On July 18, 2024, the New York State Public Service Commission (PSC) issued an Order modifying its rules regarding pole attachments to accelerate broadband and cellular service deployment across the state.
Generally, poles throughout New York State are owned by electric utilities and telecommunication companies or are jointly owned by those entities. Pole attachers are typically telecommunication and cable companies who submit applications to pole owners for the use of limited pole space and the license to use these existing utility poles. The pole attachment process between pole owners and attachers has at times been tedious and subject to disagreement. The recent Order aims to speed up the attachment process and does so by enacting the following changes:
Adopts New Timelines for Expedited Dispute Resolution
Currently, when a dispute arises between pole owners and pole attachers, there is not a concrete timeline for resolution. In order to cure the unknowns about the regulatory process, the PSC establishes a 90-day “shot clock” for dispute resolution once a complaint is formally filed by either a pole attacher or pole owner. The 90-day timeframe may be extended by the Secretary, as necessary.
Establishes a Collaborative Working Group
In an effort to increase collaboration between pole attachers and owners, the Order establishes a working group comprised of all interested stakeholders, including all telephone and cable companies, pole owners, and pole attachers. The working group will meet on a regular basis, as determined by staff, and will commence within 90 days of the Order.
Required Annual Reporting
Pole owners are now required to file annual reports detailing third-party attachment requests. Reports must include:
- the number of attachment requests;
- the processing time for each request and whether it is make-ready required; and
- details on the number of completed requests per year, including the number of poles sought for attachment, new attachments licensed, and the number of poles replaced for the year.
Consideration of Alternative Attachments, Including Pole-Top Attachments
In a further effort to modernize pole attachments, the PSC now allows for certain types of attachments on a case-by-case basis, including pole-top attachments, strand-mounted attachments and overlashing, boxing and bracketing, extension arms, and temporary attachments. Further, pole owners are no longer allowed to implement blanket bans on certain methods of pole attachments and must provide detailed reasoning for denying a pole attacher request. However, the Order does preserve the electric space on the poles for electric facilities only, with the exception of pole-top attachments.
Allows for “One-Touch Make-Ready” (OTMR) Attachments
OTMR is where a new attacher has the option of using a single qualified contractor to perform all (or most) of the make-ready work to move existing facilities on the pole and attach the new attacher’s facilities in a single pole visit. The Order now allows attachers, according to Federal Communications Commission rules, to use OTMR attachments where they do not conflict with collective bargaining agreements.
Mandatory Post-Construction Inspections
To increase transparency during the pole attachment process, post-construction inspections are now required for all attachments. Attachments applied for 60 days after the Order will be subject to post-construction inspection.
Attorneys in Barclay Damon’s Regulatory Practice Area will continue to monitor pole attachment matters and other developments affecting the telecommunications and electric utility industry in New York State.
If you have any questions regarding the content of this alert, please contact Ekin Senlet, Regulatory Practice Area co-chair, at esenlet@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Regulatory Practice Area.