                      The Attorney                 General of Texas
                                        December    7,   1978
JOHN L. HILL
Attorney General


                   Honorable George M. Cowden, Chairman             Opinion No. H- 1273
                   Public Utility Commission of Texas
                   7800 Shoal Creek Blvd.                           Re: Whether         Public     Utility
                   Austin, Texas 18757                              Commission        has      regulatory
                                                                    authority over utility pole rental
                                                                    agreements between cable tele-
                                                                    vision     companies    and public
                                                                    utilities.

                   Dear Mr. Cowden:

                          You have requested our opinion regarding the authority of the Public
                   Utility Commission (hereafter   PVC) to regulate pole rental agreements
                   between cable television companies and public utilities. The impetus for this
                   request   arises from recently     enacted   amendments     to the Federal
                   Communications    Act, 47 U&C. S 224, which empower the Federal
                   Communications Commission (hereafter FCC) to regulate the

                               rates, terms, and conditions for pole attachments   to
                               provide that such rates, terms and conditions are just
                               and reasonable. . , .

                   47 U.S.C. S 224(b). A “pole attachment”       is defined as

                               any attachment by a cable television system to a pole,
                               duct, conduit, or right-of-way owned or controlled by a
                               utility.

                   47 U.S.C. S 224(a)(4). A “utility” includes

                               any person whose rates or charges are regulated by the
                               Federal 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.

                   47 U.S.C. S 224(a)(l).

                        The statute is inapplicable in all instances in which the “rates, terms,
                   and conditions for pole attachments” are regulated by a state.      47 U.S.C.




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Honorable George M. Cowden       -        Page 2   (H-1273)



5 224tcXl). If a state provides for such regulation,     it must so certify   to the FCC,
and include therein a statement that

            in so regulating such rates, terms, and conditions, the State
            has the authority to consider and does consider the interests
            of the subscribers of cable television services, as well as the
            interests of the consumers of the utility services.

47 U.S.C. S 224(c)(2). In order to determine whether the PUC should make the
requisite certification, you ask a number of questions regarding the commission’s
jurisdiction over the “rates, terms, and conditions” of pole rental agreements.

      Article 1446c, V.T.C.S., the Public Utility Regulatory     Act, provides in section
18:

            Subject to the limitations imposed in this Act, :and for the
            purpose of regulating rates, operations, and servtces so that
            such rates may be just, fair, and reasonable, and the services
            adequate and efficient, the commission shall have exclusive
            original jurisdiction over the business and property of all
            telecommunications    utilities in this state.

Similar jurisdiction over other kinds of utilities is granted in other portions of the
Act. See art. 1446c, SS 16, 37, 38. The statute defines a “utility” to include, inter
alia, “any person, corporation, river authority, cooperative      corporation,  or any
combination thereof, other than a municipal corporation,” which owns or operates
for compensation equipment or facilities for:

            . ...

            (2Xa) the conveyance,      transmission,   or reception   or
            communications over a telephone system; . . . provided . . .
            that nothing in this Act shall be construed to apply to . . .
            communitv antenna television services. . . .

Section 3(c) (emphasis added). The proviso in section 3(cX2Xa) declares that a
community television service is not a “utility” as defined in the Act. Since the
PUC is not empowered to regulate any entity not a “utility,” it is clear that the
commission has no direct regulatory authority over a cable television company.

         In order to invoke the exclusion of 47 U.S.C. S 224(cXl), a state must certify
 to the FCC not only that it regulates pole rental agreements, but also that it ‘has
the authority to consider and does consider the interests of the subscribers of cable
 television services” in setting the rates, terms and conditions of such agreements.
 Since the PUC has no direct regulatory authority over cable television companies,
 and may consider the interests of such companies only in the context of their




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Honorable George M. Cowden       -    Page 3     (H-1273)



relationships with a regulated utility,    we do not believe that the statute may
reasonably be extended to include the relationship of a cable television company
with its subscribers.    Since, in the matter of pole rental agreements,          those
subscribers have no direct relationship with the regulated utility, we believe the
PUC lacks the authority to consider their interests.    Thus, in our opinion, the PUC
should not certify to the FCC that it “has the authority to consider and does
consider the interests of the subscribers of cable television services” in regulating
the rates, terms and conditions of pole rental agreements.            In view of this
determination,   we need not address your other questions.

                                     SUMMARY

            The Public Utility Commission should not certify to the
            Federal Communications       Commission that it “has the
            authority to consider end does consider the interests of the
            subscribers of cable television services” in regulating
            rates, terms and conditions of pole rental agreements.

                                          ._ Very truly yours,




                                               Attorney General of ‘Texas

APPROVED:




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