Telecommunications Client Alert – March 2019

New York State Public Service Commission Adopts Wireless Pole Attachment Reforms

In an order adopted on March 14, 2019, the New York State Public Service Commission
(“PSC” or “Commission”) established a new process for telecommunications companies to attach wireless equipment to existing utility poles (the “Order”), identifying clear time frames and rates for the first time in New York. The Order was adopted as a long-anticipated response to a 2016 petition filed by CTIA – The Wireless Association that had requested an update and clarification regarding wireless pole attachments. The Order (1) establishes an interim pole attachment rate for wireless attachments; (2) establishes interim timelines for processing pole attachment applications and make-ready work; and (3) extends the Commission’s existing dispute resolution process to wireless attachment applications.

Background

Previously, the PSC had adopted various orders and policies that govern the rates, time frames and procedures applicable to wireline pole attachments. Specifically, wireline attachments are governed by a 1997 PSC order establishing wireline pole attachment rates (“1997 Rate Order”) and a 2004 PSC order adopting a Policy Statement on Pole Attachments (“2004 Policy Statement”).¹ Neither of these authorities specifically applied to wireless pole attachments.

Thus, as a result of uncertain rates, procedures and timelines, wireless providers frequently encounter delays in access to utility poles in New York. The CTIA Petition and subsequent CTIA filing pointed out that New York is the only state that regulates utility pole attachments that does not have rules ensuring just and reasonable rates. As highlighted by the Order, however, the development of 4G and the coming 5G wireless networks will only place greater emphasis on the need for wireless attachments to utility poles. As explained by the Commission:

Unlike previous cellular network architecture, the equipment that delivers advanced 4G services and which will enable future 5G service have smaller footprints . . . . To accomplish this, advanced wireless networks carriers (and others) must deploy small cells and DAS [distributed antenna systems]. Existing infrastructure, such as utility poles, are ideal for such deployment. Timely and affordable access to ubiquitous utility poles will be necessary to facilitate investment and expansion in 5G networks in New York and will keep New York from lagging behind other states that have taken steps to improve the pole attachment process for wireless providers.

Order, at 22-23.

Interim Rates for Wireless Pole Attachments

The Order establishes an interim annual rental rate for new wireless pole attachments, which is the same methodology currently in use for wireline and cable attachments in New York. Specifically, this rate methodology assumes a 7.4 percent pole space factor applied to pole costs (i.e., net bare pole cost multiplied by a carrying charge) to calculate a per-foot attachment rental rate. To determine the carrying charge, the electric utilities are to use the pre-tax rate of return adopted in their most recent rate case. The Order requires the utilities to amend their public tariffs to reflect the new interim wireless attachment rates by June 12, 2019, with an effective date of August 1, 2019.

Since wireless attachments often occupy more vertical space than a wireline attachment, the Order requires wireless attachers to pay the per-foot rate for each foot occupied on the pole, plus another six inches to allow for reasonable access to installation and maintenance activities, with the sum rounded up to the next foot. However, pole space for vertical equipment such as conduit and cable risers, as well as for electric meters, is excluded from the rate calculation.

Interim Timeline for Wireless Attachments

The Order also establishes interim timelines for processing new wireless pole attachment applications and make-ready work. Specifically, the following four-part timeline applies for wireless attachments:

1. The pre-construction survey and engineering shall be completed within 90 days after a complete application is received by the pole owner;
2. The make-ready estimates of the costs of any required changes to the pole to accommodate the attacher shall be provided within 14 days of completion of the survey and engineering;
3. The make-ready charges must be paid to the pole owner within 21 days of receiving the estimate; and
4. The make-ready work shall be completed within 90 days of the date payment is received by the pole owner. Where a wireless provider seeks to attach only a horizontal cable (e.g., fiber), however, the shorter timelines previously adopted by the Commission for wireline attachments will apply.

Extension of Dispute Resolution Procedures to Wireless Pole Attachments

The existing 2004 Policy Statement includes an expedited dispute resolution process for handling disputes between pole owners and wireline attachers. The Order expressly extends the dispute resolution program to wireless pole attachment disputes. As a result, where a dispute arises involving a wireless attachment request, the parties must first attempt to reach a resolution by using a business-to-business process for 10 days before escalating to the utility ombudsperson. If not resolved by business-to-business discussions, the dispute may be considered by the utility ombudsperson for 12 days before being taken to the Commission. Thus, the rules require 22 days of dispute resolution efforts before a request for dispute resolution can be submitted to the Commission.

Continued Proceedings to Further Review Pole Attachment Policies

Recognizing that more work needs to be done, the Commission found that a “more comprehensive review of pole attachment policy should be conducted to allow for innovative and new approaches and, where appropriate, further streamline existing processes to improve the efficient and safe deployment of advanced services in New York.” As a result, the PSC directed Department of Public Service Staff to begin a second phase of the proceeding, including a collaborative process with stakeholders, and technical conferences or working group meetings within 180 days. The process will focus on:

1. The terms and conditions for attachment;
2. Alternative attachment methods;
3. Reasonable safety and construction methods, including those that may exceed National Electric Safety Code standards;
4. Improvements to the make-ready process;
5. Reasonable terms and time frames for large-scale projects;
6. Feasibility of a “one-touch-make-ready process”; and
7. Other issues to update pole attachment rates, conditions and timelines.

Additional Assistance

For more information about Phillips Lytle’s Public Service Commission or telecommunications law expertise, please contact Thomas F. Puchner at (518) 618-1214, tpuchner@phillipslytle.com, or Mark J. O’Connor at (202) 617-2732, mo’connor@phillipslytle.com.