Reverse Preemption Roundup: Petition for Rulemaking Invites Massachusetts Regulators To Improve Pole Attachment Access for Broadband Providers

On November 14, 2024, GoNetSpeed, a telecommunications company providing high-speed fiber internet service in nine New England, Mid-Atlantic, and other states, filed a petition with the Massachusetts Department of Telecommunications and Cable ("DTC") and the Department of Public Utilities ("DPU") to initiate a rulemaking to amend its pole attachment regulations to ensure that all broadband providers have timely and nondiscriminatory access to utility poles, ducts, conduits, and rights-of-way in Massachusetts.

In its petition, GoNetSpeed explains that Massachusetts' current complaint-driven approach to regulating pole attachments and its shared jurisdiction between the DPU and DTC have proven inadequate to address changes needed to promote affordable and timely access to pole infrastructure in the Commonwealth. As described in the petition, it takes more than three times as long and twice the cost to deploy broadband network facilities in Massachusetts today than it does in neighboring northeastern states, including Connecticut, Maine, and New York. The petition details how Massachusetts' lack of definitive pole access requirements enables utilities to take years to complete preconstruction surveys and make-ready work and to shift unreasonable make-ready costs to attachers. According to the petition, these delays and costs are thwarting the Commonwealth's policy interests in ensuring high quality, affordable broadband service and threaten to derail the state's once-in-a-generation opportunity to use $147 million in federal Broadband Equity and Deployment ("BEAD") funding to close the digital divide.

GoNetSpeed's petition proposes that Massachusetts regulators:

• Establish defined timelines for processing pole attachment applications and performing field surveys, engineering and make-ready work;
• Enable attachers to supervise qualified contractors to perform surveys, engineering and make-ready work when pole owners lack the resources to conform to established timelines;
• Facilitate the use of time saving attachment techniques that could avoid premature pole replacements as well as the use of temporary attachments;
• Adopt One-Touch Make-Ready rules that enable attachers to simultaneously perform field surveys and make-ready work in the communications space provided they can do so without damaging the existing facilities or causing a service outage;
• Streamline pole access processes for overlashing and service drops;
• Impose limits on charges that pole owners may assess attachers for survey and make-ready work; and
• Include other benefits such as information sharing, clearer transfer timelines, and tagging requirements that will benefit pole owners and attachers alike.

GoNetSpeed's petition has been assigned Docket Number 24-188 with the DPU and is pending assignment by the DTC.

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Davis Wright Tremaine LLP has significant experience in the application of the federal, state, and local laws governing the deployment and operation of communications infrastructure including in Massachusetts. Please let us know if you would like our assistance in gaining a better understanding of your rights in seeking access to infrastructure in Massachusetts or elsewhere.