State legislatures of New York and Pennsylvania advance pole attachment legislation posing significant obligations and potential penalties ostensibly to improve pole plant and pole attachment conditions
Pole attachment legislation is moving through the state legislatures of both Pennsylvania and New York. In Pennsylvania, House Bill 825 would direct the Pennsylvania Public Utility Commission ("PUC") to conduct a rulemaking to examine ways to ameliorate the proliferation of "double utility poles." In New York, Senate Bill S6997A would impose administrative requirements on all utility pole owners and attachers, create a complaint process for violations, and implement a penalty structure imposing significant fines and other penalties for pole attachment violations. Both New York and Pennsylvania have certified to the Federal Communications Commission ("FCC") that they regulate pole attachments, thus reverse-preempting FCC jurisdiction.
Pennsylvania
As we've discussed previously on this blog, the Pennsylvania PUC has asserted jurisdiction over attachments to investor-owned electric and telephone utility poles, ducts, conduits, and rights-of-way ("Poles"), replacing the FCC as the state's regulator of rates, terms, and conditions of access to and use of such Poles. The proposed Pennsylvania legislation directs the PUC to further exercise this jurisdiction by commencing a rulemaking to develop streamlined procedures for the expedited relocation of pole attachments and the removal of damaged or unused utility poles, which often remain in place near newly set poles, a circumstance commonly referred to as "double wood" or "double utility poles." Additionally, the legislation seeks to establish mechanisms for ensuring that third-party attachers compensate and indemnify pole owners beyond the parties' existing contract terms.
The legislation requires that the PUC consider, among other things, (1) circumstances that would allow old and new poles to coexist beyond a short prescribed period of time; (2) the imposition of annual registration requirements for attachers; and (3) the adoption of procedures for pole owners to provide reasonable notice to attachers to migrate their facilities to new poles. Significantly, the bill would also authorize the PUC to impose civil penalties on attachers for noncompliance with the new regulations, with the specific amounts and conditions for these penalties to be established by the PUC during the rulemaking process. Finally, the bill specifies that if a utility has already been compensated by third-party attachers for the expenses related to moving or removing facilities, the utility company could not charge its customers for those same expenses.
HB 825 has passed through the House and now moves to the Senate Committee on Consumer Protection & Professional Licensure. If passed and signed by the governor, the PUC would have to start the rulemaking proceeding within 90 days of the bill's effective date and complete it within 18 months.
New York
Like Pennsylvania, New York also reverse-preempted the FCC's jurisdiction over attachments to investor-owned electric and telephone Poles, as we've addressed on this blog in the past. If Senate Bill S6997A is signed into law, all utility pole owners and attachers making new attachments, modifications, or repairs, or conducting inspections, will be required to submit information to the New York Public Service Commission ("PSC") that would allow inspectors to ensure physical identification of each individual attacher's and pole owner's facilities, including: the contractor or subcontractor responsible for completing work, the date work commenced, the date of estimated completion, and "any other information the [PSC] deems necessary to allow inspectors to ensure physical identification of ownership relating to pole attachments on a utility pole."
In addition, the New York legislation establishes an electronic complaint form for reporting pole attachment violations. According to the legislation, the PSC is required to review reported complaints within two weeks and determine if a violation has occurred. Violations must be remedied within one week, which may be shortened or extended by the PSC based on the nature and severity of the violation, with fines imposed for noncompliance. Significantly, the legislation would create a penalty structure imposing sizeable fines and other penalties for pole attachment violations. Specifically, where a violation is not timely remedied, the PSC could impose a fine of up to $20,000 for the first offense and, except in limited circumstances, up to $50,000 for the second offense, even if the underlying violation only gives rise to technical noncompliance that does not create a safety hazard endangering persons or property. For the third offense, the PSC could issue a stop work order in the county where the violations took place, except in limited circumstances. Finally, on a semiannual basis, the PSC would distribute a list of those responsible for three or more offenses to relevant government agencies, including the New York State Division of Broadband Access.
The bill is in the late stages of the legislative process, having been passed by both the Assembly and the Senate, and is now on the governor's desk awaiting signature. If the bill is signed into law, it will take effect immediately.
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