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