N.Y. Public Service Law § 119-a: Attachments to utility poles; use of utility ducts, trenches and conduits

§ 119-a. Attachments to utility poles; use of utility ducts, trenches

and conduits. 1. The commission shall prescribe just and reasonable

rates, terms and conditions for attachments to utility poles and the use

of utility ducts, trenches and conduits. A just and reasonable rate

shall assure the utility of the recovery of not less than the additional

cost of providing a pole attachment or of using a trench, duct or

conduit nor more than the actual operating expenses and return on

capital of the utility attributed to that portion of the pole, duct,

trench or conduit used. With respect to cable television and broadband

internet attachments and use, such portion shall be the percentage of

total usable space on a pole or the total capacity of the duct or

conduit that is occupied by the facilities of the user. Usable space

shall be the space on a utility pole above the minimum grade level which

can be used for the attachment of wires and cables. With respect to

cable television and broadband internet attachments and use, a contract

for attachments to utility poles and the use of utility ducts, trenches

and conduits shall include all such poles, ducts, trenches and conduits

located within a given village, town or city, pursuant to a negotiated

site license and any applicable commission requirements, provided that

such contract shall not impede the right of a pole owner to issue

licenses based on inspections undertaken on a pole-specific basis.

2. In connection with a new pole attachment, in no instance shall a

pole owner avoid responsibility for pole replacement costs by

unreasonably postponing replacement until receiving a new attachment

request, nor may a pole owner require a requesting attacher to pay the

entire cost of such pole replacement or for bringing a pole or

third-party equipment into compliance with current safety and

construction standards when replacement or compliance upgrades are not

necessitated solely by the new attacher.

3. Where a pole owner performs a pole replacement to accommodate an

attachment request, the pole owner may not require the attacher, or any

existing attacher, to pay any portion of the cost of such replacement,

except where there is insufficient capacity, clearance or loading to

accommodate the request.

4. The public service commission, in cooperation with the state

broadband program office, shall initiate a proceeding to examine a

process for streamlining actions related to utility pole attachments.

The matters the commission shall consider in such proceeding shall

include: (a) dispute resolution models related to utility pole

attachments; (b) cost sharing models related to utility pole

attachments; (c) impact on the expansion of broadband into unserved and

underserved areas associated with alternative cost allocation scenarios;

(d) requiring new, less expensive pole attachment methods; and (e)

existing rules regarding the cost obligations associated with new pole

attachments and an assessment of the utility ratepayer and broadband

subscriber impacts associated with alternative cost allocation

scenarios, including but not limited to if a pole replacement is

necessitated because of insufficient vertical space or clearance to

accommodate an attachment request, or the attachment will exceed

loading, making the requesting attacher liable for the following costs

in connection with the replacement: (a) the remaining net book value of

the pole being replaced that, but for the new attachment, could have

remained in service until such time as it was fully depreciated and/or

reached the end of its service life or used and useful life to the pole

owner, whichever would come first; and (b) the incremental costs

associated with the pole owner installing a pole beyond what said owner

would have installed in its normal course of pole replacement, if

applicable to the request. The commission shall invite participation in

the proceeding by diverse stakeholders, including electric utilities,

municipal utilities, incumbent local exchange carriers, competitive

local exchange carriers, telecommunications providers, broadband

internet providers, municipalities, economic development corporations,

and an association of counties that represents at least ninety percent

of the counties in New York. On or before September thirtieth, two

thousand twenty-two, the commission shall issue an order adopting the

new or revised rules associated with the matters examined in the

proceeding provided for in this subdivision.

5. Nothing in this section shall be construed to authorize the public

service commission to interfere in any manner with provisions of

collective bargaining agreements relating to pole attachment work

between a utility corporation, telephone corporation, cable television

corporation or any entity subject to article eleven of this chapter and

its employees.