On April 9, staff of the Louisiana Public Service Commission (“Commission”) sent stakeholders involved in a pole attachment rulemaking a draft set of proposed pole attachment rules. The proposed rules are the result of a multi-year, on-again, off-again rulemaking, which originally commenced in 2008. The rules apply to “any entity that has an attachment on a utility pole to provide a utility, governmental or communications service,” including electric utility attachments on telephone poles (and vice versa), and cable television, competitive local exchange carrier and wireless attachments.
Perhaps most significantly, the proposed rules would lift a pole attachment rental rate freeze imposed by the Commission in 1999. The freeze would be lifted “in order to ensure that pole rental rates are appropriately recovering costs associated with pole attachments.” According to Commission staff, if lifting the rate freeze results in significant increases, “a stair-stepping mechanism should be implemented to moderate” the increases, as the Commission deems prudent. Pole owners that seek to increase their rates once the new rules are effective must provide attachers with all of the information supporting the rental rate increase, such as an electric utility’s FERC Form 1 or a telephone utility’s ARMIS report, along with a detailed rental rate calculation worksheet. The proposed rules would also retain the pole rental formula adopted by the Commission in 1980, which is similar to the Federal Communication Commission’s “cable formula,” but allocates two feet to the attacher, instead of one foot, thereby doubling the rental rates paid by attachers in Louisiana.
Other significant proposals include a requirement to negotiate pole attachment agreements in “good faith,” the adoption of an application processing timeframe (from submission of an application through the performance of make-ready), the ability of attachers to hire outside contractors if the pole owner is unable to meet the processing timeframes, the establishment of a baseline audit process to determine the number of existing attachments without the ability to impose any penalties for unpermitted attachments (until a subsequent audit is performed) and a requirement to attempt to settle disputes prior to filing a formal complaint.
Comments on the proposed rules are due on April 25, 2014. Staff expects to issue a “final draft” sometime in May and will seek additional comments at that time, but “does not intend to incorporate” additional changes resulting from the May comments. Staff indicates that the Commission intends to issue the final rules at its June 13, 2014 Business and Executive Session.