1.1413 Forfeiture.

(a) If any person willfully fails to obey any order imposed under this subpart, or any Commission rule, or

(b) If any person shall in any written response to Commission correspondence or inquiry or in any application, pleading, report, or any other written statement submitted to the Commission pursuant to this subpart make any misrepresentation bearing on any matter within the jurisdiction of the Commission, the Commission may, in addition to any other remedies, including criminal penalties under section 1001 of Title 18 of the United States Code, impose a forfeiture pursuant to section 503(b) of the Communications Act, 47 U.S.C. 503(b).

§1.1414 State certification.

(a) If the Commission does not receive certification from a State that:

(1) It regulates rates, terms, and conditions for pole attachments;

(2) In so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of cable television services, as well as the interests of the consumers of the utility services; and, (3) It has issued and made effective rules and regulations implementing the state's regulatory authority over pole attachments (including a specific methodology for such regulation which has been made publicly available in the state), it will be rebuttably presumed that the state is not regulating pole attachments.

(c) Upon receipt of such certification, the Commission shall forward any pending case thereby affected to the State regulatory authority, shall so notify the parties involved and shall give public notice thereof.

(d) Certification shall be by order of the state regulatory body or by a person having lawful delegated authority under provisions of state law to submit such certification. Said person shall provide in writing a statement that he or she has such authority and shall cite the law, regulation or other instrument conferring such authority.

(e) Notwithstanding any such certification, justification will revert to this Commission with respect to any individual matter, unless the state takes final action on a complaint regarding such matter:

(1) Within 180 days after the complaint is filed with the state, or

(2) Within the applicable periods prescribed for such final action in such rules and regulations of the state, if the prescribed period does not extend beyond 360 days after the filing of such complaint.

[43 FR 36094, Aug. 15, 1978, as amended at 44 FR 31650, June 1, 1979; 50 FR 18659, May 2, 1985; eff. Apr. 28, 1985]

§ 1.1415 Other orders.

The Commission may issue such other orders and so conduct its proceedings as will best conduce to the proper dispatch of business and the ends of justice.

Subpart K-Implementation of the Equal Access to Justice Act (EAJA) in Agency Proceedings

AUTHORITY: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 504(c)(1)).

SOURCE: 47 FR 3786, Jan. 27, 1982, unless otherwise noted.

GENERAL PROVISIONS

§ 1.1501 Purpose of these rules.

The Equal Access to Justice Act, 5 U.S.C. 504 (called "the EAJA" in this subpart), provides for the award of attorney's fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications") before the Commission. An eligible party may receive an award when it prevails over the Commission, unless the Commission's position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Commission will use to make them.

§ 1.1502 When The EAJA applies.

The EAJA applies to any adversary adjudication pending before this agency at any time between October 1, 1981, and September 30, 1984. This includes proceedings begun before October 1, 1981, if final agency action has not been taken before that date, and proceedings pending on September 30, 1984, regardless of when they were initiated or when final agency action occurs.

§ 1.1503 Proceedings covered.

(a) The EAJA applies to adversary adjudications conducted by the Commission. These are adjudications under 5 U.S.C. 554 in which the position of this or any other agency of the United States, or any component of an agency, is presented by an attorney or other representative who enters an appearance and participates in the proceeding. Coverage of the EAJA begins at designation of a proceeding or issuance of a show cause order. Any proceeding in which the Commission may establish or fix a rate is not covered by the EAJA. Proceedings to grant or renew licenses are also excluded; but proceedings to revoke licenses are covered if they are otherwise "adversary adjudications."

(b) The Commission may designate a proceeding as an adversary adjudication for purposes of the EAJA by so stating in an order initiating the proceeding or designating the matter for hearing. The Commission's failure to designate a proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the EAJA; whether the proceeding is covered will then be an issue for resolution in proceedings on the application.

(c) If a proceeding includes both matters covered by the EAJA and matters specifically excluded from coverage, any awards made will include only fees and expenses related to covered issues.

§1.1504 Eligibility of applicants.

(a) To be eligible for an award of attorney fees and other expenses under the EAJA, the applicant must be a party, as defined in 5 U.S.C. 551(3), to the adversary adjudication for which it seeks an award. The applicant must show that it meets all conditions of eligibility set out in this paragraph and in paragraph (b) of this section.

(b) The types of eligible applicants are as follows:

(1) An individual with a net worth of not more than $1 million;