S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7689
 
                             I N  S E N A T E
 
                              January 7, 2022
                                ___________
 
 Introduced  by  Sen. HINCHEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the public service law, in  relation  to  requiring  the
   public  service commission to initiate a proceeding to examine a proc-
   ess for streamlining actions related to utility pole attachments

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  119-a of the public service law, as amended by a
 chapter of the laws of 2021 amending the public service law relating  to
 requirements  for certain contracts for attachments to utility poles and
 the use of utility ducts, trenches and conduits, as proposed in legisla-
 tive bills numbers S. 7028 and A. 2396-A, is amended to read as follows:
   § 119-a. Attachments to utility poles; use of utility ducts,  trenches
 and  conduits.  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  capi-
 tal  of the utility attributed to that portion of the pole, duct, trench
 or conduit used.  With respect to cable television and broadband  inter-
 net  attachments  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 with-
 in 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.
   2.  In  connection  with a new pole attachment, in no instance shall a
 pole owner avoid responsibility for pole replacement costs by  unreason-
 ably  postponing  replacement  until receiving a new attachment request,
 nor may a pole owner require a requesting attacher  to  pay  the  entire
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01209-06-2
 S. 7689                             2
 
 cost  of  such  pole  replacement  or for bringing a pole or third-party
 equipment into compliance with current safety and construction standards
 when replacement or compliance upgrades are not necessitated  solely  by
 the new attacher.
   3.  Where  a  pole owner performs a pole replacement to accommodate an
 attachment request, the pole owner may not require the attacher, or  any
 existing  attacher,  to pay any portion of the cost of such replacement,
 except [as provided in subdivision four of this section,] where there is
 [not] insufficient capacity, clearance or  loading  to  accommodate  the
 request.
   [If]  4.  THE PUBLIC SERVICE COMMISSION, IN COOPERATION WITH THE STATE
 BROADBAND PROGRAM OFFICE, SHALL INITIATE A PROCEEDING TO EXAMINE A PROC-
 ESS FOR STREAMLINING ACTIONS RELATED TO UTILITY  POLE  ATTACHMENTS.  THE
 MATTERS  THE COMMISSION SHALL CONSIDER IN SUCH PROCEEDING SHALL INCLUDE:
 (A) DISPUTE RESOLUTION MODELS RELATED TO UTILITY POLE ATTACHMENTS;   (B)
 COST  SHARING  MODELS RELATED TO UTILITY POLE ATTACHMENTS; (C) IMPACT ON
 THE EXPANSION OF BROADBAND INTO UNSERVED AND UNDERSERVED  AREAS  ASSOCI-
 ATED  WITH  ALTERNATIVE  COST ALLOCATION SCENARIOS;   (D) REQUIRING NEW,
 LESS EXPENSIVE POLE ATTACHMENT METHODS; AND (E) EXISTING RULES REGARDING
 THE COST OBLIGATIONS ASSOCIATED WITH NEW POLE ATTACHMENTS AND AN ASSESS-
 MENT OF THE UTILITY RATEPAYER AND BROADBAND SUBSCRIBER  IMPACTS  ASSOCI-
 ATED  WITH  ALTERNATIVE  COST  ALLOCATION  SCENARIOS,  INCLUDING BUT NOT
 LIMITED TO IF a pole replacement is necessitated because of insufficient
 vertical space or clearance to accommodate an attachment request, or the
 attachment will exceed loading, MAKING the  requesting  attacher  [shall
 only  be] liable for the following costs in connection with the replace-
 ment: (a) the remaining net book value of the pole being replaced  that,
 but  for  the  new attachment, could have remained in service until such
 time as it was fully depreciated and/or reached the end of  its  service
 life  or  used  and  useful life to the pole owner, whichever would come
 first; and (b) the incremental costs  associated  with  the  pole  owner
 installing  a  pole  beyond  what said owner would have installed in its
 normal course of pole replacement, if applicable to the  request.    THE
 COMMISSION  SHALL  INVITE  PARTICIPATION  IN  THE  PROCEEDING BY DIVERSE
 STAKEHOLDERS, INCLUDING ELECTRIC UTILITIES, MUNICIPAL UTILITIES,  INCUM-
 BENT LOCAL EXCHANGE CARRIERS, COMPETITIVE LOCAL EXCHANGE CARRIERS, TELE-
 COMMUNICATIONS  PROVIDERS, BROADBAND INTERNET PROVIDERS, MUNICIPALITIES,
 ECONOMIC DEVELOPMENT CORPORATIONS, AND AN ASSOCIATION OF  COUNTIES  THAT
 REPRESENTS  AT  LEAST  NINETY PERCENT OF THE COUNTIES IN NEW YORK. ON OR
 BEFORE SEPTEMBER THIRTIETH,  TWO  THOUSAND  TWENTY-TWO,  THE  COMMISSION
 SHALL  ISSUE  AN ORDER ADOPTING THE NEW OR REVISED RULES ASSOCIATED WITH
 THE MATTERS EXAMINED IN THE PROCEEDING PROVIDED FOR IN THIS SUBDIVISION.
   [5. Where a pole owner performs a pole replacement in  response  to  a
 pole  attachment  request,  such  owner  may  apply to the commission to
 recover such reasonably and prudently incurred costs in connection  with
 such  pole  replacement  in  a  charge  separate and apart from its base
 rates.]
   § 2. This act shall take effect on the  same  date  and  in  the  same
 manner  as a chapter of the laws of 2021 amending the public service law
 relating to requirements for certain contracts for attachments to utili-
 ty poles and the  use  of  utility  ducts,  trenches  and  conduits,  as
 proposed  in  legislative  bills  numbers  S.  7028 and A. 2396-A, takes
 effect.