New York State Public Service Commission Adopts Modified Pole Attachment Rules
After a lengthy rulemaking process conducted pursuant to a legislative directive from the New York State Assembly, the New York State Public Service Commission (PSC) entered an Order adopting modified pole attachment rules to help facilitate the deployment of high-speed broadband and wireless cellular services. The revised rules take several important steps that the PSC says help advance deployment of broadband infrastructure by making it easier and faster for telecommunication and cable systems to gain access to utility-owned infrastructure while simultaneously ensuring safe, adequate, and reliable electric utility service at just and reasonable rates.
Specifically, the PSC's Order will make the pole attachment process faster and more transparent by, among other things, adopting:
(1) a new pole attachment process that includes "One-Touch Make-Ready" (OTMR) for simple attachments in the communications space except where it is precluded by collective bargaining agreements;
(2) annual pole owner reporting requirements that provide greater transparency in the pole attachment process;
(3) requirements that pole owners allow alternative pole attachment methods absent a pole-specific denial based on demonstrable safety concerns; and
(4) expedited time frames to facilitate the resolution of pole attachment disputes.
Moreover, the PSC created a working group of stakeholders to meet regularly and facilitate the discussion and resolution of issues relating to pole attachments.
Background
In 2022, the New York State Assembly enacted an amendment to Public Service Law §119-a requiring the PSC to initiate a proceeding to consider modifying its existing rules and examine streamlining actions related to utility pole attachments, specifically directing the PSC to consider dispute resolution, cost-sharing models, the impact of certain pole attachment practices on the expansion of broadband, alternative pole attachment methods, and the PSC's existing rules regarding cost allocation. In accordance with this legislative directive, the PSC initiated a proceeding in March 2022 to consider whether and how to modify its existing pole attachment rules to facilitate the expedited deployment of high-speed broadband and wireless cellular services. In December 2023, the PSC staff published a white paper that included comprehensive recommendations for modifying New York's pole attachment rules. On July 22, 2024, the PSC entered its Order, which largely adopted PSC staff recommendations. Notably, the Order does not address pole attachment rental rates, which the Commission explains were beyond the scope of this proceeding.
One-Touch Make-Ready
As a part of its revised regulations, New York adopts one-touch make-ready rules like those adopted by the FCC and in other "reverse preempted" states which, like New York, have certified to the FCC that they regulate pole attachments, and include Connecticut, Kentucky, Maine, New Hampshire, Vermont, and West Virginia. The PSC's OTMR rules have one key difference: the OTMR process is available for simple make-ready as it is under federal rules; but under the Order, it is not available where it is precluded by collective bargaining agreements (CBAs). The PSC indicated that if a CBA is in place for an attachment on a particular pole, the attacher must abide by the CBA and use the contractor designated in the CBA. Upon receipt of an attacher's application, pole owners must indicate which existing attachers have an applicable CBA, if known. Despite the PSC's Order that OTMR is not available where it is precluded by CBAs, the PSC made clear that CBA-related issues should not cause delays in processing applications or make-ready.
Moreover, similar to the FCC and other jurisdictions adopting OTMR rules, the PSC's new rules require new attachers to endeavor to use contractors approved by the pole owner to perform OTMR. However, if a utility or pole owner does not provide a list of contractors, the new attacher must use a qualified contractor to perform the work. To effectuate its new rules, the PSC is requiring pole owners to provide an initial list of approved contractors within 60 days of the issuance of its Order, i.e., by September 20, 2024, and to thereafter provide an annually updated list of approved contractors to attachers.
Annual Reporting Requirements
To provide transparency in the pole attachment and replacement processes, the PSC established reporting requirements mandating that pole owners annually produce, among other things, detailed information on pole attachment requests, the number of poles and new licensed attachments, make-ready data, and information regarding pole replacement cost responsibility. The PSC determined that pole owners and attachers will benefit from the collection of such data. Whereas pole owners will derive lessons learned and may identify process improvements for their internal pole attachment reviews, attachers will gain insight into the timing and volume of the pole attachment process across different territories. Further, the PSC determined that regular reporting would provide all interested stakeholders with baseline information to engage in productive discussions, aid in resolving disputes, and assist Department of Public Service Staff (Department Staff) in managing the collaborative working group, which the PSC established through the Order. The PSC requires that pole owners file their first annual reports by January 31, 2025, and thereafter submit reports annually on January 31st.
Alternative Pole Attachment Methods
The PSC also issued new rules requiring pole owners to consider alternative attachment methods to facilitate the expansion of high-speed broadband. Such pole attachment methods include but are not limited to pole-top attachments, strand-mounted attachments, overlashing, boxing and bracketing, extension arms, and temporary attachments. The PSC proscribed the blanket banning of such attachment techniques and indicated that pole owners denying such techniques must provide their rationale in detail, citing the specific provision (including subsection) of the National Electrical Safety Code (NESC) or other safety code and providing an adequate description of the specific safety, reliability, or code issue as it relates to the pole(s) at issue. Where a pole owner provides a vague denial, fails to adequately describe the basis of a given denial, or fails to provide an easily understandable explanation as to how a given safety, reliability, or code issue relates to a given pole, the PSC invited attachers to seek recourse through, among other things, the expedited dispute resolution process, which the PSC adopted through the Order.
Pole Attachment Dispute Resolution
Under the PSC's old rules, the dispute resolution process required disputes to be discussed first at the intermediate level in a company for 10 days before going to the company Ombudsman for 12 days and then could be taken to the PSC for dispute resolution. Upon review, the PSC determined that: (a) the 12-day Ombudsman review period was unnecessary; and (b) that a definitive timeframe for final dispute resolution would be important to avoid unreasonable delays. Accordingly, the PSC removed the 12-day Ombudsman review period and established a 90-day shot clock for dispute resolution once a complaint is formally filed; provided, however, that the 90-day shot clock is subject to extension by the PSC Secretary where necessary since dispute resolution may not always be attainable within 90 days.
Collaborative Pole Attachment Working Group
To encourage consistency in pole attachment methods and identify areas that may require additional resources and timelines, especially for large, complex projects, the PSC established a collaborative working group, which will be helmed by Department Staff and comprised of all interested stakeholders including any and all entities with legitimate interests in pole attachments, e.g., telephone (incumbent and competitive) and cable companies, pole owners, and pole attachers. The PSC determined that the working group should meet on a regular basis, and Department Staff will set the agendas for such meetings. Finally, the PSC clarified that the working group, which will handle discrete issues and coordination, is separate and distinct from the dispute resolution process, which will handle formal complaints.
Self-Help
Notably, the PSC opted not to adopt self-help as an available remedy where a pole owner fails to meet its make-ready deadlines. The PSC attempted to explain its decision by noting that "self-help could potentially undermine system safety and reliability and jeopardize the safety of workers on the utility poles." Yet, self-help is and has been an available remedy where a pole owner fails to meet its deadlines in the twenty-seven (27) states where FCC rules govern as well as in many "reverse preempted" states, including several states neighboring New York, with favorable reports by attachers and pole owners alike. Moreover, the PSC added that its new, enhanced dispute resolution process diminishes the need for self-help; though the extent to which such process diminishes the need for self-help is unclear, where conducting work immediately in the face of a pole owner's delay will often if not always be preferred by attachers over engaging in litigation. Finally, despite the PSC not adopting self-help as a remedy for untimely make-ready, the PSC did adopt Department Staff's proposal for a collaborative working group (as noted above) which includes its recommendation that self-help remedies be regularly discussed during working group meetings, which Department Staff will facilitate.
Cost Allocation
After a lengthy analysis, the PSC maintained its current policy with respect to make-ready cost allocation. Still, the PSC concluded that its Order is consistent with the FCC's clarification in its December 2023 Fourth Report and Order, regarding what constitutes work necessitated solely by an attachment, and the PSC included a recitation of FCC's clarification as to how to determine if a pole replacement is "necessitated solely" due to an attachment request. Indeed, the PSC listed the FCC's five (5) non-exhaustive examples of pole replacements not "necessitated solely" by attachment requests:
(1) a pole replacement required pursuant to applicable law;
(2) the current pole fails applicable engineering standards, such as those contained in the NESC;
(3) a utility's previous or contemporaneous change to its internal construction standards necessitates replacement of an existing pole;
(4) the pole is required to be replaced due to road expansion or moves, property development, in connection with storm hardening, or similar government-imposed requirements; or
(5) the current pole is already on the utility's internal replacement schedule, regardless of when the replacement is scheduled to take place.
Conclusion
The PSC's Order should help resolve several issues regarding pole attachment and replacement processes as well as associated disputes in a manner that will speed broadband deployment. Stakeholders across the utility infrastructure space, including pole owners, attachers, the PSC, and the public, will likely remain engaged as outcomes from this Order take shape – and particularly as broadband construction initiatives supported by federal and state grant programs in New York ramp up and expand the state's broadband networks.
The PSC released its Order on July 22, 2024, and it was effective the same day except to the extent the PSC indicated that certain requirements go into effect sixty (60) days after issuance of the Order, e.g., requirements for alternative pole attachment methods and one-touch make-ready applications, on September 20, 2024. Petitions for rehearing are due within 30 days of the Order's issuance, i.e., on August 21, 2024.
Davis Wright Tremaine has significant experience in the application of the federal, state, and local laws governing the deployment and operation of communications infrastructure including in New York. Please let us know if you would like our assistance in gaining a better understanding of your rights in seeking access to infrastructure in New York, or elsewhere.