STATE OF MAINE
PUBLIC UTILITIES COMMISSION

Docket No. 2017-00247
December 18, 2017

MAINE PUBLIC UTILITIES
COMMISSION
Inquiry into Chapter 880 of the
Commission’s Rules

Comments of Northern New England
Telephone Operations LLC d/b/a
FairPoint Communications

NOW COMES, Northern New England Telephone Operations LLC d/b/a FairPoint CommunicationsNNE (“FairPoint”) and respectfully submits the following comments to the Maine Public Utilities
Commission’s Proposed Rules.
I.

General Comments

1. Any pole attachment rules promulgated by the Maine Public Utilities Commission (the
“Commission”) need to account for safety and not shift properly allocated costs away from
Attachers and on to the pole owning utilities.
With respect to joint use, the legislative charge is clear:
Rules. The commission shall adopt rules governing the resolution of pole attachment disputes 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 D. 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 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. P.L. 201, ch. 199 §4.
The Commission must ensure safe and nondiscriminatory access to poles on just and reasonable terms
and conditions, while promoting competition and furthering the state broadband policy. FairPoint
appreciates the difficulty faced by the Commission, and it recognizes that attaching entities would like
their work done faster and at little or no cost. The problem is that the attacher’s interest in little or no cost
attachment on an expedited timeframe can be in direct conflict with FairPoint’s corporate responsibilities
and its charge to provide safe and reliable communications service, while honoring its commitment to
expand broadband service in the State of Maine. In promulgating rules the Commission must ensure that
1

 any attachment is engineered, installed and maintained safely based upon sound engineering practices.
Additionally, any rule promulgated by the Commission must ensure that pole rates are “just and
reasonable.” As more fully described below, with few exceptions, the “Proposed Rule” adequately
accounts for safety and reliability of the pole plant.

2. The Commission rules are to be promulgated to prescribe the terms and conditions that the
Commission will consider to be just and reasonable in the event of a pole attachment rate
dispute.
At the Hearing on December 6, 2017 (the “Hearing’) two parties again raised concerns that through
the enactment of P.L. 2017, ch. 199 the legislature charged the Commission with prescribing the rates,
terms and condition of attachment through its rules rather than setting default rules that would be used by
the Commission to resolve disputes. Once again, the comments submitted by the parties are not only
inconsistent with the statutory language and legislative history, but they are also completely illogical.
In order to decide this issue the Commission only need to look to the actual language of the statute:
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 joint use entity affected, it finds the
following…That the joint use entities have failed to agree upon the use or the terms and
conditions or compensation for the use. P.L. 2017, ch. 199 §1 emphasis added.
Section 1 of P.L. 2017, ch. 199 is clear, the Commission may only order joint use and prescribe
rates, terms and conditions after it finds the joint use entities have failed to agree. Therefore, unless and
until the Commission first finds that the parties have failed to agree, the Commission has no authority to
prescribe the terms and conditions of attachment. Parties must first attempt to negotiate terms and
conditions of attachment prior to bringing a complaint to the Commission to prescribe the rates, terms and
conditions. The Commission through this rulemaking must promulgate rules that it will use to resolve
pole attachment disputes.

2

 Furthermore, even assuming arguendo that the language in Section 1 is ambiguous, the statutory
history is clear. The bill as originally proposed by the Commission included the removal of subsection (c)
in Section 1. The summary of the bill as originally proposed described this removal as follows:
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.
Prior to enacting this bill, the legislature amended the bill to retain subsection (c). This history
demonstrates clear legislative intent to retain the requirement that parties are expected to negotiate in
good faith and only after those negotiations have proved unfruitful should the Commission hear a
complaint and render a decision which prescribes the rates, terms and conditions of attachment. If the
legislature intended to create rules that prescribe the conditions of attachment for all users in the state it
would not have amended the bill to remove the requirement that the parties must first agree. Furthermore,
if the bill were to be read to allow the Commission to prescribe rules of general applicability it would
render Section 1 of P.L. 2017, ch. 199 meaningless.
Finally, while commenters claimed that the rules were meant to be prescriptive they also recognized
that the legislation specifically allowed for “voluntarily” entering into contracts. Merriam Webster’s
Dictionary presents 7 definitions of voluntary:
1. proceeding from the will or from one's own choice or consent; 2. unconstrained by interference;
3. done by design or intention; 4. of, relating to, subject to, or regulated by the will; 5. having
power of free choice; 6. provided or supported by voluntary action; 7. acting or done of one's own
free will without valuable consideration or legal obligation.

The argument that the Commission should prescribe the terms and conditions that are required to be
present in a contract is in direct opposition with the plain meaning of the term voluntary. The two
commenters never reconciled this inconsistency. What these parties seem to be saying is that they want
the unilateral right to all of the benefits of the Commission Rules but if, and only if, the attaching party
decides it wants something different, than the attacher has a choice since the pole owning utility is forced
to agree to the terms in the rules.

3

 II.

Specific Comments

1. The make-ready provisions of the proposed rule are unclear with respect to the make ready
timeframes, the Commission should clarify the intent of the provision in order to provide
adequate time for make ready and avoid disputes.

The provisions in Section 2(A)(5)(a)-(b) are written in manner that allows for multiple
interpretations of the rule. For instance, it is unclear whether or not the distinction between
attachments in the electric space refers only to a third party seeking attachments in the electric
space or whether it means any job that requires work on attachments in the electric space.
FairPoint believes that the rule should clearly state that it is the latter. A 15-30 day interval for
placing a pole in most cases will not be possible. In most cases, pole jobs cannot even be
engineered and permitted in that timeframe. FairPoint has attached a presentation it provided
during previous work sessions in order to demonstrate the impossibility of a time frame that only
allows 15-30 days for pole replacements. In order to streamline pole attachments while still
maintaining a realistic timeframe the Commission need only clarify that the shorter intervals
anticipated in 2(A)(5)(a) apply to work in the Communications Space while the longer intervals
apply to situations where a pole needs to be set and work in the electric space. To clarify this,
FairPoint recommends the following clarifications to the rules in Section 2(A)(5)(a)-(b):
a. For attachments that require rearrangement of attachments in the communications
space, the notice shall:…
b. For attachments that require pole replacement or work above the communications
space, the notice shall:…
i. Specify where and what make-ready will be performed.
ii. Set a date for completion of the pole replacement and make-ready work in the electric
space 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).

4

 iii. State that the time period allowed for completion of make-ready for each attaching
entity in the telecommunications space is no later than 15 days after the attaching
entity receives 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).
iii. State that any entity with an existing attachment may modify the attachment
consistent with the specified make-ready before the date set for completion.
iv. State that the pole owner has and may assert a right to 15 additional days to complete
make-ready.
v. State the name, telephone number, and e-mail address of a person to contact for more
information about the make-ready procedure.
2. The new make-ready timeframes set forth in Section 2(A)(5) of the Proposed Rules are very
aggressive for each attacher and therefore may prove unworkable without a statewide
notification system.
FairPoint believes the Commission should adopt a state-wide notification system such as the
NJUNs system. As described on the NJUNs website:
NJUNS is a not-for-profit consortium of utility companies created for the purpose of providing
“efficient utility communication”. NJUNS provides software as a service that allows its members to
communicate and track field workflow regarding joint utility ventures: joint pole administration, joint
trench coordination, oversize load move coordination and large project notification.
28 states are currently members of NJUNs systems, including all the other New England states with
exception of Connecticut. It is FairPoint’s opinion that mandated use of this system by the Commission
could greatly increase efficiency in the make-ready process since it would automate coordination. The
annual licensing cost of NJUNs is $24,000 and could be funded through the regulatory assessments of all
pole owning and attaching companies based on the number of poles which the companies own or have
attachments. This equitable assessment would allow for the pole owning utilities and larger attaching
companies to pay more while the smaller attachers would bear a proportionately smaller burden. In
FairPoint’s opinion, the key to the success of this system is the Commission’s mandated use, if any
company does not participate, the entire process fails. The legislature specifically granted the
Commission jurisdiction over all joint use entities for the limited purpose of pole attachments, it should
exercise that jurisdiction by mandating the use of NJUNs.

5

 The timeframes in the proposed rule require each attacher in the Communications Space only 15 days
to move. Without an efficient method for notification once each entity has completed its work these
frames will never work.
3. An Attaching Entity aggrieved by a delay in make-ready work should be allowed to avail
themselves of the Rapid Response Process. Attachers should not be allowed to hire contractors
to perform FairPoint’s work as proposed in Section 2(A)(5)(a)(v) .
In the interest of safe and reliable attachment processes, with the exception of setting poles where
there is ledge, FairPoint employs its own personal to complete work on its poles in the communications
space. FairPoint’s employees are well trained and have a proven track record of safely placing
communications attachments on poles. The new Chapter 880 Rule should acknowledge and account for
this. There is too much risk and uncertainty introduced when third parties are allowed to perform the work
for which FairPoint would ultimately be liable. First, because communications attachments are the lowest
attachments on the pole, if the work is performed incorrectly it creates great risk for FairPoint and the
public at large. For instance, an error in the correct height placement can compromise the integrity of an
entire pole line if it is pulled down by a large truck. Secondly, dealing with FairPoint’s communications
cables and fiber in a less than cautious manner puts the telecommunications network at risk.
FairPoint understands the concern of attachers and believes the Commission can easily balance their
needs by allowing an attacher to avail themselves of something similar to the Rapid Response process that
is employed by the Commission for Oxford Networks and GWI today. In the event that there is a delay,
this will allow the attacher to get relief in a timely fashion, and if necessary, the Commission can order
FairPoint to perform the work very quickly. It is not reasonable or equitable to require FairPoint to
sacrifice the quality workmanship to which it is accustomed.
4. The provisions of the Proposed Rule in Section 2(A)(12) that requires pole owners to be
responsible for notifying attaching entities of their requirement to perform work to
accommodate other attachers unnecessarily shifts costs away from the parties seeking
attachment and on to the owners.

6

 Under current pole attachment contracts attaching entities are responsible for coordinating makeready with other attachers to the pole. FairPoint and power company personnel survey the poles and
provide attaching entities with detailed information regarding what is required in order to accommodate
the new attachments. The attaching entity is responsible for working with other attaching entities to
arrange for payment of the make-ready charges and engage those other attaching entities to complete the
work. This process works and should not be altered through the new Chapter 880 Rule. No party to this
process filed comments indicating that coordination of attaching entities proves to be a problem. Absent
issues, there is no justification for shifting this administrative burden to the utility owners. The utilities do
not need to be in the middle of the discussions, they are not responsible for the payment or for the work.
Once the owners indicate where the parties must place their attachments to ensure safety on the poles, it is
reasonable to expect the attaching companies to coordinate the work.
5. The Oxford Rules
In comments made at the Hearing many parties have raised concerns about the so-called “Oxford
Rules.” In their comments many parties made unsubstantiated claims regarding the money that could be
saved through the use of the practices of boxing, bracketing and lowest on the pole. In comments that
follow, FairPoint more specifically describes the issues presented by each of the practices that are known
as the “Oxford Rules.” As a general matter, however, FairPoint provides the following information to
demonstrate that the claims by the parties to the proceedings have not proved true in recent application.
FairPoint reviewed all pole applications where pole licenses were issued in 2016 (the same data that was
aggregated and presented to staff and the other parties during a work session1). FairPoint separated the
Oxford applications from all other applications, the findings are presented below:
Non-Oxford apps, 7105 poles on 594 apps surveyed:
45 (0.63%) poles needed to be replaced
1481 (20.8%) poles needed MR
41.13 average days in construction for apps with MR
$106.82 MR cost per pole surveyed, based on ALL poles surveyed (total MR/7105)

1

The presentation is attached as Attachment 1 to these comments.

7

 Oxford apps, 1114 poles on 89 apps surveyed:
7 (0.63%) poles needed to be replaced
262 (23.5%) poles needed MR
55.92 average days in construction for apps with MR
$107.15 MR cost per pole surveyed, based on ALL poles surveyed (total MR/1114)
What this data shows is that despite the Oxford Rules, Oxford applications require the same
percentage of pole replacements, a higher percentage of poles that require make-ready, on average the
Oxford poles have taken longer in construction and on average Oxford pays more per pole. As FairPoint
has maintained for years, the Oxford Rules do not save money, they do not save time and they
compromise the integrity of the pole plant. To date, FairPoint has managed to administer these rules
and has largely prevented problems on the pole plant. FairPoint believes that is only because the uses of
these practices are limited to a single party. While the application with Oxford has not been completely
without its challenges, because Oxford has been a responsible attacher major problems have been
avoided.

A. Boxing poles is inefficient, can be unsafe and drives additional costs.
The Proposed Rule in Section 2(B)(2) adequately deals with the practice of boxing. Unlike the
Oxford Order, the Proposed Rule has followed the lead of the FCC and numerous other State
Commissions including both New York, Vermont, and New Hampshire in limiting the practice of boxing
to circumstances where the utility would employ the practice itself.
FairPoint’s policy is to avoid boxing poles because boxing is not a sound or a safe engineering
practice and it results in additional operational work steps for the Company and other attachers. FairPoint
does not box poles to save space or for the purpose of avoiding make-ready work. FairPoint’s policy
allows poles to be boxed (and itself boxes poles) when, because of a condition in the field, a new pole is
placed in front of an existing pole. Examples of this would be when a pole is leaning or when there is an
impediment to placing the pole behind the existing pole such as a building, a sidewalk or underground
8

 utilities. Another example would be a pole that is so far from the road that it cannot be safely accessed by
a bucket truck. In these circumstances, FairPoint may place the new pole in front of the existing pole. If a
new pole is placed in front of the existing pole, existing attachments will be transferred to the field side of
the new pole in order to avoid service outages or unnecessary cable splicing. If new attachments need to
be placed on the pole, those attachments will be placed on the road side. In these situations FairPoint
places new attachments on the road side because it is less expensive and more efficient. It is less
expensive and more efficient because a bucket truck can move down the street stringing each attachment
as opposed to running the cable around the back of each pole. Additionally, attachments on the road side
are more easily accessible by field personal. FairPoint applies this policy equally to attachments by
FairPoint and third parties.
There are three primary concerns with boxing. First, boxing creates an unsafe situation on the pole.
Second, boxing can compromise the integrity of the pole and result in damage to other attachments.
Third, replacing a boxed pole is more difficult, time consuming and expensive as compared to a pole that
has not been boxed.
The best engineering practice is to keep all pole lines straight. When a pole line is not straight, it
creates unnecessary stress on the attachments and compromises the integrity of the boxed pole and the
poles on either side of that pole. Therefore, the best engineering practice for pole replacement is to place
a new pole as close to the existing pole as possible. When a pole has not been boxed, the pole owner will
place the new pole right next to the existing pole and not disrupt the pole line. When a pole has been
boxed, however, it is not possible to place the new pole next to the existing pole because the new pole
cannot be safely maneuvered in between the communications attachments that have boxed the pole. As a
result, the pole owner is forced to place the new pole further from the existing pole. The new pole must
either be placed adjacent to and behind the field side cable or adjacent to and in front of the road side
cable. This results in a pole line that is no longer straight, and causes unnecessary and harmful stress on
the attachments and poles. Because of the unnecessary stress that the new pole has created, additional
9

 engineering policies and construction practices must be followed. To correct these stresses, anchors and
guys must be placed. Therefore, the pole owner may be required to get property easements to place the
anchor on private, municipal or state property. In some cases the new pole placement has only one
alternative, such as an existing pole placed on a sidewalk next to the curb. The only position for the new
pole is to encroach on the sidewalk, thereby reducing the flow of pedestrian traffic and creating
compliance issues under the Americans with Disabilities Act. Additionally, when a pole is pushed further
back as a result of boxing FairPoint is forced to place its pole closer to the third electrical phases,
therefore it is impossible to safely maneuver the pole between the electrical phases. This requires
FairPoint to have the power company come out into the field to place a protective covering over the
electric lines to limit FairPoint personnel being exposed to a hazardous condition. It takes additional time
to schedule the power company to make its lines safe for FairPoint personnel, which adds time to the
replacement process.
Boxing a pole also creates an unsafe situation for a technician who may need to climb a pole to
service a line. Although bucket trucks are widely used today to access poles, there are times when
technicians do need to climb the pole when an attachment they need to access cannot be safely reached
with a bucket truck. The safest practice when climbing a pole is to have an unobstructed space along the
side of a pole that consists of an imaginary box 30 inches square, extending at least 40 inches above the
highest communications facility attached and 40 inches below the lowest communications facility
attached. See the Blue Book at 3-15. If the pole is boxed, that attachment encroaches on this space and it
creates a greater risk that the technician climbing the pole will come into contact with the attachment
either with his head or as the result of a misplaced step, this could cause personal injury or facility
damage.
Pole boxing is also a concern because it creates complications at midspan. Since telecommunication
copper cable plant is heavier than the fiber attachment, it can sag below the boxed fiber. This may cause
two rub points where the attacher’s plant contacts FairPoint plant. This can cause physical damage to the
10

 lashing wire or cable on both lines as well as electrical bonding problem for FairPoint’s line because a
momentary connection between the strands may cause one to be energized. “Experience has shown that
the 12-inch vertical clearance provides adequate work space and usually prevents the cables from making
contact in midspan when the sags in the cables are different.” See Blue Book Manual of Construction
Practices, Bellcore (1989) (hereinafter “Blue Book”) at 3-2 (emphasis added). Bonding means
permanent joining of metallic parts for the purpose of forming an electrically conductive path to ensure
electrical continuity and capacity to safely conduct any current likely to be imposed. We must bond and
ground all telephone plant. Grounding refers to an intentional connection to earth through a ground
connection of sufficiently low impedance. It must have sufficient current-carrying capacity to be able to
prevent the buildup of voltages that could potentially result in unnecessary hazard to connected equipment
or persons. When two cables touch, because of the electrical bonding, one of the cables may become
energized this may cause an electrical shock if a human were to come into contact with the cable while it
is electrically charged. In addition, when cables are rubbing it can result in broken lashing wire this can
result in additional sag in the plant and create clearance issues. In general, heavier copper cables should
be placed below the lighter fiber optic cables on the poles.
When a pole is boxed cable transfers are far more difficult and time consuming. When FairPoint
places a new pole, it typically places the new pole as close to the existing pole as possible and then each
company that is attached to the pole removes its attachment and places it on the new pole. The
attachments are moved starting with the uppermost attachment and moving down with FairPoint usually
being the last attacher to transfer its attachments. It is necessary to start from the top and work downward
because as each line is moved over to the new pole, the old pole is cut off so the next line can be moved
over to the new pole. After FairPoint has removed its attachments (i.e., the last attachments), it removes
the old pole. If the pole is boxed, however, all of the attachments are not on the same side of the pole.
Therefore, the attachment that boxed the pole cannot participate in this orderly process of transferring the
attachments. In these situations, all of the attachments on the road side of the pole must be moved before
11

 the party whose attachments boxed the pole is able to transfer its attachments. The result is that FairPoint
has to transfer its attachments and then notify the party that has boxed the pole that it must move its
attachments. After that party moves its attachments, FairPoint must dispatch its technicians a second time
for the purpose of removing the pole and often times additional splicing is necessary. This is inefficient
and costs FairPoint between $1,000 and $1,500 more per pole replacement. This additional time can be
particularly problematic when FairPoint must replace poles to accommodate road work. The Maine
Department of Transportation or the relevant municipality are often on very tight schedules with its road
construction jobs any delay in moving the poles creates, forces FairPoint to go back to the relevant agency
to adjust timeframes.
Boxing also limits the ability to perform overlashing. Overlashing is the practice of placing a new
attachment over the existing attachment. The chief benefit of overlashing is that it creates additional
space on the pole since multiple attachments can be placed in a single 12” space. As stated above, when a
pole is boxed there is reduced clearance between the communications plant at midspan. This reduced
clearance between attachments creates a problem if either the phone company or the attacher wishes to
overlash. The overlashing process requires an appropriate amount of space, and when a pole is boxed it is
almost inevitable that the overlasher will make contact with the other parties’ communication plant which
is likely to cause damage to that existing plant.
When a pole is boxed it increases the likelihood that FairPoint and other attachers will need to
perform section throws when the pole is replaced. As a result of this situation, the pole line is no longer
straight and the existing cable may not be long enough to be placed safely on the new pole. This means
that an additional piece of cable (called a section throw) needs to be spliced into the existing cable in
order to safely attach to the new pole. This additional piece of cable needs to be ordered, and it takes
extra time for a technician to splice it into the existing line. If any of the attachments that need to be
spliced are fiber, then there will also be an interruption in service.

12

 FairPoint has an incentive to make sure that the attachments made to the poles it owns or occupies are
done in a safe manner. FairPoint makes sure that the poles are safe, so that there is no harm done to the
public, as well as to avoid service outages. In our experience, third-parties seeking to attach usually have
limited or no experience setting poles or administering pole attachments, and they frequently assume that
FairPoint’s position on boxing is driven by competitive concerns. Most attachers do not have to set poles
with the regularity that FairPoint does, they also do not have to suffer the adverse consequences when
there is a problem with a pole in the field.

B. The use of extension arms should be limited to situations where the utility employs their
use.
With respect to extension arms, the Proposed Rule in Section 2(B)(3) adequately deals with extension
arms, limiting the use to where the utility would employ the practice itself. Like boxing, it is FairPoint’s
policy only to use extension arms when field conditions render an extension arm the only sound method
of attachment, not as a way to avoid Make Ready costs and timeframes. Based on sound engineering
principles, extension arms are used when attachment to the pole in its existing location is impossible, for
example due to an obstructing tree or building. In these circumstances, FairPoint would use an extension
arm in order to attach to the pole without making contact with the obstruction. Extension arms may also
be used to straighten out a pole line. Extension arms are limited because they require the attacher to drill
into the pole twice in a single 12” space as opposed to only once with a traditional attachment. Every
hole that is drilled into a pole makes that pole less structurally sound. Additionally, extension arms
encroach on the space that technicians may need to access the pole. Extension arms, like boxing, may
also cause mid span clearance deviations. Finally, if an extension arm is used on a corner pole it creates
the risk of an unbalanced load on the pole, which can cause one or more poles to fall. Based on these
concerns the use of extension arms should be limited as currently set forth in the Proposed Rule.

13

 C. The Commission should not adopt a prohibition on FairPoint maintaining the lowest
attachment on the pole.
Many commenters at the Hearing on December 6, 2017 indicated that they wanted the Commission to
adopt a prohibition on FairPoint maintaining lowest on the pole. FairPoint believes that the Commission
should eliminate Section 2(B)(1) of the Proposed Rule which deems a prohibition against a requesting
party placing cable below FairPoint’s cable as an unreasonable act or practice. This provision should be
eliminated because it is less costly and more efficient for FairPoint, as well as the other attachers on the
pole, to allow FairPoint to continue to maintain the lowest attachment position. In situations where a pole
replacement is necessary, a second crew dispatch is necessary to remove the pole after the lowest attachee
has transferred. This increases costs and slows the process down. FairPoint’s cables are heavier and have
significantly more sag. Placing these heavier cables on the bottom creates less risk of attachments
encroaching on each other under extreme conditions such as with ice loading. As described more fully in
the boxing section above, when attachments make contact it creates safety risks. Additionally, when
entities attach below FairPoint they typically have to do so at a higher point then FairPoint. This creates a
need for taller poles. Placing taller poles in the field can create a tenting effect to the electrical wire which
may result in even more pole replacements. Finally, third parties placing cable in the bottom position on a
pole increases the third party attacher’s liability for damage to their plant as well as others (i.e., broken
poles due to cable hits may be billed to licensees).
Finally, when third parties place their attachment lowest it creates additional issues for attachers such
as increased need for pole replacement due to service drops/lateral clearances over roads, driveways, etc.
FairPoint is finding improper vertical transitions more prevalent in the field in places where Oxford
Networks has attached below FairPoint. If the Commission chooses to maintain the prohibition on
remaining lowest FairPoint believes that the Commission should require that all attachers who choose to
be lowest agree to the following vertical transition procedures to ensure no cables are transitioned over
the other cables creating a situation where attachers are stuck in between the communications cables of
another attacher and are therefore unable to transfer to a new pole if necessary.
14

 Vertical Transitioning from one position on a pole to another:
 Licensee may transition when initially attaching on a new lateral route to establish bottom
position on the first available pole with no other existing licensee transitions. All dead ends
created by transitions shall be head guyed according to the Blue Book.
 No transitions will be allowed when extending along an existing route, except when required
to tie into another existing cable.
 Only fiber cable will be permitted to be transitioned. A minimum of 30’ slack coil will be
required on the strand on either side of the pole to ensure easier transfer when pole gets
replaced.
 All transitioning will be completed behind other licensees’ plant on the field side of the pole.
 In addition:
o Cable at both attachments are to be tagged according to the Blue Book for owner
identification.
o All transition poles will be resurveyed at licensee’s expense post licensee
construction. An additional survey fee will be required.
o Each transition pole requires a licensed attachment for each bolt hole - minimum of
two.
o Transition poles must be safely accessible by bucket trucks.
o Transitioning to a higher position on takeoff poles (to avoid pole replacements, etc.)
will not be allowed. This rule also applies when tying into another party’s cable.
These requirements have been developed and are utilized during the site surveys as a result of
actual field conditions that have occurred as a result of a third party attaching below FairPoint and
then transitioning in order to go above FairPoint to achieve another position on the pole or to meet
road clearances. These requirements are necessary to ensure that the pole is safe for workers to access
and climb if necessary, as well as allowing all attachers to safely and easily access their equipment
without a single transitioning attacher encroaching on the equipment of all other attachers.
D. Municipal Space.
FairPoint has always allowed municipal attachment to FairPoint’s utility poles at no cost for
legitimate, public, protective purpose under its police power. FairPoint believes that municipalities should
continue to enjoy this benefit and that this space should be treated as common space and allocated to all
pole attachers as provided in Section 1 above. Providing communications service is not a protective
public purpose under the police power, and therefore to the extent municipalities are constructing
infrastructure for communications purposes, they cannot enjoy the benefit of free attachment, nor should
other attachers be required to move their attachments in the right of way to accommodate this purpose. At
the Hearing the MMA argued that an “open access” network does not “compete” with other service
15

 providers. This is simply not true. Any network capable of providing communications service that are
made available to public whether or not the municipality is ultimately providing the service or not by
definition competes. The fact that others can use the network is a distinction without a difference.
FairPoint is required to provide certain access to its network to competitors and no one seems to be
arguing that they’re not a “competitor” in the market. Maine Fiber Company has an “open access”
network and they are certainly competing. A communications service is a communications service and all
attachments that provide a platform that enables a communications service to be made available to the
public competes and should be treated in a non-discriminatory manner.
E. FairPoint should not be required to “ensure” that attachments in the electric space are
moved in timely fashion.
As indicated above FairPoint technicians are well trained and extremely well qualified with
respect to ensuring the safety of the pole plant and ensuring safe attachment in the Communications
Space. FairPoint technicians, however, do not perform work in the space above the Communications
Space. Therefore, as a practical matter, beyond contractual provisions requiring attachers to move their
equipment in a timely fashion, FairPoint has no ability to “ensure” that work performed in the electric
space is done in a timely fashion since FairPoint technicians cannot perform the work. In the situation
where a attachments above the Communications Space are not moved in a timely fashion, the pole
attacher should seek Commission assistance through the pole complaint process to ensure attachments are
moved in a timely fashion. In order to account for this, FairPoint proposes the following changes to the
Proposed Rules:
2(A)(6) Attachments Above the Communications Space. For attachments above the
communications space, a joint use entity pole owner shall file a complaint pursuant to the
Expedited Complaint Resolution Process ifensure that make-ready is not 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).

16

 F. Other issues.
In addition to the issues set forth above, FairPoint provides the following additional changes that
should be made to the Proposed Rule:
1. With respect to overlashed attachments addressed in Section 2(A)(1), notice only to FairPoint
is fine, however that notice should come prior to attaching any facilities. Utilities are unable
to adequately manage their pole plant if they are not made aware of additional facilities that
are added to that plant.
2. With respect to attachment of service drops referenced in Section 2(A)(1) of the proposed
Rule, as long as the entity installing a service drop already has a strand attachment to the
pole, there is no notification necessary. Service drops generally do not present additional
safety concerns when placed in conjunction with existing strand attachment.
FairPoint appreciates the opportunity to comment on the Proposed Rule and looks forward to
working with staff and other parties to develop a fair and workable rule that provides for safe pole
practices and just and reasonable cost recovery. FairPoint takes its obligations to the state seriously and
looks forward to continuing to serve the state and bringing broadband to the rural areas of Maine and
continuing to increase broadband speeds throughout the state.
Respectfully submitted this 18th day of December, 2017.

By:______________________
Sarah A. Davis
Senior Director of Government Affairs
FairPoint Communications
1 Davis Farm Rd.
Portland, ME 04103
207-535-4188

17