Current through all regulations passed and filed through September 16, 2024
[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.
