RSA 374:34-a · Pole Attachments

374:34-a Pole Attachments. –

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I.

In this subdivision, a "pole" means any pole, duct, conduit, or right-of-way that is used for wire communications or electricity distribution and is owned in whole or in part by a public utility, including a rural electric cooperative for which a certificate of deregulation is on file with the commission pursuant to RSA 301:57.

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II.

Whenever a pole owner is unable to reach agreement with a party seeking pole attachments, the commission shall regulate and enforce rates, charges, terms, and conditions for such pole attachments, with regard to the types of attachments regulated under 47 U.S.C. section 224, to provide that such rates, charges, terms, and conditions are just and reasonable. This authority shall include but not be limited to the state regulatory authority referenced in 47 U.S.C. section 224(c).

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III.

The department of energy shall adopt rules under RSA 541-A to carry out the provisions of this section, including appropriate formula or formulae for apportioning costs, and shall adopt rules under RSA 541-A implementing the provisions of One Touch Make Ready (OTMR) as adopted by the Federal Communications Commission in 47 CFR 1.1411(j).

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IV.

In exercising its authority under this subdivision, the department of energy shall consider the interests of the subscribers and users of the services offered via such attachments, as well as the interests of the consumers of any pole owner providing such attachments.

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V.

Nothing in this subdivision shall prevent parties from entering into pole attachment agreements voluntarily, without department approval. In entering into pole attachment agreements, all parties shall abide by the timelines established by the department in rules adopted pursuant to RSA 541-A, for negotiating and implementing pole attachments. The failure of any party to do so may be considered a lack of good faith negotiation, unless each party agrees to following alternate timelines.

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VI.

Any pole owner shall provide nondiscriminatory access to its poles for the types of attachments regulated under this subdivision. A pole owner may deny access to its poles on a nondiscriminatory basis where there is insufficient capacity and for reasons of safety, reliability, and generally applicable engineering purposes.

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VII.

The commission shall have the authority to hear and resolve complaints concerning rates, charges, terms, conditions, voluntary agreements, or any denial of access relative to pole attachments.

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VIII.

The department of energy and the public utilities commission shall retain their authority to regulate the safety, vegetation management, emergency response, and storm restoration requirements for poles, conduits, ducts, pipes, pole attachments, wires, cables, and related plant and equipment of public utilities and other private entities located within public rights-of-way and on, over, or under state lands and water bodies.

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IX.

(a) The department shall investigate the use of a pole attachment rate formula to be used by the commission when resolving disputes consistent with paragraph VII, rather than a multi-part test.

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(1)

If the department determines through this investigation that the use of a formula would fully compensate pole owners for their portion of costs of owning, maintaining, and operating poles arising from pole attachments; not discriminate among or against any one attaching entity, including the pole owner; be transparent to all parties; and result in just and reasonable rates, the department shall develop and finalize such formula meeting these criteria no later than January 1, 2026. The costs of the proceeding may be assessed to parties pursuant to RSA 365:37, II. In conducting the required investigation, the department shall consider the interests of the parties as required in paragraph IV. Within 30 days following the close of the department's proceeding, the commission shall conduct a formal rulemaking to incorporate the formula that gives consideration to the report delivered by the department.

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(2)

At the conclusion of the investigation, the department shall issue a report of its findings to the house science, technology and energy committee, and the senate energy and natural resources committee.

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(b)

Notwithstanding any other law, rule, or order to the contrary, the department shall have the authority necessary to conduct this investigation and implement this subdivision, including but not limited to the authority to require public utilities to maintain the records necessary to track substantial assets and investment in an accurate auditable manner that enables accurate calculation of pole attachment rates in accordance with any formula adopted; the authority to require public utilities to report such property information to the department; and, the authority to ensure that attaching entities have timely access to ARMIS, FERC Form 1, or any similar publicly available property information reported to the department pursuant to this section.

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(c)

Notwithstanding the foregoing, an electric distribution utility that sets pole attachment rates pursuant to a settlement approved by the commission on or before July 1, 2024 shall continue to do so until the next commission approved change of its base distribution rates after the commission concludes the investigation and any subsequent rulemaking pursuant to this subdivision. Source. 2007, 340:1, eff. July 16, 2007. 2012, 177:14, eff. Aug. 10, 2012. 2021, 91:271, eff. July 1, 2021; 198:2, Pt. II, Sec. 1, eff. Oct. 9, 2021. 2022, 245:26, eff. Aug. 20, 2022. 2024, 312:1, eff. July 1, 2024.

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