W. Va. Code R. § 150-38-15

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 150-38-15 - Abandoned cables, conductors and related facilities

15.1. A pole owner has the right to remove from its poles such cable, conductors and related facilities as it reasonably believes are abandoned.

15.2. When exercising the right set forth in Rule 15.1 a pole owner shall provide the attaching entity written notice by U.S. Certified Mail, Return Receipt Requested, email, and through any other system(s) the pole owner uses to notify attachers that it believes there are abandoned cable, conductors and related facilities on its pole that need to be removed. The date of service is the date the pole owner mails, emails and otherwise notifies attachers on its other system(s) that it believes there are abandoned cable, conductors and related facilities on its pole that need to be removed. The notice shall provide:

15.2.1. A description of the cable, conductors and related facilities (including any applicable poles) the pole owner is requesting the attaching entity to remove.

15.2.2. A physical address or general route location, including the beginning and ending pole numbers with GPS coordinates of the location(s) of the facilities needing to be removed.

15.2.3. A statement that if the attaching entity does not remove the items described in 15.2.1. within 60 days from the date of the service of the notice, the pole owner may remove the items and charge the attaching entity the costs incurred by the pole owner for the removal and disposal of abandoned cable, conductors and related facilities.

15.3. The attaching entity may file a "Petition for Temporary Stay" of the action contained in a notice received pursuant to Rule 15.2. within 40 days of service of such notice. Such submission shall not be considered unless it includes, in concise terms, the relief sought, the reasons for such relief, including a showing of likely irreparable harm or likely cessation of the attaching entity's service, a copy of the notice, and certification of service as required by Rule 4.2. The pole owner shall file an answer within 15 days of the date the Petition for Temporary Stay was served. No further filings under this section will be considered unless authorized by the Commission.

15.3.1. Prior to filing a "Petition for Temporary Stay" the attaching entity shall contact the pole owner within 10 days of service of the notice and request a meeting with the pole owner to resolve any dispute. The pole owner shall engage in the requested meeting in good faith. The meeting shall include persons with authority to resolve the dispute and shall occur within 30 days of the notice. If the dispute is not resolved, then the attaching entity may file the "Petition for Temporary Stay" no later than 40 days from the date of the service of the original notice.

15.4. If the attaching entity does not pursue the steps set forth in Rule 15.3, and does not respond according to the timelines of Rule 15.2.3., the pole owner shall proceed to remove and dispose of abandoned cable, conductors and related facilities (including poles). The pole owner shall be released and held harmless from liability for claims or any related losses claimed by the attaching entity or others for the pole owner's removal work, including any loss of property value, potential business value, or any other value of such cable, conductor, and related facilities.

15.5. A pole owner who removes and disposes of abandoned cable, conductors and related facilities pursuant to this section shall send an invoice to the attaching entity within 90 days after completing the work by U.S. Certified Mail, Return Receipt Requested, email, and through any other system(s) the pole owner uses to notify attachers. The invoice shall include documentation sufficient to create an itemized billing statement that can be used to determine the basis of all charges, including date and location (including pole number(s)) of work performed, and material, labor and other related costs. The invoice shall give a date by when payment is due which is no less than 30 days after an invoice is provided to the attaching entity.

15.6. If the attaching entity wants to dispute the amount of the invoice for the costs to the pole owner to remove and dispose of abandoned cable, conductors and related facilities, the attaching entity may file a complaint with the Commission pursuant to Rules 17-31 and provide detailed information on the specific charges it is disputing and why. The attaching entity must provide detailed support for the amount of costs it believes it should pay, if possible.

15.6.1. Prior to filing a formal complaint with the Commission, the attaching entity shall contact the pole owner within 10 days of receipt of the invoice as described in Rule 15.5, and request a meeting with the pole owner to resolve any dispute. The pole owner shall engage in the requested meeting in good faith. The meeting shall include persons with authority to resolve the dispute and shall occur within 30 days of the date the pole owner mails, emails, and sends through its system(s) used to notify attachers a copy of the invoice. If the dispute is not resolved, then the attaching entity may file a formal complaint no later than 40 days from the date the pole owners mails, emails and sends through its system(s) used to notify attachers a copy of the invoice.

15.7. If the pole owner has pursued all reasonable avenues likely to be successful to collect the costs to remove and dispose of abandoned cable, conductors and related facilities from the attaching entity, including filing an action in magistrate or circuit court to collect on the bill, then the pole owner may file a petition with the Commission to seek approval to book or defer the net costs of removal and disposal on its accounting books and/or request recovery outside of a base rate case proceeding through a surcharge or other rate recovery mechanism. The petition should include the following information:

15.7.1. A copy of all documents sent to the attaching entity, including the notice and invoice (with supporting documentation) required by Rules 15.2. and 15.5.

15.7.2. A copy of any judgments received from magistrate or circuit court to attempt to collect the amount owed on the invoice from the attaching entity.

15.7.3 If the attaching entity is no longer in business, cannot be located or is otherwise unavailable to pay an invoice, an affidavit certifying with specificity why the pole owner is unable to pursue collecting from the attaching entity.

15.7.4. The surcharge amount, with details on how it was calculated and how the costs were booked.

15.7.5. A proposed notice of the surcharge amount.

W. Va. Code R. § 150-38-15