Pole Attachment Development (August 27, 2002)
Massachusetts Court Slams Unauthorized Attacher

Date: Aug 27, 2002

A decision favorable to utility pole owners was reached by a Massachusetts Superior Court last week. In Verizon New England, Inc. v. Fibertech Networks, LLC, Civil Action Nos. 02-831, et al. (Hampden County Superior Court), the court issued a preliminary injunction against Fibertech, requiring the company either to remove all of its 700 attachments from the poles of Verizon and Western Massachusetts Electric Company ("WMECO") within 45 days, or to pay Verizon and WMECO the sum of $400,000 within 10 days to correct safety violations caused by Fibertech. The court further ruled that Fibertech may choose either option, but may not perform some combination of both, by removing some attachments and paying to correct safety violations on other poles.

The court found Fibertech to be trespassing on the utilities' poles, by failing to receive approval for any of its attachments. Fibertech's applications for attachment were neither approved nor rejected within 45 days, as required by FCC regulatory provisions, which are mirrored in the Massachusetts regulations. Fibertech's claim, however, was that a failure to respond within 45 days resulted in automatic approval of its applications, allowing Fibertech to perform necessary make-ready work and attach to the utilities' poles. The court strongly disagreed, finding that Fibertech's attachments were in bad faith and constituted trespass. Underlying the court's decision were allegations of serious safety violations caused by the Fibertech attachments.

The court must now decide other issues raised in this case, including whether the court or the Massachusetts Department of Telecommunications and Energy has jurisdiction to rule on the remaining issues.

For more information, please contact Tom Magee at (202) 434-4128, or via e-mail at magee@khlaw.com.