Chapter 4901:1-3 Attachments to Utility Equipment or Rights of Way

4901:1-3-01 Definitions.

As used within this chapter, these terms denote the following:

(A) "Attaching entity" means cable operators, telecommunications carriers, incumbent and other local exchange carriers, public utilities, governmental entities and other entities with either a physical attachment or a request for attachment to the pole, duct, conduit, or right-of-way and that is authorized to attach pursuant to section 4905.51 or 4905.71 of the Revised Code. It does not include governmental entities with only seasonal attachments to the pole.

(B) "Cable operator" for purposes of this chapter, shall have the same meaning as defined in 47 U.S.C. 522 (5), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(C) "Cable service" for purposes of this chapter, shall have the same meaning as defined in 47 U.S.C. 522 (6), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(D) "Cable system" for purposes of this chapter, shall have the same meaning as defined in 47 U.S.C. 522 (7), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(E) "Commission" means the public utilities commission of Ohio.

(F) "Communications space" means that portions of the pole typically used for the placement of communications conductors beginning below the bottom point of the communications workers safety zone and ending at the lowest point on the pole to which horizontal conductors may be safely attached.

(G) "Conduit" means a structure containing one or more ducts, usually placed in the ground, in which cables or wires may be installed.

(H) "Conduit system" means a collection of one or more conduits together with their supporting infrastructure.

(I) "Days" means calendar days for the purposes of these rules.

(J) "Duct" means a single enclosed raceway for conductors, cable, and/or wire.

(K) "Electric company" for purposes of this chapter, shall have the same meaning as defined in division (A)(3) of section 4905.03 of the Revised Code.

(L) "Inner-duct" means a duct-like raceway smaller than a duct that is inserted into a duct so that the duct may carry multiple wires or cables.

(M) "Local exchange carrier" (LEC) for purposes of this chapter, shall have the same meaning as defined in division (A)(7) of section 4927.01 of the Revised Code.

(N) "Pole attachment" means any attachment by an attaching entity to a pole, duct, conduit, or right-of-way owned or controlled by a public utility.

(O) "Public utility" for purposes of this chapter, shall have the same meaning as defined in section 4905.02 of the Revised Code.

(P) "Telecommunications" for purposes of this chapter, shall have the same meaning as defined in division (A)(10) of section 4927.01 of the Revised Code.

(Q) "Telecommunications carrier" for purposes of this chapter, shall have the same meaning as defined in division (A)(11) of section 4927.01 of the Revised Code.

(R) "Telecommunications services" for purposes of this chapter, shall have the same meaning as defined in division (A)(12) of section 4927.01 of the Revised Code.

(S) "Telephone company" for purposes of this chapter, shall have the same meaning as defined in division (A)(13) of section 4927.01 of the Revised Code and includes the definition of "telecommunications carrier" incorporated in 47 U.S.C. 153 (44), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(T) "Unusable space" with respect to poles, means the space on a public utility pole below the usable space, including the amount required to set the depth of the pole.

(U) "Usable space" with respect to poles, means the space on a public utility pole above the minimum grade level which can be used for the attachment of wires, cables, and associated equipment, and which includes space occupied by the public utility. With respect to conduit, the term usable space means capacity within a conduit system which is available, or which could, with reasonable effort and expense, be made available, for the purpose of installing wires, cable, and associated equipment for telecommunications or cable services, and which includes capacity occupied by the public utility.

Effective: 1/8/2015
Five Year Review (FYR) Dates: 01/08/2020
Promulgated Under: 111.15
Statutory Authority: 4901.13
Rule Amplifies: 4905.04, 4905.05, 4905.06, 4905.51, 4905.71

4901:1-3-02 Purpose and scope.

(A) Each citation contained within this chapter that is made to either a section of the United States code or a regulation in the code of federal regulations is intended, and shall serve, to incorporate by reference the particular version of the cited matter as effective on July 1, 2014.

(B) This chapter establishes rules for the provision of attachments to a pole, duct, conduit, or right-of-way owned or controlled by a utility under rates, terms, and conditions that are just and reasonable. Ohio has elected to regulate this area pursuant to 47 U.S.C. 224 (c)(2).

(C) The obligations found in this chapter, shall apply to:

(1) All public utilities pursuant to 47 U.S.C. 224 (c) through (i), 47 U.S.C. 253 (c), as effective in paragraph (A) of this rule, and section 4905.51 of the Revised Code; and

(2) A telephone company and electric light company that is a public utility pursuant to section 4905.71 of the Revised Code.

(D) The commission may, upon an application or motion filed by a party, waive any requirement of this chapter, other than a requirement mandated by statute, for good cause shown.

(E) Any party seeking a waiver(s) of rules contained in this chapter shall specify the period of time for which it seeks such a waiver(s), and a detailed justification in the form of a motion filed in accordance with rule 4901-1-12 of the Administrative Code.

(F) All of the automatic time frames set forth in this chapter may be suspended pursuant to directives of the commission or an attorney examiner.

Effective: 1/8/2015
Five Year Review (FYR) Dates: 01/08/2020
Promulgated Under: 111.15
Statutory Authority: 4901.13
Rule Amplifies: 4905.04, 4905.05, 4905.06, 4905.51, 4905.71

4901:1-3-03 Access to poles, ducts, conduits, and rights-of-way.

(A) Duty to provide access and required notifications

(1) A public utility shall provide an attaching entity with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it under rates, terms and conditions that are just and reasonable. Notwithstanding this obligation, a public utility may deny an attaching entity access to its poles, ducts, conduits, or rights-of-way, on a nondiscriminatory basis where there is insufficient capacity or for reasons of safety, reliability, and generally applicable engineering purposes.

(2) Requests for access to a public utility's poles, ducts, conduits, or rights-of-way must be in writing. A complete application is an application that provides the public utility with the information reasonably necessary under its procedures to begin to survey the poles.

(3) If the public utility establishes or adopts an electronic notification system, the attaching entity must participate in the electronic notification to qualify under this chapter.

(4) A public utility shall notify the attaching entity in a timely manner if the application to attach facilities to its poles is deemed to be incomplete. If access is not granted within forty-five days of the request for access, the public utility must confirm the denial in writing by the forty-fifth day [or by the sixtieth day in the case of larger orders as described in paragraph (B)(6) of this rule]. The public utility's denial of access shall be specific, shall include all relevant evidence and information supporting its denial, 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. A request for access to a public utility's poles, ducts, conduits, or rights-of-way that is not denied in writing within forty-five days [or by the sixtieth day in the case of larger orders as described in paragraph (B)(6) of this rule] of the request shall be deemed to be granted.

(5) A public utility shall provide all attaching entities no less than sixty days written notice prior to:

(a) Removal of facilities or termination of any service to those facilities;

(b) Any increase in pole attachment rates; or

(c) Any modification of facilities other than routine maintenance or modification in response to emergencies.

(6) An attaching entity may file with the commission a petition for temporary stay of the action contained in a notice received pursuant to paragraph (A)(5) of this rule within fifteen days of receipt of such notice. Such submission shall not be considered unless it includes, in concise terms, the relief sought, the reasons for such relief, including a showing of irreparable harm and likely cessation of service and a copy of the notice. The public utility may file an answer within seven days of the date the petition for temporary stay was filed. No further filings under this rule will be considered unless requested or authorized by the commission. If the commission does not rule on a petition filed pursuant to this paragraph within thirty days after the filing of the answer, the petition shall be deemed denied unless suspended.

(B) Timeline for access to public utility poles

(1) Survey

Not longer than forty-five days after receipt of a complete application to attach facilities to its poles (or within sixty days, in the case of larger orders as described in paragraph (B)(6) of this rule), a public utility must perform a survey which provides identification of present attachments and any modification to the pole, duct, conduit, or right-of-way that must be performed to accommodate the requested attachment.

(2) Estimate

Where a request for access is not denied, a public utility shall present to the attaching entity an estimate of charges, if any, to perform all necessary make-ready work within fourteen days of providing the response required by paragraph (B)(1) of this rule, or in the case where a prospective attaching entity's contractor has performed a survey as described in paragraph (C) of this rule, within fourteen days of receipt by the public utility of such survey.

(a) A public utility may withdraw an outstanding estimate of charges to perform make-ready work beginning twenty-two days after the estimate is presented.

(b) An attaching entity may accept a valid estimate and make payment within twenty-one days from receipt of the estimate.

(c) Upon receipt of a written dispute or request for additional information regarding the scope of work or allocation of costs of the work from the attaching entity, the twenty-one day period to accept a valid estimate and make payment will be held in abeyance pending resolution of the dispute or inquiry to the public utility.

(3) Make-ready

Upon receipt of payment specified in paragraph (B)(2)(b) of this rule, the public utility shall promptly notify the requesting attaching entity and all known entities with existing attachments that may be affected by the make-ready.

(a) For attachments in the communications space, the notice shall:

(i) Identify the individual pole(s) and specify make-ready to be performed on such pole(s).

(ii) Set a date for completion of make-ready that is as prompt as possible, but not longer than sixty days after notification is sent (or one-hundred and five days in the case of larger orders, as described in paragraph (B)(6) of this rule).

(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 if make-ready is not completed by the completion date set by the public utility, the attaching entity requesting access may complete the specified make-ready pursuant to paragraph (B)(4) of this rule.

(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 any applicable engineering and construction standards.

(b) For wireless attachments above the communications space, including those on pole tops, the notice shall:

(i) Specify where and what make-ready will be performed.

(ii) Set a date for completion of make-ready as promptly as possible, but no longer than ninety days after notification is sent (or one hundred thirty-five days in the case of larger orders, as described in paragraph (B)(6) of this rule).

(iii) State that any entity with an existing attachment may, consistent with paragraph (B)(5) of this rule, modify the attachment consistent with the specified make-ready before the date set for completion.

(iv) State the name, telephone number, and e-mail address of a person to contact for more information about the make-ready procedure.

(v) State any applicable engineering and construction standards.

(c) Public utilities may deny access where there is insufficient capacity and for reasons of safety, reliability, and generally applicable engineering purposes.

(4) If a public utility fails to respond as specified in paragraph (B)(1) of this rule, an attaching entity requesting attachment in the communications space may, as specified in paragraph (C) of this rule, hire at its own expense a contractor to complete a survey. If a public utility fails to provide an estimate pursuant to paragraph (B)(2) of this rule or does not complete make ready pursuant to paragraph (B)(3)(a)(ii) of this rule, the attaching entity requesting attachment in the communications space may, as specified in paragraph (C) of this rule, hire a contractor at its own expense to complete the make-ready.

(5) For wireless attachments above the communications space, a public utility shall ensure that make-ready is completed by the date set by the public utility in paragraph (B)(3)(b)(ii) of this rule. Only the public utility or its direct contractor may perform make-ready work above the communications space.

(6) For the purposes of compliance with the time periods in this rule:

(a) A public utility shall apply the timeline described in paragraphs (B)(1) to (B)(3) of this rule to all requests for pole attachments up to the lesser of three hundred poles or one-half per cent of the public utility's poles in the state.

(b) A public utility may add fifteen days to the survey period described in paragraph (B)(1) of this rule to larger orders up to the lesser of three-thousand poles or five percent of the public utility's poles in the state.

(c) A public utility may add forty-five days to the make-ready periods described in paragraph (B)(3) of this rule to larger orders up to the lesser of three thousand poles or five per cent of the public utility's poles in the state.

(d) A public utility shall negotiate in good faith the timing of all requests for pole attachments larger than the lesser of three thousand poles or five per cent of the public utility's poles in the state.

(e) A public utility may treat multiple requests from a single attaching entity as one request when the requests are filed within thirty days of one another.

(7) A public utility may not deviate from the time limits specified in this rule unless:

(a) Before offering an estimate of charges, the parties have a pole attachment agreement specifying time frames for an estimate and acceptance that exceed those set forth in this rule.

(b) During performance of make-ready for good and sufficient cause it is infeasible for the public utility to complete the make-ready work within the time frame prescribed in this rule.

(i) Good and sufficient cause for deviation from the time limits may allow utilities to cope with an emergency declared by a governmental entity or for a major event as defined in paragraph (T) of rule 4901:1-10-01 of the Administrative Code, but not for routine or foreseeable events such as repairing damage caused by routine seasonal storms; repositioning existing attachments; bringing poles up to code; alleged lack of resources; or awaiting resolution of regulatory proceedings, such as a state public utilities commission rulemaking, that affect pole attachments.

(ii) A public utility that so deviates shall promptly notify, in writing, the attaching entity requesting attachment and other affected entities with existing attachments, and shall include the reason for, and date and duration of the deviation. The public utility shall deviate from the time limits specified in this rule for a period no longer than necessary and shall resume make-ready performance without discrimination when it returns to routine operations.

(8) If safety violations are found to exist on a pole requested for attachment, the attacher that is found not to be in compliance with the utility's applicable engineering and construction standards shall be financially responsible for correction of the violation.

(C) Contractors for survey and make-ready

(1) A public utility shall make available and keep up-to-date a reasonably sufficient list of contractors it authorizes to perform surveys and make-ready in the communications space on its poles in cases where the public utility has failed to meet deadlines specified in paragraph (B) of this rule.

(2) If an attaching entity hires a contractor for purposes specified in paragraph (B) of this rule, it shall choose from among the public utility's list of authorized contractors.

(3) An attaching entity that hires a contractor for survey or make-ready work in the communications space shall provide the public utility with a reasonable opportunity for a public utility representative to accompany and consult with the authorized contractor and the attaching entity.

(4) The consulting representative of an electric utility or telephone company may make final determinations, on a nondiscriminatory basis, where there is insufficient capacity and for reasons of safety, reliability, and generally applicable engineering purposes.

(D) Rights-of-way

(1) Public utilities are subject to all constitutional, statutory, and administrative rights and responsibilities for use of public rights-of-way.

(2) Private rights-of-way for all public utilities are subject to negotiated agreements with the private property owner, exclusive of eminent domain considerations.

(3) Public utilities are prohibited from entering into exclusive use agreements of private building riser space, conduit, and/or closet space.

(4) Public utilities shall coordinate their right-of-way construction activity with the affected municipalities and landowners. Nothing in this rule is intended to abridge the legal rights and obligations of municipalities and landowners.

(E) The commission reserves the right to require any or all arrangements between public utilities and between public utilities and private landowners to be submitted to the commission for its review and approval, pursuant to sections 4905.16 and 4905.31 of the Revised Code.

(F) The public utility is required to allow attaching entities to use the same attaching techniques used by the public utility itself or another similarly situated attaching entity on the pole, consistent with the utility's then-current engineering practices and standards.

Replaces: 4901:1-7-23

Effective: 1/8/2015
Five Year Review (FYR) Dates: 01/08/2020
Promulgated Under: 111.15
Statutory Authority: 4901.13
Rule Amplifies: 4905.04, 4905.05, 4905.06, 4905.51, 4905.71
Prior Effective Dates: 11/30/2007

4901:1-3-04 Rates, terms, and conditions for poles, ducts, and conduits.

(A) Rates, terms, and conditions for nondiscriminatory access to poles, ducts, conduits, and right-of-way of a telephone company or electric light company by an entity that is not a public utility are established through tariffs pursuant to section 4905.71 of the Revised Code. Initial implementation of such tariff or any subsequent change in the tariffed rates, terms, and conditions for access to poles, ducts, conduits, or rights-of-way shall be filed in the appropriate proceeding consistent with parameters established in rule 4901:1-3-03 of the Administrative Code. Nothing in this chapter prohibits an attaching entity that is not a public utility from negotiating rates, terms, and conditions for access to poles, ducts, conduits, and rights-of-way of a telephone company or electric light company through voluntarily negotiated agreements.

(B) Rates, terms, and conditions for nondiscriminatory access to public utility poles, ducts, conduits, and rights-of-way by another public utility shall be established through negotiated agreements.

(C) Access to poles, ducts, conduits, and rights-of-way as outlined in paragraphs (A) and(B) of this rule shall be established pursuant to 47 U.S.C. 224, as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(D) Pole attachment and conduit occupancy rate formulas

(1) The commission shall determine whether a rate, term, or condition is just and reasonable in complaint proceedings or in tariff filings. For the purposes of this paragraph, a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the public utility attributable to the entire pole, duct, conduit, or right-of-way.

(2) The commission will apply the formula set forth in 47 C.F.R. 1.1409 (e)(1), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code for determining a maximum just and reasonable rate for pole attachments.

(3) The commission will apply the formula set forth in 47 C.F.R. 1.1409 (e)(3), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code for determining a maximum just and reasonable rate for conduit occupancy.

(4) With respect to the formula referenced in paragraph (D)(2) of this rule, the space occupied by an attachment is presumed to be one foot. The amount of usable space is presumed to be thirteen and one-half feet. The amount of unusable space is presumed to be twenty-four feet. The pole height is presumed to be thirty-seven and one-half feet. These presumptions may be rebutted by either party.

(5) Relative to joint use agreements, the default rates may be negotiated or determined by the commission in the context of a complaint case.

(E) The costs of modifying a facility shall be borne by all parties that obtain access to the facility as a result of the modification and by all parties that directly benefit from the modification. Each party described in the preceding sentence shall share proportionately in the cost of the modification. A party with a preexisting attachment to the modified facility shall be deemed to directly benefit from a modification if, after receiving notification of such modification as provided in paragraph (B)(3) of rule 4901:1-3-03 of the Administrative Code, it adds to or modifies its attachment. Notwithstanding the foregoing, a party with a preexisting attachment to a pole, conduit, duct, or right-of-way shall not be required to bear any of the costs of rearranging or replacing its attachment if such rearrangement or replacement is necessitated solely as a result of an additional attachment or the modification of an existing attachment sought by another party. If a party makes an attachment to the facility after the completion of the modification, such party shall share proportionately in the cost of the modification if such modification rendered possible the added attachment.

(F) A public utility that engages in the provision of telecommunications services or cable services shall impute to its costs of providing such services (and charge any affiliate, subsidiary, or associate company engaged in the provision of such services) an equal amount to the pole attachment rate for which such company would be liable under this rule, pursuant to 47 U.S.C. 224 (g), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

Replaces: 4901:1-7-23

Effective: 1/8/2015
Five Year Review (FYR) Dates: 01/08/2020
Promulgated Under: 111.15
Statutory Authority: 4901.13
Rule Amplifies: 4905.04, 4905.05, 4905.06, 4905.51, 4905.71
Prior Effective Dates: 11/30/2007

4901:1-3-05 Complaints.

Any attaching entity may file a complaint against a public utility pursuant to section 4905.26 or 4927.21 of the Revised Code, as applicable, to address claims that it has been denied access to a public utility pole, duct, conduit, or right-of-way in violation of section 4905.51 of the Revised Code or 47 U.S.C. 224, as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code; and/or that a rate, term, or condition for a pole attachment are not just and reasonable. The provisions and procedures set forth in sections 4905.26 and 4927.21 of the Revised Code, and Chapters 4901-1 and 4901-9 of the Administrative Code, shall apply. The commission shall issue a decision resolving issue(s) presented in a complaint filed pursuant to this rule within a reasonable time not to exceed three hundred sixty days after the filing of the complaint.

Effective: 1/8/2015
Five Year Review (FYR) Dates: 01/08/2020
Promulgated Under: 111.15
Statutory Authority: 4901.13
Rule Amplifies: 4905.04, 4905.05, 4905.06

4901:1-3-06 Mediation and arbitration of agreements.

All public utilities have the duty to provide nondiscriminatory access to poles, ducts, conduits, and rights-of-way consistent with paragraph (A)(1) of rule 4901:1-3-03 of the Administrative Code. If parties are unable to reach an agreement on rates, terms, or conditions regarding access to poles, ducts, conduits, and rights-of-way, either party may petition the commission to mediate or arbitrate such agreement according to procedures established in rules 4901:1-7-08 to 4901:1-7-10 of the Administrative Code.

Replaces: 4901:1-1-7-23

Effective: 1/8/2015
Five Year Review (FYR) Dates: 01/08/2020
Promulgated Under: 111.15
Statutory Authority: 4901.13
Rule Amplifies: 4905.04, 4905.05, 4905.06
Prior Effective Dates: 11/30/2007

4901:1-3-08 Construction and maintenance standard. [Rescinded].

Rescinded eff 12-27-08

4901:1-3-09 Excess construction charges applicable to certain line extensions of the telephone companies. [Rescinded].

Rescinded eff 12-27-08

4901:1-3-11 Filing of reports by telephone companies subject to the federal communications commission. [Rescinded].

Rescinded eff 12-27-08