Section 45.04 - Complaint(1) A complaint will commence a proceeding under 220 CMR 45.00. Complainants may join together to file a joint complaint.(2) Every complaint shall conform to the requirements specified in 207 CMR 1.04(1)(b) and 220 CMR 1.04(1)(b) and shall be accompanied by certification of service on any utility, licensee, or party named as complainant or respondent. The complaint shall also contain the following: (a) a copy of the attachment agreement, if any, between the licensee and the utility. If no attachment agreement exists, the petition shall contain: 1. a statement that the utility uses or controls, in whole or in part, those poles, ducts, conduits, or rights-of-way at issue which are used or designated for attachments;2. a statement that the licensee currently has attachments on the utility's poles, ducts, conduits, or rights-of-way or has requested that attachments be placed on the utility's poles, ducts, conduits, or rights-of-way;(b) the specific attachment rate, term or condition which is claimed to be unjust or unreasonable;(c) in any case where it is claimed that a term or condition is unjust or unreasonable, the complaint shall specify all information and argument relied upon to justify said claim;(d) in any case where it is claimed that a rate is unjust or unreasonable, or that a term or condition requires review of the associated rate, the data, information and argument in support of said claim shall include, but not be limited to, the following, where applicable and available to the complainant:1. the gross investment by the utility for the pole lines;2. the investment by the utility in appurtenances not used by or useful to the licensee. This may be expressed as a percentage of the gross pole investment, and shall include a list of specific appurtenances considered not used or useful;3. the depreciation reserve for the gross pole line investment;4. the total number of poles (A) owned; and (B) controlled or used by the utility;5. the total number of poles which are the subject of the complaint;6. the annual carrying charges attributable to the cost of owning a pole, and the specific factors used in the determination of these charges. Annual carrying charges may be expressed as a percentage of net pole investment;7. the average amount of useable space per pole for those poles used for pole attachments; and8. the reimbursements received from the licensee for non-recurring costs. Data and information should be based on historical or original cost methodology, to the extent possible. Data should be derived from publicly available reports filed with the Department of Telecommunications and Cable, the Department of Public Utilities, the Federal Communications Commission, the Federal Energy Regulatory Commission, such as the Federal Energy Regulatory Commission's Form No. 1, or other reports filed with state or regulatory agencies. The source of any data shall be identified. Calculations made in connection with these figures should be provided to the complainant upon request, as should the computation of any rate determined by using the formula adopted for calculating reasonable attachments rates in Massachusetts;
(e) In addition to meeting the other requirements of 220 CMR 45.04, in any case where it is claimed that a complainant has been improperly denied access to a pole, duct, conduit, right-of-way, owned or controlled, in whole or in part, by one or more utilities, the complaint shall include the data and information necessary to support the claim, including:1. The reasons given for the denial of access to the poles, ducts, conduits, and rights-of-way, owned or controlled, in whole or in part, by one or more utilities;2. The basis for the complainant's claim that the denial of access is improper;3. The remedy sought by the complainant;4. A copy of the written request to the utility for access to its poles, ducts, conduits or rights-of-way; and5. A copy of the utility's response to the complainant's written request, including all information given by the utility to support its denial of access. A complaint alleging improper denial of access will not be dismissed if the complainant is unable to obtain a utility's written response;(f) a statement that the utility and licensee have been unable to agree and a brief summary, including dates, of all steps taken to resolve the problem prior to filing. If no such steps were taken, the complainant shall state the reason(s) why;(g) any other information and arguments relied upon to attempt to establish that a rate, term or condition is not reasonable; and(h) a statement that the complainant requests that a hearing be convened pursuant to 207 CMR 1.06: Hearings and 220 CMR 1.06: Hearings or that it waives its right to a formal hearing.(3) Where the attachments involve ducts, conduits or rights-of-ways, appropriate data and information, equivalent to that required by 220 CMR 45.04(2), shall be filed.(4) All factual allegations set forth in the complaint shall be supported by affidavit(s).Amended by Mass Register Issue 1459, eff. 12/24/2021.