Pole Attachment Development (October 1, 2003)
11th Circuit Rejects Georgia Power Rate Increase

Date: Oct 02, 2003

The U.S. Court of Appeals for the 11th Circuit on Monday rejected Georgia Power's appeal of an FCC decision replacing the utility's proposed $53.35 pole attachment rate with rates between $6.56 and $8.24. All aspects of the utility's appeal were denied. Because Georgia Power used replacement costs instead of historical costs to calculate rates, the utility refused to supply the FCC with historical cost data and consequently, in the court's view, "did not even come close" to explaining its rate calculations, as required by the rules. The court also found the utility's calculation of the average number of attachers to be unsupported, and affirmed the FCC's decision to count the utility itself and governmental entities as "attaching entities." The court found the FCC's decision to disallow supplemental information submitted by Georgia Power after the close of the pleading cycle to be reasonable. Since the utility already had a chance to present its case, the FCC was entitled to rely on its standard three-part pleading mechanism; and the information submitted primarily supported the utility's irrelevant replacement cost methodology. The court also ruled that negotiations between the parties do not have to break down completely before the FCC may hear a complaint. Instead, the FCC's decision to intervene even after limited discussions between Georgia Power and its attacher (Teleport Communications) was reasonable, considering the utility's "unilateral" attempt to fix a price. Finally, the court rejected the utility's claim that the FCC's rate methodology does not provide just compensation, relying on the court's Alabama Power decision from last year. If you have any questions or comments about this decision, please contact Tom Magee at (202) 434-4128 or magee@khlaw.com.