Learning Forum: Regulatory Issues Affecting Contracts and Operations in the Near Term

1. Learning Forum: Regulatory Issues Affecting Contracts and Operations in the Near Term Presented to the SEE Joint Use Committee by Charles A. Zdebski Troutman Sanders LLP Washington, DC 202-274-2909 Charles.Zdebski@troutmansanders.com

2. WIRELESS ACCESS ISSUES • Negotiations with wireless carriers for access to poles are now more common than with cable companies. Some frequently arising issues: • Annual rental rate (no FCC formula) • Location of antenna on the pole (top of pole) • Change-out to taller pole / pole-top extenders • Transmission structures (definition of transmission vs distribution pole) • Ingress and egress to pole site • Prior review/approval by utility of antenna(s)

3. WIRELESS ACCESS ISSUES(Continued) • Location of power supplies on or near pole (additional rent; pad site) • Reclamation of pole space by utility • Rf exposure from radiating antenna • Rf cut-off (switch on pole or call to NOC?) • Provisions to limit competing sources of rf interference • Considerations relating to state utility commissions’ concerns for infrastructure reliability and continuation of service during and after storms or other events (e.g., Florida pole hardening proceedings)

4. TREND: STILL MORE WIRELESS! • Licenses awarded by FCC in Auction 66, “Advanced Wireless Services,” concluded September 18, 2006 • Negotiations to relocate incumbent microwave operators (probably your utility) are now underway; pole access negotiations will follow • FCC opened WT Docket 07-195 on September 7, 2007, to consider service rules for yet another Advanced Wireless Services band (2155 -2175 MHz) • Auction 73, (700 MHz band, a/k/a the “beachfront property” for wireless service) begins January 24, 2008

5. ARE YOU PREPARED FOR RULE CHANGES? • Strong rumor that FCC may initiate rule making in response to Fibertech (codify pole access practices) and USTA (regulated access by ILECs) petitions and seek to unify the cable rate formula and telecom rate formula • Are you prepared to file comments? • Will your contract with cable providers allow you to implement a higher rate?

6. Other Important Current Issues • Rate for VoIP Attachments • Counting Telecom Attachments • Collecting Past Due Amounts

7. Rate for VoIP Attachments • FCC’s IP-Enabled Proceeding • Several cases

8. Counting Telecom Attachments • Often raised by cable companies • Several pending cases

9. Collecting Past Due Amounts • A longstanding problem • The only solution is good contracts and strong state law cases

10. CURRENT CASES TO WATCH • Charter v. Ameren (collecting telecom rate for telephone service by cable company) • Georgia Power v. Comcast (counting average number of attaching entities for purposes of the telecom rate) • TECO v. Brighthouse (telecom transport by affiliate not a party to the access agreement) • ACTA v. Entergy (permissible utility practices)

11. Charter v. Ameren • VoIP • Counting Telecom Attachments • Trial in December

12. Georgia Power v. Comcast • Two cases pending • Average number of attachments • Counting telecom attachments • Typical dance moves

13. TECO v. Brighthouse • Similar to Ameren v. Charter • Transport • State case stayed

14. ACTA v. Entergy -- Arkansas • Major Proceeding at FCC, Arkansas Cable Television Association v. Entergy Arkansas, Inc., EB Docket No. 06-53 • Arkansas Act 740, March 30, 2007, “To vest the Arkansas Public Service Commission with Jurisdiction over Pole Attachment Agreements and Disputes…” • Requires PSC to adopt rules within 1 year

15. Arkansas (continued) • Parties Entitled to Nondiscriminatory Access Include Electric Utilities (compare, US Telecom petition at FCC) and Internet Access Service Providers • Does not Cover Rights-of-way • PSC Required to Consider Reliability of Public Utility Services • PSC Authority to Resolve Complaints

16. Florida • In response to two straight devastating hurricane seasons and a long-range forecast for a prolonged period of worse than average hurricanes, the Florida PSC adopted rules to require utilities to “Storm Harden” their system (Docket No. 060173-EU). • Rule 25-6.0342 Electric Infrastructure Storm Hardening: Each utility must file a comprehensive storm hardening plan for review and approval by the FPSC. The initial plans are due within three months of the effective date of the rule (May 7, 2007), then every three years thereafter. • Each storm hardening plan must identify the extent to which collocation facilities are affected. • Attachment Standards and Procedures governing the safety, reliability, pole loading capacity, and engineering standards and procedures for third-party attachments must be included. • Each plan must contain an estimate of the costs and benefits to the utility such as reductions in storm restoration costs and outages. • Each plan must provide an estimate of the costs and benefits to third-party attachers, with such information to be provided to the utility by the affected third-party attachers.

17. Florida (cont’d) • Audits of Joint-Use Facilities (Docket No. 060198-EI) • In April 2006, the Florida PSC found that Florida’s utilities had not provided adequate assurance that their practices and procedures governing joint-use facilities serve to mitigate storm damages and customer outages. • Florida PSC required each utility to establish a plan, an implementation timeline, and a calculation of rate impacts to audit joint-use agreements that include pole strength assessments. • Each utility’s plan includes the stress impacts of all pole attachments as an integral part of its eight-year pole inspection program. • The Commission required that each utility reevaluate its plan annually to assess the need for any adjustment. • Hearings held October 3rd