Section 407-880-2 - TERMS AND CONDITIONSA.Reasonable Terms and Conditions. The following terms and conditions are presumed to be reasonable for the joint use of utility poles: 1.Request. A pole owner must provide a requesting party with nondiscriminatory access to any joint-use utility pole owned or controlled by it for the attachment of conductors, circuitry, antennas, or other facilities. A request to attach facilities to a joint-use utility pole must be in writing and must provide the pole owner with the information necessary under its procedures to begin to survey the poles to which attachment is sought. A pole owner must review a requesting party's attachment application for completeness before reviewing the application on its merits. A requesting party's attachment application is considered complete if it provides the pole owner with the information necessary under its procedures, as specified in a master service agreement or in requirements that are available in writing publicly at the time of submission of the application, to begin to survey the affected poles.a. A pole owner must determine within 10 business days after receipt of a requesting party's attachment application whether the application is complete and notify the requesting party of that decision. If the pole owner does not respond within 10 business days after receipt of the application, or if the pole owner rejects the application as incomplete but fails to specify any reasons in its response, then the application is deemed complete. If the pole owner timely notifies the requesting party that its attachment application is not complete, then the pole owner must specify all reasons for finding it incomplete.b. Any resubmitted application need only address the pole owner's reasons for finding the application incomplete and will be deemed complete within five business days after its resubmission, unless the pole owner specifies to the requesting party which reasons were not addressed and how the resubmitted application did not sufficiently address the reasons. The requesting party may follow the resubmission procedure in this paragraph as many times as it chooses so long as in each case it makes a bona fide attempt to correct the reasons identified by the pole owner, and in each case the deadline set forth in this paragraph will apply to the pole owner's review. Notwithstanding the foregoing, a joint-use entity may submit a request to attach a service drop to a pole within 45 calendar days after the fact, and need not submit a request to overlash to existing facilities, so long as the joint-use entity provides written notice of the overlash within 10 calendar days after making it. The pole owner then has 30 calendar days in which to inspect the overlash and determine compliance.
2.Survey. A pole owner must complete a survey and respond to a requesting party within 45 calendar days of receipt of a complete request to attach facilities to its utility poles (or within 60 calendar days, in the case of larger orders as described in Section 2(A)(7) of this Chapter). This response may be a notification that the pole owner has completed a survey of poles for which access has been requested.3.Denial. A pole owner may deny a requesting party access to its poles on a non-discriminatory basis where there is insufficient capacity or for reasons of safety, reliability and generally applicable engineering purposes. A denial must be in writing and must be issued within 45 calendar days of the pole owner's receipt of the request. The denial of access must be specific, must include all relevant evidence and information supporting its denial, and must explain how such evidence and information relate to a denial of access for reasons of lack of capacity, safety, reliability or engineering standards.4.Estimate. Where a request for access is not denied, a pole owner must present to a requesting party an estimate of charges to perform all necessary make-ready work within 14 calendar days of providing the survey required by Section 2(A)(2) of this Chapter, or in the case where a requesting party's contractor has performed a survey, within 14 calendar days of receipt by the pole owner of such survey. The estimate must be detailed and include documentation sufficient to determine the basis for all charges. a. A pole owner may withdraw an outstanding estimate of charges to perform make-ready work beginning 60 calendar days after the estimate is presented.b. A requesting party may accept a valid estimate and make payment any time after receipt of an estimate but before the estimate is withdrawn.5.Make-Ready. Upon receipt of payment specified in Section 2(A)(4)(b) of this Chapter, a pole owner must notify immediately and in writing all known joint-use entities with existing attachments that may be affected by the make-ready. a. For attachments in the communications space, the notice must:i. Specify where and what make-ready will be performed.ii. Set a date for completion of make-ready in the communications space that is no later than 30 days after notification is sent (or up to 75 days in the case of larger orders as described in Section 2(A)(7)(c) of this Chapter).iii. State that any attaching entity with an existing attachment may modify the attachment consistent with the specified make-ready before the date set for completion.iv. State that if make-ready is not completed within the allotted time period requesting party may complete the specified make-ready.v. State the name, telephone number, and e-mail address of a person to contact for more information about the make-ready procedure.vi. State that the attaching entity must affix an identification tag to each attachment within five feet of each joint-use utility pole that identifies the joint use entity and contains a contact telephone number, and that the tags must be maintained in a legible condition with current information. Attachers must tag all attachments installed after the effective date of this Chapter upon installation. Attachments installed prior to the effective date of this Chapter must be tagged within seven years of the effective date of this Chapter.b. For attachments above the communications space, the notice must: i. Specify where and what make-ready will be performed.ii. Set a date for completion of make-ready that is no later than 90 calendar days after notification is sent (or 135 calendar days in the case of larger orders, as described in Section 2(A)(7)(c) of this Chapter).iii. State that any entity with an existing attachment may modify the attachment consistent with the specified make-ready before the date set for completion.iv. State that the pole owner has and may assert a right to 15 additional calendar days to complete make-ready.v. State the name, telephone number, and e-mail address of a person to contact for more information about the make-ready procedure.6.Attachments Above the Communications Space. For attachments above the communications space, a pole owner must ensure that make-ready is completed within the time periods established in Section 2(A)(5)(b) of this Chapter (or, if the pole owner has asserted its 15-calendar day right, 15 calendar days later).7.Compliance with Time Periods. For the purposes of compliance with the time periods in this section:a. A pole owner must apply the time periods described in Sections 2(A)(1) -(6) of this Chapter to all requests for pole attachment up to the lesser of 300 poles or 0.5 percent of the pole owner's poles in Maine.b. A pole owner may add 15 calendar days to the survey period described in Section 2(A)(2) of this Chapter to larger orders up to the lesser of 3000 poles or 5 percent of the pole owner's poles in Maine.c. A pole owner may add 45 calendar days to the make-ready periods described in Section 2(A)(5) of this Chapter to larger orders up to the lesser of 3000 poles or 5 percent of the pole owner's poles in Maine.d. A pole owner must negotiate in good faith the timing of all requests for pole attachment larger than the lesser of 3000 poles or 5 percent of the pole owner's poles in Maine.e. A pole owner may treat multiple requests from a requesting party as one request when the requests are filed within 30 calendar days of one another.f. A pole owner may add up to 45 calendar days to the make-ready periods described in Section 2(A)(5) if a force majeure event interrupts compliance.8.Deviation from Time Periods. A pole owner or attaching entity may deviate from the time limits specified in this section during performance of make-ready for good and sufficient cause that renders it infeasible for the pole owner or attaching entity to complete the make-ready work within the prescribed time frame. A pole owner or attaching entity that so deviates must immediately notify, in writing, the requesting party and other affected attaching entities, and must include the reason for and date and duration of the deviation. The pole owner or attaching entity may deviate from the time limits specified in this section for a period no longer than necessary and must resume make-ready performance without discrimination when it returns to routine operations. For pole replacements, a pole owner may add 45 calendar days to the make-ready periods described in Section 2(A)(5) of this Chapter for orders requiring the replacement of 10 or fewer poles, or 90 calendar days for orders requiring the replacement of more than 10 but less than 25 poles. For orders requiring the replacement of 25 poles or more, the pole owner and the attaching entity may deviate from the time limits specified in this section for a period no longer than reasonably necessary to perform the pole replacements.9.Self-Help.a.Survey. If a pole owner fails to respond as specified in Sections 2(A)(2) or 2(A)(3) of this Chapter, a requesting party may hire a contractor to complete a survey so long as it provides the pole owner 10 calendar days' written notice of its intent to do so. If a requesting party exercises this option, the requesting party must permit the pole owner and any affected attaching entities to be present for any field inspections and must provide the pole owner and any affected attaching entities three business days' notice of any field inspections.b.Make-Ready Work. If make-ready is not complete within the time period specified in Section 2(A)(5) through (7) of this Chapter, a requesting party may hire a contractor to complete the make-ready: i. Immediately, if the pole owner has failed to assert its right to perform remaining make-ready work by notifying the requesting party that it will do so; orii. After 15 calendar days if the pole owner has asserted its right to perform make-ready by the date specified in Section 2(A)(5) of this Chapter and has failed to complete make-ready. In addition:
iii. The requesting party must permit the pole owner and any affected attaching entity to be present for any make-ready work and must provide the pole owner and any affected attaching entities five business days' notice of the make-ready work;iv. The requesting party must immediately notify a pole owner or affected attaching entity if the make-ready work damages any equipment or causes an outage that is reasonably likely to interrupt service. Upon receiving notice from the requesting party, the pole owner or affected attaching entity may either:1. Complete any necessary remedial work and bill the requesting party for the reasonable costs related to fixing the damage; or2. Require the requesting party to fix the damage at its expense immediately following notice from the pole owner or affected attaching entity; andv. The requesting party must notify the pole owner and any affected attaching entity of the completion of the make-ready work within 15 calendar days of completion. Such notice must provide the pole owner and any affected attaching entities 90 calendar days from receipt of the notice to inspect the make-ready work, and advise that the pole owner and any affected attaching entities have 14 calendar days from the completion of their inspection to notify the requesting party of any damage or code violation resulting from the make-ready work. The pole owner or affected attaching entity may either complete any necessary remedial work and bill the requesting party for reasonable costs associated with the remediation or require the requesting party to perform the remediation at the requesting party's expense within 14 calendar days of notification.10.Approved Contractors for Survey and Make-Ready.a. A pole owner may make available a list of contractors it authorizes to perform surveys and make-ready in the communications space on its utility poles in cases involving One Touch Make-Ready under Section 2(A)(13) of this Chapter and in cases where the utility has failed to meet deadlines specified in Sections 2(A)(2) and 2(A)(5) of this Chapter. Listed contractors must be trained to work with coaxial and fiber optic cable and be reasonably insured or bonded.b. A pole owner may make available a list of contractors it authorizes to perform surveys and make-ready above the communications space on its utility poles in cases where the utility has failed to meet deadlines specified in Sections 2(A)(2) and 2(A)(5) of this Chapter. Listed contractors must be trained and appropriately licensed to work above the communications space and be reasonably insured or bonded.c. If a requesting party hires a contractor for purposes specified in Section 2(A)(9) of this Chapter, the requesting party may choose from the pole owner's list of authorized contractors or request the addition to the pole owner's authorized contractor list any contractor that meets the minimum qualifications in Section 2(A)(10)(f) of this Chapter, and the pole owner may not unreasonably deny such a request.d. If a pole owner does not provide a list of approved contractors for surveys or simple make-ready or no contractor on the pole owner's contractor list is available within a reasonable time period then the requesting party may choose its own qualified contractor that meets the requirements in Section 2(A)(10)(f) of this Chapter. When choosing a contractor that is not on the pole owner's list, the requesting party must certify to pole owner that its contractor meets the minimum qualifications described in Section 2(A)(10)(f) of this Chapter when providing notices required by Sections 2(A)(9) and 2(A)(13) of this Chapter.e. A pole owner may disqualify any contractor chosen by a requesting party that is not on the pole owner's contractor list, but such disqualification must be based on reasonable safety or reliability concerns related to the contractor's failure to meet any of the minimum qualifications described in Section 2(A)(10)(f) of this Chapter or to meet the pole owner's publicly available and commercially reasonable safety or reliability standards. The pole owner must provide notice of its contractor objection within the notice requirements of Sections 2(A)(9) and 2(A)(13) of this Chapter and in its objection must identify at least one available qualified contractor.f. In addition to the requirements in Sections 2(A)(10)(a) and (b) of this Chapter, pole owners must ensure that contractors on their lists as described in this Chapter, and requesting parties must ensure that contractors they select pursuant to Section 2(A)(10)(d) of this Chapter, meet the following minimum requirements: i. The contractor has agreed to follow published safety and operational guidelines of the pole owner, if available, but if unavailable, the contractor shall agree to follow National Electrical Safety Code guidelines;ii. The contractor has acknowledged that it knows how to read and follow licensed-engineered pole designs for make-ready, if required by the pole owner;iii. The contractor has agreed to follow all local, state, and federal laws and regulations including, but not limited to, the rules regarding Qualified and Competent Persons under the requirements of the Occupational and Safety Health Administration rules; andiv. The contractor has agreed to meet or exceed any uniformly applied and reasonable safety and reliability thresholds set by the pole owner, if made available.g. A requesting party that hires a contractor for survey or make-ready work must provide a pole owner or affected attaching entity with a reasonable opportunity for a representative to accompany and consult with the authorized contractor and the requesting party.h. The consulting representative of an electric utility may make determinations, on a nondiscriminatory basis, where there is insufficient capacity and for reasons of safety, reliability, and generally applicable engineering purposes.11.Non-Compliant Poles and Attachments.A requesting party is not responsible for make-ready costs to the extent that those costs are included in the pole owner's maintenance as administrative expenses or booked asset costs. A requesting party is not required to bear the costs of modifying attachments that are on the pole at the time of the requesting party's application but that were not in compliance with applicable safety, engineering, and construction codes and standards at the time of the attachments' construction or installation.
12.Notice. A pole owner must provide a utility or joint-use entity no less than 60 calendar days written notice prior to:a. Any increase in pole attachment rates; orb. Any modification of facilities other than routine maintenance or modification in response to emergencies.13.One Touch Make-Ready Option for Simple Make-Ready.For attachments involving simple make-ready, a requesting party may elect to proceed with the process described in this Subsection instead of the process described in Section 2(A)(1) -(9) of this Chapter. It is the responsibility of the requesting party to ensure that its contractor determines whether the make-ready requested in an attachment application is simple make-ready.
a.Attachment Application.i. An application for attachment must be submitted in writing and must provide the pole owner with the information necessary to grant or deny the application.ii. A requesting party electing the one touch make-ready option must indicate that it intends to perform one-touch make-ready in its attachment application and must identify the simple make-ready it will perform.iii. A pole owner must review the requesting party's attachment application for completeness before reviewing the application on its merits. An attachment application is considered complete if it provides the pole owner with the information necessary under its procedures, as specified in a master service agreement or in publicly-released requirements at the time of submission of the application, to make an informed decision on the application.iv. A pole owner must complete its review for completeness within 10 business days of receipt of the application and notify the requesting party of that decision. If the pole owner does not respond within 10 business days after receipt of the application, or if the pole owner rejects the application as incomplete but fails to specify any reasons in the application, then the application is deemed complete.v. If the pole owner timely notifies the requesting party that its attachment application is not complete, then the pole owner must specify all reasons for finding it incomplete. Any resubmitted application need only address the pole owner's reasons for finding the application incomplete and must be deemed complete within 5 business days after its resubmission, unless the pole owner specifies to the requesting party which reasons were not addressed and how the resubmitted application did not sufficiently address the reasons. The requesting party may follow the resubmission procedure in this paragraph as many times as it chooses so long as in each case it makes a bona fide attempt to correct the reasons identified by the pole owner, and in each case the deadline set forth in this paragraph shall apply to the utility's review.vi. The pole owner shall review on the merits a complete application requesting one-touch make-ready and respond to the requesting party either granting or denying an application within 15 days of the pole owner's receipt of a complete application (or within 30 days in the case of larger orders as described in Section 2(A)(7)(c) of this Chapter).vii. If the pole owner denies the application on its merits, then its decision shall be specific, shall include all relevant evidence and information supporting its decision, and shall explain how such evidence and information relate to a denial of access for reasons of lack of capacity, safety, reliability, or engineering standards.viii. Within the 15-day application review period (or within 30 days in the case of larger orders as described in Section 2(A)(7)(c) of this Chapter), a pole owner may object to the designation by the requesting party's contractor that certain make-ready is simple. If the pole owner objects to the contractor's determination that make-ready is simple, then it is deemed complex. The pole owner's objection is final and determinative so long as it is specific and in writing, includes all relevant evidence and information supporting its decision, made in good faith, and explains how such evidence and information relate to a determination that the make-ready is not simple.b.Surveys. The requesting party is responsible for all surveys required as part of the one-touch make-ready process and must use a contractor that is appropriately trained and licensed as well as reasonably insured or bonded and otherwise meets the requirements of Section 2(A)(10)(f) of this Chapter.i. A requesting party may need to perform a survey to determine whether the necessary make-ready work is simple or complex before filing an application for one-touch make-ready.ii. The requesting party must permit the pole owner and any affected attaching entity to be present for any field inspection conducted as part of the requesting party's surveys. The requesting party must use commercially reasonable efforts to notify the pole owner and any affected attaching entities three business days before a field inspection as part of any survey and must provide the date, time, and location of the surveys, and the name of the contractor performing the surveys.c.Make-Ready. If the pole owner approves the requesting party's attachment application and if the requesting party has provided 15 calendar days' prior written notice of the make-ready to the pole owner and affected attaching entities, the requesting party may proceed with make-ready using a contractor that is appropriately trained and licensed as well as reasonably insured or bonded and otherwise meets the requirements of Section 2(A)(10)(f) of this Chapter. i. The prior written notice must include the date and time of the make-ready work, a description of the work involved, and the name of the contractor being used by the requesting party and must provide the pole owner and any affected attaching entities a reasonable opportunity to be present for any make-ready work.ii. The requesting party must immediately notify a pole owner or affected attaching entity if the make-ready work damages any equipment or causes an outage that is reasonably likely to interrupt service. Upon receiving notice from the requesting party, the pole owner or affected attaching entity may either:1. Complete any necessary remedial work and bill the requesting party for the reasonable costs related to fixing the damage; or2. Require the requesting party to fix the damage at its expense immediately following notice from the pole owner or affected attaching entity.iii. In performing make-ready work, if the requesting party, the pole owner, or an affected attaching entity determines that any work classified as simple make-ready is actually complex make-ready, then that specific make-ready work must be halted, and the determining party must provide immediate notice to the other parties of its determination and the affected poles. The affected make-ready will then be governed by Section 2(A)(1) -(9) of this Chapter, and the pole owner must provide notice required by Section 2(A)(5) of this Chapter as soon as reasonably practicable.d.Post-Make-Ready Timeline. A requesting party must notify the pole owner and any affected attaching entities with notice of the completion of the make-ready work within 15 calendar days of completion. Such notice must provide the pole owner and any affected attaching entities 90 calendar days from receipt of the notice to inspect the make-ready work, and that the pole owner and any affected attaching entities have 14 calendar days from the completion of their inspection to notify the requesting party of any damage or code violation resulting from the make-ready work. The pole owner or affected attaching entity may either complete any necessary remedial work and bill the requesting party for reasonable costs associate with the remediation or require the requesting party to perform the remediation at the requesting party's expense within 14 calendar days of notification14.Replaced and Abandoned Joint Use-Utility Poles.a.Replaced Poles. All attaching entities with attachments above the communications space on a replaced joint-use utility pole must move their attachments to the new pole within 30 calendar days of the setting of the new pole. All attaching entities with attachments in the communications space of a replaced joint-use utility pole must move their attachments to the new pole in a sequential manner. The move process must begin:i. In the case of a pole with attachments above the communications space, within 30 calendar days of the completion of the move of those attachments to the new pole; orii. In the case of a pole without attachments above the communications space, within 30 calendar days of the setting of the new pole. Once an attachment is moved, that attacher must so indicate in the joint-use software system, or, in the absence of a joint-use software system, notify the pole owner who in turn must notify the next attacher. Each subsequent attacher must move its attachment within 15 calendar days of notification.
b.Abandoned Poles. The owner responsible for the maintenance of an abandoned joint-use utility pole must remove the abandoned pole within 120 calendar days of the removal of the last communications or electric attachment (whichever is removed last) from the pole. Pole owners must remove poles that were abandoned before the effective date of this Chapter within 180 calendar days of the effective date of this Chapter. If the owner of a pole cannot be determined, the responsibility for removal of the pole lies with the utility responsible for maintenance of the pole.c.Disputes. Any aggrieved party may bring a dispute regarding the removal of an abandoned pole to the Commission using the dispute resolution provisions of Section 8 of this Chapter.B.Unreasonable Terms and Conditions. The following terms and conditions are presumed to be unreasonable for the joint-use of utility poles: 1.Boxing. A prohibition on boxing poles (i.e., placing cables on both the road side and the field side of a pole) which can be safely accessed by emergency equipment and bucket trucks or ladders provided that such technique complies with the requirements of applicable codes.2. Extension Arms. A prohibition on using extension arms to clear obstacles, improve alignment, or provide space that would not otherwise be available without a replacement pole, to the extent that the installation of extension arms complies with applicable codes.3.Lowest Pole Position. A prohibition against attachments below existing attachments, to the extent that space is not available above existing attachments along the proposed route (or most of the route) of the additional attachments.4.Pole Top Attachments. A prohibition against pole top attachments and the use of space above the primary or secondary power for wireless attachments, to the extent such proposed pole top installations comply with the NESC.C.Presumptions Rebuttable. A pole owner or joint-use entity may overcome the presumption that a term or condition described in paragraph A or B of this Section is reasonable or unreasonable by presenting clear and convincing evidence that the dispute involves unique circumstances in which applying the presumption would produce an unreasonable or unsafe result.65-407 C.M.R. ch. 880, § 2