Chapter 4901:1-3 | Poles, Ducts, Conduits, and Rights-of-Way

Rule 4901:1-3-01 | Definitions.

• Effective: June 30, 2023
• Promulgated Under: 111.15

[Comment: For dates of references to a section of either the United States Code or a regulation in the code of federal regulations see rule 4901:1-3-02 of the Administrative Code.]

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, means the same 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, means the same 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, means the same 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) "Complex make-ready" means the transfers and work within the communications space that would be reasonably likely to cause a service outage(s) or facility damage, including work such as splicing of any communications attachment or relocation of existing wireless attachments. Any and all wireless activities, including those involving mobile, fixed, point-to-point wireless communications and wireless internet service providers, are to be considered complex.

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

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

(J) "Days" means calendar days for the purposes of this chapter.

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

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

(M) "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.

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

(O) "Overlashing" means the tying or lashing of additional fiber optic and/or coaxial cables to existing communications wires, cables, or supporting strands already attached to poles.

(P) "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.

(Q) "Public utility" for purposes of this chapter, means the same as defined in section 4905.02 of the Revised Code.

(R) "Simple make-ready" means make-ready where existing attachments in the communications space of a pole could be transferred without any reasonable expectation of a service outage or facility damage and does not require splicing of any existing communications attachment or relocation of an existing wireless attachment.

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

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

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

(V) "Telephone company" for purposes of this chapter, means the same 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.

(W) "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.

(X) "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.

Last updated January 9, 2024 at 9:24 AM

Supplemental Information

Authorized By: 4901.13
Amplifies: 4905.04, 4905.05, 4905.06, 4905.51, 4905.71
Five Year Review Date: 11/16/2026

Rule 4901:1-3-02 | Purpose and scope.

• Effective: June 30, 2023
• Promulgated Under: 111.15

[Comment: For dates of references to a section of either the United States Code or a regulation in the code of federal regulations see rule 4901:1-3-02 of the Administrative Code.]

(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 to incorporate by reference the particular version of the cited matter as effective on March 1, 2021.

(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 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 a detailed application or motion containing the requested waiver period, waive any requirement of this chapter, other than a requirement mandated by statute, for good cause shown.

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

Last updated January 9, 2024 at 9:25 AM

Supplemental Information

Authorized By: 4901.13
Amplifies: 4905.04, 4905.05, 4905.06, 4905.51, 4905.71
Five Year Review Date: 11/16/2026
Prior Effective Dates: 1/31/2022

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

• Effective: June 30, 2023
• Promulgated Under: 111.15

(A) Duty to provide access and notifications

(1) A public utility will comply with the duty to provide access and notifications pursuant to 47 C.F.R 1.1403, as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(2) Pursuant to 47 C.F.R. 1.1403(d) an attaching entity may file with the commission a petition for temporary stay of action contained in a notice received pursuant to 47 C.F.R. 1.1403(c), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code. If the commission does not rule on a petition pursuant to this paragraph within thirty days after the filing of the answer, the petition will be deemed denied unless suspended.

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

(B) Timeline for access to public utility poles

(1) Application review and survey:

A public utility or a new attaching entity will comply with the application review and survey requirements, pursuant to 47 C.F.R 1.1411(c), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(2) Estimate

A public utility or a new attaching entity will comply with the make-ready estimate requirements pursuant to 47 C.F.R 1.1411(d), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(3) Make-ready

A public utility will comply with the notification requirements and make-ready time periods for new and existing attaching entities; for attachments in the communications space and above the communications space, pursuant to 47 C.F.R 1.1411(e) and (f), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(4) Compliance with the time periods in this rule:

A public utility will comply with the time periods pursuant to 47 C.F.R 1.1411(g), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(5) Deviation from the time limits specified in this rule unless:

A public utility will comply with the deviation from time limits pursuant to 47 C.F.R 1.1411(h), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(6) Self-help remedy:

A public utility or new attaching entity will comply with the self-help remedy process for incomplete survey and make-ready pursuant to 47 C.F.R 1.1411(i), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(7) One-touch make-ready option.

For attachments involving simple make-ready, a public utility or a new attaching entity will comply with one-touch make-ready option requirements pursuant to 47 C.F.R. 1.1411(j), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(C) Contractors for survey and make-ready.

(1) Contractors for self-help complex make-ready and above the communications space make-ready:

A public utility will comply with the contractor requirements for self-help complex make-ready and above the communications space make-ready pursuant to 47 C.F.R 1.1412(a), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(2) Contractors for simple make-ready work:

A public utility will comply with the contractor requirements for simple make-ready work pursuant to 47 C.F.R 1.1412(b), as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code.

(D) Overlashing

(1) An existing attaching entity or third party overlashing with permission from an existing attaching entity (overlashing party) and a public utility will comply with overlashing rules established pursuant to 47 C.F.R 1.1415, as effective in paragraph (A) of rule 4901:1-3-02 of the Administrative Code, with the following exceptions:

(a) A public utility will not prevent an overlashing party from overlashing because another overlashing party has not fixed a preexisting violation; unless the overlashing will exacerbate the violation or create a capacity, safety, reliability, or engineering issue. When an overlashing exacerbates the violation or creates a capacity, safety, reliability, or engineering issue, the costs incurred to rectify the existing condition or issue are to be charged to and paid by either: (i) the last attacher(s) or overlasher(s) who caused the condition or issue; or (ii) if records are inadequate to determine who caused the condition or issue, then all attachers and overlashers and the public utility will pay to rectify the existing condition proportional to their use.

(b) If a public utility requires advance notice of a planned overlashing, the public utility may charge the overlashing party the just and reasonable costs the public utility actually incurs to inspect the pole prior to the installation of the proposed overlash.

(E) 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 will not enter into exclusive use agreements of private building riser space, conduit, and/or closet space.

(4) Public utilities are to 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.

(F) The commission reserves the right to expect 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.

(G) All time limits in this chapter are to be calculated according to rule 4901-1-07 of the Administrative Code.

Last updated January 9, 2024 at 9:25 AM

Supplemental Information

Authorized By: 4901.13
Amplifies: 4905.04, 4905.05, 4905.06, 4905.51, 4905.71
Five Year Review Date: 11/16/2026
Prior Effective Dates: 1/31/2022

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

• Effective: June 30, 2023
• Promulgated Under: 111.15

[Comment: For dates of references to a section of either the United States Code or a regulation in the code of federal regulations see rule 4901:1-3-02 of the Administrative Code.]

(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 will be filed as an application for tariff amendment (ATA) and will be approved in accordance with a sixty-day automatic approval process. Increases to tariffed rates pursuant to this paragraph require customer notice to be sent to all affected attachers concurrent with the filing of the ATA. Any objections to the ATA application should be filed within twenty-one days of its filing. The applicant will have ten days to file its reply to the stated objections. The tariffed rates, terms and conditions are to be 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.

(1) An automatic time frame will begin on the day after a filing is made with the commission's docketing division. Under the automatic approval process, if the commission does not take action before the expiration of the filing's applicable time frame, the filing is deemed approved and may become effective on the following day, or a later date if requested by the company. For, example, a filing subject to a sixty-day process will, absent suspension or other commission action, become effective on the sixty-first day after the initial filing is made with the commission. Unless otherwise ordered, any motions not ruled upon by the commission during the filing's applicable time frame are deemed to be denied.

(2) Unless the law specifically precludes suspension of an automatic approval process, a pending application filed with the commission under full or partial suspension will be automatically approved thirty days from the date of suspension if all issues are resolved. If all issues are not resolved by the thirtieth day, the application will be either dismissed by entry or suspended a second time. Any such second suspension will be accompanied by notice to the applicant explaining the rationale for the additional suspension. Applications under a second suspension cannot be approved without a commission entry or order.

(3) Under this paragraph, an application under full suspension is entirely precluded from taking effect.

(4) Under this paragraph, an application under partial suspension is permitted to take effect, in part or in its entirety, under the proposed terms and conditions, subject to further review by the commission. The applicant is put on notice that the commission, subsequent to further review, may modify the rates and/or terms and conditions of tariffed pole, duct, conduit, and rights-of-way access affected by the applications.

(5) A full or partial suspension of tariffed pole, duct, conduit, and rights-of-way access may also be imposed, after an application is approved under the automatic approval process, if an ex post facto determination is made that the tariff is in violation of law or commission rules. Applications proposing to change the rate shall include a calculation sheet, identification of the specific sources of the formula inputs, workpapers, and any company-specific records/data underlying the formula inputs including the appurtenance factor, pole height and pole count.

(B) Rates, terms, and conditions for nondiscriminatory access to public utility poles, ducts, conduits, and rights-of-way by another public utility are to 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 are to 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 will 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. When calculating the pole attachment and conduit occupancy rates, any unamortized excess accumulated deferred income tax resulting from the Tax Cut and Jobs Act of 2017 shall be deducted from the gross plant and gross pole investment total.

(2) The commission will apply the formula set forth in 47 C.F.R. 1.1406(d)(1) and (e), 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. 1.1406(d)(3), (4) and (e), 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 will 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 are not 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 will 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.

Last updated January 9, 2024 at 9:25 AM

Supplemental Information

Authorized By: 4901.13
Amplifies: 4905.04, 4905.05, 4905.06, 4905.51, 4905.71
Five Year Review Date: 11/16/2026
Prior Effective Dates: 11/30/2007, 1/8/2015

Rule 4901:1-3-05 | Complaints.

• Effective: June 30, 2023
• Promulgated Under: 111.15

[Comment: For dates of references to a section of either the United States Code or a regulation in the code of federal regulations see rule 4901:1-3-02 of the Administrative Code.]

(A) 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, 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.

(B) In complaint proceedings challenging the rates, terms, and conditions of existing joint use agreements between public utilities, there is a presumption that such rates, terms, and conditions are just and reasonable. A public utility can rebut this presumption by a preponderance of the evidence demonstrating that a rate, term, or condition is not just and reasonable.

Last updated January 9, 2024 at 9:26 AM

Supplemental Information

Authorized By: 4901.13
Amplifies: 4905.04, 4905.05, 4905.06
Five Year Review Date: 11/16/2026
Prior Effective Dates: 1/8/2015

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

• Effective: January 8, 2015
• Promulgated Under: 111.15

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.

Last updated April 26, 2022 at 3:39 PM

Supplemental Information

Authorized By: 4901.13
Amplifies: 4905.04, 4905.05, 4905.06
Five Year Review Date: 11/16/2026
Prior Effective Dates: 11/30/2007