NY State Senate Bill 2021-S9081

Senate Bill S9081

2021-2022 Legislative Session

Entitles broadband service providers to the same attachment privileges, rates, and rights as competitive local exchange carriers and cable companies

download bill text pdf

Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 11, 2022	recommit, enacting clause stricken
May 09, 2022	referred to energy and telecommunications

2021-S9081 (ACTIVE) - Details

Law Section:: Public Service Law
Laws Affected:: Add §§105-a & 119-d, amd §119-a, Pub Serv L

2021-S9081 (ACTIVE) - Summary

Entitles broadband service providers to the same attachment privileges, rates, and rights as competitive local exchange carriers and cable companies; requires the public service commission to prescribe a process by which existing pole and attachment owners must provide for make-ready services.

2021-S9081 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9081

SPONSOR: COONEY
 
TITLE OF BILL:

An act to amend the public service law, in relation to entitling broad-
band service providers to the same attachment privileges, rates, and
rights as competitive local exchange carriers and cable companies

 
PURPOSE:

This legislation creates a one touch make ready construction framework
that brings the components of the Public Service Commission's 2004 Pole
Attachment Order in line with current industry dynamics for broadband
and fiber optic deployment.

 
SUMMARY OF PROVISIONS:

Section 1 amends 105-a of the public service law to add various defi-
nitions;

Section 2 amends 119-a of the public service law and allows broadband

service providers as defined in section 1 to be entitled to the same
rights as Competitive Local Exchange Carriers (CLECs) currently regu-
lated by the PSC.

Section 3 adds a new section 119-d to the Public Service Law allowing
for the provision of Make Ready Services, in oversight by the PSC:

- Provides for minimum intervals for application of a CLEC or broadband
service provider for utility pole access; the provision of estimates by
a pole owner; acceptance of estimate by the Broadband Service Provider
or CLEC.

- Provides for a hiring process for contractors by the CLEC or Broadband
Service Provider as well as process and specifications for utilizing
temporary pole attachments or extension arms.

- Provides for enforcement of missed intervals by the Attorney General.

- Directs the PSC to promulgate regulations no later than six months
after the effective date of the bill.

Section 4 is the effective date.

 
JUSTIFICATION:

The Office of the State Comptroller's September 30, 2021 Report "Avail-
ability, Access, and Affordability: Understanding Broadband Challenges
in New York State" stated one of the keys to successful deployment of
American Rescue Plan funds in the Governor's ConnectALL Initiative for
broadband was to "spur provider competition across the State." Further,
the report stated that "the Commission wields significant regulatory
power which can be used cautiously but effectively in order to keep
prices low and speeds high."

The availability of robust competition, defined as at least three
providers for a service, is the most essential piece of keeping prices
low and speeds high. However, currently throughout New York State new
broadband service providers see high barriers to entry that have heavily
hampered the rapid deployment of broadband infrastructure.

Currently, the PSC's 2004 Pole Attachment Order serves as the guideline
for attachment and interaction with pole owners and existing attachers
in the communications space. Not only is the 2004 Pole Attachment Order
antiquated, it is often completely diminished by Master Service Agree-
ments with timeframes that are far outside the timeframes allotted in
the 2004 attachment order, which pole owners often fail to meet as well.
The lengthy delays mean smaller broadband service providers often do not
deploy at all in regions across the state, leaving consumers with higher
prices and lower speeds up and downstream.

This bill would provide the remedies necessary, as well as mandate
intervals that allow, for rapid deployment of broadband infrastructure
by numerous providers in regions throughout the state.

 
LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS:

To be determined

 
EFFECTIVE DATE:
This act shall take effect immediately.

2021-S9081 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9081
 
                             I N  S E N A T E
 
                                May 9, 2022
                                ___________
 
 Introduced  by  Sen.  COONEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on  Energy  and  Telecommuni-
   cations
 
 AN  ACT to amend the public service law, in relation to entitling broad-
   band service providers to the same attachment privileges,  rates,  and
   rights as competitive local exchange carriers and cable companies

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The public service law is amended by adding a  new  section
 105-a to read as follows:
   § 105-A. DEFINITIONS; BROADBAND SERVICE PROVIDERS. FOR THE PURPOSES OF
 THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   1.  "BROADBAND  SERVICE  PROVIDER"  SHALL  MEAN  A  BROADBAND INTERNET
 PROVIDER OR ANY OTHER ENTITY THAT PROVIDES BROADBAND SERVICE AS  DEFINED
 IN SUBDIVISION TWO OF THIS SECTION, EITHER DIRECTLY OR THROUGH AN AFFIL-
 IATE  THAT  USES  THE  ENTITY'S COMMUNICATIONS FACILITIES, REGARDLESS OF
 WHETHER SUCH ENTITY:
   (A) PROVIDES ADDITIONAL SERVICES IN ADDITION TO BROADBAND SERVICE; OR
   (B) USES ITS FACILITIES IN WHOLE  OR  IN  PART  TO  PROVIDE  BROADBAND
 SERVICE.
   2.  "BROADBAND  SERVICE" MEANS INTERNET SERVICE WITH THE CAPABILITY OF
 PROVIDING:
   (A) DOWNLOAD SPEEDS OF ONE HUNDRED MEGABITS PER SECOND OR FASTER; AND
   (B) UPLOAD SPEEDS OF TWENTY-FIVE MEGABITS PER SECOND OR FASTER.
   3. "MAKE-READY" SHALL MEAN THE MODIFICATION OR REPLACEMENT OF A UTILI-
 TY POLE, OR OF THE LINES OR EQUIPMENT ON THE UTILITY POLE,  TO  ACCOMMO-
 DATE  ADDITIONAL  FACILITIES  ON  THE UTILITY POLE, AS DEFINED IN 47 CFR
 1.1402(O), INCLUDING COMPLEX MAKE-READY, AS DEFINED IN 47 CFR 1.1402(P),
 AND SIMPLE MAKE-READY, AS DEFINED IN 47 CFR 1.1402(Q).
   4. "COMMUNICATIONS SPACE" SHALL MEAN THE LOWER USABLE SPACE ON A UTIL-
 ITY POLE, WHICH TYPICALLY IS  RESERVED  FOR  LOW-VOLTAGE  COMMUNICATIONS
 EQUIPMENT, AS DEFINED IN 47 CFR 1.1402(R).
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD15583-01-2
 S. 9081                             2

 
   §  2.  Subdivision  1  of  section 119-a of the public service law, as
 amended by chapter 68 of the  laws  of  2022,  is  amended  to  read  as
 follows:
   1. The commission shall prescribe just and reasonable rates, terms and
 conditions  for  attachments  to  utility  poles  and the use of utility
 ducts, trenches and conduits. A just and reasonable  rate  shall  assure
 the  utility  of  the  recovery  of not less than the additional cost of
 providing a pole attachment or of using a trench, duct  or  conduit  nor
 more  than  the  actual  operating expenses and return on capital of the
 utility attributed to that portion of the pole, duct, trench or  conduit
 used.  With  respect  to cable television and broadband internet attach-
 ments and use, such portion shall be  the  percentage  of  total  usable
 space  on  a  pole  or the total capacity of the duct or conduit that is
 occupied by the facilities of the user. Usable space shall be the  space
 on  a  utility  pole above the minimum grade level which can be used for
 the attachment of wires and cables. With respect to cable television and
 broadband internet attachments and use, a contract  for  attachments  to
 utility  poles and the use of utility ducts, trenches and conduits shall
 include all such poles, ducts, trenches and conduits  located  within  a
 given  village,  town or city, pursuant to a negotiated site license and
 any applicable commission  requirements,  provided  that  such  contract
 shall  not  impede  the right of a pole owner to issue licenses based on
 inspections undertaken on a pole-specific basis.  WITH RESPECT TO BROAD-
 BAND SERVICE PROVIDERS, AS DEFINED IN SUBDIVISION  ONE  OF  SECTION  ONE
 HUNDRED  FIVE-A  OF THIS ARTICLE, SUCH BROADBAND SERVICE PROVIDERS SHALL
 BE ENTITLED TO THE SAME ATTACHMENT  PRIVILEGES,  RATES,  AND  RIGHTS  AS
 COMPETITIVE  LOCAL  EXCHANGE  CARRIERS  AND  CABLE  COMPANIES UNDER THIS
 SECTION. THE COMMISSION  SHALL,  IN  ADDITION  TO  ANY  RESPONSIBILITIES
 REQUIRED  PURSUANT TO THIS SECTION  OR THIS ARTICLE, ESTABLISH A PROCESS
 BY WHICH EXISTING UTILITY POLE AND ATTACHMENT OWNERS SHALL  BE  REQUIRED
 TO  PROVIDE  MAKE-READY  SERVICES  PURSUANT TO SECTION ONE HUNDRED NINE-
 TEEN-D OF THIS ARTICLE.
   § 3. The public service law is amended by adding a new  section  119-d
 to read as follows:
   § 119-D. MAKE-READY SERVICES. 1. THE COMMISSION SHALL, WITH RESPECT TO
 CABLE  AND  BROADBAND  SERVICE  ATTACHMENTS, ESTABLISH A PROCESS FOR THE
 PROVISION OF TIMELY MAKE-READY SERVICES BY POLE OWNERS OF ATTACHERS:
   (A) IN CONNECTION WITH A NEW POLE ATTACHMENT BEING  IMPLEMENTED  BY  A
 COMPETITIVE  LOCAL  EXCHANGE  PROVIDER,  A UTILITY POLE OWNER, INCUMBENT
 LOCAL EXCHANGE PROVIDER, OR BROADBAND SERVICE PROVIDER,  THE  COMMISSION
 SHALL  PROMULGATE  A  MAKE-READY SERVICE POLICY PROVIDING FOR THE TIMELY
 ATTACHMENT OF EQUIPMENT BY SUCH COMPETITIVE LOCAL EXCHANGE  PROVIDER  OR
 BROADBAND SERVICE PROVIDER. THE INTERVALS ESTABLISHED PURSUANT TO SUBDI-
 VISION  TWO  OF  THIS  SECTION  SHALL SUPERSEDE ANY INTERVALS IN ANY NEW
 MASTER SERVICE AGREEMENTS BETWEEN ANY POLE OWNER  OR  ATTACHER  IN  THIS
 STATE.
   (B)  IN  PROVIDING  SUCH MAKE-READY SERVICES PURSUANT TO THIS SECTION,
 THE COMPETITIVE LOCAL EXCHANGE PROVIDER, UTILITY POLE  OWNER,  INCUMBENT
 LOCAL  EXCHANGE  PROVIDER,  OR BROADBAND SERVICE PROVIDER SHALL ABIDE BY
 THE TIMELINES AND APPLICABLE PROVISIONS OF    SUBDIVISION  TWO  OF  THIS
 SECTION.    BROADBAND  SERVICE  PROVIDERS  OR COMPETITIVE LOCAL EXCHANGE
 PROVIDERS SHALL BE AUTHORIZED TO COORDINATE A SINGLE VENDOR  ARRANGEMENT
 WITH  THE  OTHER STAKEHOLDERS IN THE COMMUNICATIONS SPACE, AS DEFINED IN
 SECTION ONE HUNDRED FIVE-A OF THIS ARTICLE, TO ADDRESS  THE  RE-ARRANGE-
 MENTS AND CLEAR THE NON-COMPLIANCE TIMELY AND EFFICIENTLY AND SETTLE THE
 COST WITH STAKEHOLDERS UPON AGREEMENTS SO MADE.
 S. 9081                             3
 
   2.  SUCH  PROCESS  FOR  THE  DELIVERY OF MAKE-READY SERVICES SHALL, AT
 MINIMUM, INCLUDE:
   (A)  THE  COMMISSION  SHALL  PRESCRIBE  THE  APPLICATION  PROCESS BY A
 COMPETITIVE LOCAL EXCHANGE PROVIDER OR BROADBAND SERVICE PROVIDER  TO  A
 POLE UTILITY OWNER FOR UTILITY POLE ACCESS AND THE PROCESS OF REVIEW AND
 SURVEY  BY  THE UTILITY POLE OWNER, WHICH SHALL BE LIMITED TO FORTY-FIVE
 DAYS, PROVIDED HOWEVER, THAT A BROADBAND SERVICE PROVIDER OR COMPETITIVE
 LOCAL EXCHANGE PROVIDER MAY HIRE A CONTRACTOR AS PROVIDED IN SUBDIVISION
 THREE OF THIS SECTION.
   (B) THE COMMISSION SHALL PRESCRIBE THE  PROCESS  FOR  A  UTILITY  POLE
 OWNER  TO  PROVIDE AN ESTIMATE OF ALL MAKE-READY CHARGES WITHIN FOURTEEN
 DAYS OF THE COMPLETION OF THEIR REVIEW AND SURVEY.
   (C) THE COMPETITIVE  LOCAL  EXCHANGE  PROVIDER  OR  BROADBAND  SERVICE
 PROVIDER SHALL HAVE FOURTEEN DAYS TO ACCEPT THE ESTIMATE PROVIDED BY THE
 UTILITY POLE OWNER OR UNTIL THE WITHDRAWAL OF THE ESTIMATE BY THE UTILI-
 TY, WHICHEVER IS LATER.
   (D)  THE  UTILITY  SHALL PROVIDE WRITTEN NOTICE TO THE INCUMBENT LOCAL
 EXCHANGE PROVIDERS WITHIN SEVEN DAYS OF ACCEPTANCE OF  THE  ESTIMATE  BY
 THE COMPETITIVE LOCAL EXCHANGE PROVIDER OR A BROADBAND SERVICE PROVIDER.
   (E) THE INCUMBENT LOCAL EXCHANGE PROVIDER SHALL PREPARE THE POLE WITH-
 IN  THIRTY  DAYS OF RECEIVING NOTICE BY THE UTILITY FOR EXISTING ATTACH-
 MENTS IN THE COMMUNICATIONS SPACE.
   (F) NO MASTER SERVICES AGREEMENT BETWEEN  A  POLE  OWNER  OR  ATTACHER
 SHALL EXCEED THE TIMELINES SET FORTH IN THIS SECTION.
   3.  (A)  A  BROADBAND  SERVICE  PROVIDER OR COMPETITIVE LOCAL EXCHANGE
 PROVIDER MAY HIRE A CONTRACTOR APPROVED BY THE UTILITY TO  COMPLETE  THE
 SURVEY  REQUIRED  BY PARAGRAPH (A) OF SUBDIVISION TWO OF THIS SECTION OR
 PERFORM ANY MAKE-READY ACTIVITY UNDER THIS SECTION THAT  IS  NOT  TIMELY
 COMPLETED  BY THE UTILITY, INDEPENDENT LOCAL EXCHANGE PROVIDER, OR OTHER
 ATTACHMENT OWNER. A SINGLE VENDOR APPROVED BY THE OWNER  SHALL  COMPLETE
 THE  MAKE-READY  WORK  AS  DIRECTED BY THE BROADBAND SERVICE PROVIDER OR
 COMPETITIVE LOCAL EXCHANGE PROVIDER.
   (B) A BROADBAND  SERVICE  PROVIDER  SHALL  PROVIDE  REASONABLY  TIMELY
 NOTICE  TO  THE UTILITY AND EACH PERSON WITH AN EXISTING POLE ATTACHMENT
 ON AN AFFECTED POLE THAT SUCH PROVIDER  INTENDS  TO  HIRE  A  CONTRACTOR
 PURSUANT TO THIS SUBDIVISION.
   4.  A  BROADBAND SERVICE PROVIDER MAY USE EXTENSION ARMS AND TEMPORARY
 ATTACHMENTS PENDING THE COMPLETION OF MAKE-READY ACTIVITIES  IF  USE  OF
 EXTENSION  ARMS  AND  TEMPORARY  ATTACHMENTS  COMPLIES WITH THE NATIONAL
 ELECTRICAL SAFETY CODE OR OTHER APPLICABLE SAFETY CODES. A UTILITY   MAY
 REQUIRE  A  BROADBAND SERVICE PROVIDER TO CONVERT A TEMPORARY ATTACHMENT
 TO A PERMANENT ATTACHMENT NOT LATER THAN SIXTY DAYS AFTER  THE  DATE  OF
 THE  COMPLETION OF MAKE-READY ACTIVITIES AND MAY REQUIRE THE PROVIDER TO
 COMPLY WITH THE NATIONAL ELECTRICAL  SAFETY  CODE  OR  OTHER  APPLICABLE
 SAFETY CODES.
   5.  NO  BROADBAND  SERVICE  PROVIDER  SHALL  BE  REQUIRED TO MEET POLE
 ATTACHMENT SPECIFICATIONS THAT EXCEED THE SPECIFICATIONS IN THE NATIONAL
 ELECTRICAL SAFETY CODE, APPLICABLE FIRE SAFETY CODES, OR   ANY  BUILDING
 CODE  OR  SIMILAR  CODE  OF  GENERAL APPLICABILITY FOR THE PROTECTION OF
 PUBLIC HEALTH, SAFETY, OR WELFARE ADOPTED  BY  A  POLITICAL  SUBDIVISION
 PRIOR TO THE SUBMISSION OF SUCH PROVIDER'S APPLICATION TO THE UTILITY IN
 ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
   6.  THE  ATTORNEY GENERAL, UPON HIS OR HER OWN MOTION OR UPON REFERRAL
 FROM THE PUBLIC SERVICE COMMISSION, SHALL BE AUTHORIZED TO BRING A CIVIL
 ACTION AGAINST ANY POLE OWNER FOUND IN VIOLATION  OF  ANY  PROVISION  OF
 THIS SECTION AND MAY RECOVER (A) A CIVIL PENALTY NOT TO EXCEED ONE THOU-
 S. 9081                             4
 
 SAND  DOLLARS  PER  DAY FOR EACH VIOLATION; AND (B) COSTS AND REASONABLE
 ATTORNEY'S FEES. IN ANY SUCH PROCEEDING THE COURT  MAY  DIRECT  RESTITU-
 TION.
   7.  THE  COMMISSION SHALL PROMULGATE SUCH RULES AND REGULATIONS AS ARE
 NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS SECTION NO LATER THAN SIX
 MONTHS AFTER THE EFFECTIVE DATE OF THIS SECTION.
   § 4. This act shall take effect immediately.

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