Rule-Making Cover Sheet TO: Secretary of State ATTN: Administrative Procedure Officer, ACCEPTED FOR State House Station 101, Augusta, Main 1. 2. 04333. Agency: Public Utilities Commission JAN 1 9 2018 Agency umbrella and unit number: 65-407 SECRETARY OF STATE (2 digit umbrella # and 3 digit unit #) 3. FILING Title of rule: Attachments to Joint-Use Utility Poles; Determination and Allocation of Costs; Procedure 4. Chapter number assigned to the rule: Chapter 880 (must be 3 digits or less) 5. Date(s)/method(s) of notice: 9/27/17 and 11/2/17 to Secretary of State's Office, and 9/27/17 and 11/1/17 to service lists 6. Date(s)/place(s) of hearing(s): 12/6/17, Public Utilities Commission, 101 Second Street, Hallowell, Maine 7. Type: • new rule * partial amendment(s) of existing rule • suspension of existing rule • repeal of rule • repeal and replace: complete replacement of existing chapter, with former version • emergency rule simultaneously repealed. 8. Name/phone of agency contact person: Jamie Waterbury, 287-1360 9. If a major substantive rule under Title 5, c. 375, sub-CII-A, check one of the following D Provisional adoption D Final adoption (prior to Legislative review) D emergency adoption of major-substantive rule 10. Certification Statement: I, Harry Lanphear hereby certify that the attached is a true copy of the rule(s) described above and lawfully adopted by Public Utilities Commission on January 12, 2018 (name of agency) . (date) Ifurther certify thatalL portionspylhis rule are adopted in compliance with the requirements of the Maine Adjnin/srcrative Procedure Act. Signature: TgnaturerfJersonally signed by the head of agency) Printed name & title:r Harry Lanphear, Administrative Director 11. Approved as to form and legality by tlje AttorneyGeneral on Signature ^7\ f/V)A^)d /^//l (original signature,roersonally signed by an Assistant AttorneyGeneral) Printed Name: L-'ndO^ ^Q/v> Q EFFECTIVE DATE: ^tfty JAN 2 4 2018 ^dM/^.^ 65-407 PUBLIC UTILITIES COMMISSION Chapter880: ATTACHMENTS TO JOINT-USE UTILITY POLES;DETERMINATION AND ALLOCATION OF COSTS; PROCEDURE SUMMARY: Thisfetk-Chapter establishes the amounts which electric utilities, telephone utilities and cable television svstemspole owners may include in their costof service for attachments to joint-use utilitypoles;the allocation of thosecostsamong joint users; and-the procedure for establishing cost responsibility andrates, theterms and conditions of attachment to joint-use utility poles, and the procedure for resolving pole attachment disputes. TABLE OF CONTENTS 1. DEFINITIONS +J£ A-. Assigned Space 1 & Cable Television System 1 G-. Common Space 1 ft ElectricUtility 1 & Joint Use Utility Pole 1 ¥-. Neutral Zone 1 G-. Responsibility Requirement 1 E Standard Joint Use Utility Pole 2 t Telephone Utility 2 i, Utility-Pole 2 2, APPLICABILITY"OF RULE 1 3, OVERVIEW OF SECTIONS 1, 5, 6 AND 7 2 2. TERMS AND CONDITIONS X* A. Reasonable Terms and Conditions X B. Unreasonable Terms and Conditions X C. Presumptions Rebuttable X \ Formatted: Tab stops: 6.5", Right,Leader:... +Not at -0.5" 65-407 Chapter 880 page ii APPROVAL OF ATTACHING ENTITIES X A. X Applications Requirements for Attaching Entities DETERMINATION OF TOTAL COST OF SERVICE FOR A STANDARD-SIZE JOINT-USE UTILITY POLE 2X A Use of Rate Case Practice 3X B. Use of Cost Information Applicable to Standard Joint-Use Utility Poles 2X C. Determination of Amounts of Investments, Expenses and Revenues for Standard Joint-Use Utility Poles 3_X Investments ZX D. E. F. h Included Investments 3 Or. Excluded Investments 3 £ Deduction for Retirement Revenue 4 Cost of Capital 4X ±. For Utilities <\ 2r. For Cable Television Systems 1 3- Income Tax Adjustment 1 Expenses and Revenues 4_X 1-. Included Expenses <\ 3: Excluded Expenses 5 Tab stops: 6.5", Right,Leader:... + Not at -0.5" Z-. Adjustments 5 Tab stops: 6.5", Right,Leader:... + Not at -0.5" 4-. Other Revenues 5 Tab stops: 6.5", Right,Leader:... + Not at -0.5" Formatted: Indent: Left: 0", Hanging: 1.5", Right: 0.5" Formatted: Indent: Left: 0", Hanging: 1.5", Right: 0.5" Formatted: Indent: Left: 0", Hanging: 1.5", Right: 0.5" G. Carrying Cost; Cost Per Pole fX ASSIGNMENT AND ALLOCATION AMONG JOUST USERS OF JOINT-USE UTILITY POLE COSTS fX A. General Findings and Policy £_X B. Standard faeagft-Joint-Use Utility Poles fX C. Standard Assigned Space for Attachments of Conductors and Circuitry 6X 65-407 Chapter880 D. E. 6. i-. Electric Utility Space ° 3- Telephone Utility Space 6 1-. Cable Television Space 6 4-, Evidence ofDifferent Space Assignments 6 Common Space; Allocation Oi 1, Common Space on Standard Length 35 Foot Poles 6 3, Common Space onStandard Length 30 Foot Poles 7 ^ Calculation of Common Space 7 4-. Standard Allocation > Overall Allocation ^X. i-. General Formula * x Separate Allocations 9 CALCULATION OF RATES OR RESPONSIBILITY REQUIREMENTS FOR STANDARD JOINT-USE lTILJTY_POLES 9X A. -X^ B. In General Separate Rates for Two-User Peks-and Three-Or-More-User Joint-Use Utility Poles 7. page iii 9-*- SEPARATE CHARGES 9-^ A. Make-Ready Work 9-X. B. Tree Trimming; Brush Control 9_X C. Excess Height W-X- -l. Solely Assigned; Excess Height 10 Or. Mutual Assignment 1° 8. JOUST RESPONSIBILITY AGREEMENTS 9. RATE OR RESPONSIBILITY REQUIREMENTS FOR CABLE TELEVISION W_X SYSTEMS TO ELECTRIC AND TELEPHONE UTILITIES SERVING THE SAME AREA i& PHASE IN OF RVTES OR-RESPONSIBILITY REQUIREMENTS .WX 11 65-407 Chapter 880 4410- REVENUE-NEUTRAL RATE ADJUSTMENTS FOR UTILITIES A_ ail. 43, U, i f 13. UX Flow Through of Changes in Revenues From Cable Television SvstemsJoint-Use Entities UX B. Immediate Flow-Through 44 X C. Delayed Flow-Through; Suspense Account ^3X 4^ Timing 12 3, Rate Design 12 Z-. Suspense Account 12 RESOLUTION OF DISPUTES ARISING 0>TR TERMS AND CONDITIONS ESTABLISHED BY THE COMMISSION 12. page iv NEGOTIATED AGREEMENTS 43 X X* APPLICABILITY OF RITE AND COMPENSATION ORDERS TO PRIOR PERIODS 12 A Applicability of Provisions of Rule 12 & Applicability of Compensation Order in Cases Pending on Effective of Rule 13 Qr. Applicability of Compensation Order in Cases Filed After Effective Date of Rule 13 PROCEDURE FOR SECTION 711 PROCEEDLNGS 13 A. Complaint: Adjudicatory Proceeding 13 & Findings; Order 13 & Time Limit in Cable System Cases 13 WAIVER 14 \ Formatted: Tab stops: 6.5", Right,Leader: 65-407 Chapter 880 65-407 page 1 PUBLIC UTILTTDIS COMMISSION Chapter 880: ATTACHMENTS TO JOINT-USE UTILITY POLES; DETERMINATION AND ALLOCATION OF COSTS; PROCEDURE DEFINITIONS A. Assigned Space. "Assigned space" on a utility pole isthe space assigned bythis Rule or by an order in a proceeding under 35-A M.R.S.Ar § 711 for the attachments of conductors orcircuitry byelectric utilities, telephone utilities and cable television sysiefflsioint-use entities, consistent with the provisions ofthe National Electrical Safety Code. Blue Book, or otherreasonable practices of electric and telephone utilities and cable television systems. Assigned space does notinclude common space, including the netrtral-communications worker safetyzone. Space which may be available on ajoint-use utility pole for an additional attaehe^attaching entity shall not beconsidered assigned space until anadditional attachment ismade, butshall instead beconsidered common space. B. C. Attaching Entity. "Attaching entity" means a joint-use entity with an attachment to a joint-use utility pole. Blue Book. The "BlueBook" is "SR-1421. Blue Book - Manual of Construction Procedures" published bv Telcordia. BD. Cable Television System. A "cable television system" is as_defined by inTitle 47 U.S.C. f433^>of the United States Code. GE. Common Space. The "common space" ofajoint-use utility pole isspace used by all of the joint users incommon and consists ofthe portion ofa pole beneath ground level, the portion from ground level tothe lowest place on the pole atwhich atelecommunications circuit may beattached, plus all but6 inches ofthe netrtfal-telecommunications worker safety zone. Thecommon space is equal to the length ofthe pole minus the assigned spaces for each attaeher-attaching entity. Inaddition, for the purpose ofassigning and allocating space and costs onajoint-use utility pole, space which may beavailable for an additional attachment, and which would becomeassigned space if an additional attachment were made, shall be considered common space until such an attachment is made. F. Communications Space. The "communications space" is the portion on a joint-use utility pole that begins atthe bottom ofthe communications worker safety zone and ends at the lowestpoint above gradeto which a horizontal communications wire can be attached consistent with the National Electrical Safety Code. Communication Worker Safety Zone. The "communication worker safety zone" is a 40-inch vertical space, or other amount as requiredby the National Electrical Safety Code for the purpose ofsafety, onwhich no electric orcommunications circuitry mav be attached. It is locatedbetween the areas to which electric conductors and communication circuitry mavbe attached. All but six inches of the "communications workersafety zone" shall be considered part of the common space of a utility pole. 65-407 Chapter 880 ©H. page 2 Electric Utility. An "electric utility" is as_defmed in Title 35-A M.R.S.A. § 102(5V)fthe Maine Revised Statutes. L Information Service Provider. "Information service provider'" means a provider of "information service" as that term is defined in Title 47 of the United States Code. J. Joint-Use Entity. "Joint-use entity1' means a public utility, voice service provider. wholesale or retail competitive local exchange carrier, cable television svstem. unlit fiber provider, telecommunications service provider or information service provider. E-K. Joint-Use Utility Pole. A "joint-use utility pole" is a utility pole on which there are circuit or electric conductor attachments by an electric utility and attachments bv one or more joint-use entities, a telephone utility and a cable television system or any two of those attachers. Joint-use utility poles do not include poles whose sole purpose is supporting electrical transmission conductors as defined bv the Federal Energy Regulatory Commission. However, if an electric utility under-builds a transmission line with distribution, those poles are considered joint-use utility poles. ¥-. Neutral Zone. The neutral zone is a 40 inch (three and one third feet) space, or such other amount as required by the National Electric Safety Code for the purpose of safety, on which no electric or communications circuitry may be attached. It is located between the areas to which electric conductors and communication circuitry' (telephone and cable television) may be attached. All but six inches of the "neutral zone" shall be considered part of the common space of a utility pole. L. National Electrical Safety Code. The "National Electric Safety Code" or "NESC" is published bv the Institute of Electrical and Electronics Engineers and approved by the .American National Standards Institute Code C2. The NESC is also described in 35-A M.R.S. § 2305-A. M. Pyerlash. ''Oyerlash",means foe tying orlashing q^ cables, and facilities to existing communications wires, cables, or supporting strand already attached to poles. N. Pole Attachment. "Pole attachment" or "attachment" is the physical connection of a facility that a joint-use entity uses to provide communications or electric service. 0. Pole Owner. "Pole owner" means an entity that owns or jointly owns a joint-use utility pole, or controls usable space on a joint-use utility' pole. P. Requesting Party. "Requesting party'" means a utility or joint-use entity that is seeking to place attachments on joint-use utility poles. GQ. Responsibility Requirement The "responsibility requirement" of a joint useran attaching entity is the portion of joint-use utility pole costs for which the jews tBerattaching entity is responsible as established by the costs required to be included by Section A, the assignment and allocation of those costs required by Section 5 and the rates described in Section 6. A joint user's responsibility- requirement may be satisfied by sole ownership, joint ownership or the payment of rates, as described in Sections 6 and 8. _._---[ Formatted: Font: Bold 65-407 Chapter 880 HR. page 3 Standard Joint-Use Utility Pole. A "standard joint-use utility pole" is ajoint-use utility pole which is35 feet long, including the portion ofthe pole which isinthe ground. Telecommunications Carrier. "Telecommunications carrier" is as defined in Title 47 of the United States Code. Telecommunications Service Provider. Telecommunications service provider means a provider oftelecommunications service asthat term is defined in Title 47oftheUnited States Code. U. Telecommunications Service. "Telecommunications service'" is as defined in Title 47 of the United States Code. IV. Telephone Utility. A "telephone utility" is„as defined inTitle 35-A ofjhejVlaine Revised StatutesM.R.S.A. § 102(19). w. Unlit Fiber. "Unlit fiber" means one or more strands within a bundle of fiber-optic cable through which an associated light signal or light communication transmission must be provided to provide communications service, butexcluding theelectronic equipment required in order to render the fiber capable of transmitting communications. X. Unlit Fiber Provider. "Unlit fiber provider" meansa provider of "unlit fiber." Unlit fiber provider also includes a "dark fiber provider" asdefined inTitle 35-A ofthe Maine Revised Statutes. Usable Space. "Usable Space" means the space on a joint-use utility pole above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment. Utility. "Utility" has the same definition as "Public Utility" in Title 35-A of the Maine Revised Statutes- Utility Pole. A "utility pole" or a "pole" is a pole in the public way or on private property used to carry conductors and circuitry of electric utilities, telephone utilities, cable television systems or anycombination thereof. A utility pole may be owned by anelectric utility, by a telephone utility or a cable television system orjointly by any combination thereof. AA Voice Service Provider. "Voice service provider" is as defined in Title 35-A of the Maine Revised Statutes. Wholesale Competitive Local Exchange Carrier. "Wholesale competitive local exchange carrier" is as defined in Title 35-A of the Maine Revised Statutes. APPLICABILITY OF RULE The provisions ofthis Rule shall apply to all proceedings under 35 AM.R.S.A. § 711 , including any proceeding pending atthe time the Rule becomes effective, except as provided in Section 13(A). Formatted: Indent: Left: 0", Hanging: 1", Tab stops: 0" Left 65-407 Chapter 880 3r- page 4 OVERVIEW OF SECTIONS 1, 5, 6 AND 7 Sections 4. 5. and 6 below describe the calculation of rates (or cost responsibility-) for pole attachments under this Rule. Section 4 describes the calculation of the cost of service for a standard (35 foot) utility pole. Section 5 describes hoyv these costs will be allocated among users ofjoint use poles. Section 6 describes the actual calculation of pole attachment rates, based on the costs calculated under Section 4 and the allocations calculated under Section 5. Pole attachment rates are applicable to standard and to all other joint use poles. Section 7 describes other costs which are not included in Section 4 or in the pole attachment rate calculated under Section 6, including charges for excess height, and the manner in which these costs shall be charged to attaohers. TERMS AND .CONDITIONS *_.,.---{Formatted: Font: Times New Roman, 11 pt, Bold ... \ "./{Formatted: Font:Times New Roman, 11 pt, Bold A. Reasonable Terms and Conditions. The following terms and conditions shall be presumedto be/easonable for the joint use of utility poles: Request A pole owner shall provide a requesting party with nondiscriminatory access to anv ioint-use utility pole owned or controlled bv it for the attachment of conductors, circuitry, antennas, or other facilities. A request to attach facilities to a ioint-use utility pole shall be in writing and must provide the pole owner with the information necessary under its procedures to begin to survey the poles to which attachment is sought. Notwithstanding the foregoing, a ioint-use entity mav submit a request to attach a service drop to a pole within 45 davs after the fact, and need not submit a request to overlash to existing facilities, so long as the ioint-use entity provides written notice of the overlash within 10 davs after making it. The pole owner then has 30 davs in which to inspect the overlash and determine compliance. Survey. A pole owner shall complete a survey and respond to a requesting party within 45 days of receipt of a request to attach facilities to its utility poles (or within 60 days, in the case of larger orders as described in Section 2(A)(7) of this Chapter). This response mav be a notification that the pole owner has completed a survey of poles for which access has been requested. Denial. A pole owner mav deny a requesting party access to its poles on a non discriminatory basis where there is insufficient capacity or for reasons of safety, reliability and generally applicable engineering purposes. A denial must be in writing and must be issued within 45 davs of the pole owner's receipt of the request. The denial of access shall be specific, shall include all relevant evidence and information supporting its denial, and shall explain how such evidence and information relate to a denial of access for reasons of lack of capacity, safety, reliability or engineering standards. Estimate. Where a request for access is not denied, a pole owner shall present to a requesting party an estimate of charges to perform all necessary make-ready work yvithin 14 days of providing the survey required bv Section 2(A)(2) of this Chapter,or in the case where a requesting party's contractor has performed a survey, within 14 davs of receipt by the pole owner of such survey. Formatted: None, Add space between paragraphs of the same style, No widow/orphan control Formatted: Font: Times New Roman, 11 pt, Bold, Not Expanded by / Condensed by Formatted: Font: Bold ( Formatted 65-407 Chapter 880 page 5 Apole owner mav withdraw anoutstanding estimate of charges to perform make-readv work beginning 60 davs after the estimate is presented. b. A requesting partymav accept a validestimate and make payment any time after receipt of an estimate but before the estimate is withdrawn. Make--Readv. Upon receipt of payment specified in Section 2(A)(4)(b) of this Chapter, a pole owner shall notify immediately and inwriting all known ioint-use entities with existing attachments that mav be affected bv the make-readv. All make-readv work shall be performed sequentially bv attaching entities. a. For attachments in the communications space, the notice shall: i. ii. Specify whereand whatmake-readv will be performed. State the order in which attaching entities will perform their make-readv work. Statethat the timeperiod allowed for completion of make-readv for each attaching entity that is no later than 15 davs after the attaching entity receives notification that the ioint-use utility pole is available for the entity to perform its make-readv work (or 30 davs in the case of larger orders, as described in Section 2(A)(7)(c) of this Chapter). State that any attaching entity with an existing attachment mav modify the attachment consistent with the specified make-readv before the date set for completion. State that the pole owner has and mav assert a right to 15 additional days to complete make-ready. State that if make-readv is not completed within the allotted time period (or. if the pole owner has asserted its 15-day right. 15 davs later), the requesting party mav complete the specified make-ready. vii. State the name, telephone number, and e-mail address of a person tocontact for more information about the make-ready procedure. For attachments above the communications space, the notice shall: Specify where and what make-readv will be performed. Set a date for completion of make-readv that is no later than 90 davs after notification is sent (or 135 days in the case of larger orders, as described in Section 2(A)(7)(c) of this Chapter). State that anv entity with an existing attachment may modify the attachment consistent with the specified make-readv before the date set for completion- State that the pole owner has and mav assert a right to 15 additional davs to complete make-readv. State the name, telephone number, and e-mail address of a person to contact for more information about themake-readv procedure. 65-407 Chapter 880 page 6 6. Attachments Above the Communications Space. For attachments above the communications space, a pole owner shall ensure that make-readv is completed within the time periods established in Section 2(A)(5)(b) of this Chapter (or. if the pole owner has asserted its 15-dav right 15 davs later). 7. Compliance with Time Periods. For the purposes of compliance with the time periods in this section: a. A pole owner shall apply the time periods described in Sections 2(A)(1)(6) of this Chapter to all requests for pole attachment up to the lesser of 300 poles or 0.5 percent of the pole owner's poles in Maine. 8. b, A pole owner may add 15 davs to the survey period described in Section 2(A)(2) of this Chapter to larger orders up to the lesser of 3000 poles or 5 percent of the pole owner's poles in Maine. c. A pole owner may add 45 days to the make-readv periods described in Section 2(A)(5) of this Chapter to larger orders up to the lesser of 3000 poles or 5 percent of tine pole owner's poles in Maine. d. A pole oyvner shall negotiate in good faith the timing of all requests for pole attachment larger than the lesser of 3000 poles or 5 percent of the pole owner's poles in Maine. e. A pole owner may treat multiple requests from a requesting party as one request when the requests are filed within 30 davs of one another. f. A pole owner mav add up to 45 days to the make-readv periods described in Section 2(A)(5) if a force majeure event interrupts compliance. Deviation from Time Periods. A pole owner or attaching entity mav deviate from the time limits specified in this section during performance of make-readv for good and sufficient cause that renders it infeasible for the pole owner or attaching entity' to complete the make-readv work within the prescribed time frame, for example the need to replace ioint-use utility poles. A pole owner or attaching entity that so deviates shall immediately notify, in writing, the requesting party and other affected attaching entities, and shall include the reason for and date and duration of the deviation. The pole owner or attaching entity shall deviate from the time limits specified in this section for a period no longer than necessary and shall resume make-readv performance without discrimination when it returns to routine operations. 9. Contractors. If a pole owner fails to respond as specified in Sections 2(A)(2) or 2(A)(3) of this Chapter, a requesting partv requesting attachment in the communications space mav hire a contractor to complete a survey so long as it provides the pole owner 10 davs' written notice of its intent to do so. Further, if make-ready is not complete within the time period specified in Section 2(A)(5) of this Chapter, a requesting partv requesting attachment in the communications space may hire a contractor to complete the make-readv: 65-407 Chapter 880 page 7 Immediately, if the pole ownerhas failed to assert its rightto perform remaining make-readv work bv notifying the requesting party that it will do so: or b. After15 davs if the poleownerhas asserted its rightto perform makereadv bv the date specified in Section 2(A)(5) of this Chapter and has failed to complete make-readv. 10. Approved Contractors for Survey and Make-Readv. a. A pole owner shall make available and keep up-to-date a reasonably sufficient list of contractors it authorizes to perform survevs and make- readv in the communications space on its utility polesin caseswhere the utility hasfailed to meetdeadlines specified in Sections 2(A)12J and 2(AVS^ of this Chapter- fa. If a requestingpartv hires a contractorfor purposesspecified in Section 2(A)(9) of thisChapter, therequesting partv shall choose from the pole owner's list of authorized contractors. A requestingparty that hires a contractorfor survey or make-readv work shall provide a pole owner with a reasonable opportunity' for a representative to accompany and consult with theauthorized contractor and the requesting party. d. The consulting representative of an electric utility mav make determinations, on a nondiscriminatory basis, where there is insufficient capacity and for reasons ofsafety, reliability, and generally applicable engineering purposes. 11. Non-Compliant Poles and Attachments A requesting partv is not responsible for make-readv costs totheextent that those costs are included in the pole owner's maintenance as administrative expenses or booked asset costs. A requesting party shall not be required to bearthe costs of modifying attachments that are on the poleat the time of the requesting party's application but that were not incompliance with applicable safety, engineering. and construction codes and standards at the time of the attachments' construction or installation.. 12. Notice. A poleownershall provide a utility or ioint-use entity no lessthan 60 davs yvritten notice prior to: Any increase in pole attachment rates: or b. .Anv modification of facilities other than routine maintenance or modification in response to emergencies. B. Unreasonable Terms and Conditions. The following tenns andconditions shall be presumed to be unreasonable for the ioint-use of utility poles: -{ Formatted: Font: Not Bold 65-407 Chapter 880 page 8 1. Boxing. A prohibition on boxing poles (i.e.. placing cables on both the road side and the field side of a pole) which can be safely accessed by emergency equipment and bucket trucks or ladders provided that such technique complies with the requirements of applicable codes. 2. Extension Arms. A prohibition on using extension arms to clear obstacles. improve alignment, or provide space that would not otherwise be available without a replacement pole, to the extent that the installation of extension arms complies with applicable codes. 3; Lowest Pole Position. A prohibition against attachments below existing attachments, to the extent that space is not available above existing attachments along the proposed route (or most of the route) of the additional attachments. 4, Pole Top Attachments. A prohibition against pole lop attachments and the use of space above the primary or secondary power for wireless attachments, to the extent such proposed pole top installations comply with the NESC. C. Presumptions Rebuttable. A pole owner or ioint-use entity mav overcome the presumption that a term or condition described in paragraph A or B of this Section is reasonable or unreasonable by presenting clear and convincing evidence that the dispute involves unique circumstances in which applying the presumption would produce an unreasonable or unsafe result. APPROVAL OF ATTACHING ENTITIES .Any prospective attaching entity that is not attached to anv joint-use utility poles in Maine prior to the effective date of this Chapter must obtain a Pole Attachment License from the Commission prior to attaching to anv ioint-use utility pole in Maine. A. Application Requirements for Attaching Entities. L Evidence of Financial Capability. All applications bv attaching entities shall include the entity's most recent financial disclosures. If an attaching entity does not make financial disclosures, it shall include the most recent financial disclosures of its corporate parent. If the applicant is a newlv formed entity that is not part of another organization, the Commission mav accept other documentation to demonstrate financial capability. 2. Evidence of Technical Capability. All applications bv attaching entities shall include a description of the entity's applicable industry' experience, including the experience, if anv. of the corporate parent of the attaching entity, and the experience of the individuals that will be responsible for the provision of service in Maine. Industry experience includes the telecommunications industry, electricity industry, pole attachments, and other experience related to pole attachments. 65-407 Chapter 880 3. page 9 Authorization to Conduct Business in Maine. All applications by attaching entities shall include evidence that demonstrates that the entity is authorized to conduct business in Maine. 4. Application Information. An applicant mustprovide the folloyving information: a, Legal name and name(s) under which the attachingentity does or will do business in Maine: b. Business street and mailing address: c. Location and mailing addressof anv office availableto the general public or Maine customers of the attaching entity; cL Contact person, address, e-mail and telephone number for regulatory matters: e. A list of all jurisdictions in which the attaching entity or anv affiliated interest of the attaching entity is engaged or has been engaged in deploying pole attachments: f Whetherthe attaching entity or affiliated interestof the attaching entity has filed for bankruptcy within the past six years: g. A copyof the documents which demonstrate the type of organization of the attaching entity (sole proprietor, corporation, partnership, association, or other business form); h. The state(s) in which the attaching entity is incorporated or otherwise registered or licensed to do business and a copy of its registration or license number, where applicable: and m. The name, business address, and title of each officer and director, partner, or other similar officer. 5. Commission Review. The Commission will review applications and mav request additional information. The Commission will issue a license, deny the application, or initiate a formal investigation of the application within 30 calendar davs of the submission of a complete application. If the Commission requires additional time for the initial review, the Administrative Director, the Director of Telephone and Water Industries, the Director of Consumer Assistance, or the Presiding Officer assigned to a proceeding related to tliis Chapter mav extend the review period for an additional 30 calendar davs. In the event the Commission initiates a formal investigation, it shall provide notice to interested persons. Issuance Criteria. 65-407 Chapter 880 page 10 The Commission will issue a license unless it finds that the attaching entity has not complied with all applicable licensing requirements of this Chapter, that the attaching entity does not have the financial and technical capability to conduct its business, or that sufficient reason exists to conclude that issuance of a license is not in the public interest. Term of License. Licenses are valid until revoked by the Commission or abandoned bv the attaching entity;. Transfer of License. A license shall not be transferred without prior Commission approval. A request for transfer of a license shall be in writing accompanied bv a completed license application from the transferee. Abandonment of License. A licensee shall not abandon service without providing at least 30 days written notice to the Commission. DETERMINATION OF TOTAL COST OF SERVICE FOR A STANDARD-SIZE JOINTUSE UTILITY POLE A. Use of Rate Case Practice. The cost of service or revenue requirement for a standard sse-joint-use utility pole shall be determinedin the same manner as in a generalrate case proceedingfor an electric or telephone utility, including except that the parties mav relv on historical data rather than the use of a test year. The investtnents and expenses which shall be included and excluded are described in this seeaenSection. and, for telephone utilities, shall otherwise be calculated in accordance with the Federal Communications Commission's rules, regulations, and orders arising under Title 47 of the United States Code. B. Use of Cost Information Applicable to Standard Joint-Use Utility Poles. The investment, expense and revenue quantities required by this section for calculating the cost of service for a standard size (35 foot)ioint-use utility pole shall be limited to those applicable to the owner's investment in 30 and 35 footioint-use utility poles. C. Determination of Amounts of Investments, Expenses and Revenues for Standard Joint-Use Utility Poles. Where the investment expense or revenue amounts, or amounts applicableto the subclass of standard joint-useutility poles, which are required by this section Section are not provided by the utility's or cable svstem'spole owners' books of accounts, those amounts may be calculated by any method designed to produce a reasonablyaccurateresult. These methods may includethe use of subaccount information, samplingtechniques, cost studies, apportionmentratios developedfrom historic or current equipment costs, expenses or quantities which are applied to broader cost categories, including system-wide costs, or similar techniques. It is not necessaryto determine separately the cost of service for the subclass of standard joint-use utility poles which are actually jointly-used. 10 65-407 Chapter 880 D. page 11 Investments. 1. Included Investments. The following investments shall be included: a. Thepole owner's netinvestment in30 and 35 footstandard ioint-use utility poles; b. Anelectric utility's netinvestment in guywires, anchors, supporting poles, and other equipment which support 30 and 35 footstandard iointuse utility poles andwhich are reasonably attributable to mutual useby both the electric utility^ and-the telephone utility, by both theelectric utility' aad nV eafete tetewsteasystem; or by all three attachersand other ioint-use entities. c. In the case of a telephone utility's rate for an electric utility,its net investment in guywires, anchors, supporting poles, andother equipment which support 30and 35 footstandard ioint-use utility poles and which are reasonably attributable to mutual use byboth thetelephone utility and the electric utility. d. Inthe case of a telephone utility's ratefora cable television systemjojnt; use entity-, its investment in guy wires, anchors, supporting poles,and other equipment which support 30and 35 footstandard ioint-use utility poles and which are reasonably attributable to mutual use bytelephone utilities and cable television systemsjoint-use entities. 2. Excluded Investments. The following investments shall not be included: a. 40-foot, 45-footand taller ioint-use utilitypolesand associated guy wires, supporting anchors, poles andother supporting equipment; b. Joint-use utility poles that are not used for attachment bv entities other than the pole owner; fee. Guy wires, anchors, supporting poles and other supporting equipment which are usedto balance only the load of the attneher's attaching entity's own conductors, circuits and other attachments; ed. Conductors and circuitry, cross arms, transformers, streetlighting fixtures and other attachments or appurtenances used by only one of the joint users; de. Investments in standard utility poles and supportingequipment for standard poleswhich wereprovided by contributions in aid of construction from customers or from other attachersattaching entities. including equipment installed as part ofrearrangement ("make ready") work; ef. Any unreasonable or imprudently-incurred investment. 11 65-407 Chapter 880 3. page 12 Deduction for Retirement Revenue. When, under an excess height agreement or pursuant to Section 7(C) of this forieChapter. an pole owner receives revenue to recover the cost of a 30 or 35 foot pole which must be replaced, because of the need for a taller pole, the amount received shall be deducted from the pole owner's net investment in 30 and 35 foot poles described in subsection Section 3(D)(1)(a) afeeveof this Chapter. Cost of Capital. 1. 2. Fof-Electric Utilities. The cost of capital for an electric or a telephone utility shall be calculated using its current embedded cost of debt and, in the case of an investor-owned utility, the cost of equity and capital structure actually found in or reasonably ascertainable from (e.g., in a stipulation) its last general rate proceeding. If that proceeding was not concluded within 5 years of the commencement of the proceeding under 35-A M.R.S.A: § 711, the Commission shall determine an interim cost of equity solely for the purpose of the proceeding under 35-A M.R.S.Ar § 711, pending the utility's next rate proceeding. The Commission may use the cost of equity findings or stipulations in recent general rate proceedings for other comparable utilities, applied to a reasonable capital structure and the known characteristics of the utility in question. For Cable Television SvstemsTelephone Utilities or Joint-Use Entities. If a cable television svstemtelephone utility or ioint-use entity owns any joint-use utilitvpoles. its cost of capital shall be determined in an adjudicatory proceeding pursuant to 35-A M.R.S.A: § 711 or, if the cable television svstemtelephone utility' or ioint-use entity agrees, its cost of capital may be set at the average cost of capital of the telephone and electric utility owning joint-use utility poles in the cable television svstem'stelephone utility's or ioint-use entity's service territory. 3. Income Tax Adjustment The cost of equity shall be adjusted to account for the effect of federal and state corporate income taxes. Expenses and Revenues. 1. 2. Included Expenses. The folloyving expenses shall be included in a utility's or cable television system's expenses for joint use poles: a. Depreciation; b. Operations and maintenance expense reasonably attributable to standard ioint-use utility poles, except for tree trimming and brush control; c. Property taxes; d. Administrative expenses, including billing, reasonably attributable to the administration of joint-use utility poles; Excluded Expenses. The following expenses shall be excluded, deducted or adjusted: a. Operations and maintenance and other expense related to the equipment 12 65-407 Chapter 880 described in paragraph Section 3(D)(2)( page 13 aofthis Chapter. b. Treetrimming, brushcontrol and rearrangement ("make-ready") expense; c. Administrative and overhead expenses which are not related to the provision of attachment space onjoint-use utility poles (for example, marketing expense, customer service expense, meterreadingand billing expense which should be assignable to the provision of electric and telephone services); d. 3. Any unreasonable or imprudentlyincurred expense. Adjustments.Adjustments shall be made to account for anyexpense which provides no direct orindirect benefit to a user ofthe ioint-use utility pole other than the entity incurring the expense. 4. Other Revenues. Electric andtelephone utilities shall deductfrom their ioint-use utility pole revenue requirements that portion of revenues received as support charges from customers served byjoint-use line extensions which arereasonably attributable to costs for standard ioint-use utility poles (but not conductor, circuitry and cross-arm costs). Carrying Cost; Cost Per Pole Theinformation provided by a jemt-pole owner in a proceeding under 35-AM.R.S.Ar § 711 shall include {44-the annual cost per ioint-use utility pole for each investment and expense category required tobe included bythisseetienSection. (3fthetotal annual cost of service perioint-use utility pole, and(34-the annual carrying coststated as a percentage of net investment in standard poles or joint-useutility poles,or the equivalent of this information. ASSIGNMENT AND ALLOCATION AMONG JOINT USERS OF JOINT-USE UTILrTY POLE COSTS A General Findings andPolicy. The Commission recognizes that joint-use utility poles are more cost-effective than separate-usepoles and that entities attaching to these joint-use utility poles benefit from those cost savings. Itisthe policy ofthis Commission that each nttncher tojoint use poles shallattaching entity payforthe costs of assigned space on joint-use utility poles in proportion to thevertical space which is necessary for its attachments; and thatjoint usersattaching entities should pay forthe common space (including the neutral zonecommunications worker safety zone) onjoint-use utility poles in proportion to thestand-alone cost of each attacher attaching entity if it wereto construct itsown sole-use utility poles. The Commission finds that the allocations required bythis Section, incombination with the mitigating effects ofSections 10 and 11 ofthis Chapter, take into account the interests ofthe subscribers ofcable television systems as well as thecustomers of electric andtelephone utilities. 13 65-407 Chapter 880 B. page 14 Standard Length-Joint-Use Utility Poles. For the assignments and the allocation formula which is set forth below in this Section, the standard ioint-use utility pole length shall be 35 feet for each of the folloyving joint Formatted: Indent: Left: 0", Hanging: 1", Tab stops: 0" by an electric utility, a telephone utility, and a cable television system; • by an electric utility and a telephone utility-; by an electric utility and a cable television system; For joint use by a telephone utility and a cable television system, the standard pole length shall be 30 feet. C. Standard Assigned Space for Attachments of Conductors and Circuitry. 1. Electric Utility Space. Electric utilities shall be assigned a standard four plus one-half foot of space in the neutral communications worker safety zone, for a total of four and one-half feet of space unless a different amount is established as provided in subparagraph Section 5(C)(4) below; 2. Telephone Utility Space. Telephone utilities who are also pole owners shall be assigned a standard two feet of space, unless a different amount is established as provided in subparagraph Section 5(C)(4) below; 3. Cable Television SpnceJoint-Use Entities. Cable television svstemsJoint-use entities that are not pole owners shall be assigned a standard one foot of space unless it is established that a cable television systemjoint-use entity uses a different amount as provided in subparagraph Section 5(C)(4) below. 4. Evidence of Different Space Assignments. In an adjudicatory proceeding, a party may establish that different (non-standard) amounts of attached space should be assigned, based on measurements of attached space on representative and statistically significant samples of standard joint-use utility poles. Separate samples sfeati-mav be used for (1) poles used by an electric utility., a telephone utility and a cable television svstemand two or more ioint-use entities, and (2) for poles used by an electric utility and a telephone utilitvsingle ioint-use entitySeparate samples may be used for other categories of two user poles (electric CATV and telephone CATV). D. Common Space; Allocation. 1. Common Space on Standard Length 35 Foot Joint-Use Utility Poles. On a standard kngth-joint-use utility pole. (35 feet) the common space (which includes all but 6 inches of the neutral zonecommunications worker safety zone) shall be equal to 35 feet minus the total amount of assigned space for each of the attachment combinations listed below, as follows: three attachments 27 1/2" electric and telephone utility that is a pole owner 28 1/2' 14 Left 65-407 Chapter 880 electric and C-ATYother joint-use entity 3r. 52. page 15 29 1/2' Common Space on Standard Length 30 Foot Poles. On a standard length pole (30 feet) used by a telephone utility and a cable television system, common space shall equal 27 feet (30 feet minus 3 feet). Calculation of Common Space on Joint-Use Utility Poles with Nonstandard Assignments. Common spaceon standard ioint-use utilitypolesfor which alternative attached space assignmentshave been made pursuant to subsection Section5(C)(4) above shall equal the standard ioint-useutility pole length (of 35 or 30 feet as designated in paragraphs 1 and 2 above) minus the total assigned space. 4. Standard Allocation. The standard allocation of common space on a standard 34-feetioint-use utility pole used by three attachersshall be: Electric 41% Telephone utilitythat is a pole owner 34% GATVJoint-use entity that is not a pole owner 25% The standard allocation of common space on a standard »5-feotioint-use utility poleused by an electric utility and a telephone utilitythat is a poleowneris: Electric 55% Telephone 45% The standard allocationof commonspace on a standard55-4eeiioint-useutility pole used by anelectric utility anda cable television system)oint-use entity thatis not a pole owner is: Electric €ATVJoint-use entity- 62% 38% The standard allocation of common space on a standard 30 foot pole used by a telephone utility- and a cabletelevision system is: Formatted: Indent: Left: 0", Hanging: 1.5", Tab stops: 0" Telephone SJ% CATV 45% 15 Left 65-407 Chapter 880 page 16 Overall Allocation. General Formula. The cost responsibility for each attaching entity shall equal the sum of the assigned space for that entity (as determined under subsection Section 5(C)-afeeve)plus the allocation of common space (as stated in subsection Section 5(D)). This amount shall be divided by the length of the standard iointuse utility pole for the particular combination of attachers attaching entities (34 or 30 feet) in order to calculate an attacher's attaching entity's percentage responsibility. OVERALL ALLOCATION ASSIGNED = SPACE PERCENTAGE + ALLOCATION OF COMMON SPACE LENGTH OF POLE 16 65-407 Chapter 880 Elec. 4' ILLUSTRATION 1 Assumes Elec. 35 foot pole, no CATV Attachme 0.5' Neut. Common 2.83' • Neut. Attach. CATV Tel. 1' 2' Space Common Assian. Alloc. Elec. Total (ft.) % 4.5' 15.68' 20.18' 2' 12.83' 14 .83' 28.5' 35' Tel. 6.5' 58 42 100% ILLUSTRATION 2 Assumes 35 foot pole, 3 attachments Attach Clear. 18.67 Space Common Assion Alloc. % 11.28' 15.78' 45 2' 9.35' 11.35' 32 1' 6.88' 7.88' 23 Elec. 4.5' Tel. CATV 27.5' 7.5' Below Total (ft.) 100% 35' 6' Ground Assigned and Common Spaces 17 on 35' Pole page 17 65-407 Chapter 880 page 18 Separate Allocations. Separate overall allocations shall be determined for iointuse utility poles with three joint users and for poles with the applicable combinations of two joint users. CALCULATION OF RATES OR RESPONSIBILITY REQUIREMENTS FOR STANDARD JOINT-USE UTILITY POLES A. In General. The rate or responsibility requirement for each attacher attaching entity to a joint-use utility- pole shall equal the total cost of service for a standard ioint-use utility pole, as established pursuant to Section 4(G) above, multiplied by the overall percentage allocation established pursuant to Section 5(E) above. The rate shall be per ioint-use utility pole and shall apply to all joint-use utility poles, including both standard and taller joint-use utility poles. RATE OR RESPONSIBILITY = PER POLE COST OF SERVICE (§ 4(G)) x PERCENT ALLOCATION (§ 5(E)) B. Separate Rates for Two-User Peles-and Three-Or-More-User Joint-Use Utility Poles. Separate rates or responsibility requirements shall be established for ioint-use utility poles with three or more attachers attaching entities and for ioint-use utility poles with the applicable combinations of two attachersattaching entities. SEPARATE CHARGES Owners of joint use utility polesPole owners shall charge attachers attaching entities separately for the following expenses and investments: A. Make-Ready Work. An additional attacher attaching entity or an existing use^attaching entity placing an additional attachment shall be charged reasonable expenses incurred in surveying existing ioint-use utility poles or in moving conductors, circuitry or other equipment attached to a joint-use utility pole, for the purpose of making space available for the additional attachment ("rearrangements" or "make-ready" work). The user attaching entity requiring additional space on an existing ioint-use utility pole shall be presumed to be the attacher attaching entity which must incur or be charged for the cost of make-ready work, unless the attachers other attaching entities otherwise agree. If the make-ready expenses are caused by a municipality requesting space on the poles for non commercial, non-competitive use consistent with the police poyver of the municipality. each current user shall each be responsible for its own costs for rearranging its facilities. B. Tree Trimming; Brush Control. Cable television systemsJoint-use entities occupying the same ioint-use utility poles as the telephone utilitvpole owner shall be charged forty percent of expenses borne by a telephone utilitvthe pole owner for tree trimming and brush control, multiplied by the ratio of cable televisionjoint-use entity attachments to ioint-use utility poles occupied by telephone utilitiespole owners in the same municipality or municipalities served by the cable television svstemjoint-use entity. Telephone Bf&iiesPole owners that are telephone utilities shall not charge electric utilities, and electric utilities shall not charge pole owners that are telephone utilities or cable television svstemsother ioint-use entities, for tree trimming or brush control unless the attacher attaching entity demonstrates a benefit to another attacher attaching entity' from either the tree trimming or brush control that it has performed and establishes a 18 65-407 Chapter 880 page 19 reasonablequantificationof that benefit. C. Excess Height. 1. Solely Assigned; Excess Height When an existingjoint user of a standard pole or a proposed additional attacherattaching entityrequires additional spacewhich is not available on that ioint-use utility pole, and the joint-use utility pole must be replaced by a taller joint-use utilitypole,the existing or proposed joisteserattaching entity causing the need for replacement shall pay for (i) the difference between the cost for the taller ioint-use utility pole and supporting equipment such as guysand anchors and the costfor a newstandard ioint-use utility poleand supporting equipment in the samelocation, plus(ii) a reasonable estimate of the net book value of the joint-use utility pole and supporting equipment, if any, which has been replaced. 2. Mutual Assignment When a taller than standardjoint-use utility pole is required to provide minimum clearances, or whenmorespacefor attachments than is available on a standard ioint-use utility pole is required by two or more joint usersattaching entities, the cost (i) of the additionalheight of the excess height ioint-use utility pole and supporting equipment and (ii) the reasonable estimate of the net book value of replaced ioint-use utilitypole and supporting equipment, if any, shall be shared equallyamong the usersrequiring the replacement. 8. JOINT RESPONSIBILITY AGREEMENTS Joint users ofpolesAttaching entities may enter agreements which establish joint responsibility forjoint userjoint-use utility polesin their common serviceterritories and which mayeliminate or reduce the needfor the paymentof directcompensation. Jointresponsibility may include thejoint ownership of ioint-use utility poles, sole ownership of ioint-use utility poles in an agreed proportion, compensation orany combination thereof, provided that the net effect ofthe agreement assigns responsibility for joint-use utility pole costs in amounts generally consistent withthisChapter. Indetermining whether anexisting agreement is generally consistent with this Chapter, the parties maytakeintoaccount theburden of litigating a rateor charges before the Commissionand the overall net effect of any reasonablylikely change on their respective ratepayers or customers. 19 65-407 Chapter 880 9. page 20 RATE OR RESPONSIBILITY REQUIREMENTS FOR CABLE TELEVISION SYSTEMS TO ELECTRIC AND TELEPHONE UTTLITEES SERVING THE SAME AREA Where a cable television svsteman attaching entity attaches to poles not owned by itself, but which are jointly used by an electric utility and a telephone utility, the electric and telephone utilities shall set their respective rates for the cable companvattaching entity based on the relative overall ownership interest of the two utilities in joint-use utility poles. The electric utility rate established for the cable television systemattaching entity under Section 5 shall be multiplied by the electric utility's overall ownership percentage in ioint-use utility poles in the whole area served jointly by it and the telephone utility. The telephone utility rate established for the eabk televisionattaching entity system under Section 5 shall be multiplied by the telephone utility's overall ownership percentage in ioint-use utility' poles for the whole area served jointly by it and the electric utility. For each pole used by a cable television svsteman attaching entity, the cable television systemattaching entity shall pay the electric utility rate calculated under this section to the electric utility and the telephone utility rate calculated under this section to the telephone utility, regardless of the electric utility and telephone utility ownership interests in the ioint-use utility pole. EXAMPLE 4& 1. 100% electric utility rate for CATV-attaching entity pole attachment (Section 5) = $12/yr. 2. 100% telephone utility rate for GATV-attaching entity pole attachment (Section 5) = $10/yr. 3. Electric utility ownership percentage = 55%. 4. Telephone utility ownership percentage = 45%. 5. Apportioned electric utility rate (Section 7) = $12 x .55 = $6.60. 6. Apportioned telephone utility rate (Section 7) = $10 x .45 = $4.50. 7. Total combined amount paid by cable systemattaching entity to electric utility and telephone utility = Step 5 + Step 6 = $11.10. PHASE IN OF RVTES OR RESPONSIBILITY REQUIREMENTS The combined annual increase in rates or responsibility' requirements for any user ofjoint use poles (from all entities charging for attachments., as described in Section 9) that is ordered by the Commission or that results from an agreement entered subsequent to the date of this Rule shall not be greater than $4.80 (•10c' per month) per customer of that attacher. Any increase which is greater than $4.80 per customer per year of the attacher shall be phased in over the number of years that is necessary to limit the annual per customer increase to $4.80 or less. Unless exempted pursuant to Section 15. an attacher eligible for the phase in required by this section shall report annually its number of customers to the owner(s) of the poles or other attachers which charge for attachment. 20 65-407 Chapter 880 4410. page 21 REVENUE-NEUTRAL RATE ADJUSTMENTS FOR UTILITIES A. Flow Through of Changes in Revenues From Cable Television SvstemsJoint-Use Entities Increases in ioint-use utility pole attachment revenues received by an electric or telephone utility-utility pole owner from a cable television systemioint-use entity resulting from an order of the Commission under 35-A M.R.S.Ar § 711 or from an agreement betweenan electric or telephoneutility-utility pole owner and a cable television svstemioint-use entity shall be flowedthrough to customers of the ttftltfv-pole owner by a revenue-neutral change in the ofalrtvVpole owner's rates as provided in this Section. Following initial implementation of a newrateas described above, increases in revenues which are attributable solely to increased costsof the owningor rate charging utilitypoje owner, rather than to changes in theinclusion orexclusion of costs contained in a iointuse utility pole attachment rate orto changes in theallocation of costs, shall notbe subjectto the flow-through provisions of thisseetJenSection. B. Immediate Flow-Through Theratechange required bythisSection maybe implemented bytheutUkv-pole owner at the time of the increase in revenues. Tf thnt option is chosen, a telephone utilityan electric utility chooses this option, the electric utility shall make the change in its rate for basic sen-ice for residential customers and an electric utility shall make the change in its rates for residential classes. C. Delayed Flow-Through; Suspense Account 1. Timing.TheutilityA pole owner may choose to delay theratechange required by this Section until the conclusion ofitsnext general rate case, if applicable. If the next general ratecase is not commenced (or noticeprovided underChapter 120,§ 6 of the Commission's Rules) within four yearsof the changein revenues, the utility's pole pyvner's rateshall be changed not laterthan5 years following the effective date of the rate change to the cable television system. If the revised rate to the cabletelevision system is phasedin pursuant to Section 10 of this Chapter, the time periods described above shall commence on the date of the initialphase of die rate change. 2. Rate Design. Ifthe change in ioint-use utility pole rates ismade at the conclusion of a general ratecase,the change shall applyto the rates for services or to customer classes as ordered in that case. If the change is made outside of a general rate case, the change shall apply to rates for residential customers ofthe 3. Suspense AccountAat&tv-pole owner which delays implementation of a rate change pursuant to this seetien-Section shall defer all increased revenues in a suspense account and therate change to itscustomers shall takeintoaccount the deferred amounts. 4311. RESOLUTION OF DISPUTES ARISING OVER TERMS AND CONDITIONS 21 65-407 Chapter 880 page 22 FSTARI ISHFI1 RV THF POMMISSIQV If the Commission enters an order pursuant to 35 A M.R.S.A. § 711 yvhioh orders that joint use be permitted or reasonable terms and conditions for that joint use (including ones governing make ready surveys and make ready work), and if a disagreement arises between joint users concerning the applicability or enforcement of the order requiring joint use or the terms and conditions included in the Order, a joint user may use the procedure provided for informal complaints provided in Chapter 110. § 1102 of the Commission's Rules. The Commission will adiudicate anv disputes regarding ioint-use utility poles, including disputes pursuant to 35-A M.R.S. § 711. in accordance with the Expedited Complaint Resolution Process of Disputes Regarding Utility Pole Attachments established in Maine Public Utilities Commission. Investigation into Practices and Acts Regarding Access to Utility Poles. Docket No. 2010-00371. Order (July 12. 2011). A summary of the dispute procedure is attached to this Chapter as Attachment A. 12. NEGOTIATED AGREEMENTS jNotwitiistandjng anything t_q the contrary _in thi_s_ Chapter._ poje.p.^Tier?.^^jj -^t1?-1:!?]^ -^t'A'gA IP-^Y ----'"fFormatted: Font: Not Bold enter intonegotiated agreements for attachment to ioint-use^utility poles thatcontain rates, terms. ...--{ Formatted: Font: Not Bold or conditions that differ from those described in this Chapter. However, the Commission will apply the provisions of this Chapter in any dispute regarding rates, terms, or conditions for attachment to ioint-usexutility poles; 43, ..---{ Formatted: Font: Not Bold APPLICABILITY OF RULE AND COMPENSATION ORDERS TO PRIOR PERIODS A: Applicability of Provisions of Rule The provisions of this Rule concerning the calculation of pole attachment rates or responsibility' requirements do not apply to the calculation of rates or responsibility requirements for periods prior to the effective date of the Rule. The Commission may, however, in its discretion, apply principles identical or similar to the principles set forth in the Rule in resolving disputes about the proper compensation for periods prior to the effective date of the Rule. & Applicability of Compensation Order in Cases Pending on Effective of Rule In a case under 35 A M.R.S.A. § 711 that is filed with the Commission prior to the effective date of this Rule, an order issued by the Commission that establishes a rate, compensation or a responsibility requirement for joint users of utility poles shall require recovery for periods folloyving the effective date of the Rule, and may, in the Commission'; discretion, require recover.' for periods prior to the effective date of the Rule. G-. Applicability of Compensation Order in Cases Filed After Effective Date of Rule In a case under 35 A M.R.S.A. § 711 that is filed with the Commission after the effective date of this Rule, an order issued by the Commission that establishes a rate, compensation or a responsibility requirement for joint'users of utility poles shall require recovery for periods folloyving the filing of the complaint under section 711 and may, in the Commission's discretion, require recovery for periods prior to the filing of the complaint. 22 65-407 Chapter 880 44, page 23 PROCEDURE FOR SECTION 711 PROCEEDINGS A: Complaint;Adjudicatory Proceeding. If anagreement cannot bereached, an electric utility, a telephone utilityor a cable television system which is an owner, a joint user or a proposed joint user of utilitypolesmay file a complaint withthe Commission to commence an adjudicatory' proceeding to determine whether joint useshall be permitted or to establish reasonable compensation, rates, terms and conditions for pole attachments or otherjoint use. The Commission shall proceed pursuant to Chapter110,Parts 7 10 of these Rules. & Findings; Order. If the Commission finds that the parties have failed to reach an agreement andthat the public convenience and necessity require the use by one public utility or cabletelevision system of the poles belonging to another public utility or cable television system, and that joint use will not result in irreparable injury' to the owner or other users of such poles,the Commission may issue an order requiringjoint use, establishingreasonableterms and conditionsfor the joint use and/or compensation. Any order requiring joint use or settingterms andconditions shall takeinto account the interests of the subscribers of the affected cable television system as well as the customers of the affected public utilities. An order requiring compensation shall be governed by the provisions of Section3 through 11 of this Chapter. G-. Time Limit in Cable System Cases. The Commission'sfinal order in a proceeding to establish compensation or terms and conditions in a case in which the failure to agree is between a cable televisionsystem and a utility shall be issuedno more than 360 days after the complaint is filed with the Commission 4513. WAIVER To theextent permitted by law, and for good cause shown, theCommission, theDirector of Electric and Gas Utility Industries, the Director of Telephone and Water Utility Industries, the Director of Consumer Assistance and Safety, or the Presiding Officer assigned to a proceeding involving the provisions of thisChapter, may permita temporary or permanent deviation, waiver or exemption from anyprovision of this Chapter. A finding that compliance would be unduly burdensomeor that the deviationor waiver will not impair the policies of this Chapter may constitute a finding of good cause. No yvaiver may be granted to the time limit contained in Section 11(C). STATUTORY AUTHORITY: 35-AM.R.S.A: §§111, 301, 711, 7903and 8302.. P.L. 2017. ch. 199. BASIS STATEMENT: The factual and policybasis.for; this rule is set fo^ Amending Rule"andI Factual and Policy Basis. Docket No. 2017-60247. issued on January 12.2018. Copies of the Statement and Order have been filed with this rule at the Office of the Secretary of State. Copies mav also beobtained from the Administrative Director. Public Utilities Commission. 18State House Station. Augusta. Maine 04333-0018. 23 .-•••{ Formatted: Font: NotBoid 65-407 Chapter 880 page 24 EFFECTIVE DATE: This rule yvas approved as to the form and legality by the Attorney General on XXXX. 2018. It yvas filed with the Secretary of State on XXXX. 2018 as filing 2018-XXXX. and became effective on XXXX. 2018. July 5. 1985 AMENDED:—This rule was approved as to form and legality by the Attorney General on October 22, 1993. It yvas filed with the Secretary of State on October 22, 1993, and will be effective on October 27, 1993 EFFECTIVE DATE (ELECTRONIC CONVERSION): May 1,1996 CONVERTED TO MS WORD: Mav 18, 2005 24 -1 Formatted: Font: 11 pt ATTACHMENT A ~f Formatted: Centered EXPEDITED POLE ATTACHMENT COMPLAINT PROCESS. -—--{ Formatted: Font: 11 pt, Bold • i Formatted: Font: 11 pt 1. Activities Prior to Filing a Complaint '\ Formatted: Centered Formatted a. Complainant shall call the contact for the partv with whom there is a dispute and give notice that they are planning to file a complaint with the Commission Rapid Response Team the next business dav 2. Filing Complaints a. Complainant files Complaint electronically to the RRPT (rapidresponse.PUCffljmaine.gov) and the responding partv contact. The filing shall contain the appropriate caption for the Complaint (name of company and date of filing), and the actual Complaint shall be a document attached to the email. b. A Complaint shall contain sufficient information to indicate: i. (1) the facts underlying the Complaint: ii. (2) the harm which is resulting or could result to the Complainant due to the situation: iii. (4) a description of the steps which the parties have taken to resolve the situation prior to the filing of the Complaint: and iv. (5) whether or not Complainant is requesting a preliminary finding. The Complainant shall also indicate the times both parties will be available for a conference call on the 2nd business dav after the Complaint is filed. 3. Response to Complaint a. Respondent acknowledges the bv email. The acknowledgement and anv response shall be emailed to the RRPT and the Complainant. The Respondent mayi. respond to the factual issues in the Complaint: ii. argue the Complaint should be dismissed or is otherwise not ripe for review: or b. The RRT will schedule a time for the Preliminary Conference Call within 2 business davs of the date when the Complaint is filed. 4. Preliminary Conference Call and Intermediate Dispute Resolution Process. a. Preliminary Conference Call: The following mav occur: i. Respondent mav provide oral response to Complaint: ii. Deadline established for yvritten response, if appropriate: iii. RRPT mav request additional information from each partv and set a schedule for its production: iv. RRPT mav schedule follow-up telephone conference among the parties: v. RRPT may issue a Preliminary Finding or dismiss the complaint: either party mav appeal to the Commission an adverse Preliminary Finding or dismissal: vi. The issue mav be resolved to the satisfaction of both parties. b. Follow-up conference calls will be held at a time determined bv RRPT and the folloyving may occur: ATTACHMENT A EXPEDITED POLE ATTACHMENT COMPLAINT PROCESS a. a 1 Formatted: Font: 11 pt * \ Formatted: Centered .. -fft^matted: Font: 11 pt, Bold -.*:».---{ Formatted: Font: 11 pt { Formatted: Centered i. Parties will update RRPT on progress since last call: ii. Parties will discuss information provided in response to anv RRPT requests: iii. RRPT mav issue a Preliminary Finding or dismiss the Complaint: either party may appeal to the Commission an adverse Preliminary Finding or dismissal: iv. The issue mav be resolved to the satisfaction of both parties: or v. RRPT mav request written comments and/or schedule a Notice of Decision Call. 5. Notice of Decision and Final Order a. If required bv RRPT. a final conference call is held and the following mav occur: i. RRPT hears closing argument from parties and issues oral decision. ii. RRPT hears closing argument from parties and schedules time for written decision. b. W'ithin 7 business davs of the filing of the Complaint the RRPT will issue a final written decision (Final Order). Unless staved bv RRPT. the Final Order remains in effect pending appeal. Writhin 5 business davs after written decision is issued, a partv mav: i. Appeal the Final Order to full Commission. ii. Request a stay of the Final Order bv the Commission pending appeal. 65-407 PUBLIC UTILITIES COMMISSION Chapter 880: ATTACHMENTS TO JOINT-USE UTILITY POLES; DETERMINATION AND ALLOCATION OF COSTS; PROCEDURE SUMMARY: This Chapter establishes the amounts which pole owners may include in their cost of service for attachments to joint-use utility poles; the allocation of those costs among joint users; the procedure for establishing cost responsibility and rates, the terms and conditions of attachment to jointuse utility poles, and the procedure for resolving pole attachment disputes. TABLE OF CONTENTS 1. DEFINITIONS 1 2. TERMS AND CONDITIONS 3 A. Reasonable Terms and Conditions 3 B. Unreasonable Terms and Conditions 7 C. Presumptions Rebuttable 7 3. 4. 5. APPROVAL OF ATTACHING ENTITIES 8 A. 8 Applications Requirements for Attaching Entities DETERMINATION OF TOTAL COST OF SERVICE FOR A STANDARD-SIZE JOINT-USE UTILITY POLE 10 A. Use of Rate Case Practice 10 B. Use of Cost Information Applicable to Standard Joint-Use Utility Poles 10 C. Determination of Amounts of Investments, Expenses and Revenues for Standard Joint-Use Utility Poles 10 D. Investments 10 E. Cost of Capital 11 F. Expenses and Revenues 12 G. Carrying Cost; Cost Per Pole 12 ASSIGNMENT AND ALLOCATION AMONG JOINT USERS OF JOINT-USE UTILITY POLE COSTS 13 65-407 Chapter 880 6. A. General Findings and Policy 13 B. Standard Joint-Use Utility Poles 13 C. Standard Assigned Spacefor Attachments 13 D. Common Space; Allocation 14 E. Overall Allocation 14 CALCULATION OF RATES OR RESPONSIBILITY REQUIREMENTS FOR STANDARD JOINT-USE UTILITY POLES 16 A. 16 B. In General Separate Rates for Two-User and Three-Or-More-UserJoint-Use Utility Poles 7. 16 SEPARATE CHARGES 16 A. Make-ReadyWork 16 B. Tree Trimming; Brush Control 16 C. Excess Height 17 8. JOINT RESPONSD3LLITY AGREEMENTS 9. RATE OR RESPONSD3LLITY REQUIREMENTS FOR CABLE TELEVISION 10. page ii 17 SYSTEMS TO ELECTRIC AND TELEPHONE UTLLiTLES SERVING THE SAME AREA 17 REVENUE-NEUTRAL RATE ADJUSTMENTS FOR UTILITIES 18 A. Flow Through of Changes in Revenues From Joint-Use Entities 19 B. Immediate Flow-Through 19 C. Delayed Flow-Through; Suspense Account 19 11. RESOLUTION OF DISPUTES 19 12. NEGOTIATED AGREEMENTS 19 13. WAIVER 19 65-407 Chapter 880 65-407 page 1 PUBLIC UTLLITLES COMMISSION Chapter 880: ATTACHMENTS TO JOINT-USE UTILITY POLES; DETERMINATION AND ALLOCATION OF COSTS; PROCEDURE 1. DEFINITIONS A. Assigned Space. "Assigned space" on a utility pole is the space assigned by this Rule or by an order in a proceeding under 35-A M.R.S. § 711 for the attachments of conductors or circuitry byjoint-use entities, consistent with the provisions of the National Electrical Safety Code, Blue Book, or other reasonable practices. Assigned space does not include common space, including thecommunications worker safety zone. Space which may be available on a joint-use utility pole for an additional attaching entity shall not be considered assigned space until an additional attachment is made, but shall instead be considered common space. B. Attaching Entity. "Attaching entity" means a joint-use entity with an attachment to a joint-use utility pole. C. D. Blue Book. The "Blue Book" is "SR-1421, Blue Book - Manual of Construction Procedures" published by Telcordia. Cable Television System. A "cable television system" is as defined by in Title 47 of the United States Code. E. Common Space. The "common space" of ajoint-use utility pole is space used by all of thejoint users in common and consists of the portion of a pole beneath ground level, the portion from ground level to the lowest place onthe pole at which a telecommunications circuit may be attached, plus all but 6 inches of the telecommunications worker safety zone. The common space is equal to the length of the pole minus the assigned spaces for each attaching entity. In addition, for the purpose of assigning and allocating space and costs on ajoint-use utility pole, space which may be available foran additional attachment, and which would become assigned space if an additional attachment were made, shall be considered common space until such an attachment is made. F. Communications Space. The "communications space" is the portion on a joint-use utility pole that begins at the bottom ofthe communications worker safety zone and ends at the lowest point above grade to which a horizontal communications wirecan be attached consistent with the National Electrical Safety Code. G. CommunicationWorker Safety Zone. The "communication worker safety zone" is a 40-inch vertical space, or other amount as required by theNational Electrical Safety Code for the purpose of safety, onwhich no electric or communications circuitry may be attached. It is located between the areas to which electric conductors and communication circuitry may be attached. All but six inches ofthe "communications worker safety zone" shall be considered part of the common space of a utility pole. H. Electric Utility. An "electric utility" is as defined in Title 35-A of theMaine Revised Statutes. 65-407 Chapter 880 I. page 2 Information Service Provider. "Information service provider" means a provider of "information service" as that term is defined in Title 47 of the United States Code. J. Joint-Use Entity. "Joint-use entity" means a public utility, voice service provider, wholesale or retail competitive local exchange carrier, cable television system, unlit fiber provider, telecommunications serviceprovider or information serviceprovider. K. Joint-Use Utility Pole. A "joint-use utility pole" is a utility pole on whichthere are circuit or electric conductor attachments by an electric utility and attachments by one or morejoint-use entities. Joint-use utility poles do not includepoles whose sole purpose is supporting electrical transmission conductors as definedby the FederalEnergy Regulatory Commission. However, if an electric utility under-builds a transmission line with distribution, those poles are consideredjoint-use utility poles. L. National Electrical Safety Code. The "National Electric SafetyCode" or "NESC" is published by the Institute of Electrical and Electronics Engineersand approved by the American National Standards Institute Code C2. The NESC is also described in 35-A M.R.S. § 2305-A. M. Overlash. "Overlash" means the tying or lashing of additional communications wires, cables, and facilities to existing communications wires, cables, or supporting strand already attached to poles. N. Pole Attachment. "Pole attachment" or "attachment" is the physical connection of a facility that a joint-use entity uses to provide communications or electric service. O. Pole Owner. "Pole owner" means an entity that owns or jointly owns a joint-use utility pole, or controls usable space on a joint-use utility pole. P. Requesting Party. "Requesting party" means a utility or joint-use entity that is seeking to place attachments on joint-use utility poles. Q. Responsibility Requirement. The "responsibility requirement" of an attaching entity is the portion of joint-use utility pole costs for which the attaching entity is responsible. R. Standard Joint-Use Utility Pole. A "standard joint-use utility pole" is a joint-use utility pole which is 35 feet long, including the portion of the pole which is in the ground. S. Telecommunications Carrier. "Telecommunications carrier" is as defined in Title 47 of the United States Code. T. Telecommunications Service Provider. Telecommunications service provider means a providerof telecommunications serviceas that term is defined in Title 47 of the United States Code. U. Telecommunications Service. "Telecommunications service" is as defined in Title 47 of the United States Code. V. Telephone Utility. A "telephone utility" is as defined in Title 35-A of the Maine Revised Statutes. 65-407 Chapter 880 W. page 3 Unlit Fiber. "Unlit fiber" means one or more strands within a bundle of fiber-optic cable through which an associated light signal or light communication transmission mustbe provided to provide communications service, but excluding the electronic equipment required in order to render the fiber capable of transmitting communications. X. Unlit Fiber Provider. "Unlit fiber provider"means a providerof "unlit fiber." Unlit fiber provider also includes a "dark fiber provider" as defined in Title 35-A of theMaine Revised Statutes. Y. Usable Space. "Usable Space" means the space on ajoint-use utility pole above the minimum grade level which can be usedfor the attachment of wires, cables, and associated equipment. Z. Utility. "Utility" has the same definition as "Public Utility" in Title 35-A of the Maine Revised Statutes. AA. Voice ServiceProvider. "Voice service provider" is as defined inTitle 35-A of the Maine Revised Statutes. BB. Wholesale Competitive Local Exchange Carrier. "Wholesale competitive local exchange carrier" is as defined in Title 35-A of the Maine Revised Statutes. 2. TERMS AND CONDITIONS A. Reasonable Terms and Conditions. The following terms and conditions shall be presumed to be reasonable for thejoint use of utility poles: 1. Request.A pole owner shall provide a requesting party with nondiscriminatory access to any joint-use utility pole owned or controlled by it for the attachment of conductors, circuitry, antennas, or otherfacilities. A request to attach facilities to ajoint-use utility pole shall be in writing and must provide the pole owner with the information necessary under its procedures to beginto survey the poles to which attachment is sought. Notwithstanding the foregoing, a joint-use entity may submit a request to attach a service drop to a pole within 45 days after the fact, and need not submita requestto overlash to existingfacilities, so long as the joint-use entity provides written notice of the overlash within 10 days after making it. The pole owner then has 30 days in which to inspect the overlash and determine compliance. 2. Survey. A pole owner shall complete a survey andrespond to a requesting party within 45 days of receipt of a request to attach facilities to its utility poles (or within 60 days, inthe case of larger orders as described in Section 2(A)(7) of this Chapter). This response may be a notification that the pole owner has completed a surveyof poles for which access has been requested. 3. Denial. A pole owner may deny a requesting party access to itspoles on a non discriminatory basis where there is insufficient capacity or for reasons of safety, reliability and generally applicable engineering purposes. Adenial must be in writing and must be issued within 45 days ofthe pole owner's receipt ofthe request. The denial ofaccess shall be specific, shall include allrelevant evidence and information supporting its denial, and shall explain how such evidence and 65-407 Chapter 880 page 4 information relate to a denial of access for reasons of lack of capacity, safety, reliability or engineering standards. 4. Estimate. Where a request for access is not denied, a pole owner shall present to a requesting party an estimate of charges to perform allnecessary make-ready workwithin 14 days of providing the survey required by Section 2(A)(2) of this Chapter, or in the case where a requesting party's contractor has performed a survey, within 14 days of receipt by the pole owner of such survey. a. A pole owner may withdraw an outstanding estimate of charges to perform make-ready work beginning 60 days after the estimate is presented. b. 5. A requesting party may accept a valid estimate and make payment any time afterreceipt of an estimate but before the estimate is withdrawn. Make-Ready. Upon receipt of payment specified in Section 2(A)(4)(b) of this Chapter, a pole owner shall notify immediately and in writing allknown joint-use entities with existing attachments that may be affected by the make-ready. All make-ready work shall be performed sequentially by attaching entities. a. For attachments in the communications space, the notice shall: i. ii. Specify where andwhat make-ready will be performed. State the order in which attaching entities will perform their make-ready work. iii. State that tie time period allowed for completion ofmake-ready for each attaching entitythat is no later than 15 days after the attaching entityreceives notification that the joint-use utility pole is available for the entity to perform its make-ready work (or 30 days in the case of larger orders, as described in Section 2(A)(7)(c) of this Chapter). iv. State that any attaching entitywith an existingattachment may modify the attachment consistent withthe specified make-ready before the date set for completion. v. State that the pole ownerhas and may assert a right to 15 vi. additional days to complete make-ready. State that if make-ready is not completed within the allotted time period (or, if the pole owner has asserted its 15-day right, 15 days later), the requesting party may complete the specified make-ready. vii. State the name, telephone number, and e-mail address of a person to contact for more information about the make-ready procedure. 65-407 Chapter 880 b. For attachments above the communications space, the notice shall: i. ii. iii. iv. v. 6. page 5 Specify where and what make-ready will be performed. Set a date for completion of make-ready that is no later than 90 days after notification is sent (or 135 days in the case of larger orders, as described in Section 2(A)(7)(c) of this Chapter). State that any entity with an existing attachment may modify the attachment consistent with the specified make-ready before the date set for completion. State that the pole owner has and may assert a right to 15 additional days to complete make-ready. State the name, telephone number, and e-mail address of a person to contact for more information about the make-ready procedure. Attachments Above the Communications Space. For attachments above the communications space, a pole owner shall ensure that make-ready is completed within the time periods established in Section 2(A)(5)(b) of this Chapter (or, if the pole owner has asserted its 15-day right, 15 days later). 7. Compliance with Time Periods. For the purposes of compliance with the time periods in this section: a. A pole owner shall apply the time periods described in Sections 2(A)(1)(6) of this Chapter to all requests for pole attachment up to the lesser of 300 poles or 0.5 percent of the pole owner's poles in Maine. b. A pole owner may add 15 days to the survey period described in Section 2(A)(2) of this Chapter to larger orders up to the lesser of 3000 poles or 5 percent of the pole owner's poles in Maine. c. A pole owner may add 45 days to the make-ready periods described in Section 2(A)(5) of this Chapter to larger orders up to the lesser of 3000 poles or 5 percent of the pole owner's poles in Maine. d. A pole owner shall negotiate in good faith the timing of all requests for pole attachment larger than the lesser of 3000 poles or 5 percent of the pole owner's poles in Maine. e. A pole owner may treat multiple requests from a requesting party as one request when the requests are filed within 30 days of one another. f. A pole owner may add up to 45 days to the make-ready periods described in Section 2(A)(5) if a force majeure event interrupts compliance. 65-407 Chapter 880 page 6 8. Deviation from Time Periods. A pole owner or attaching entity may deviate from the time limits specified in this section during performance of make-ready for good and sufficient cause that renders it infeasible for the pole owner or attaching entity to complete the make-ready work within the prescribed time frame, for example the need to replace joint-use utility poles. A pole owner or attaching entity that so deviates shall immediately notify, in writing, the requesting party and other affected attaching entities, and shall include the reason for and date and duration of the deviation. The pole owner or attaching entity shall deviate from the time limits specified in this section for a period no longer than necessary and shall resume make-ready performance without discrimination when it returns to routine operations. 9. Contractors. If a pole owner fails to respond as specified in Sections 2(A)(2) or 2(A)(3) of this Chapter, a requesting party requesting attachment in the communications space may hire a contractor to complete a survey so long as it provides the pole owner 10 days' written notice of its intent to do so. Further, if make-ready is not complete within the time period specified in Section 2(A)(5) of this Chapter, a requesting party requesting attachment in the communications space may hire a contractor to complete the make-ready: a. Immediately, if the pole owner has failed to assert its right to perform remaining make-ready work by notifying the requesting party that it will do so; or b. 10. After 15 days if the pole owner has asserted its right to perform makeready by the date specified in Section 2(A)(5) of this Chapter and has failed to complete make-ready. Approved Contractors for Survey and Make-Ready. a. A pole owner shall make available and keep up-to-date a reasonably sufficient list of contractors it authorizes to perform surveys and make- ready in the communications space on its utility poles in cases where the utility has failed to meet deadlines specified in Sections 2(A)(2) and 2(A)(5) of this Chapter. b. If a requesting party hires a contractor for purposes specified in Section 2(A)(9) of this Chapter, the requesting party shall choose from the pole owner's list of authorized contractors. c. A requesting party that hires a contractor for survey or make-ready work shall provide a pole owner with a reasonable opportunity for a representative to accompany and consult with the authorized contractor and the requesting party. d. The consulting representative of an electric utility may make determinations, on a nondiscriminatory basis, where there is insufficient capacity and for reasons of safety, reliability, and generally applicable engineering purposes. 65-407 Chapter 880 11. page 7 Non-Compliant Poles and Attachments Arequesting party is not responsible for make-ready costs to the extent that those costs are included inthe pole owner's maintenance as administrative expenses or booked asset costs. Arequesting party shall not be required to bear the costs of modifying attachments that are on the pole at the time ofthe requesting party's application but that were not in compliance with applicable safety, engineering, and construction codes and standards at the time of the attachments' construction or installation. 12. Notice. Apole owner shall provide a utility or joint-use entity no less than 60 days written notice prior to: a. Any increase in pole attachment rates; or b. Any modification offacilities other than routine maintenance or modification in response to emergencies. B. Unreasonable Terms and Conditions. The following terms and conditions shall be presumed to be unreasonable for the joint-use ofutility poles: 1. Boxing. Aprohibition on boxing poles (i.e., placing cables on both the road side and the field side of a pole) which can be safely accessed by emergency equipment and bucket trucks or ladders provided that such technique complies with the requirements of applicable codes. 2. Extension Arms. Aprohibition on using extension arms to clear obstacles, improve alignment, or provide space that would not otherwise be available without areplacement pole, to the extent that the installation ofextension arms complies with applicable codes. 3. Lowest Pole Position. A prohibition against attachments below existing attachments, to the extent that space is not available above existing attachments along the proposed route (or most ofthe route) ofthe additional attachments. 4. Pole Top Attachments. Aprohibition against pole top attachments and the use of space above the primary or secondary power for wireless attachments, to the extent such proposed pole top installations comply with the NESC. C. Presumptions Rebuttable. Apole owner or joint-use entity may overcome the presumption that aterm or condition described in paragraph Aor Bof this Section is reasonable orunreasonable by presenting clear and convincing evidence that the dispute involves unique circumstances in which applying the presumption would produce an unreasonable or unsafe result. 65-407 Chapter 880 3. page 8 APPROVAL OF ATTACHING ENTITLES Any prospective attaching entity that is not attached to any joint-use utility poles in Maine prior to the effective date of this Chapter must obtain a Pole Attachment License from the Commission prior to attaching to any joint-use utility pole in Maine. A. Application Requirements for Attaching Entities. 1. Evidence of Financial Capability. All applications by attaching entities shall include the entity's most recent financial disclosures. If an attaching entity does not make financial disclosures, it shall include the most recent financial disclosures of its corporate parent. If the applicant is a newly formed entity that is not part of another organization, the Commission may accept other documentation to demonstrate financial capability. 2. Evidence of Technical Capability. All applications by attaching entities shall include a description of the entity's applicable industry experience, including the experience, if any, of the corporate parent of the attaching entity, and the experience of the individuals that will be responsible for the provision of service in Maine. Industry experience includes the telecommunications industry, electricity industry, pole attachments, and other experience related to pole attachments. 3. Authorization to Conduct Business in Maine. All applications by attaching entities shall include evidence that demonstrates that the entity is authorized to conduct business in Maine. 4. Application Information. An applicant must provide the following information: a. Legal name and name(s) under which the attaching entity does or will do business in Maine; b. Business street and mailing address; c. Location and mailing address of any office available to the general public or Maine customers of the attaching entity; d. Contact person, address, e-mail and telephone number for regulatory matters; e. A list of all jurisdictions in which the attaching entity or any affiliated interest of the attaching entity is engaged or has been engaged in deploying pole attachments; f. Whether the attaching entity or affiliated interest of the attaching entity has filed for bankruptcy within the past six years; 65-407 Chapter 880 g. page 9 A copy of the documents which demonstrate thetype of organization of the attaching entity (sole proprietor, corporation, partnership, association, or other business form); h. The state(s) in which the attaching entity is incorporated or otherwise registered or licensed to dobusiness and a copy of itsregistration or license number, where applicable; and m. 5. The name, business address, and title of each officer and director, partner, or other similar officer. Commission Review. The Commission will review applications and may request additional information. The Commission will issue a license, deny the application, or initiate a formal investigation of the application within 30 calendar days of the submission of a complete application. If the Commission requires additional time for the initial review, the Administrative Director, the Director of Telephone and Water Industries, the Director of Consumer Assistance, or the Presiding Officer assigned to a proceeding related to this Chapter may extend the review period for an additional 30 calendardays. In the eventthe Commission initiates a formal investigation, it shall provide notice to interested persons. 6. Issuance Criteria. The Commission will issue a license unless it finds that the attaching entity has not complied with all applicable licensing requirements ofthis Chapter, that the attaching entity does not have the financial and technical capability to conduct its business, or that sufficient reason exists to conclude that issuance of a license is not in the public interest. 7. Term of License. Licenses are valid until revoked by the Commission or abandoned by the attaching entity. 8. Transfer of License. A license shall not be transferred without prior Commission approval. A request for transfer of a licenseshall be in writing accompanied by a completed license application from the transferee. 9. Abandonment of License. A licensee shall not abandon service without providing at least 30 days written notice to the Commission. 65-407 Chapter 880 4. page 10 DETERMINATION OF TOTAL COST OF SERVICE FOR A STANDARD-SIZE JOINTUSE UTILITY POLE A. Use of Rate Case Practice. The cost of service or revenue requirement for a standard joint-use utility pole shall be determined in the same manner as in a general rate case proceeding for an electric or telephone utility, except that the parties may rely on historical data rather than the use of a test year. The investments and expenses which shall be included and excluded are described in this Section, and, for telephone utilities, shall otherwise be calculated in accordance with the Federal Communications Commission's rules, regulations, and orders arising under Title 47 of the United States Code. B. Use of Cost Information Applicable to Standard Joint-Use Utility Poles. The investment, expense and revenue quantities required by this section for calculating the cost of service for a standard-joint-use utility pole shall be limited to those applicable to the owner's investment in joint-use utility poles. C. Determination of Amounts of Investments, Expenses and Revenues for Standard Joint-Use Utility Poles. Where the investment, expense or revenue amounts, or amounts applicable to the subclass of standard joint-use utility poles, which are required by this Section are not provided by the pole owners' books of accounts, those amounts may be calculated by any method designed to produce a reasonably accurate result. These methods may include the use of subaccount information, sampling techniques, cost studies, apportionment ratios developed from historic or current equipment costs, expenses or quantities which are applied to broader cost categories, including systemwide costs, or similar techniques. It is not necessary to determine separately the cost of service for the subclass of standard joint-use utility poles which are actually jointly-used. D. Investments. 1. Included Investments. The following investments shall be included: a. The pole owner's net investment in standard joint-use utility poles; b. An electric utility's net investment in guy wires, anchors, supporting poles, and other equipment which support standard joint-use utility poles and which are reasonably attributable to mutual use by both the electric utility, the telephone utility, and other joint-use entities. c. In the case of a telephone utility's rate for an electric utility, its net investment in guy wires, anchors, supporting poles, and other equipment which support standard joint-use utility poles and which are reasonably attributable to mutual use by both the telephone utility and the electric utility. d. In the case of a telephone utility's rate for a joint-use entity, its investment in guy wires, anchors, supporting poles, and other equipment which support standard joint-use utility poles and which are reasonably attributable to mutual use by telephone utilities and joint-use entities. 65-407 Chapter 880 2. page 11 Excluded Investments. The following investments shall notbe included: a. 40-foot, 45-foot and taller joint-use utility poles and associated guy wires, supporting anchors, poles and other supporting equipment; b. Joint-use utility poles that are not used for attachment by entities other than the pole owner; c. Guy wires, anchors, supporting poles and other supporting equipment which areusedto balance onlythe load of the attaching entity's own conductors, circuits and other attachments; d. Conductors and circuitry, cross arms, transformers, street lighting fixtures and other attachments or appurtenances used by only oneof the joint users; e. Investments in standard utility poles and supporting equipment for standard poles which were provided by contributions in aid of construction from customers or from other attaching entities, including equipment installed as part ofrearrangement ("make ready") work; f. 3. Any unreasonable or imprudently-incurred investment. Deduction for Retirement Revenue. When, under an excess height agreement or pursuant to Section 7(C) ofthis Chapter, a pole owner receives revenue to recover the cost of a 30 or 35 foot pole which must be replaced, because ofthe need for ataller pole, the amount received shall be deducted from the pole owner's net investment in30 and 35 foot poles described in Section 3(D)(1)(a) of this Chapter. E. Cost of Capital. 1. Electric Utilities. The cost ofcapital for an electric utility shall be calculated using its current embedded cost of debt and, in the case of an investor-owned utility, the cost ofequity and capital structure actually found in or reasonably ascertainable from (e.g., in a stipulation) its last general rate proceeding. Ifthat proceeding was not concluded within 5years of the commencement ofthe proceeding under 35-A M.R.S. §711, the Commission shall determine an interim cost ofequity solely for the purpose ofthe proceeding under 35-A M.R.S. §711, pending the utility's next rate proceeding. The Commission may use the cost of equity findings or stipulations in recent general rate proceedings for other comparable utilities, applied to areasonable capital structure and the known characteristicsof the utility in question. 2. Telephone Utilities or Joint-Use Entities. Ifatelephone utility or joint-use entity owns any joint-use utilitypoles, its cost of capital shall be determined in an adjudicatory proceeding pursuant to 35-A M.R.S. §711 or, ifthe telephone utility or joint-use entity agrees, its cost ofcapital may be set at the average cost of capital ofthe electric utility owning joint-use utility poles in the telephone utility's orjoint-use entity's service territory. 65-407 Chapter 880 3. F. page 12 Income Tax Adjustment. The cost of equity shall be adjusted to account for the effect of federal and state corporate income taxes. Expenses and Revenues. 1. 2. Included Expenses. a. Depreciation; b. Operations and maintenance expense reasonably attributable to standard joint-use utility poles, except for tree trimming and brush control; c. Property taxes; d. Administrative expenses, including billing, reasonably attributable to the administration ofjoint-use utility poles; Excluded Expenses. The following expenses shall be excluded, deducted or adjusted: a. Operations and maintenance and other expense related to the equipment described in Section 3(D)(2)of this Chapter; G. b. Tree trimming, brush control and rearrangement ("make-ready") expense; c. Administrative and overhead expenses which are not related to the provision of attachment space on joint-use utility poles (for example, marketing expense, customer service expense, meter reading and billing expense which should be assignable to the provision of electric and telephone services); d. Any unreasonable or imprudently incurred expense. 3. Adjustments. Adjustments shall be made to account for any expense which provides no direct or indirect benefit to a user of the joint-use utility pole other than the entity incurring the expense. 4. Other Revenues. Electric and telephone utilities shall deduct from their joint-use utility pole revenue requirements that portion of revenues received as support charges from customers served by joint-use line extensions which are reasonably attributable to costs for standard joint-use utility poles (but not conductor, circuitry and cross-arm costs). Carrying Cost; Cost Per Pole The information provided by a pole owner in a proceeding under 35-A M.R.S. § 711 shall include the annual cost per joint-use utility pole for each investment and expense category required to be included by this Section,the total annual cost of service per jointuse utility pole, and the annual carrying cost stated as a percentage of net investment in joint-use utility poles, or the equivalent of this information. 65-407 Chapter 880 5. page 13 ASSIGNMENT AND ALLOCATION AMONG JOINT USERS OF JOINT-USE UTILITY POLE COSTS A. General Findings and Policy. The Commission recognizes that joint-use utility poles are more cost-effective than separate-use poles and that entities attaching to these joint-use utility poles benefit from those cost savings. It is the policy ofthis Commission that each attaching entity pay for the costs ofassigned space on joint-use utility poles in proportion to the vertical space which is necessary for its attachments; and that attaching entities should pay for the common space (including the communications worker safety zone) on joint-use utility poles in proportion to the stand-alone cost of each attaching entity ifit were to construct itsown sole-use utility poles. The Commission finds that the allocations required by this Section, in combination with the mitigating effects ofSection 10 ofthis Chapter, take into account the interests ofthe subscribers ofcable television systems as well as the customers of electric and telephone utilities. B. Standard Joint-Use Utility Poles. For the assignments and the allocation formula which is set forth below in this Section, the standard joint-use utility pole length shall be 35 feet.: C. Standard Assigned Space for Attachments. 1. Electric Utility Space. Electric utilities shall be assigned a standard four plus one-half foot ofspace in the communications worker safety zone, for atotal of four and one-half feet of space unless a different amount is established as provided in Section 5(C)(4) below; 2. Telephone Utility Space. Telephone utilities who are also pole owners shall be assigned a standard two feet ofspace, unless adifferent amount is established as provided in Section 5(C)(4) below; 3. Joint-Use Entities. Joint-use entities that are not pole owners shall be assigned a standard one foot ofspace unless it isestablished that ajoint-use entity uses a different amountas provided in Section 5(C)(4) below. 4. Evidence of Different Space Assignments. In an adjudicatory proceeding, a party may establish that different (non-standard) amounts ofattached space should be assigned, based on measurements ofattached space on representative and statistically significant samples ofstandard joint-use utility poles. Separate samples may be used for (1) poles used by an electric utility and two or more joint-use entities, and (2) for poles used by an electric utility and a single jointuse entity. 65-407 Chapter 880 D. page 14 Common Space; Allocation. 1. Common Space on Standard Joint-Use Utility Poles. On a standard joint-use utility pole, the common space (which includes all but 6 inches of the communications worker safety zone) shall be equal to 35 feet minus the total amount of assigned space for each of the attachment combinations listed below, as follows: three attachments 27 1/2' electric and telephone utility that is a pole owner electric and other joint-use entity 28 1/2' 29 1/2' 2. Calculation of Common Space on Joint-Use Utility Poles with Nonstandard Assignments. Common space on standard joint-use utility poles for which alternative attached space assignments have been made pursuant to Section 5(C)(4) above shall equal the joint-use utility pole length minus the total assigned space. 4. Standard Allocation. The llocation of common space on a standard joint-use utility pole used by three attachers shall be: Electric 41% Telephone utility that is a pole owner Joint-use entity that is not a pole owner 34% 25% The allocation of common space on a standard joint-use utility pole used by an electric utility and a telephone utility that is a pole owner is: Electric 55% Telephone 45% The allocation of common space on a standard joint-use utility pole used by an electric utility and a joint-use entity that is not a pole owner is: E. Electric 62% Joint-use entity 38% Overall Allocation. 1. General Formula. The cost responsibility for each attaching entity shall equal the sum of the assigned space for that entity (as determined under Section 5(C)) plus the allocation of common space (as stated in Section 5(D)). This amount shall be divided by the length of the joint-use utility pole for the particular combination of attaching entities in order to calculate an attaching entity's percentage responsibility. OVERALL ALLOCATION PERCENTAGE ASSIGNED = SPACE + ALLOCATION OF COMMON SPACE LENGTH OF POLE 65-407 Chapter 880 Elec. 4' ILLUSTRATION 1 Assumes Elec . 35 foot pole, no CATV Attachment 0.5' Neut. Common 2.83' Neut. Attach. CATV V Space Common Assicm. Alloc. Elec. Tel. Total (ft.) 0. 4.5' 15.68' 20.18' 58 2' 12.83' 14.83' 42 28.5' 35' Tel. 6.5' 100% ILLUSTRATION 2 Assumes 35 foot pole, 3 attachments Attach. Clear. 18.67 Space Common Assian. Alloc. Total (ft.) 11.28' 15.78' 45 2' 9.35' 11.35' 32 1' 6.88' 7.88' 23 Elec. 4.5' Tel. CATV 7.5' 27.5' 35' Below 6' Ground Assigned and Common Spaces on 35' Pole 100' page 15 65-407 Chapter 880 2. page 16 Separate Allocations. Separate overall allocations shall be determined for jointuse utility poles with three joint users and for poles with the applicable combinations of two joint users. 6. CALCULATION OF RATES OR RESPONSIBILITY REQUIREMENTS FOR STANDARD JOINT-USE UTILITY POLES A. In General. The rate or responsibility requirement for each attaching entity to a joint-use utility pole shall equal the total cost of service for a standard joint-use utility pole, as established pursuant to Section 4(G) above, multiplied by the overall percentage allocation established pursuant to Section 5(E) above. The rate shall be per joint-use utility pole and shall apply to all joint-use utility poles, including both standard and taller joint-use utility poles. RATE OR RESPONSIBILITY = PER POLE COST OF SERVICE (§ 4(G)) x PERCENT ALLOCATION (§ 5(E)) B. 7. Separate Rates for Two-User and Three-Or-More-User Joint-Use Utility Poles. Separate rates or responsibility requirements shall be established for joint-use utility poles with three or more attaching entities and for joint-use utility poles with the applicable combinations of two attaching entities. SEPARATE CHARGES Pole owners shall charge attaching entities separately for the following expenses and investments: A. Make-Ready Work. An additional attaching entity or an existing attaching entity placing an additional attachment shall be charged reasonable expenses incurred in surveying existing joint-use utility poles or in moving conductors, circuitry or other equipment attached to a joint-use utility pole, for the purpose of making space available for the additional attachment ("rearrangements" or "make-ready" work). The attaching entity requiring additional space on an existing joint-use utility pole shall be presumed to be the attaching entity which must incur or be charged for the cost of make-ready work, unless the other attaching entities otherwise agree. If the make-ready expenses are caused by a municipality requesting space on the poles for non-commercial, non-competitive use consistent with the police power of the municipality, each current user shall each be responsible for its own costs for rearranging its facilities. B. Tree Trimming; Brush Control. Joint-use entities occupying the same joint-use utility poles as the pole owner shall be charged forty percent of expenses borne by the pole owner for tree trimming and brush control, multiplied by the ratio ofjoint-use entity attachments to joint-use utility poles occupied by pole owners in the same municipality or municipalities served by the joint-use entity. Pole owners that are telephone utilities shall not charge electric utilities, and electric utilities shall not charge pole owners that are telephone utilities or other joint-use entities, for tree trimming or brush control unless the attaching entity demonstrates a benefit to another attaching entity from either the tree trimming or brush control that it has performed and establishes a reasonable quantification of that benefit. 65-407 Chapter 880 C. page 17 Excess Height. 1. Solely Assigned; Excess Height. When an existing or a proposed attaching entity requires additional space which is not available on that joint-use utility pole, and the joint-use utility pole must be replaced by ataller joint-use utility pole, the existing or proposed attaching entity causing the need for replacement shall pay for (i) the difference between the cost for the taller joint-use utility pole and supporting equipment such as guys and anchors and the cost for a new standard joint-use utility pole and supporting equipment in the same location, plus (ii) areasonable estimate ofthe net book value ofthe joint-use utility pole and supporting equipment, ifany, which has been replaced. 2. Mutual Assignment. When a taller than standard joint-use utility pole is required to provide minimum clearances, or when more space for attachments than is available on a standard joint-use utility pole is required by two or more attaching entities, the cost (i) ofthe additional height ofthe excess height jointuse utility pole and supporting equipment and (ii) the reasonable estimate ofthe net book value ofreplaced joint-use utility pole and supporting equipment, ifany, shall be shared equally among the users requiring the replacement. 8. JOINT RESPONSIBILITY AGREEMENTS Attaching entities may enter agreements which establish joint responsibility for joint-use utility poles in their common service territories and which may eliminate or reduce the need for the payment of direct compensation. Joint responsibility may include the joint ownership ofjoint-use utility poles, sole ownership ofjoint-use utility poles in an agreed proportion, compensation or any combination thereof, provided that the net effect ofthe agreement assigns responsibility for joint-use utility pole costs in amounts generally consistent with this Chapter. In determining whether an existing agreement is generally consistent with this Chapter, the parties may take into account the burden oflitigating arate or charges before the Commission and the overall net effect of any reasonably likely change ontheir respective ratepayers or customers. 9 RATE ORRESPONSIBILITY REQUIREMENTS FOR CABLE TELEVISION SYSTEMS TO ELECTRIC AND TELEPHONE UTILITIES SERVING THE SAME AREA Where an attaching entity attaches to poles not owned by itself, but which are jointly used by an electric utility and atelephone utility, the electric and telephone utilities shall set their respective rates for the attaching entity based on the relative overall ownership interest ofthe two utilities in joint-use utility poles. The electric utility rate established for the attaching entity under Section 5 shall be multiplied by the electric utility's overall ownership percentage in joint-use utility poles in the whole area served jointly by it and the telephone utility. The telephone utility rate established for the attaching entity system under Section 5shall be multiplied by the telephone utility's overall ownership percentage in joint-use utility poles for the whole area served jointly by it and the electric utility. For each pole used by an attaching entity, the attaching entity shall pay the electric utility rate calculated under this section to the electric utility and the telephone utility rate calculated under this section to the telephone utility, regardless ofthe electric utility and telephone utility ownership interests in the joint-use utility pole. 65-407 Chapter 880 page 18 EXAMPLE 1. 100% electric utility rate for attaching entity pole attachment (Section 5) = $12/yr. 2. 100%telephone utility rate for attaching entity pole attachment (Section 5) = $10/yr. 3. Electric utility ownership percentage = 55%. 4. Telephone utility ownership percentage = 45%). 5. Apportioned electric utility rate (Section 7) = $12 x .55 = $6.60. 6. Apportioned telephone utility rate (Section 7) = $10 x .45 = $4.50. 7. Total combined amountpaid by attaching entityto electric utility and telephone utility = Step 5 + Step 6 = $11.10. 10. REVENUE-NEUTRAL RATE ADJUSTMENTS A. Flow Through of Changes in Revenues From Joint-Use Entities Increases injoint-use utility pole attachment revenues received by utility pole owner from a joint-use entity resulting from an order of the Commission under35-A M.R.S. § 711 or from an agreement between utility pole owner and a joint-use entity shall be flowed through to customers of the pole owner by a revenue-neutral change in the pole owner's rates as provided in this Section. Following initial implementation of a new rate as described above, increases in revenues which are attributable solely to increased costs of the pole owner, rather thanto changes in the inclusion or exclusion of costs contained in a joint-use utility pole attachment rate or to changes in the allocation of costs, shall not be subject to the flow-through provisions of this Section. B. Immediate Flow-Through The rate change required by this Section may be implemented by the pole ownerat the time of the increase in revenues. If an electric utility chooses this option, the electric utility shall make the change in its rates for residential classes. C. Delayed Flow-Through; Suspense Account. 1. Timing. A pole owner may choose to delay the rate change requiredby this Section until the conclusion of its next general rate case, if applicable. If the next general ratecaseis not commenced (or notice provided under Chapter 120, § 6 of the Commission's Rules) within four years of the change in revenues, the pole owner's rate shall be changed not later than 5 years following the effective date of the rate change. 65-407 Chapter 880 2. page 19 Rate Design. If the change injoint-use utility pole rates is made at the conclusion of a general rate case, the change shall apply to the rates for services or to customer classes as ordered in that case. If the change is made outside of a general rate case, the change shall apply to rates for residential customers ofthe electric utility. 3. 11. Suspense Account. Apole owner which delays implementation ofa rate change pursuant to this Section shall defer all increased revenues in a suspense account and the rate change to its customers shall take into account the deferred amounts. RESOLUTION OF DISPUTES The Commission will adjudicate any disputes regarding joint-use utility poles, including disputes pursuant to 35-A M.R.S. §711, in accordance with the Expedited Complaint Resolution Process ofDisputes Regarding Utility Pole Attachments established in Maine Public Utilities Commission, Investigation into Practices and Acts Regarding Access to Utility Poles, Docket No. 2010-00371, Order (July 12, 2011). A summary ofthe dispute procedure isattached tothis Chapter as Attachment A. 12. NEGOTIATED AGREEMENTS Notwithstanding anything to the contrary in this Chapter, pole owners and attaching entities may enter into negotiated agreements for attachment to joint-use utility poles that contain rates, terms, or conditions that differ from those described in this Chapter. However, the Commission will apply the provisions ofthis Chapter in any dispute regarding rates, terms, or conditions for attachment to joint-use utility poles. 13. WAIVER To the extent permitted by law, and for good cause shown, the Commission, the Director of Electric and Gas Utility Industries, the Director ofTelephone and Water Utility Industries, the Director of Consumer Assistance and Safety, or the Presiding Officer assigned to a proceeding involving the provisions ofthis Chapter, may permit atemporary or permanent deviation, waiver or exemption from any provision ofthis Chapter. Afinding that compliance would be unduly burdensome or that the deviation or waiver will not impair the policies of this Chapter may constitute a finding of good cause. STATUTORY AUTHORITY: 35-A M.R.S. §§ 111, 301, 711, 7903 and 8302., P.L. 2017, ch. 199. BASIS STATEMENT: The factual and policy basis for this rule isset forth in the Commission's Order Amending Rule and Factual and Policy Basis, Docket No. 2017-00247, issued on January 12, 2018. Copies of the Statement and Order have been filed with this rule at the Office ofthe Secretary of State. Copies may also be obtained from the Administrative Director, Public Utilities Commission, 18 State House Station, Augusta, Maine 04333-0018. 65-407 Chapter 880 page 20 EFFECTIVE DATE: This rule was approved as to the form and legality by the AttorneyGeneralon XXXX, 2018. It was filedwith the Secretary of State on XXXX, 2018 as filing 2018-XXXX, and became effective on XXXX, 2018. ATTACHMENT A EXPEDITED POLE ATTACHMENT COMPLAINT PROCESS 1. Activities Prior to Filing a Complaint a. Complainant shall call the contact for the party with whom there is a dispute and give notice that they are planning to file a complaint with the Commission Rapid Response Team the nextbusiness day 2. Filing Complaints a. Complainant files Complaint electronically to the RRPT (rapidresponse.PUC@maine.gov) and the responding party contact. The filing shall contain the appropriate caption for the Complaint (name ofcompany and date of filing), and the actual Complaint shall be a document attached tothe email. b. A Complaint shall contain sufficient information to indicate: i. (1) the facts underlying the Complaint; ii. (2) the harm which isresulting orcould result tothe Complainant due tothe situation; iii. (4) a description ofthe steps which the parties have taken to resolve the situation priorto the filing of the Complaint; and iv. (5) whether ornot Complainant isrequesting a preliminary finding. The Complainant shall also indicate the times both parties will be available for a conference call on the 2nd business day after the Complaint is filed. 3. Response to Complaint a. Respondent acknowledges the by email. The acknowledgement and any response shall be emailed to the RRPT and the Complainant. The Respondent may: i. respond to the factual issues in the Complaint; ii. argue the Complaint should be dismissed oris otherwise not ripe for review; or b. The RRT will schedule a time for the Preliminary Conference Call within 2 business days of the date when the Complaint is filed. 4. Preliminarv Conference Call and Intermediate Dispute Resolution Process. a. Preliminary Conference Call: The following may occur: i. Respondent may provide oral response to Complaint; ii. Deadline established for written response, if appropriate; iii. RRPT may request additional information from each party and set a schedule for its production; iv. RRPT may schedule follow-up telephone conference among the parties; v. RRPT may issue a Preliminary Finding or dismiss the complaint; either party may appeal to the Commission an adverse Preliminary Finding or dismissal; vi. The issue may be resolved to the satisfaction of both parties. ATTACHMENT A EXPEDITED POLE ATTACHMENT COMPLAINT PROCESS b. Follow-up conference calls will be held at a time determined by RRPT and the following may occur: i. Parties will update RRPT on progress since last call; ii. Parties will discuss information provided in response to any RRPT requests; iii. RRPT may issue a Preliminary Finding or dismiss the Complaint; either party may appeal to the Commission an adverse Preliminary Finding or dismissal; iv. The issue may be resolved to the satisfaction of both parties; or v. RRPT may request written comments and/or schedule a Notice of Decision Call. 5. Notice of Decision and Final Order a. If required by RRPT, a final conference call is held and the following may occur: i. RRPT hears closing argument from parties and issues oral decision. ii. RRPT hears closing argument from parties and schedules time for written decision. b. Within 7 business days of the filing of the Complaint, the RRPT will issue a final written decision (Final Order). Unless stayed by RRPT, the Final Order remains in effect pending appeal. c. Within 5 business days after written decision is issued, a party may: i. Appeal the Final Order to full Commission. ii. Request a stay of the Final Order by the Commission pending appeal. STATE OF MAINE January 12, 2018 PUBLIC UTILITIES COMMISSION Docket No. 2017-00247 MAINE PUBLIC UTILITIES COMMISSION ORDER AMENDING RULE Amendment to Chapter 880 - Attachments to Joint-Use Utility Poles; Determination AND FACTUAL AND POLICY BASIS and Allocation of Costs; Procedure VANNOY, Chairman; WILLIAMSON and DAVIS, Commissioners I. SUMMARY Through this Order, the Commission amends Chapter 880 of the Commission's Rules pertaining to Attachments to Joint-Use Utility Poles. II. BACKGROUND A. Inquiry in Docket No. 2015-00295 On June 29, 2015, the Office of the Public Advocate (OPA) made a filing requesting that the Commission re-examine Chapter 880 of the Commission's Rules.1 The stated view of the OPA was that Chapter 880, after more than twenty years without amendment, is an imperfect vehicle for the regulation of pole attachments. On September 28, 2015, in Docket No. 2015-00295, the Commission opened an Inquiry to examine the issues raised by the OPA. In its Notice of Inquiry, the Commission largely agreed with the OPA's view that the regulatory scheme in Maine with regard to utility pole attachments was a subject ripe for reexamination. To that end, the Commission opened an Inquiry to examine the issues raised by the OPA and to explore ways to facilitate the use of utility poles by entities that can deploy and expand broadband throughout the state. The Commission put forward several specific questions about federal and state law with regard to utility pole attachments, including the rights of non-utility attachers (e.g. un-lit ("dark") fiber and broadband-only providers) under both Maine and federal law. In addition, the Commission asked interested persons to comment on the specific suggestions made by the OPA to amend Chapter 880. Over the course of the next several months, the Commission received detailed comments from several parties, including utilities and non-utility attachers. After receiving the comments, the Commission Staff endeavored to craft a proposed amended Chapter 880 that incorporated the comments of the parties, while 1 The Commission first promulgated Chapter 880 in 1985. The Commission amended Chapter 880 in 1993, and the Commission has not revised the Rule since. Order Amending Rule 12_: Docket No. 2017-00247 also achieving the goals of the Commission as stated in the Notice of Inquiry regarding the facilitation of broadband expansion via modern, efficient, and flexible pole attachment regulations. As mentioned above, much of the discussion in the Inquiry centered on the Commission's statutory authority to prescribe terms and conditions for attaching to utility poles; specifically, the breadth of Commission's authority, and limitations thereto, contained in 35-A M.R.S. § 711 (Section 711). Section 711, as written at the time of the Inquiry, allowed the Commission to order joint-use of utility poles, and to "prescribe reasonable compensation and reasonable terms and conditions for the joint-use." This authority, however, was granted in the context of disputes regarding a specific utility pole attachments or attachers. Put another way, the authority of the Commission under Section 711 to require pole owners to allow entities to attach to utility poles - and to set the terms and conditions of such attachments - may have only arisen ifthere was a dispute before the Commission. Given the above, a pole owner could have had grounds to challenge the authority of the Commission to promulgate rules of general, first-instance, applicability regarding pole attachments ifthe Commission based that authority solely on Section 711 ? Given this uncertainty, the Commission's view was that guidance from the Legislature on this point would be helpful. Further, Section 711, as then written, also specifically defined a limited set of entities that were permitted to bring a utility pole attachment dispute to the Commission: public utilities, voice service providers, one specific dark fiber provider,3 wholesale 2The Commission may also have separate authority to promulgate such rules under its general rulemaking authority in 35-A M.R.S. §111. Section 111 states: "The commission may adopt rules and may employ assistance to carry out its responsibilities under this Title." 3The colloquial use of "darkfiber provider" describes an entity that furnishes fiber optic cable through which no light is transmitted and no signal is being carried. However, "dark fiber provider" is not used colloquially in Maine law. Title 35-A defines "dark fiber provider" as follows: Dark fiber provider" means a person, its lessees, trustees, receivers or trustees appointed by any court, owning, controlling, operating or managing federally supported dark fiber that: A. Offers its federally supported dark fiber on an openaccess basis without unreasonable discrimination as confirmed in a schedule of rates, terms and conditions filed for informational purposes with the commission; B. Is required to conduct its business subject to restrictions established and enforced by the Federal Government Order Amending Rule :_3_: Docket No. 2017-00247 competitive local exchange carriers, and cable television systems. Section 711 excluded modern-day utility pole attachers such as un-lit, or "dark," fiber providers beyond the one defined in Title 35-A, fiber-based broadband-only providers, and fixed wireless providers.4 Comments submitted in the Inquiry suggested that the entities excluded from Section 711 had a difficult time obtaining permission from utility pole owners to attach to utility poles, and, when they were able to attach, were often subject to costs that exceed those of the entities then included in Section 711. It was the Commission's view that these provisions of then-current Maine law raised questions regarding the Commission's authority to amend Chapter 880 to apply to modern communications technology and encourage the expansion of broadband Internet service in Maine. The relatively narrow bounds set by current Maine statutory provisions at the time of the Inquiry, on the one hand, and the ongoing Legislative interest in the adequacy of Maine's broadband deployment on the other, suggested to the Commission that the time was ripe for the Legislature to revisit this matter and create a modern, equitable approach to right-of-way access via pole attachment. Accordingly, the Commission closed the Inquiry and declined, at that time, to commence a rulemaking proceeding to amend Chapter 880. The Commission's decision, however, was without prejudice to any future inquiry or policy actions by the Legislature. B. Inquiry in Docket No. 2015-00295 After the Commission's closure of its Inquiry in Docket No. 2015-00295, the Legislature addressed some of the Commission's concerns, and amended 35-A M.R.S. §§711, 2301, and 2501. P.L. 2017, ch. 199, "An Act to Amend the Law Regarding Joint Use of Certain Utility and Telecommunications Infrastructure" (the Act). The Act expanded the types of entities that may bring pole attachment disputes to the pursuant to Title VI of the federal American Recovery and Reinvestment Act of 2009, Public Law 111-5, 123 Stat. 115 (2009) and to grant security interests to the Federal Government under that Act; and C. Does not transmit communications for compensation inside this State. 35-A M.R.S. § 102(4-A). This definition limits "Dark Fiber Provider" to one entity in Maine: Maine Fiber Company. Maine Fiber Company operates the so-called "three ring binder" fiber network. More information regarding Maine Fiber Company can be found at www.mainefiberco.com. 4 It might be possible, in some instances, to classify broadband-only or fixed wireless providers as "voice service providers" depending on the particular service offered by the provider. Order Amending Rule =_4J: Docket No. 2017-00247 Commission, thus, in effect, widening the universe of entities who have a "right" to attach to utility poles in Maine. Those "new" entities include all telecommunications service and information service providers as those terms are defined in Federal Law, as well as un-lit or "dark" fiber providers and broadband-only providers. Given the amendment of the Maine statutes that control pole attachments, the Commission opened a new Inquiry, in Docket No. 2017-00183, to obtain the initial views of interested persons. To aid in the discussion of the issues at hand, the Commission attached a discussion draft, or "strawman" rule to its Notice of Inquiry. The strawman rule was intended to reflect one possible outcome of a future rulemaking proceeding, among a wide range of possible outcomes. The Commission encouraged the parties to not only comment on the strawman rule, but to also provide comment regarding other possible approaches to reforming Maine's pole attachment rule. To further aid in cooperative discussion, the Commission conducted two workshops to discuss changes to the pole attachment scheme in Maine. C. Rulemaking Proceeding 1. Notice of Rulemaking and Proposed Rule On September 27, 2016, based on a review of Chapter 880, as well as the comments received in the Commission's Inquiries in Docket Nos. 2015-00295 and 2017-00183, the Commission issued a Notice of Rulemaking in Docket No. 2017-00247 that proposed modifications to Chapter 880.5 In its proposed Rule, the Commission proposed to add provisions governing the terms and conditions for attachments to joint-use utility poles. These provisions are not currently included in Chapter 880. The proposed provisions were based in large measure on current FCC rules and the provisions of the "strawman" rule in the Inquiry in Docket No. 2017-00183, and were influenced by the comments received by the Commission in that Inquiry. Many parties in the Inquiry in Docket No. 2017-00183 expressed a preference for procedures to resolve disputes regarding attachments to joint-use utility poles to be included in the Chapter 880. Accordingly, the Commission proposed to add provisions to Chapter 880 that describe the process the Commission will use to resolve such disputes. Additionally, and because of feedback received in the Inquiry, the Commission proposed provisions regarding the licensing of new attaching entities; existing entities would be grandfathered in and not require a license. As with the terms and conditions discussed above, these provisions are not currently included in the Rule. In addition, throughout Chapter 880, the Commission proposed several non substantive and editorial changes. These changes were intended to update the Rule to 5 In addition, and because of the opening of the rulemaking proceeding, the Commission, in the Notice of Rulemaking, closed its Inquiry in Docket No. 2017-00183. Order Amending Rule -__5_z Docket No. 2017-00247 terminology that is currently in use, to correct prior errors in Chapter 880, to clarify certain sections of the Rule, and to import the terms used by the Legislature in the Act. When changesto the Rule are ofthis nature, the Commission did not specifically describe the change; rather, the Commission referred interested persons to the "legislative edit" ofChapter 880 that was attached to the Notice of Rulemaking. Finally, the Commission did not propose to substantively alter the current provisions in the Rule with regard to rates and cost of service. Section 4 of theAct directs the Commission to adopt rules to address the terms and conditions of joint use by January 15, 2018. Importantly, the Act does not require the Commission to address rates by that date. Given the compressed time frame for the adoption of rules governing terms and conditions, and the complexity ofchanges to the portions of the Rule that govern rates, the Commission proposed deferring its consideration of amendments to the rate provisions of Chapter 880 until after the adoption of this iteration of the Rule. The Commission held a public hearing on its proposed amendments to the Rule on December 6, 2017, and received comments from interested persons on or before December 18, 2017.6 III. PARTIES The following entities and individuals actively participated in this rulemaking by testifying at the public hearing, filing comments, or both: • CTIA-The Wireless Association® (CTIA) • Bee Line Cable, Time Warner Cable Northeast LLC, Comcast of Maine/New Hampshire, Inc., and Metrocast Cablevision of Newhapshire, LLC (collectively the Cable Operators) • The Town of Gorham (Gorham) • The Economic Development Office of Franklin County (Franklin County) • Sen. Michael D. Thibodeau • • • • Rep. Seth A. Berry The Maine Professional Guides Association (MPGA) Pioneer Wireless, Inc. d/b/a Pioneer Broadband (Pioneer) Cumberland County • Biddeford Internet Corporation d/b/a GWI (GWI) • The Telecommunications Association of Maine (TAM) • Northern New England Telephone Operations LLC d/b/a FairPoint • Communications-NNE (FairPoint) Central Maine Power Company (CMP) • The Maine Municipal Association (MMA) 6The Commission had originally scheduled the hearing in this matter for November 1, 2017. The major windstorm that occurred on October 29, 2017, however, necessitated a rescheduling of the hearing by the Commission. Order Amending Rule • 16_I Docket No. 2017-00247 Lincolnville Communications, Inc., TVC Albany, Inc., CRC Communications LLC, Mid-Maine TelPlus d/b/a OTT Communications (LV/FL/OTT) The Office of the Public Advocate (OPA) Emera Maine (Emera) Downeast Economic Development (DED) Sanford Regional Economic Growth Council (Sanford) Maine's Small Business Advocate (SBA) Coastal Enterprises, Inc. (Coastal) Maine Fiber Company, LLC (MFC) Page Clason Level 3 Communications (Level 3) Century Link Communications (CLink) ExteNet Systems (ExteNet) The Town ofWaldoboro IV. DISCUSSION The specific changes the Commission is making to Chapter 880 are discussed in detail below; broadly speaking, however, the Rule the Commission is adopting is largely similar to the Rule the Commission proposed in the Notice of Rulemaking. Before engaging in a discussion of each discrete section of the Rule, there are a few overarching issues that bear in-depth discussion up front. A. Prescriptive vs. Presumptive Rules A principal issue in this rulemaking is whether terms and conditions in Chapter 880 should be prescriptive or presumptive (i.e., whether the terms in conditions in the rule should be applicable to all attachers in the first instance, or whether, as in the current Rule, the Commission only orders compliance with the terms and conditions in the context of a dispute). The overwhelming majority of commenters in this proceeding (indeed, all but one), expressed their preference that the rules be prescriptive.7 Those commenters included Maine Senate President Michael Thibodeau and House Co-Chair of the Energy, Utilities, and Technology Committee Representative Seth Barry, who expressed their opinion that it was the intent of the Legislature in crafting the Act that the terms and conditions in the Rule be prescriptive.8 7 The only commenter that expressed a preference for Chapter 880 to remain presumptive was FairPoint, which provided a detailed analysis of the legislative history of the Act. Commenters expressing a preference for a prescriptive Chapter 880 were: Frankin County, GWI, Sen. Thibodeau, Rep. Berry, the Cable Operators, LV/FL/OTT, Sanford, SBA, MFC, and Mr. Clason. 8 Sen. Thibodeau stated that "[t]he rule should prescriptively direct pole owners and pole attachers on what is expected of them and leave little room for interpretation." Rep. Berry stated that the Co-Chairs of the EUT Committee (Rep. Berry and Senator David Woodsome) "believe that the rules should clearly establish the rights and Order Amending Rule -J^ Docket No. 2017-00247 The Commission also would prefer that the terms and conditions in Chapter 880 be prescriptive. To that end, the Commission proposed legislation that, in its view, would have given the Commission that authority. In the legislation put forward by the Commission, the Commission proposed to amend 35-A M.R.S. § 711(1) & (4) (Section 711) as follows: 1. Joint use permitted. The commission may order that joint use be permitted and prescribe reasonable compensation and reasonable terms and conditions for the joint use when, after a hearing had upon its own motion or upon complaint of a public utility, voice service provider, dark fiber provider, wholesale competitive local exchange carrier or cable television system affected, it finds the following: A. That public convenience and necessity require the use by one public utility, voice service provider, dark fiber provider, wholesale competitive local exchange carrier orA cable television system, unlit fiber provider, telecommunications service provider or information service provider of the conduits, subways, wires, poles, pipes or other equipment, or any part of them, on, over or under any street or highway and belonging to another public utility, voice service provider, dark fiber provider, wholesale competitive local exchange carrier orA cable television system, unlit fiber provider, telecommunications service provider or information service provider: and B. That joint use will not result in irreparable injury to the owner or other users of the conduits, subways, wires, poles, pipes or other equipment or in any substantial detriment to the service; and^ C. That the public utilities, voice service provider, dark fiber provider, wholesale competitive local exchange carrier or cable television system have failed to agree upon the use or tho terms and conditions or compensation for the use. obligations of parties .. .." Rep. Berry also referred to a September 25, 2017 letter from the Co-Chairs of the EUT Committee in which the Co-Chairs express their "understanding and intent that [the Act]. . . did contain the authority and directive that the Commission adopt rules which actually govern the conduct of the parties regarding pole attachments." Order Amending Rule -_8_z Docket No. 2017-00247 4. Rules. The commission shall adopt a-fulerules governing the resolution of polo attachment rate disputesioint use. Tfreln establishing compensation or rates, the commission shall consider various formulas, including, but not limited to, the formula adopted by the Federal Communications Commission as codified in 47 Code of Federal Regulations, Part 1, Subpart J, as amended. L.D. 406 (128th Legis. 2017) (available at http://leqislature.maine.gov/leqis/bills/bills 128th/billdocs/SP013301 .rtft. The proposed amendment to Section 711(1) would, in the Commission's view, have accomplished two things, both of which are described in the summary appended to the originally proposed version of L.D. 406: 1. It changes the conditions under which the commission may order joint use of equipment by eliminating the requirement that a hearing be held upon the commission's motion or that a complaint be filed by an affected entity before the commission may order joint use of equipment. It also eliminates the requirement that the commission find that the parties have failed to agree on the terms and conditions or compensation for the joint use of equipment before the commission may enter an order. 4. It requires the commission to adopt rules governing joint use of equipment. Id., Summary. The Legislature subsequently amended L.D. 406, and re-inserted the language in Section 711(1) &(4) that the Commission had proposed removing:9 1. Joint use permitted. The commission may order that joint use be permitted and prescribe reasonable compensation and reasonable terms and conditions for the joint use when, aftera hearing had upon its own motion or upon complaint of a public utility, voice service provider, dark fiber provider, wholesale competitive local exchange carrier 9 The Amendment to L.D. 406 also added language in Section 711(1) that is not relevant to the discussion of prescriptive vs. presumptive rules regarding the financial and technical capabilities of prospective attachers Order Amending Rule z±z Docket No. 2017-00247 or cable telovision svstemioint use entity affected, it finds the following: A. That public convenience and necessity require the use by ono public utility, voice service provider, dark fiber provider, wholesale competitive local exchange carrier or cable tnlnvir.inn system of the conduits, subways, wires,a joint use entity to provide nondiscriminatory access to anv poles, pipos or other equipment, or any part of them, on, over or undor any street or highway and belonging to another public utility, voice service provider, dark fiber provider, wholesale competitive local oxchango carrier or cable television svstemducts, conduits or rights-of-way owned or controlled bv another joint use entity; B. That joint use will not result in irreparable injury to the owner or other users of tho conduits, subways, wiros, poles, pipespoles, ducts, conduits or othor oquipmentriqhts-of-way or in any substantial detriment to the service; aae" C. That the public utilities, voice service provider, dark fiber provider, wholesale competitive local exchange carrier or cable television svstemioint use entities have failed to agree upon the use or the terms and conditions orcompensation for the use^; and D. That the joint use entity seeking access to the poles, ducts, conduits or rights-of-way owned or controlled bv another joint use entity has the technical and financial capabilities to fulfill its obligations related to such joint use. 4. Rules. The commission shall adopt a-fu4erules governing the resolution of pole attachmentfate d/spafes-r4^and_the rates, terms and conditions of joint use. The rules must promote competition, further the state broadband policy set forth in section 9202-A and ensure safe, nondiscriminatory access on just and reasonable terms. The rules must also include a process for ensuring that a new joint use entity seeking access to the poles, ducts, conduits or rights-of-way of another joint use entity meets the requirements of subsection 1, paragraph P. In establishing rates, the commission shall consider various formulas, including, but not limited to, the formula adopted by the Federal Communications Commission as codified in 47 Code of Order Amending Rule -10- Docket No. 2017-00247 Federal Regulations, Part 1, Subpart J, as amended. Rules adopted or amended pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A. Comm. Amend. C "A" to L.D. 406, No. S-177 (128th Legis. 2017) (available at http://legislature.maine.gov/legis/bills/bills 128th/billdocs/SP013302.rtf) (reinserted language in italics). The Legislature then adopted L.D. 406 as amended, and this amended version became the Act. P.L. 2017, ch. 199. The language of the Act is plain and unambiguous; the reinsertion of the requirement that the Commission hold a hearing or receive a complaint before ordering joint use of utility infrastructure, the reinsertion of the condition that parties fail to agree before the Commission may order joint use of utility infrastructure, and the reinsertion of the requirement that the Commission adopt rules governing pole attachment disputes, prevents the Commission from promulgating prescriptive rules. Accordingly, despite the Commission's preference that its rules in this regard be prescriptive, the terms and conditions expressed in Chapter 880 will remain presumptive, and will be applied by the Commission in any dispute regarding pole attachments. The Commission expects, however, that these rules will become de facto prescriptive in that parties, knowing the rules the Commission will apply in any dispute, will follow the rules as a matter of course. B. Municipal Use of Joint-Use Utility Poles Another major issue in this rulemaking is the attachment to joint-use utility poles by municipalities. Chapter 880, in its current form, in Section 7(A) states, with regard to make-ready work, that if "make-ready expenses are caused by a municipality requesting space on the poles, each current user shall be responsible for its own costs for rearranging its facilities." In 1983, when the Commission most recently amended Chapter 880, the Commission cited to a comment by CMP where that company stated that "municipalities do not pay for space that they use on poles and that this space should be considered common space, so that the burden (the lost opportunity cost) is shared by all users." Public Utilities Commission, Re: Proposed Amendment to Chapter 88, Attachments to Joint-Use Utilities Poles; Determination and Allocation of Costs; Procedure, Docket No. 1993-00087, Order Adopting Rule; Policy and Basis Statement at 18 (Oct. 18, 1993) (1993 OAR).10 The Commission then stated CMP's view that "this nonpayment by the municipalities [is] part of a bargain under which pole owners and users do not pay for use of public rights of way." Id. The Commission then opined that there was "no need for the Rule to say anything about the responsibility for municipal uses; the space used by municipalities is automatically part of the common space." Id. at 19. The parties that commented on this rulemaking did not provide any further insight into the genesis of this particular provision, but the commenters generally agree that municipalities have, historically, been able to attach to poles, sans make-ready charges 10 Chapter 880 was called Chapter 88 in 1993. Order Amending Rule -11 - Docket No. 2017-00247 or attachment fees, for the purpose of exercising their responsibilities to protect the public health, safety and welfare.11 Broadly, the parties on either side of this issue conform to two categories: municipalities arguing in favor of unfettered free access to poles for their attachments, and pole owners and other commercial attachers arguing that municipalities should not be allowed to compete with commercial users without paying the same make-ready charges and attachment fees as everyone else.12 The municipal free access position was described in the greatest detail by the MMA. MMA contends that all actions by a municipality are, by definition, "non commercial." MMA Comments at 2. MMA characterizes the use of utility infrastructure to provide telecommunications service, or non-discriminatory access to telecommunications service, as "activities which seek to foster an environment conducive to economic development." Id. MMA argues that "by directly installing broadband infrastructure themselves," municipalities "are not acting as or directly competing with Internet service providers," and MMA equates the installation of broadband infrastructure to "traditional municipal installation and maintenance activities relating to other necessary infrastructure such as roads, sewers, emergency communications lines, and traffic signals." Id. MMA then asks the Commission to replace the term "non-commercial" in the draft Rule with the term "non-discriminatory" because "[l]ike other municipal infrastructure, municipal broadband infrastructure is open for multiple service providers to access." Id. at 3. The opposite side of this issue was described in greatest detail by TAM. As an initial matter, TAM argues that "Municipal Facilities that offer direct service to customers are indistinguishable from any other broadband provider. . .."13 TAM Comments at 1. TAM argues this is true whether it is the municipality that is providing the Internet service itself, or whether the municipality provides the facilities to third-parties as socalled "middle mile" connectivity. Id. In TAM's view, there is a market for each service, and by providing either, a municipality is necessarily competing in those markets. TAM does not argue that municipalities should be barred from competing in those markets, but onlythat municipalities should be subject to the same make-ready costs and pole attachment fees as other competitors. Id. 11 FairPoint stated that that company "has always allowed municipal attachment to [its] utility poles at no cost for legitimate, public, protective purpose under its police power." FairPoint Comments at 15. 12 The one exception to this general arrangement is the Town of Gorham, which stated that it "supports the policy underlying" the language in the draft Rule limiting free access to poles by municipalities to uses that fall within their historic police powers. Gorham Comments at 1. 13 TAM defines "Municipal Facilities" as "municipally owned facilities that are capable of transporting Internet traffic." TAM Comments at 1. Order Amending Rule -12 - Docket No. 2017-00247 Next, TAM takes issue with the suggestion that free use of poles by municipalities is a quid pro quo for pole owners and attachers having free access to municipal rights-of-way. TAM explains that the use of rights-of-way for utility infrastructure is mandated by state law in Chapters 23 and 25 of Title 35-A of the Maine Revised Statutes; in essence, municipalities have no choice but to provide permits for infrastructure in their rights-of-way. Id. at 2. As TAM puts it, "[w]hen a municipality grants a permit to an attacher or pole owner they are not doing someone a favor, they are complying with state law." Id. Back in 1993, when Chapter 880 was last amended, there was not much concern that municipalities would seek to engage in activities that would compete with the entities that used joint-use utility poles; the primary consideration at the time was to allow, as the Commission stated in the 1993 NOR, "municipal uses." Municipal uses at the time were understood to mean, for example, connections for traffic signals, connections between municipal offices, and connections for emergency communications for police and fire and rescue; municipal activities related to the health, safety, and welfare of its residents. In other words, "police power" activities.14 Today, however, more and more municipalities are seeking to either fill gaps left by the lack of options in their communities for modern telecommunications, such as high-speed broadband, or to provide additional, affordable options for those services. These are laudable goals, and, as highlighted by MMA, goals that Maine Legislature has expressed in statute. 35-A M.R.S. § 9202-A. The fact that the State and the Commission agree that increased access to broadband in Maine is an unequivocal good does not, however, mean that, in a competitive marketplace, municipalities should somehow have an advantage over other market entrants. The Commission agrees with TAM, FairPoint, the Cable Operators, and others that both the direct provision of Internet service, and the provision of "middle mile" access are in direct competition with other commercial entities that provide these services. Changing "non-competitive" to "non-discriminatory" as suggested by MMA and Franklin County does not alter the fact that municipalities would have a significant advantage over other entities providing identical services.15 In addition, the provision of Internet service or Internet infrastructure is not, in the Commission's view, a police power function. 14 The police power is "[t]he inherent and plenary power of the sovereign to make all laws necessary to preserve the public security, order, health, morality, and justice," and the right of a state to "establish and enforce laws protecting the public's health, safety, and general welfare." Black's LawDictionary at 534 (2d Pocket Ed. 2001). 15 Indeed, many, if not most, direct Internet and middle mile services are offered to the public on a non-discriminatory basis. Internet service providers such as FairPoint and the Cable Operators offer service to members of the general public, as do middle mile providers such as MFC who make their dark fiber available on an open-access basis. Order Amending Rule -13- Docket No. 2017-00247 Accordingly, the Commission declines to provide municipalities with unfettered, free-of-charge access to joint-use utility poles for any competitive services such as the provision of Internet service or Internet infrastructure. The Commission also agrees with TAM, and in contrast to the Commission's statement in 1993, that access to poles by municipalities is not the product of a silent bargain, or quid pro quo for the use of rights-of-way; perhaps this was the rationale twenty-five years ago, access to rights-ofway is a matter of state law. Notwithstanding the lack of an informal bargain, the Commission is, however, preserving the ability of municipalities to attach to joint-use utility poles, free of any make-ready charges, for uses consistent with their traditional police power. V. RULE PROVISIONS In addition to the discussion above, the Commission is making the following specific amendments to the Rule. A. Section 1: Definitions Throughout Section 1, the Commission is amending the definitions in the Rule to utilize more precise terminology, such as substituting the term "joint-use entity" for electric and telephone utilities and cable television systems, consistently using the term "joint-use utility pole," and substituting the term "communications worker safety zone" for "neutral zone." The Commission is not discussing these changes in the subsections below, except to state that the Commission is amending the language to utilize more precise terminology. Substantive comments received by the Commission are discussed below. In addition, the Cable Operators also suggested several editorial changes to many of the definitions. The Commission has taken these suggestions into consideration when amending the Rule, but does not specifically discuss any editorial changes. 1. Subsection 1(A): Assigned Space The Commission is amending Subsection 1(A) of the Rule to utilize more precise terminology. The Cable Operators suggested eliminating this definition; the Commission disagrees and is retaining the definition. 2. Subsection KB): Attaching Entity The Commission amending Subsection 1(B) of the Rule to add a definition for "attaching entity" as a means of making the Rule more precise. Order Amending Rule 3. -14- Docket No. 2017-00247 Subsection 1(C): Blue Book The Commission is amending Subsection 1(C) of the Rule to add a definition for the Telcordia Blue Book, which is a generally accepted construction manual for telecommunications. 4. Subsection 1(D): Cable Television System The Commission is amending Subsection 1(D) of the Rule to make editorial changes. 5. Subsection 1(E): Common Space The Commission is amending Subsection 1(E) of the Rule to utilize more precise terminology. The Cable Operators suggested eliminating this definition; the Commission disagrees and is retaining the definition. 6. Subsection 1(F): Communications Space The Cable Operators suggested adding a definition to Chapter 880 for the term "communications space" which is used throughout the Rule. The Commission agrees, and is adding this definition as Subsection 1(F) of the Rule. 7. Subsection KG): Communication Worker Safety Zone The Commission is amending Subsection 1(G) of the Rule to add a definition for "communication worker safety zone" which replaces the term "neutral zone." This change mirrors the terminology change in the National Electrical Safety Code. The Commission is also removing the definition for "neutral zone" from the Rule. The Cable operators suggested clarifying that the 40-inch zone is 40 vertical inches. The Commission agrees with this clarification. 8. Subsection 1(H): Electric Utility The Commission is amending Subsection 1(H) of the Rule to make editorial changes. 9. Subsection 1(1): Information Service Provider The Commission is amending Subsection 1(1) of the Rule to add "information service provider" as a defined term in Chapter 880 because this term is used in the Act. Order Amending Rule 10. -15- Docket No. 2017-00247 Subsection KJ): Joint-Use Entity The Commission is amending Subsection 1(J) of the Rule to add "joint-use entity" as a defined term in Chapter 880 because this term is used in the Act. 11 Subsection KK): Joint-Use Utility Pole CTIA commented that the Commission should harmonize "utility pole" and "joint- use utility pole" to avoid confusion. The Commission agrees, and is removing the definition of "utility pole" from the Rule as superfluous and using "joint-use utility pole" throughout the Rule. Further, the Commission clarifies that joint-use utility poles do not include poles whose sole purpose is supporting electrical transmission conductors as defined by the Federal Energy Regulatory Commission. However, if the electric utility under-builds the transmission line with distribution, those poles would be considered joint-use. The Commission is also amending Subsection 1(K) of the Rule to utilize more precise terminology. 12. Subsection 1 (L) National Electrical Safety Code For purposes of clarity, the Commission is adding a definition to Chapter 880 for National Electrical Safety Code. 13. Subsection KM): Overlash The Commission is amending Subsection 1(M) of the Rule to add "overlash" as a defined term. The Commission is making this amendment to make the Rule clearer, and because this term is used in Chapter 880 and was not previously defined. 14. Subsection KN): Pole Attachment The Cable Operators suggested adding a definition of "pole attachment" or "attachment" for the sake of clarity. The Commission agrees and is adding the definition to the Rule as Subsection 1(N). 15. Subsection 1(0): Pole Owner The Commission is amending Subsection 1(0) of the Rule to add "pole owner" as a defined term. The Commission is making this amendment to make the Rule clearer, and because this term is used in Chapter 880 and was not previously defined. 16. Subsection 1(P): Requesting Partv The Commission is amending Subsection 1(P) of the Rule to add "requesting party" as a defined term. The Commission is making this amendment to make the Rule clearer, and because this term is used in Chapter 880 and was not previously defined. Order Amending Rule 17. _16- Docket No. 2017-00247 Subsection KQ): Responsibility Requirement The Commission is amending Subsection 1(Q) of the Rule to utilize more precise terminology. The Cable Operators suggested simplifying this definition. The Commission agrees and has simplified the definition. 18. Subsection KR): Standard Joint-Use Utility Pole The Commission is amending Subsection 1(R) to make the definition more precise. GWI and CMP suggested that the Commission change the size of a standard pole to 40 feet. Because this issue is integral to pole attachment rates, the Commission declines to address this issue at this time. 19. Subsection KS): Telecommunications Carrier The Commission is amending Subsection 1(S) ofthe Rule to add "telecommunications carrier" as a defined term in Chapter 880 because this term is used in the Act. 20. Subsection KT): Telecommunications Service Provider The Commission is amending Subsection 1(T) ofthe Rule to add "telecommunications service provider" as a defined term in Chapter 880 because this term is used in the Act. 21. Subsection KUV. Telecommunications Service The Commission is amending Subsection 1(U) ofthe Rule to add "telecommunications service" as a defined term in Chapter 880 because this term is used in the Act. 22. Subsection KV): Telephone Utility The Commission is amending Subsection 1(V) of the Rule to make editorial changes. 23. Subsection KWV. Unlit Fiber The Commission is amending Subsection 1(W) of the Rule to add "unlit fiber" as a defined term in Chapter 880 because this term is used in the Act. 24. Subsection KX): Unlit Fiber Provider The Commission is amending Subsection 1(X) ofthe Rule to add "unlit fiber provider" as a defined term in Chapter 880 because this term is used in the Act. Order Amending Rule 25. _17_ Docket No. 2017-00247 Subsection 1(Y): Usable Space The Commission is amending Subsection 1(Y) of the Rule to add "usable spaceas a defined term. The Commission is making this amendment to make the Rule clearer and because this term is used in Chapter 880 and was not previously defined. The Cable Operators suggesting adding a definition for "unusable space. The Commission does not believe this definition is necessary. 26. Subsection KZV Utility The Commission is amending Subsection 1(Z) of the Rule to add "utility" as a defined term The Commission is making this amendment to make the Rule clearer, and because this term is used in Chapter 880 and was not previously defined. 27. Subsection 1(AAV. Voice Service Provider The Commission is amending Subsection 1(AA) of the Rule to add "voice service provider" as adefined term in Chapter 880 because this term is used in the Act. 28. Subsection 1(BBV. Wholesale Local Exchange Carrier The Commission is amending Subsection 1(BB) of the Rule to add "wholesale local exchange carrier" as adefined term in Chapter 880 because this term is used in the Act. B. Applicability of Rule and Overview of Sections 4, 5, 6, and 7 The Commission is proposing to eliminate the current Sections 2and 3of the Rule, "Applicability of Rule" and "Overview of Sections 4, 5, 6, and 7," respectively, as surplusage. C. Section 2: Terms and Conditions Section 1of the Act requires the Commission to adopt rules governing, among other things, the terms and conditions for attaching to joint-use utility poles. In the Inquiry in Docket No. 2017-00183, the Commission put forward a "strawman rule that contained such terms and conditions. The terms and conditions in the strawman rule were based, in large measure, on the rules currently in effect at the FCC. Many partes in the Inquiry endorsed this approach to setting terms and conditions in Maine. While these terms and conditions are presumptive, and are terms and conditions that the Commission will apply in the context of a dispute or in instances where the parties have failed to agree, the Commission, as stated above, expects that these terms and conditions will become de facto prescriptive in that they will become the standard terms and conditions for joint-use utility pole attachments in Maine. As wtfh Section 1of the Rule, the Cable Operators suggested several editorial changes to Section 2of the Kule. _18. Order Amending Rule Docket No. 2017-00247 The Commission has taken these suggestions into consideration when amending the Rule, but does not specifically discuss any editorial changes. 1. Si insertion 2(A)- Reasonable Terms and Conditions This Subsection sets forth presumptively reasonable terms-and.conditions for a. Subsection 2(A)(1): Request The amendments adopted by the Commission in this Subsection require pole for all overlashes, including third-party overlashes CMP requeststerniay ™*JJ^ fact notice for overlashes, and athirty-day penod for pole owners to inspect overlashes for compliancy eliminating the language regarding overtaking to an The Commission also agrees with CMP's thirty-day inspection window, and has incorporated that into the Rule. b. Subsection 2(M(2Y Survey This Subsection requires pole owners to complete surveys "J^g^oSmkw attachment requests within 45 days (or 60 days for large orders) The Cable Operators "ted reducing those time frames to 30 and f^™*^]™ Commission disagrees with this suggestion, and finds that 45 and 60 days are reasonable and fair to all parties. c. Subsection 2fAV3V Denial This Subsection sets forth the conditions under which apole owner may deny access to its poles and the time period and method by which such adenial may be !w!h rKhle Ooerators suqqested adding language restricting the ability of SSS^^SSKETp?teS to cases where the utility has aplan to use ^frhToace and needs the space "for the provision of core electric service." This was not J^ issue rated by- anj otter party, and the Commission finds that any disputes over "reserved"space on poles can be resolved using the expedited complamt process ,n the Rule and, thus, declines to add this language. Order Amending Rule d. -19- Docket No. 2017-00247 Subsection 2(A)(4): Estimate The Commission's proposed Rule allowed pole owners to withdraw an outstanding estimate if 14 days had passed with no response from the prospective attacher. GWI and the Cable Operators proposed increasing the minimum timeframe that a pole owner may withdraw their estimate from 14 to 30 days to provide attachers with sufficient time to evaluate whether to accept the estimate and move forward. LV/FL/OTT proposed increasing the time a pole owner could withdraw an estimate to 180 days. Emera suggested thatthere be additional flexibility in the Rule for situations with multiple attachers or unforeseen circumstances. The Commission agrees with GWI and LV/FL/OTT, generally, that the timeline should be extended. The Commission believes, however, that the 180-day estimate suggested by LV/FL/OTT is excessive. The Commission finds that a 60-day period for attachers to evaluate whether to move forward after being provided with an estimate is sufficient and fair to all parties. As to Emera's suggestion about additional flexibility in the Rule, it is the Commission's view that any such unforeseen circumstances can be adequately addressed using the waiver provisions in the Rule. e. Subsection 2(A)(5): Make-Ready This Subsection governs the terms for make-ready work. In general, each entity attached to a joint-use utility pole in the communications space has 15 days in which to complete the make ready-work oftheir facilities (30 days for large orders). These 15 (or 30) day periods are sequential, in the orderdetermined by the pole owner. The proposed language also specifies time periods for the completion ofwork above the communications space (90 days, or 135 days for large orders). In its comments, FairPoint argued that the make-ready provisions ofthe rule as proposed by the Commission are unclear, and thatthe Commission should clarify the intent ofthe provision, particularly when make-ready work requires the replacement of joint-use utility poles. The Commission believes FairPoint's concerns are addressed by Subsection 2(A)(8) ofthe Rule, which highlights that a pole owner or attaching entity may deviate from the time limits specified in this section if good and sufficient cause renders it infeasible for the pole owner or attaching entity to complete the make-ready work within the prescribed time frame. As discussed below, Subsection 2(A)(8) now clarifies that an example ofsufficient cause could be replacement ofa joint-use utility pole. FairPoint also argues that the timelines in Subsection 2(A)(5) are quite aggressive, and may prove unworkable without the implementation of a state-wide notification system for joint-use utility pole attachments. The Commission does not necessarily disagree with the concept ofa state-wide notification system; indeed, such a system was suggested by other commenters, including GWI, the Cable Operators, and _2u- Order Amending Rule Rocket No. 2017-00247 LV/OX/OTT In the context of this specific proceeding, however, it was not possible for ^Commission to sufficiently examine this matter. The Commission intends to examine this issue at a later date. In its comments CMP observed that for attachments above the communications space,XSa;nTbepos^ Sor! e6SXSmSS£EHSESES*• work in such instances undeX supe^ision of autility-provided project manager. In the alternative CMP SSSS Commission acknowledge that anelectric: utility «^«£, usSrd party contractors for work above the communications space. f. SybjgglaO Htm mgmSfe AhnvP thR Communications Space as originally proposed in the NOR. g. Subsection 2(A)f7V Compliance with Time Periods This Subsection sets forth the conditions for compliance with the make-ready L inTht r„ip Fmera suoqested that compliance with time periods may be ^^^^it^ZSS^appLtions, or due to an emergency or^rtcal electricity sen/ice requirements. The Commission agrees, in part, that addSt^ liS^^^SZSS^^SSf^Sdayson top of mTnormal make-ready time periods to accommodate such situationsh. Subsection 2(A>(SV Deviation from Time Periods This Subsection sets forth the conditions by which apole owner may deviate from the prescribed make-ready time periods. As noted above, the» Common has added language to this Subsection clarifying that the replacement of jomt-use utility poles may require deviation from the prescribed time limits. 16 a "force maieure" event is one whose "effect can be neither anticipated nor cortrSted "bK Law Dictionary at 287 (2d Pocket Ed. 2001) Force majeure includes both acts of nature (e.g. floods and hurricanes) and acts of people (e.g. nots, strikes, and wars)." Id. Order Amending Rule i. -_2Li Docket No. 2017-00247 Subsection 2(A)(9): Contractors This Subsection allows for an attaching entity to use a third-party contractor in the communications space if a pole owner fails to respond within the prescribed time periods for survey and make-ready work. This Subsection also sets forth the conditions for the use of third-party contractors. In its Comments, Emera asked thatthe Commission clarify that Subsection 2(A)(9) applies only to work in the communications space. That is the Commission's intent. However, electric utilities may, as discussed above, request a waiver of the Rule allow third-party contractors to work above the communications space if the electric utility so chooses. j. Subsection 2(A)(10): Approved Contractors for Survey and Make Ready The Commission adopts Subsection 2(A)(10) of the Rule as proposed in the Notice of Rulemaking. Subsection 2(A)(10) allows prospective attachers to use third- party (i.e., non-utility) contractors to complete the survey and make-ready work in the communications space that is required by subsections 2(A)(2) and 2(A)(5) of the rule. Subsection 2(A)(10) essentially adopts the rules promulgated by the FCC for the use of outside contractors in the communications space when the pole owner or any other current attacher hasfailed to meet the timing requirements for completion of survey and make-ready work. The Rule, as amended, will allow prospective attachers to select from a list of contractors approved by the pole owner. We expect the pole owner to maintain a list of approved contractors, or to have a procedure in place that will allow for a relatively rapid approval of any contractor proposed by the requesting attacher. This provision does not apply to any survey and make-ready work that involves proposed attachments above the communications space on a pole; that is, for any attachments proposed in the electric space. Above the communications space, the pole owner is expected to meet its obligation for completing the survey and necessary make-ready work within the time frames provided in the rule, as specified in Subsection 2(A)(6) of the rule. As stated above, the electric utility may request a waiver ofthe Rule to allow a third-party contractor to complete the work. FairPoint opposed inclusion of the provision allowing outside contractors to perform work in the communications space, because it believes such provision increases the risk of damage to telecommunications facilities already on poles, which in turn could lead to service interruptions. Customers would then, in FairPoint's view, place the blame on the incumbent telephone utility. FairPoint asserts that any prospective attacher should utilize the expedited complaint process in the Rule if it encounters a significant delay in the completion of survey and/or make-ready work by the pole owing utility. The Cable Operators assert that many incumbent utilities currently maintain a list of approved contractors, and the proposed rule matches the approach adopted by the .22- nrriftr Amending Rule Docket No. 2017-00247 FCC and so they endorse the rule as proposed. Emera also endorses the proposed opfon o'using an outside contractor when the electric utility cannot complete any required work within the timelines of the rule. Subsection 2(A)(10) as adopted comports with the views expressed by the Cable Operators Emera and CMP. The Commission finds that survey and make-ready work 2the^communSions space should be completed within the tme frames specriied in Subsec«ons 2(A)(2) and 2(A)(5) of the rule, and that failure o the pole, owne(or another current attacher) to meet these time frames should allow the prospect ve aEaeherS»X are essentially "self-help" measures by employing outside mitigates any risk that FairPoint alleges may occur. Additionally CTIA commented that there is an apparent inconsistency between this Subsection and the dispute resolution procedures the Commission is adopt n as Se^tbn l^f the Ru e. CTIA's concern is that allowing aconsulting representative of an electric uti£ to make a"final determination" regarding sufficient capacity to accommodaS aproposed attachment could usurp the Commission sauthonty to adiudicate adispute in this area. This was not the Commission's intent, and the ComSon clarifles that parties may bring adispute to the Commission regartrng attachments to ioint-use utility poles or arising under any provision of these Rules^ To "hat end £e Commission isTemoving the word "final" from the originally proposed language in this Subsection. k> §u_Sge__n 2(A)fny Non-Compliant Poles and Attachments fheTS maintenance item should be corrected at the expense of the pole owner(s), not the third party. Pioneer Comments at 3 GWI also commented that new attachers should not be required to pay^bnng non-compliant poles and attachments up to code. This requirement, GWI argues^ shrtts the costs of proper pole maintenance from the pole owners to ™^g£™™ are ttvina to expand broadband service and increase competition GWI Comments n 4 GWI pS abroad set of criteria that could define an out-of-compliant pole such as: Order Amending Rule _23- Docket No. 2017-00247 • Existing attachments that are lower than current minimum clearance standards; • Existing poles that do not meet standards governing spans between poles; • Existing poles that lack the structural integrity to support new attachments; • Existing poles that are shorter than current standards; • Existing attachments (e.g., cable providers) that do not meet spacing standards. GWI also argued that if a pole owner is going to require the use of standards other than the NESC, then the pole owner should publish those standards on its website or make available upon request. MFC also commented that pole owners should be prohibited from using make- ready charges to pass the costs of maintenance or bringing a pole into compliance along to an applicant seeking to attach to the "non-compliant" or unsafe pole. MFC argued that the practice of "grandfathering" attachment issues should not require a third-party license applicant to bear the cost of bringing the pole into compliance. Similarly the SBA shared asimilar view that there needs to be aspecific procedure for determining pole replacement. If a pole is out of compliance before a new attacher puts in a request, then it should not be the responsibility of the new attacher to replace that already out of compliance pole. The Cable Operators commented that their pole-access costs are unreasonably inflated because pole owners force them to correct pre-existing violations on the poles caused by others The Cable Operators contend that it is illegal to require attachers like them to pay for pre-existing violations. The Cable Operators also submitted draft language for the Rule that would address this concern. LV/FL/OTT agreed that new attachers often incur the cost of bringing non- compliant pole into compliance, usually through replacement of the pole. LV/FL/OTT added that these requirements not only cause burdensome costs and delays, but may also lead to the abandonment of a project by the new attacher. Although the companies share the concerns about non-compliant pole replacement costs being borne by third- party attachers LV/FL/OTT concede this is acomplex problem that requires additional thought and analysis. LV/FL/OTT did, however, provide some guidance as to some solutions applied by other states such as New Hampshire17. 17 The New Hampshire Public Utilities Commission has addressed this concern in its Rules with an explicit requirement: Where a pole or existing attachment is not in compliance with applicable standards and codes and must be brought into compliance before a new attachment can be added, the cost of bringing that pole orexisting attachment into Order Amending Rule l24^ Docket No. 2017-00247 The Commission agrees with the parties that more guidance is required here and is inclined to follow the approach ofthe New Hampshire Public Utilities Commission. Third-party pole attachers should not be saddled with the costs of paying for new jointuse utility poles that are in disrepair or non-compliant, or rearranging non-compliant facilities to bring those facilities into compliance. It is the Commission's view that these costs, which are essentially maintenance costs, should be funded by the ongoing pole attachment fees paid by attachers. Accordingly, the Commission has added language to the Rule in Subsection 2(A)(11) that addresses this issue. The Commission's language is based on the language suggested by the Cable Operators. Attachers must recognize, however, that the measure of pole or attachment compliance is based on the year the pole or attachment was constructed and put in service; compliance is not measured on current NESC or Blue Book standards. Put another way, a pole that would be non-compliant under current standards, may actually be compliant if it was constructed or installed using then-current standards. As stated above, however, if a pole that was compliant when installed must be replaced because it is at the end of its useful life, or must be replaced due to disrepair, damage, or sub-standard maintenance, the replacement cost is the responsibility ofthe pole owner. I. Subsection 2(A)(12): Notice This Subsection sets forth notice requirements for pole attachment rate changes and maintenance. The Commission did not receive any substantive comments regarding Subsection 2(A)(12), and adopts this Subsection as proposed in the Notice of Rulemaking. m. Additional Matters The Cable Operators suggested adding a subsection to Section 2(A) addressing make-ready responsibilities. It is the Commission's view that the concern addressed by the suggested language-the ability to engage third-party contractors-is adequately addressed elsewhere in the Rule. 2. Subsection 2(B): Unreasonable Terms and Conditions This Subsection sets forth terms and conditions for attachments to joint-use utility poles that the Commission considers to be presumptively unreasonable. The Commission is adopting provisions in Section 2(B) that differ in some respects from the proposed version of Chapter 880 contained in the Notice of Rulemaking. The Commission finds that it is presumptively unreasonable for any pole owner to attempt to include the terms and conditions enunciated in Section 2(B) in any jointcompliance shall not be shifted to the entity seeking to add a new attachment. N.H. Code R. PUC 1303.7(c). Order Amending Rule .25- Docket No. 2017-00247 use utility pole agreement, as those terms would impede the reasonable, efficient and safe use of joint-use utility poles. No comments were filed opposing the adoption of this section of he Rule although, as described below, several commenters suggested some changes to this section of le proposed Rule, and the Commission has included many of those changes in the final Rule that it adopts in this Order. The provisions of Subsection 2(B)(1) "Boxing" and Subsection 2(B) 2"Boston Arms" have been modified from the proposed rule to mirror the principles endorsed by the Commission in its Order in Oxford Networks f/k/a Oxford County Telephone JiSSLfon Investigation into Verizon's Practices andAcUs Regarding TccesstoUmty Poles, Docket 2005-00486, Order (Oct. 26, 2006) and Order on Reconsideration (Feb. 28, 2007) (the Oxford Orders). The principles set forth ,n the Oxford Orders are generally referred to as the "Oxford Rules. In the proposed rule, Subsection 2(B) contained limiting provisions that stated, "to the extent that the pole owner uses, or allows requesting parties to use, such pointed out in several comments, most notably in comments filed by LV/FUOTT^that restriction did not appear in the Oxford Orders. Many commenters supported the Ldopfion ofIhe Oxford Rules as the Commission expressed ^ t S S the Commission agrees with those commenters, and is incorporating the Oxford Rules into Chapter 880.18 Several commenters also noted that one provision of the OxfordI Rules related to the lowest pole position, had been removed from the Proposed rule after itK5S»6 ncluded in the earlier "strawman" proposal from the Inquiry in DooketNa 2015-00295. The Commission is restoring this provision to the final Rule as Subsecfion 2(B)(3) "I owest Pole Position "19 To be consistent with the principles expressed in the Oxford Rules SnalR^e allows new attachers to attach to the lowest available position on the pole provided that space is not available above existing facilities along all, or most, ofthe proposed route.20 is Commenters that urged the Commission to fully incorporate the Oxford ^les irrto Chapter 880 include- GWI, FCED, Pioneer, Sen. Thibodeau, Rep. Berry, the Cable SpeStors LWFUOTT, OPA, Emera, DED, SBA, MFC, and Mr. Clason FairPoint was Se only commenter expressing opposition to the incorporation of the Oxford Rules, as expressed in the Oxford Orders, into the Rule. «"Pole Top Extensions," which the Commission included as Subsection 2(B)(3) in the proposed Rule has been renamed "Pole Top Attachments" and ,s included, with modification, in the final Rule as Subsection 2(B)(4). 20 The language the Commission is adopting for lowest pole position differs «W «™ the Oxford Rules in that Chapter 880 makes no specific reference to the facilities of the Ile? In the Commission's view, the intent of the Oxford Rules was that if there is _26_ Docket No. 2017-00247 nrHor Amending Rule SE;I the electric space on utility poles to provide next generation wireless services. The Commission's approach was endorsed by CTIA and the Cable Operators. Srest Further allowing electric utilities to "bump" other attachers from pole tops would go against this public interest consideration. a. Rnhsection2(BV1V. Boxing This Subsection allows boxing (i.e. placing cables on both the road side and the field side of apolefof iotnt-use utility poles to the extent that the boxing complies; wrth aJpiiSbtecodes^'facilities can be safely accessed by emergency equipment and bucket trucks or ladders. b. Subsection 2(R)f?V Fytension Arms This Subsection allows the use of extension arms on joint-use utility poles to the extent that the extension arms comply with applicable codes. c. £..hsection 2(B)f*V ' ™/Pst Pole Position This Subsection allows attachments below existing attachments «jg*2» of the route of the proposed new attachments. ^ilahle soace below the lowest attachment on the pole, that space should be SSS8SS3J! ofwho owns the attachments directly above that space. Order Amending Rule d. -27- Docket No. 2017-00247 Subsection 2(B)(4): Pole Top Attachments This Subsection allows pole top attachments to joint-use utility poles to the extent that the attachments comply with the NESC. D. Section 3: Approval of Attaching Entities Section 3 of the Rule is new to Chapter 880. Section 1 of the Act amended 35-A M.R.S. § 711(1) to add a requirement that the Commission determine that joint-use entities seeking access to joint-use utility poles have the technical and financial ability to fulfil their joint-use obligations. As described in greater detail below, Section 3 of the Rule sets forth the parameters of the Commission's review and issuance of a license to operate as an attaching entity. Section 3 also "grandfathers" all joint-use entities that are attached to joint-use utility poles in Maine on the effective date of the Rule. CTIA opposed, in part, the Commission's proposal in this Section, but only made a specific recommendation with regard to Subsection 3(A)(8). CTIA observed thatthe licensing requirements were "overly broad and capture not only newly-eligible providers, but also providers thatwere previously eligible, including existing wireless providers that are currently operating in Maine, and have operated in Maine for many years, but that had no pole attachments at the time ofthe rule's effective date." CTIA Comments at 11. CTIA also added that the process as proposed is unduly burdensome. Furthermore, CTIA expressed concern that the proposed rule raises jurisdictional concerns if it is intended to apply to wireless providers. The Commission disagrees with CTIA's observations. The process put forward by the Commission is minimally burdensome, and is designed to capture the minimum of information necessary for the Commission to determine competency. Further, the process is equally applicable to all new prospective attachers, and is non-discriminatory. Finally, given the jurisdiction ofthe Commission over attachments to joint-use utility poles in Maine, the Commission disagrees with the premise that one category of attachers (wireless) is somehowjurisdictionally off limits by virtue of the regulatory scheme that applies to the service the attacher provides. Taking CTIA's argument to its logical extreme, the Commission would similarly be unable to regulate the attachments of broadband providers, as the service those providers furnish is regulated at the federal level. The Commission is regulating attachments, not service, and is treating all new attachers equally. LV/FL/OTT commented that the provisions in Section 3 of the proposed Rule are reasonable, and seek to assure that new attaching entities are "good citizens." As such, LV/FL/OTT generally support the provision in the proposed Rule. The Commission agrees with LV/FL/OTT thatthe proposed rule change requiring a licensing requirement is reasonable to all new attaching entities. The Commission finds that the licensing process is not overly burdensome and captures the intent ofthe statutory requirements in 35-A M.R.S. § 711 (1) that a joint-use entity has the technical Order Amending Rule ^28^ Docket No. 2017-00247 and financial capabilities to fulfill its obligations related to such joint-use. Accordingly, the Commission adopts Section 3 as proposed in the Notice ofRulemaking. 1. Subsection 3(A): Application Reguirements for Attaching Entities This Subsection sets forth the application requirements for new attaching entities. a. Subsection 3(A)(1): Evidence of Financial Capability This Subsection requires prospective attaching entities to disclose pertinent financial information to the Commission. b. Subsection 3(A)(2): Evidence of Technical Capability This Subsection requires prospective attaching entities to provide sufficient indicia to the Commission of the entities technical ability to attach to joint-use utility poles. c. Subsection 3(A)(3): Authorization to Conduct Business in Maine This Subsection requires prospective attaching entities to show that the entity is legally entitled to do business in Maine. d. Subsection 3(A)(4): Application Reguirements This Subsection sets forth the minimum required information for license applications. e. Subsection 3(A)(5): Commission Review This Subsection provides for Commission review ofa license application within 30 calendar days, with an additional 30 days for review if necessary. f. Subsection 3(A)(6): Issuance Criteria This Subsection sets forth the standard for the issuance of a license to a prospective attaching entity. g. Subsection 3(A)(7): Term of License This Subsection provides that licenses are valid until revoked orabandoned. h. Subsection 3(A)(8): Transfer of License This Subsection sets forth the terms for transfer of a license. CTIA added that, as written, this provision may have the unintended consequence of requiring that any Order Amending Rule -29 - Docket No. 2017-00247 wireless carrier with pole attachments in Maine and a Commission-issued Pole Attachment License would need Commission approval to transfer its Pole Attachment License prior to or contemporaneously with transferring its FCC wireless license. The Commission disagrees that it would have any part in the transferring of wireless licensing authority at the FCC. The Commission's only concern and authority would be in transferring of a Pole Attachment License from one joint-use entity to another, and disagrees that this would somehow burden the transfer of federally-granted licenses i. Subsection 3(A)(9): Abandonment of License This Subsection sets forth the criteria for abandonment of a license. E Section 4: Determination of Total Cost of Service for a Standard-Size Joint Use Utility Pole Except as specifically discussed below, the Commission's amendments to Section 4 of the Rule are editorial or non-substantive in nature, or are intended to update the Rule to include current terminology or to reflect the current state of the telecommunications industry. The Commission is also amending Section 4 to solely refer to 35-foot poles as "standard joint-use utility poles." CTIA and the Cable Operators urged the Commission to substantively address rates in this Rulemaking, and advocating for wholesale adoption of the FCC's rules in this regard, thus removing Sections 4 through 10 of the Rule. Given the January 15, 2018 deadline imposed by the Legislature in the Act, however, substantively addressing rates is not feasible at this time. As the Commission explained in the Notice of Rulemaking, the Act does not require the Commission to address rates by the statutory deadline. Given the compressed time frame for the adoption of rules governing terms and conditions, and the complexity of changes to the portions of the Rule that govern rates, the Commission is deferring its consideration of amendments to the rate provisions of Chapter 880 until after the adoption of this iteration of the Rule. To that end, the Commission intends to commence an Inquiry shortly after the conclusion of this Rulemaking to address rates. 1. Subsection 4(D)(2): Excluded Investments The Commission is adding language to Subsection 4(D)(2), as Subsection 4(D)(2)(b), that would exclude the use of joint-use utility poles that are solely used by the pole owner from the investments that may be used to determine the cost of service for joint-use utility poles. 2. Subsection 4(E): Cost of Capital The Commissions' amendments to Subsection 4(E) are intended to recognize the fact that telecommunications providers, and specifically telephone utilities, are largely unregulated and may no longer have general rate cases. Order Amending Rule F. -_3Q^ Docket No. 2017-00247 Section 5: Assignment and Allocation Among Joint Users of Joint-Use Utility Poles The Commission's amendments to Section 5 of the Rule are editorial or non substantive in nature, or are intended to update the Rule to include current terminology or to reflect the current state ofthe telecommunications industry. The Commission is also amending Section 5 to solely refer to 35-foot poles as "standard joint-use utility poles." Beyond the recommendation of CTIA and the Cable Operators to remove all the rate sections ofthe Rule and replace them with a reference to the FCC's Rules, the Commission did not receive any specific comments regarding this Section. G. Section 6: Calculation of Rates or Responsibility Reguirements for Standard Joint-Use Utility Poles The Commissions amendments to Section 6 of the Rule are editorial or non substantive in nature, or are intended to update the Rule to include current terminology or to reflect the current state ofthe telecommunications industry. Beyond the recommendation of CTIA and the Cable Operators to remove all the rate sections of the Rule and replace them with a reference to the FCC's Rules, the Commission did not receive any specific comments regarding this Section. H. Section 7: Separate Charges The Commission's amendments to Section 7 of the Rule are editorial or non substantive in nature, orare intended to update the Rule to include current terminology or to reflect the current state ofthe telecommunications industry. In addition, the Commission's proposed amendments to Section 7 clarify that its provisions apply to all attaching entities, not just cable television systems. Beyond the recommendation of CTIA and the Cable Operators to remove all the rate sections ofthe Rule and replace them with a reference to the FCC's Rules, the Commission did not receive any specific comments regarding this Section. I. Section 8: Joint Responsibility Agreements The Commission's amendments to Section 8 of the Rule are editorial or non substantive in nature, or are intended to update the Rule to include current terminology or to reflect the current state ofthe telecommunications industry. Beyond the recommendation of CTIA and the Cable Operators to remove all the rate sections ofthe Rule and replace them with a reference to the FCC's Rules, the Commission did not receive any specific comments regarding this Section. j. Section 9: Rate or Responsibility Reguirements for Cable Television Systems to Electric and Telephone Utilities Serving the Same Area The Commission's amendments to Section 9 of the Rule are editorial or non substantive in nature, or are intended to update the Rule to include current terminology Order Amending Rule -31 - Docket No. 2017-00247 or to reflect the current state of the telecommunications industry. Beyond the recommendation of CTIA and the Cable Operators to remove all the rate sections of the Rule and replace them with a reference to the FCC's Rules, the Commission did not receive any specific comments regarding this Section. K. Phase In of Rates or Responsibility Reguirements The Commission is eliminating the current Section 10 of the Rule, "Phase In of Rates or Responsibility Requirements" as superfluous. Beyond the recommendation of CTIA and the Cable Operators to remove all the rate sections of the Rule and replace them with a reference to the FCC's Rules, the Commission did not receive any specific comments regarding this Section. L. Section 10: Revenue-Neutral Rate Adjustments The Commission's amendments to Section 10 of the Rule are editorial or non substantive in nature, or are intended to update the Rule to include current terminology, delete references to Rule sections the Commission proposes to eliminate, or to reflect the current state of the telecommunications industry. Beyond the recommendation of CTIA and the Cable Operators to remove all the rate sections of the Rule and replace them with a reference to the FCC's Rules, the Commission did not receive any specific comments regarding this Section. M. Section 11: Resolution of Disputes Several commenters in the Inquiry in Docket No. 2017-00183 recommended that the Commission include in the Rule the "rapid response" procedures for joint-use pole attachment disputes formulated by the Commission in its July 12, 2011 Order in Docket No. 2010-00371. Accordingly, the Commission is proposing to amend Section 11 to promulgate those procedures. CTIA raised a concern about a conflict between this Subsection and Subsection 2(A)(10)(d) of the Rule. The Commission addressed this potential conflict in its discussion of Subsection 2(A)(10)(d). N. Section 12: Negotiated Agreements Based on comments and feedback received by the Commission in the Inquiry in Docket No. 2017-00183, the Commission is adding Section 12 to the Rule to clarify that nothing in the Rule shall be construed to restrict parties from negotiating mutually acceptable rates, terms, or conditions that differ from those contained in Chapter 880. The Commission's proposed Section 12 also makes clear, however, that in resolving any dispute regarding attachments to joint-use utility poles, the Commission will apply the rates, terms, and conditions in Chapter 880. Order Amending Rule 0. ^32^ Docket No. 2017-00247 Applicability of Rule and Compensation Orders to Prior Periods The Commission is eliminating the current Section 13 ofthe Rule, "Applicability of Rule and Compensation Orders to Prior Periods" as superfluous. The Commission did not receive any specific comments regarding this Section. p. Procedure for Section 711 Proceedings Given the Commission's proposed incorporation in Section 11 ofthe Rule ofthe dispute resolution procedures in the Commission's July 12, 2011 Order in Docket No. 2010-00371, the Commission is eliminating the current Section 14 ofthe Rule, "Procedure for Section 711 Proceedings" as superfluous. The Commission did not receive any specific comments regarding'this Section. Q. Section 13: Waiver The Commission is amending Section 13 ofthe Rule to update the list of individuals who may grant waivers from Chapter 880, and to remove a superfluous section reference. The Commission did not receive any specific comments regarding this Section. R. Additional Matters 1. Notification of Subseguent Attachers FairPoint raised an issue regarding notification of subsequent attachers in the context of make-ready work. FairPoint opined that it should be the attaching entities that are responsible for notifying the next-in-line attacher. The Commission is not unsympathetic to FairPoint's concern, however individual attachers may not know who other attachers on the pole may be, or may not have contact information for other attachers; pole owners, presumably, have this information. Additionally, this is a topic for discussion when the Commission addresses one-touch make-ready in the future. 2. Emergency Response Plans CMP has suggested that any non-utility attacher be required to develop, and maintain, emergency response plans (ERP) and submit them to the pole owner and the Commission to ensure coordinated and timely responses during emergencies. CMP cites its concern with the growing challenges ofcoordinated responses with non-utility attachers during emergency situations. CMP states that ERPs should detail how attachers will respond to damage or failures on/to the distribution system. Specifically, CMP believes the ERPs should address emergency communication, should specify that employees or contractors be on call to respond as needed and that the response plans should be updated and reviewed by the commission annually. CMP Order Amending Rule -33- Docket No. 2017-00247 states that they intend to incorporate such requirements into their pole attachment application process. The Commission has reviewed the input that has been provided by pole owners and others at technical conferences, workshops, and hearings that have been held on the pole attachment issue over the past few years. It is evident that pole owners have contracts with upwards of 100 different attaching entities. CMP stated that they also negotiate pole attachment provisions with utility associations (e.g. Telecommunications Association of Maine and the New England Cable Television Association), and highlighted the fact that it is rare that disputes in the negotiations process with requesting attachers are not amicably resolved. Further, CMP emphasized that it is important that it maintain the spirit of negotiation and collaboration between parties. Further, pole owners and attaching entities alike have underscored the importance of preserving the ability of parties to voluntarily negotiate contract provisions. As noted above, CMP intends to incorporate key ERP elements into their pole attachment application process. The Commission supports that concept and encourages CMP, other pole owners, and attaching entities to review and update their contracts to ensure that current and accurate information is readily available, at a moment's notice, that optimizes the communication and collaboration between pole owners and attaching entities that is so critical during emergencies. Pole owners and attaching entities are best positioned to ensure that emergency situations are addressed and resolved in an efficient and effective manner. The Commission does not believe, however, that a requirement in the Rule for what would likely be 100 or more separate ERPs, to include an annual review by the Commission, would enhance the interactions that commenters have indicated are working well. 3. Pole Maintenance CMP suggested that attachers be responsible for ongoing maintenance of their equipment including transfer, reconstruction, or relocation of their equipment or facilities caused by road work/maintenance, accidents, system improvements, or changes requested by a Right of Way authority, and that, if an attacher fails to perform that maintenance, the pole owner be able to conduct such work or hire suitable contractors to conduct such work and charge the attaching entity. CMP states that the intent of its proposal is to ensure that attachers maintain their equipment, and respond to emergency situations or required relocations, and that there be no cost-shifting to electric customers. As is the case with ERPs, pole owners and attaching entities are best positioned to ensure that maintenance issues are handled in a timely and efficient manner. The Commission encourages CMP and the other pole owners to include appropriate provisions in their contracts in this regard, but declines to add such provisions to the Rule. Order Amending Rule IV. -_Z±z Docket No. 2017-00247 ORDERING PARAGRAPHS In light of the foregoing, the Commission ORDERS 1. That Chapter 880 - Attachments to Joint-Use Utility Poles; Determination and Allocation of Costs; Procedure, is hereby amended as described in the body of this Order and as set forth in the amended Rule attached to this Order; 2. That the Administrative Director shall file the amended Rule with the Secretary of State; 3. That the Administrative Director shall notify the following of this rulemaking proceeding: a. all known providers oftelecommunications operating in the State; b. all electric utilities in the State; c. All persons who have filed with the Commission within the past year a written request for Notice of Rulemaking; and d. 4. the Office of the Public Advocate; and That the Administrative Director shall send a copy of the amended rule to the Executive Director of the Legislative Council. Dated at Hallowell, Maine, this Twelfth Day of January, 2018 BY ORDER OF THE COMMISSION /s/ Harry Lanphear Administrative Director COMMISSIONERS VOTING FOR: Vannoy Williamson Davis