W. Va. Code R. § 150-38-10
Current through Register Vol. XLI, No. 50, December 13, 2024
Section 150-38-10 - Timeline for access to utility poles10.1. Definitions. 10.1.1. The term "attachment" means any attachment by a cable television system or provider of telecommunications service to a pole owned or controlled by a utility.10.1.2. The term "new attacher" means a cable television system or telecommunications carrier requesting to attach new or upgraded facilities to a pole owned or controlled by a utility.10.1.3. The term "existing attacher" means any entity with equipment on a utility pole.10.2. All time limits in this section are to be calculated according to Rule 7.5 of the Commission Rules of Practice and Procedure, 150 C.S.R. 1.7.5.10.3. Application review and survey - Application completeness. A utility shall review a new attacher's attachment application for completeness before reviewing the application on its merits. A new attacher's attachment application is considered complete if it provides the utility with the information necessary under its procedures, as specified in a master service agreement or in requirements that are available in writing publicly at the time of submission of the application, to begin to survey the affected poles. 10.3.1. A utility shall determine within 10 business days after receipt of a new attacher's attachment application whether the application is complete and notify the attacher of that decision. If the utility does not respond within 10 business days after receipt of the application, or if the utility rejects the application as incomplete but fails to specify any reasons in its response, then the application is deemed complete. If the utility timely notifies the new attacher that its attachment application is not complete, then it must specify all reasons for finding it incomplete.10.3.2. Any resubmitted application need only address the utility's reasons for finding the application incomplete and shall be deemed complete within 5 business days after its resubmission, unless the utility specifies to the new attacher which reasons were not addressed and how the resubmitted application did not sufficiently address the reasons. The new attacher may follow the resubmission procedure in this paragraph as many times as it chooses so long as in each case it makes a bona fide attempt to correct the reasons identified by the utility, and in each case the deadline set forth in this paragraph shall apply to the utility's review.10.3.3. Application review on the merits. A utility shall respond to the new attacher either by granting access or, consistent with Rule 3.2 denying access within 45 days of receipt of a complete application to attach facilities to its utility poles (or within 60 days in the case of larger orders as described in Rule 10.7). A utility may not deny the new attacher pole access based on a preexisting violation not caused by any prior attachments of the new attacher.10.3.4. Survey. 10.3.4.a. A utility shall complete a survey of poles for which access has been requested within 45 days of receipt of a complete application to attach facilities to its utility poles (or within 60 days in the case of larger orders as described in Rule 10.7).10.3.4.b. A utility shall permit the new attacher and any existing attachers on the affected poles to be present for any field inspection conducted as part of the utility's survey. A utility shall use commercially reasonable efforts to provide the affected attachers with advance notice of not less than 3 business days of any field inspection as part of the survey and shall provide the date, time, and location of the survey, and name of the contractor performing the survey.10.3.4.c. Where a new attacher has conducted a survey pursuant to Rule 10.10.3, a utility can elect to satisfy its survey obligations in this paragraph by notifying affected attachers of its intent to use the survey conducted by the new attacher pursuant to Rule 10.10.3 and by providing a copy of the survey to the affected attachers within the time period set forth in Rule 10.3.4.a. A utility relying on a survey conducted pursuant to Rule 10.10.3 to satisfy all of its obligations under Rule 10.3.4.a shall have 15 days to make such a notification to affected attachers rather than a 45 day survey period.10.4. Estimate. Where a new attacher's request for access is not denied, a utility shall present to a new attacher a detailed, itemized estimate, on a pole-by-pole basis where requested, of charges to perform all necessary make-ready within 14 days of providing the response required by Rule 10.3, or in the case where a new attacher has performed a survey, within 14 days of receipt by the utility of such survey. Where a pole-by-pole estimate is requested and the utility incurs fixed costs that are not reasonably calculable on a pole-by-pole basis, the utility may present charges on a per-job basis rather than present a pole-by-pole estimate for those fixed cost charges. The utility shall provide documentation that is sufficient to determine the basis of all estimated charges, including any projected material, labor, and other related costs that form the basis of its estimate.10.4.1. A utility may withdraw an outstanding estimate of charges to perform make-ready work beginning 14 days after the estimate is presented.10.4.2. A new attacher may accept a valid estimate and make payment any time after receipt of an estimate, except it may not accept after the estimate is withdrawn.10.4.3. Final invoice. After the utility completes make-ready, if the final cost of the work differs from the estimate, it shall provide the new attacher with a detailed, itemized final invoice of the actual make-ready charges incurred, on a pole-by-pole basis where requested, to accommodate the new attacher's attachment. Where a pole-by-pole estimate is requested and the utility incurs fixed costs that are not reasonably calculable on a pole-by-pole basis, the utility may present charges on a per-job basis rather than present a pole-by-pole invoice for those fixed cost charges. The utility shall provide documentation that is sufficient to determine the basis of all estimated charges, including any projected material, labor, and other related costs that form the basis of its estimate.10.4.4. A utility may not charge a new attacher to bring poles, attachments, or third-party equipment into compliance with current published safety, reliability, and pole owner construction standards guidelines if such poles, attachments, or third-party equipment were out of compliance because of work performed by a party other than the new attacher prior to the new attachment.10.5. Make-ready. Upon receipt of payment specified in Rule 10.4.2, a utility shall notify immediately and in writing all known entities with existing attachments that may be affected by the make-ready.10.5.1. For attachments in the communications space, the notice shall: 10.5.1.a. Specify where and what make-ready will be performed.10.5.1.b. Set a date for completion of make-ready in the communications space that is no later than 30 days after notification is sent (or up to 75 days in the case of larger orders as described in Rule 10.7).10.5.1.c. State that any entity with an existing attachment may modify the attachment consistent with the specified make-ready before the date set for completion.10.5.1.d. State that if make-ready is not completed by the completion date set by the utility in Rule 10.5.1.b, the new attacher may complete the make-ready specified pursuant to Rule 10.5.1.a.; and10.5.1.e. State the name, telephone number, and email address of a person to contact for more information about the make-ready procedure.10.5.2. For attachments above the communications space, the notice shall: 10.5.2.a. Specify where and what make-ready will be performed.10.5.2.b. Set a date for completion of make-ready that is no later than 90 days after notification is sent (or 135 days in the case of larger orders, as described in Rule 10.7).10.5.2.c. State that any entity with an existing attachment may modify the attachment consistent with the specified make-ready before the date set for completion.10.5.2.d. State that the utility may assert its right to 15 additional days to complete make-ready.10.5.2.e. State that if make-ready is not completed by the completion date set by the utility in Rule 10.5.2.b (or, if the utility has asserted its 15-day right of control, 15 days later), the new attacher may complete the make-ready specified pursuant to Rule 10.5.2.a; and10.5.2.f. State the name, telephone number, and email address of a person to contact for more information about the make-ready procedure.10.5.3. Once a utility provides the notices described in this section, it then must provide the new attacher with a copy of the notices and the existing attacher's contact information and address where the utility sent the notices. The new attacher shall be responsible for coordinating with existing attachers to encourage their completion of make-ready by the dates set forth by the utility in Rule 10.5.1.b for communications space attachments or Rule 10.5.2.b for attachments above the communications space.10.6. A utility shall complete its make-ready in the communications space by the same dates set for existing attachers in Rule 10.5.1.b or its make-ready above the communications space by the same dates for existing attachers in Rule 10.5.2.b (or if the utility has asserted its 15-day right of control, 15 days later).10.7. For the purposes of compliance with the time periods in this section:10.7.1. A utility shall apply the timeline described in Rules 10.3 through 10.5 to all requests for attachment up to the lesser of 300 poles or 0.5 percent of the utility's poles in West Virginia.10.7.2. A utility may add 15 days to the survey period described in Rule 10.3 to larger orders up to the lesser of 3,000 poles or 5 percent of the utility's poles in West Virginia.10.7.3. A utility may add 45 days to the make-ready periods described in Rule 10.5 to larger orders up to the lesser of 3,000 poles or 5 percent of the utility's poles in West Virginia.10.7.4. A utility shall negotiate in good faith the timing of all requests for attachment larger than the lesser of 3,000 poles or 5 percent of the utility's poles in West Virginia.10.7.5. A utility may treat multiple requests from a single new attacher as one request when the requests are filed within 30 days of one another.10.8. Deviation from the time limits specified in this section.10.8.1. A utility may deviate from the time limits specified in this section before offering an estimate of charges if the parties have no agreement specifying the rates, terms, and conditions of attachment.10.8.2. A utility may deviate from the time limits specified in this section during performance of make-ready for good and sufficient cause that renders it infeasible for the utility to complete make-ready within the time limits specified in this section. A utility that so deviates shall immediately notify, in writing, the new attacher and affected existing attachers and shall identify the affected poles and include a detailed explanation of the reason for the deviation and a new completion date. The utility shall deviate from the time limits specified in this section for a period no longer than necessary to complete make-ready on the affected poles and shall resume make-ready without discrimination when it returns to routine operations. A utility cannot delay completion of make-ready because of a preexisting violation on an affected pole not caused by the new attacher.10.8.3. An existing attacher may deviate from the time limits specified in this section during performance of complex make-ready for reasons of safety or service interruption that renders it infeasible for the existing attacher to complete complex make-ready within the time limits specified in this section. An existing attacher that so deviates shall immediately notify, in writing, the new attacher and other affected existing attachers and shall identify the affected poles and include a detailed explanation of the basis for the deviation and a new completion date, which in no event shall extend beyond 60 days from the date the notice described in Rule 10.5.1 is sent by the utility (or up to 105 days in the case of larger orders described in Rule 10.7). The existing attacher shall deviate from the time limits specified in this section for a period no longer than necessary to complete make-ready on the affected poles.10.9. Self-help remedy.10.9.1. Surveys. If a utility fails to complete a survey as specified in Rule 10.3.4.a, then a new attacher may conduct the survey in place of the utility and, as specified in Rule 11, hire a contractor to complete a survey.10.9.1.a. A new attacher shall permit the affected utility and existing attachers to be present for any field inspection conducted as part of the new attacher's survey.10.9.1.b. A new attacher shall use commercially reasonable efforts to provide the affected utility and existing attachers with advance notice of not less than 3 business days of a field inspection as part of any survey it conducts. The notice shall include the date and time of the survey, a description of the work involved, and the name of the contractor being used by the new attacher.10.9.2. Make-ready. If make-ready is not complete by the date specified in Rule 10.5, then a new attacher may conduct the make-ready in place of the utility and existing attachers, and, as specified in Rule 11, hire a contractor to complete the make-ready. 10.9.2.a. A new attacher shall permit the affected utility and existing attachers to be present for any make-ready. A new attacher shall use commercially reasonable efforts to provide the affected utility and existing attachers with advance notice of not less than 5 days of the impending make-ready. The notice shall include the date and time of the make-ready, a description of the work involved, and the name of the contractor being used by the new attacher.10.9.2.b. The new attacher shall notify an affected utility or existing attacher immediately if make-ready damages the equipment of a utility or an existing attacher or causes an outage that is reasonably likely to interrupt the service of a utility or existing attacher. Upon receiving notice from the new attacher, the utility or existing attacher may either:10.9.2.b.1. Complete any necessary remedial work and bill the new attacher for the reasonable costs related to fixing the damage; or10.9.2.b.2. Require the new attacher to fix the damage at its expense immediately following notice from the utility or existing attacher.10.9.2.c. A new attacher shall notify the affected utility and existing attachers within 15 days after completion of make-ready on a particular pole. The notice shall provide the affected utility and existing attachers at least 90 days from receipt in which to inspect the make-ready. The affected utility and existing attachers have 14 days after completion of their inspection to notify the new attacher of any damage or code violations caused by make-ready conducted by the new attacher on their equipment. If the utility or an existing attacher notifies the new attacher of such damage or code violations, then the utility or existing attacher shall provide adequate documentation of the damage or the code violations. The utility or existing attacher may either complete any necessary remedial work and bill the new attacher for the reasonable costs related to fixing the damage or code violations or require the new attacher to fix the damage or code violations at its expense within 14 days following notice from the utility or existing attacher.10.9.3. Pole replacements. Self-help shall not be available for pole replacements.10.10. One-touch make-ready option. For attachments involving simple make-ready, new attachers may elect to proceed with the process described in this section in lieu of the attachment process described in Rules 10.3 through 10.6 and Rule 10.9. 10.10.1. Attachment application. 10.10.1.a. A new attacher electing the one-touch make-ready process must elect the one-touch make-ready process in writing in its attachment application and must identify the simple make-ready that it will perform. It is the responsibility of the new attacher to ensure that its contractor determines whether the make-ready requested in an attachment application is simple.10.10.1.b. The utility shall review the new attacher's attachment application for completeness before reviewing the application on its merits. An attachment application is considered complete if it provides the utility with the information necessary under its procedures, as specified in a master service agreement or in publicly-released requirements at the time of submission of the application, to make an informed decision on the application.10.10.1.b.1. A utility has 10 business days after receipt of a new attacher's attachment application in which to determine whether the application is complete and notify the attacher of that decision. If the utility does not respond within 10 business days after receipt of the application, or if the utility rejects the application as incomplete but fails to specify any reasons in the application, then the application is deemed complete.10.10.1.b.2. If the utility timely notifies the new attacher that its attachment application is not complete, then the utility must specify all reasons for finding it incomplete. Any resubmitted application need only address the utility's reasons for finding the application incomplete and shall be deemed complete within 5 business days after its resubmission, unless the utility specifies to the new attacher which reasons were not addressed and how the resubmitted application did not sufficiently address the reasons. The applicant may follow the resubmission procedure in this paragraph as many times as it chooses so long as in each case it makes a bona fide attempt to correct the reasons identified by the utility, and in each case the deadline set forth in this paragraph shall apply to the utility's review.10.10.2. Application review on the merits. The utility shall review on the merits a complete application requesting one-touch make-ready and respond to the new attacher either granting or denying an application within 15 days of the utility's receipt of a complete application (or within 30 days in the case of larger orders as described in Rule 10.7).10.10.2.a. If the utility denies the application on its merits, then its decision shall be specific, shall include all relevant evidence and information supporting its decision, and shall explain how such evidence and information relate to a denial of access for reasons of lack of capacity, safety, reliability, or engineering standards.10.10.2.b. Within the 15-day application review period (or within 30 days in the case of larger orders as described in Rule 10.7), a utility may object to the designation by the new attacher's contractor that certain make-ready is simple. If the utility objects to the contractor's determination that make-ready is simple, then it is deemed complex. The utility's objection is final and determinative so long as it is specific and in writing, includes all relevant evidence and information supporting its decision, made in good faith, and explains how such evidence and information relate to a determination that the make-ready is not simple.10.10.3. Surveys. The new attacher is responsible for all surveys required as part of the one-touch make-ready process and shall use a contractor as specified in Rule 11.2.10.10.3.a. The new attacher shall permit the utility and any existing attachers on the affected poles to be present for any field inspection conducted as part of the new attacher's surveys. The new attacher shall use commercially reasonable efforts to provide the utility and affected existing attachers with advance notice of not less than 3 business days of a field inspection as part of any survey and shall provide the date, time, and location of the surveys, and name of the contractor performing the surveys.10.10.4. Make-ready. If the new attacher's attachment application is approved and if it has provided 15 days prior written notice of the make-ready to the affected utility and existing attachers, the new attacher may proceed with make-ready using a contractor in the manner specified for simple make-ready in Rule 11.2. 10.10.4.a. The prior written notice shall include the date and time of the make-ready, a description of the work involved, the name of the contractor being used by the new attacher, and provide the affected utility and existing attachers a reasonable opportunity to be present for any make-ready.10.10.4.b. The new attacher shall notify an affected utility or existing attacher immediately if make-ready damages the equipment of a utility or an existing attacher or causes an outage that is reasonably likely to interrupt the service of a utility or existing attacher. Upon receiving notice from the new attacher, the utility or existing attacher may either:10.10.4.b.1. Complete any necessary remedial work and bill the new attacher for the reasonable costs related to fixing the damage; or10.10.4.b.2. Require the new attacher to fix the damage at its expense immediately following notice from the utility or existing attacher.10.10.4.c. In performing make-ready, if the new attacher or the utility determines that make-ready classified as simple is complex, then that specific make-ready must be halted and the determining party must provide immediate notice to the other party of its determination and the impacted poles. The affected make-ready shall then be governed by Rules 10.4 through 10.9 and the utility shall provide the notice required by Rule 10.5 as soon as reasonably practicable.10.10.5. Post-make-ready timeline. A new attacher shall notify the affected utility and existing attachers within 15 days after completion of make-ready on a particular pole. The notice shall provide the affected utility and existing attachers at least 90 days from receipt in which to inspect the make-ready. The affected utility and existing attachers have 14 days after completion of their inspection to notify the new attacher of any damage or code violations caused by make-ready conducted by the new attacher on their equipment. If the utility or an existing attacher notifies the new attacher of such damage or code violations, then the utility or existing attacher shall provide adequate documentation of the damage or the code violations. The utility or existing attacher may either complete any necessary remedial work and bill the new attacher for the reasonable costs related to fixing the damage or code violations or require the new attacher to fix the damage or code violations at its expense within 14 days following notice from the utility or existing attacher.W. Va. Code R. § 150-38-10