W. Va. Code R. § 150-38-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 150-38-5 - Commission consideration of the complaint

5.1. The complainant shall have the burden of establishing a prima facie case that the rate, term, or condition is not just and reasonable or that the denial of access violates 47 U.S.C. § 224(f). If, however, a utility argues that the proposed rate is lower than its incremental costs, the utility has the burden of establishing that such rate is below the statutory minimum just and reasonable rate. In a case involving a denial of access, the utility shall have the burden of proving that the denial was lawful, once a prima facie case is established by the complainant.

5.2. 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. The Commission shall exclude from actual capital costs, and expense accounts to which the work was charged, those reimbursements received by the utility from cable operators and telecommunications carriers for non-recurring costs.

5.3. The Commission shall deny the complaint if it determines that the complainant has not established a prima facie case, or that the rate, term or condition is just and reasonable, or that the denial of access was lawful.

5.4. The Commission will apply the following formulas for determining a maximum just and reasonable rate:

5.4.1. Formula A shown on Attachment A shall apply to attachments to poles by cable operators providing cable services. This formula shall also apply to attachments to poles by any telecommunications carrier (to the extent such carrier is not a party to a pole attachment agreement) or cable operator providing telecommunications services until February 8, 2001;

5.4.2. With respect to attachments to poles by any telecommunications carrier or cable operator providing telecommunications services, the maximum just and reasonable rate shall be the higher of the rate yielded by Rules 5.4.2.a or 5.4.2.b.

5.4.2.a. Formula B shown on Attachment B applies to the extent that it yields a rate higher than that yielded by the applicable formula in Rule 5.4.2.b;

5.4.2.b. Formula C shown on Attachment C applies to the extent that it yields a rate higher than that yielded by the applicable formula in Rule 5.4.2.a; and

5.4.3. Formula D shown on Attachment D shall apply to attachments to conduit by cable operators and telecommunications carriers.

W. Va. Code R. § 150-38-5