47 U.S.C. § 224 — Pole attachments

Page 61 TITLE 47—TELECOMMUNICATIONS § 224 ‘‘(1) Whoever knowingly— ‘‘(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any per- son, regardless of whether the maker of such commu- nication placed the call; or ‘‘(B) permits any telephone facility under such per- son’s control to be used for an activity prohibited by clause (i); shall be fined in accordance with title 18 or imprisoned not more than two years, or both. ‘‘(2) Whoever knowingly— ‘‘(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any indecent communication for commercial purposes to any per- son, regardless of whether the maker of such commu- nication placed the call; or ‘‘(B) permits any telephone facility under such per- son’s control to be used for an activity prohibited by clause (i), shall be fined not more than $50,000 or imprisoned not more than six months, or both.’’ 1988—Subsec. (b). Pub. L. 100–690 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as fol- lows: ‘‘(1) Whoever knowingly— ‘‘(A) in the District of Columbia or in interstate or foreign communication, by means of telephone, makes (directly or by recording device) any obscene or indecent communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or ‘‘(B) permits any telephone facility under such per- son’s control to be used for an activity prohibited by subparagraph (A), shall be fined not more than $50,000 or imprisoned not more than six months, or both. ‘‘(2) In addition to the penalties under paragraph (1), whoever, in the District of Columbia or in interstate or foreign communication, intentionally violates para- graph (1)(A) or (1)(B) shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. ‘‘(3)(A) In addition to the penalties under paragraphs (1) and (2), whoever, in the District of Columbia or in interstate or foreign communication, violates para- graph (1)(A) or (1)(B) shall be subject to a civil fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation. ‘‘(B) A fine under this paragraph may be assessed ei- ther— ‘‘(i) by a court, pursuant to a civil action by the Commission or any attorney employed by the Com- mission who is designated by the Commission for such purposes, or ‘‘(ii) by the Commission after appropriate adminis- trative proceedings. ‘‘(4) The Attorney General may bring a suit in the ap- propriate district court of the United States to enjoin any act or practice which violates paragraph (1)(A) or (1)(B). An injunction may be granted in accordance with the Federal Rules of Civil Procedure.’’ Pub. L. 100–297, in par. (1)(A), struck out ‘‘under eighteen years of age or to any other person without that person’s consent’’ after ‘‘to any person’’, redesig- nated par. (3) as (2) and struck out former par. (2) which read as follows: ‘‘It is a defense to a prosecution under this subsection that the defendant restricted access to the prohibited communication to persons eighteen years of age or older in accordance with procedures which the Commission shall prescribe by regulation.’’, redesignated par. (4) as (3) and substituted ‘‘under para- graphs (1) and (2)’’ for ‘‘under paragraphs (1) and (3)’’, and redesignated par. (5) as (4). 1983—Subsec. (a). Pub. L. 98–214, § 8(a)(1), (2), des- ignated existing provisions as subsec. (a) and sub- stituted ‘‘$50,000’’ for ‘‘$500’’ in provisions after par. (2). Subsec. (a)(2). Pub. L. 98–214, § 8(b), inserted ‘‘facility’’ after ‘‘telephone’’. Subsec. (b). Pub. L. 98–214, § 8(a)(3), added subsec. (b). STATUTORY NOTES AND RELATED SUBSIDIARIES EFFECTIVE DATE OF 1998 AMENDMENTS Pub. L. 105–277, div. C, title XIV, § 1406, Oct. 21, 1998, 112 Stat. 2681–741, provided that: ‘‘This title [enacting section 231 of this title, amending this section and sec- tion 230 of this title, and enacting provisions set out as notes under sections 231 and 609 of this title] and the amendments made by this title shall take effect 30 days after the date of enactment of this Act [Oct. 21, 1998].’’ Amendment by Pub. L. 105–244 effective Oct. 1, 1998, except as otherwise provided in Pub. L. 105–244, see sec- tion 3 of Pub. L. 105–244, set out as a note under section 1001 of Title 20, Education. EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101–166 effective 120 days after Nov. 21, 1989, see section 521(3) of Pub. L. 101–166, set out as a note under section 152 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–297 effective July 1, 1988, see section 6303 of Pub. L. 100–297, set out as a note under section 1071 of Title 20, Education. CONSTRUCTION OF 2006 AMENDMENT Pub. L. 109–162, title I, § 113(b), Jan. 5, 2006, 119 Stat. 2987, provided that: ‘‘This section [amending this sec- tion] and the amendment made by this section may not be construed to affect the meaning given the term ‘telecommunications device’ in section 223(h)(1) of the Communications Act of 1934 [47 U.S.C. 223(h)(1)], as in effect before the date of the enactment of this section [Jan. 5, 2006].’’ EXPEDITED REVIEW Pub. L. 104–104, title V, § 561, Feb. 8, 1996, 110 Stat. 142, provided that: ‘‘(a) THREE-JUDGE DISTRICT COURT HEARING.—Not- withstanding any other provision of law, any civil ac- tion challenging the constitutionality, on its face, of this title [see Short Title of 1996 Amendment note set out under section 609 of this title] or any amendment made by this title, or any provision thereof, shall be heard by a district court of 3 judges convened pursuant to the provisions of section 2284 of title 28, United States Code. ‘‘(b) APPELLATE REVIEW.—Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of 3 judges in an action under subsection (a) holding this title or an amend- ment made by this title, or any provision thereof, un- constitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such ap- peal shall be filed not more than 20 days after entry of such judgment, decree, or order.’’ REGULATIONS; DISPOSITION OF COMPLAINTS PENDING ON DECEMBER 8, 1983 Pub. L. 98–214, § 8(c), (d), Dec. 8, 1983, 97 Stat. 1470, provided that the Federal Communications Commis- sion (FCC) issue regulations pursuant to subsec. (b)(2) of this section not later than 180 days after Dec. 8, 1983, and that the FCC was to act on all complaints alleging violation of this section pending on Dec. 8, 1983, within 90 days of that date. § 224. Pole attachments (a) Definitions As used in this section: (1) The term ‘‘utility’’ means any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who Page 62 TITLE 47—TELECOMMUNICATIONS § 224 owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. Such term does not in- clude any railroad, any person who is coopera- tively organized, or any person owned by the Federal Government or any State. (2) The term ‘‘Federal Government’’ means the Government of the United States or any agency or instrumentality thereof. (3) The term ‘‘State’’ means any State, terri- tory, or possession of the United States, the Dis- trict of Columbia, or any political subdivision, agency, or instrumentality thereof. (4) The term ‘‘pole attachment’’ means any at- tachment by a cable television system or pro- vider of telecommunications service to a pole, duct, conduit, or right-of-way owned or con- trolled by a utility. (5) For purposes of this section, the term ‘‘telecommunications carrier’’ (as defined in sec- tion 153 of this title) does not include any in- cumbent local exchange carrier as defined in section 251(h) of this title. (b) Authority of Commission to regulate rates, terms, and conditions; enforcement powers; promulgation of regulations (1) Subject to the provisions of subsection (c) of this section, the Commission shall regulate the rates, terms, and conditions for pole attach- ments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions. For purposes of en- forcing any determinations resulting from com- plaint procedures established pursuant to this subsection, the Commission shall take such ac- tion as it deems appropriate and necessary, in- cluding issuing cease and desist orders, as au- thorized by section 312(b) of this title. (2) The Commission shall prescribe by rule regulations to carry out the provisions of this section. (c) State regulatory authority over rates, terms, and conditions; preemption; certification; circumstances constituting State regulation (1) Nothing in this section shall be construed to apply to, or to give the Commission jurisdic- tion with respect to rates, terms, and condi- tions, or access to poles, ducts, conduits, and rights-of-way as provided in subsection (f), for pole attachments in any case where such mat- ters are regulated by a State. (2) Each State which regulates the rates, terms, and conditions for pole attachments shall certify to the Commission that— (A) it regulates such rates, terms, and condi- tions; and (B) in so regulating such rates, terms, and conditions, the State has the authority to con- sider and does consider the interests of the subscribers of the services offered via such at- tachments, as well as the interests of the con- sumers of the utility services. (3) For purposes of this subsection, a State shall not be considered to regulate the rates, terms, and conditions for pole attachments— (A) unless the State has issued and made ef- fective rules and regulations implementing the State’s regulatory authority over pole at- tachments; and (B) with respect to any individual matter, unless the State takes final action on a com- plaint regarding such matter— (i) within 180 days after the complaint is filed with the State, or (ii) within the applicable period prescribed for such final action in such rules and regu- lations of the State, if the prescribed period does not extend beyond 360 days after the fil- ing of such complaint. (d) Determination of just and reasonable rates; ‘‘usable space’’ defined (1) For purposes of subsection (b) of this sec- tion, a rate is just and reasonable if it assures a utility the recovery of not less than the addi- tional costs of providing pole attachments, nor more than an amount determined by multi- plying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attach- ment 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. (2) As used in this subsection, the term ‘‘usa- ble space’’ means the space above the minimum grade level which can be used for the attach- ment of wires, cables, and associated equipment. (3) This subsection shall apply to the rate for any pole attachment used by a cable television system solely to provide cable service. Until the effective date of the regulations required under subsection (e), this subsection shall also apply to the rate for any pole attachment used by a cable system or any telecommunications carrier (to the extent such carrier is not a party to a pole attachment agreement) to provide any tele- communications service. (e) Regulations governing charges; apportion- ment of costs of providing space (1) The Commission shall, no later than 2 years after February 8, 1996, prescribe regula- tions in accordance with this subsection to gov- ern the charges for pole attachments used by telecommunications carriers to provide tele- communications services, when the parties fail to resolve a dispute over such charges. Such reg- ulations shall ensure that a utility charges just, reasonable, and nondiscriminatory rates for pole attachments. (2) A utility shall apportion the cost of pro- viding space on a pole, duct, conduit, or right-of- way other than the usable space among entities so that such apportionment equals two-thirds of the costs of providing space other than the usa- ble space that would be allocated to such entity under an equal apportionment of such costs among all attaching entities. (3) A utility shall apportion the cost of pro- viding usable space among all entities according to the percentage of usable space required for each entity. (4) The regulations required under paragraph (1) shall become effective 5 years after February 8, 1996. Any increase in the rates for pole attach- ments that result from the adoption of the regu- lations required by this subsection shall be phased in equal annual increments over a period Page 63 TITLE 47—TELECOMMUNICATIONS § 225 1 So in original. Probably should be ‘‘nondiscriminatory’’. of 5 years beginning on the effective date of such regulations. (f) Nondiscriminatory access (1) A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, con- duit, or right-of-way owned or controlled by it. (2) Notwithstanding paragraph (1), a utility providing electric service may deny a cable tele- vision system or any telecommunications car- rier access to its poles, ducts, conduits, or rights-of-way, on a non-discriminatory 1 basis where there is insufficient capacity and for rea- sons of safety, reliability and generally applica- ble engineering purposes. (g) Imputation to costs of pole attachment rate A utility that engages in the provision of tele- communications services or cable services shall impute to its costs of providing such services (and charge any affiliate, subsidiary, or asso- ciate company engaged in the provision of such services) an equal amount to the pole attach- ment rate for which such company would be lia- ble under this section. (h) Modification or alteration of pole, duct, con- duit, or right-of-way Whenever the owner of a pole, duct, conduit, or right-of-way intends to modify or alter such pole, duct, conduit, or right-of-way, the owner shall provide written notification of such action to any entity that has obtained an attachment to such conduit or right-of-way so that such en- tity may have a reasonable opportunity to add to or modify its existing attachment. Any entity that adds to or modifies its existing attachment after receiving such notification shall bear a proportionate share of the costs incurred by the owner in making such pole, duct, conduit, or right-of-way accessible. (i) Costs of rearranging or replacing attachment An entity that obtains an attachment to a pole, conduit, or right-of-way shall not be re- quired to bear any of the costs of rearranging or replacing its attachment, if such rearrangement or replacement is required as a result of an addi- tional attachment or the modification of an ex- isting attachment sought by any other entity (including the owner of such pole, duct, conduit, or right-of-way). (June 19, 1934, ch. 652, title II, § 224, as added Pub. L. 95–234, § 6, Feb. 21, 1978, 92 Stat. 35; amended Pub. L. 97–259, title I, § 106, Sept. 13, 1982, 96 Stat. 1091; Pub. L. 98–549, § 4, Oct. 30, 1984, 98 Stat. 2801; Pub. L. 103–414, title III, § 304(a)(7), Oct. 25, 1994, 108 Stat. 4297; Pub. L. 104–104, title VII, § 703, Feb. 8, 1996, 110 Stat. 149.) Editorial Notes AMENDMENTS 1996—Subsec. (a)(1). Pub. L. 104–104, § 703(1), inserted first sentence and struck out former first sentence which read as follows: ‘‘The term ‘utility’ means any person whose rates or charges are regulated by the Fed- eral Government or a State and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for wire communication.’’ Subsec. (a)(4). Pub. L. 104–104, § 703(2), inserted ‘‘or provider of telecommunications service’’ after ‘‘sys- tem’’. Subsec. (a)(5). Pub. L. 104–104, § 703(3), added par. (5). Subsec. (c)(1). Pub. L. 104–104, § 703(4), inserted ‘‘, or access to poles, ducts, conduits, and rights-of-way as provided in subsection (f),’’ after ‘‘conditions’’. Subsec. (c)(2)(B). Pub. L. 104–104, § 703(5), substituted ‘‘the services offered via such attachments’’ for ‘‘cable television services’’. Subsec. (d)(3). Pub. L. 104–104, § 703(6), added par. (3). Subsecs. (e) to (i). Pub. L. 104–104, § 703(7), added sub- secs. (e) to (i). 1994—Subsec. (b)(2). Pub. L. 103–414 substituted ‘‘The Commission’’ for ‘‘Within 180 days from February 21, 1978, the Commission’’. 1984—Subsec. (c)(3). Pub. L. 98–549 added par. (3). 1982—Subsec. (e). Pub. L. 97–259 struck out subsec. (e) which provided that, upon expiration of 5-year period that began on Feb. 21, 1978, provisions of subsec. (d) of this section would cease to have any effect. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–549 effective 60 days after Oct. 30, 1984, except where otherwise expressly pro- vided, see section 9(a) of Pub. L. 98–549, set out as a note under section 521 of this title. EFFECTIVE DATE Section effective on thirtieth day after Feb. 21, 1978, see section 7 of Pub. L. 95–234, set out as an Effective Date of 1978 Amendment note under section 152 of this title. § 225. Telecommunications services for hearing- impaired and speech-impaired individuals (a) Definitions As used in this section— (1) Common carrier or carrier The term ‘‘common carrier’’ or ‘‘carrier’’ in- cludes any common carrier engaged in inter- state communication by wire or radio as de- fined in section 153 of this title and any com- mon carrier engaged in intrastate communica- tion by wire or radio, notwithstanding sec- tions 152(b) and 221(b) of this title. (2) TDD The term ‘‘TDD’’ means a Telecommuni- cations Device for the Deaf, which is a ma- chine that employs graphic communication in the transmission of coded signals through a wire or radio communication system. (3) Telecommunications relay services The term ‘‘telecommunications relay serv- ices’’ means telephone transmission services that provide the ability for an individual who is deaf, hard of hearing, deaf-blind, or who has a speech disability to engage in communica- tion by wire or radio with one or more individ- uals, in a manner that is functionally equiva- lent to the ability of a hearing individual who does not have a speech disability to commu- nicate using voice communication services by wire or radio. (b) Availability of telecommunications relay services (1) In general In order to carry out the purposes estab- lished under section 151 of this title, to make