IV. Comments on Draft Decision

The draft decision of the Administrative Law Judge (ALJ) in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. SBC and SureWest each filed comments on December 14, 2004 and reply comments on December 20, 2004. SBC's comments agree with the draft decision. While SureWest continues to disagree with the decision on all three issues, it addresses only the pole rates in comments.

SureWest states that the draft decision misapplies the FCC formula to calculate SureWest's pole attachment rate. The result is a rate that is too low in SureWest's view. Rather than the $6.79 rate the draft decision adopts, SureWest proposes an $8.83 per pole rate.

SBC counters that under SureWest's methodology, SBC's attachments (erroneously) have no practical effect on the calculation of the number of attachers. It states that, "SureWest claims that SBC ... should not increase the average number of attachers per SureWest pole (which the parties agree is 2.7 before considering [SBC's] attachments) unless SBC ... intends to attach to a very large proportion of SureWest poles."

SureWest's comments are not new. They boil down to an assertion, as the FAR recites, that "[SBC's] speculative future attachments should not be included in the [pole] rate development."⁴ The arbitrator dealt with this issue fully in her FAR, and we adopt her reasoning:

Third, SureWest claims that the [Draft Arbitrator's Report] DAR artificially overstates the number of attachers for calculating pole attachment rates. SureWest claims that the DAR mixes apples and oranges by starting with 2.7 attachers - the figure both sides agree upon to represent the average number of attachers on each of SureWest's 11,915 poles - and adding one attacher (for a total of 3.7 attachers) to the poles on which SBC proposes to attach. To combine the average of 2.7 with the actual of one attacher reflects confusion in the DAR, SureWest claims.

I disagree. The parties agree that the 2.7 average figure does not include SBC as an attacher. The only way that SBC can get the benefit of the fact that its presence on a pole increases the number of attachers among which the costs should be spread is to count SBC as an additional attacher on that pole.

It is true that another possible outcome would be to calculate a new average based on the number of SureWest poles to which SBC attachers. If, for example, SBC attaches to 1191 (or 10 percent) of SureWest's 11,915 poles, the average number of attachers - spread over SureWest's entire stock of poles - will increase 10 percent (0.1), rather than by one. However, for some reason, SureWest does not support this method, but rather advocates that only the 2.7 rate be used - a rate that all concede does not include SBC as an attacher.

In the absence of a proposal by SureWest to add this percentage to the 2.7 figure, and in recognition of the fact that including SBC as one attacher results in a fair rate for SBC on the poles to which SBC attaches, I adopt SBC's methodology.

SBC supports the draft decision, but proposes a change in the wording of ordering paragraph 3 regarding SBC's right to use the Fair Oaks-Rocklin interoffice fiber cable facility; SureWest opposes the change because it does not want the decision to be interpreted to affect the SBC ILEC's right to the facility. While we make the change SBC proposes, our decision today is meant only to allow SBC's CLEC to use that facility. SBC should not interpret the change in language to have any bearing on its ILEC's right to use the interoffice facility.