Code of Massachusetts Regulations
220 CMR - DEPARTMENT OF PUBLIC UTILITIES
Title 220 CMR 45.00 - Pole Attachment, Duct, Conduit And Right-of-way Complaint And Enforcement Procedures
Section 45.03 - Duty to Provide Access; Modifications; Notice of Removal, Increase or Modification; and Petition for Interim Relief

Universal Citation: 220 MA Code of Regs 220.45

Current through Register 1531, September 27, 2024

(1) In accordance with M.G.L. c. 166, § 25A, a utility shall provide a licensee and a wireless provider with nondiscriminatory access to any pole, duct, conduit, or right-of-way used or useful, in whole or in part, owned or controlled by it. Notwithstanding this obligation, a utility may deny a licensee or a wireless provider access to its poles, ducts, conduits, or rights-of-way, on a nondiscriminatory basis for valid reasons of insufficient capacity, reasons of safety, reliability, generally applicable engineering standards, or for good cause shown. Any exclusive contract between a utility and a licensee entered into or extended after August 18, 2000 concerning access to any pole, duct, conduit, or right-of-way, owned or controlled, in whole or in part, by such utility shall be presumptively invalid insofar as its exclusivity provisions are concerned, unless shown to be in the public interest.

(2) Requests for access to a utility's poles, ducts, conduits, rights-of-way owned or controlled, in whole or in part, by one or more utilities must be in an adequately descriptive writing directed to an appropriate named recipient designated by the utility. A utility is required to make such a designation. If access is not granted within 45 days of the request for access, the utility must confirm the denial in writing by the 45th day. The utility's denial of access shall be specific, shall include all relevant information supporting its denial, and shall explain how such information relates to a denial of access for reasons of lack of capacity, safety, reliability or engineering standards.

(3)

(a) A utility shall provide a licensee no less than 60 days written notice prior to:

1. removal of facilities or termination of any service to those facilities, such removal or termination arising out of a rate, term or condition of the licensee's attachment agreement;

2. any change in attachment rates, terms or conditions; or

3. any modification of facilities other than routine maintenance or modification in response to emergencies.

(b) any licensee that adds to or modifies its existing attachment after receiving such notification shall bear a proportionate share of the costs incurred by the owner in making such pole, duct, conduit, or rights-of-way accessible;

(c) any licensee that obtains an attachment to a pole, duct, conduit, or right-of-way shall not be required later to bear any of the costs of rearranging or replacing its attachment, if such rearrangement or replacement is required as a result of an additional attachment or the modification of an existing attachment sought by any other entity, including the owner of such pole, duct, conduit, or rights-of-way;

(d) Exceptions: A utility may provide to a licensee less than 60 days written notice of removal, change or modification if such removal, change or modification of facilities or telecommunications equipment is due to routine maintenance or an emergency.

(e) when a utility provides a licensee with less than 60 days' written notice pursuant to 220 CMR 45.03(3), such utility shall endeavor to provide its licensee with as much notice as is practicable in the particular circumstances.

(4) In conjunction with the complaint procedure outlined in 220 CMR 45.04 through 45.09, a licensee may file with the Department a "Petition for Interim Relief" of the action proposed in a notice received pursuant to 220 CMR 45.03(3)(a) within 15 days of receipt of such notice. Such submission will 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 the licensee's service to its customers, a copy of the notice, and certification of service as required by 207 CMR 1.00: Procedural Rules and 220 CMR 1.00: Procedural Rules. The named respondent may file an answer within seven days of the date on which the Petition for Interim Relief was filed. No further filings with respect to this petition will be considered unless requested or authorized by the Department and no extensions of time will be granted with respect to this petition unless allowed pursuant to 207 CMR 1.02(5) and 220 CMR 1.02(5).

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