Pole Attachment Development (August 9, 2004)
New York Adopts New Pole Attachment Regulations

Date: Aug 09, 2004

The New York Public Service Commission today adopted new pole attachment regulations imposing new requirements designed "to promote the deployment of competitive telecommunications networks." As expected, the new rules appear to achieve that goal but do so, unfortunately, at the expense of utility pole owners. Although New York's rules contain a few utility-friendly provisions, they otherwise impose considerable additional burdens.

New York's new rules include the following:

  • Strict make-ready time frames. Utilities must process applications within 5 days, complete preconstruction surveys within 45 days, send make-ready estimates within 14 days of the survey, and perform make-ready work within 45 days of receiving payment. These deadlines apply equally to underground attachments.
  • If the utility cannot meet those deadlines, the attacher may hire a utility-approved contractor.
  • Temporary attachments may be made if the utility fails to perform make-ready work within the required time frames and if the temporary attachments satisfy safety requirements. Attachers must replace the temporary attachment with a standard attachment within 30 days after make-ready work is completed.
  • Attachers may dispute make-ready charges, and detailed work papers must be furnished to justify make-ready charges.
  • Utilities must notify the attacher that make-ready work is completed within three days of completion.
  • Attachments to drop poles may be made without prior notice. Instead, attachers must notify the utility within 10 days after making the attachment. Upon notification, annual rental fees may be assessed.
  • If standard attachment costs are "exorbitant," attachers may employ either extension arms or boxing, so long as all safety codes are met and such a practice had been allowed previously by the utility.
  • Utilities may no longer charge third parties for overlashing, and overlashing must be permitted if certain span tension and loading parameters are met.
  • Utilities must either reach an agreement with their attachers on the number of existing attachments or perform an audit of those attachments at the utility's expense within three years. Staff's recommendation to require rolling audits of 20% of the plant per year thereafter was rejected in favor of a utility requirement to keep precise records of future attachments. Utilities bear the burden of proving that an attachment is unauthorized, but unauthorized attachments may be charged three times the annual rental dating back to when the audit was completed.
  • Because of concerns about utility manpower, utilities need not conduct post-construction safety inspections. Periodic inspections (including any post-construction inspections) performed by the utility must be paid for by the attacher.
  • Safety violations must be corrected by the attacher within 10 days of notification.
  • Every utility safety practice that exceeds NESC standards must be justified upon request by the attacher.
  • Utilities must develop a standard pole attachment agreement to which the parties can negotiate additional terms.
  • Each utility's pole attachment operating procedures must be posted to the utility's website.
  • A dispute resolution process was established that requires a dialogue at the company level prior to filing a formal complaint.

We expect that New York's new rules will be studied carefully by any other state interested in promoting telecommunications by modifying their pole attachment regulations. If you have any questions or comments about these new rules, feel free to contact us.