W. Va. Code R. § 150-38-16

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

Section 150-38-16 - Transfer of facilities to new poles and old pole removal

16.1. In the event facilities are not timely transferred or the pole(s) removed pursuant to the timelines and requirements in Rules 16.2.3 and 16.3 of these rules or within the time frame otherwise directed by the Commission, then the pole owner shall transfer facilities from an old pole to a new pole and thereafter remove the unneeded utility pole(s) pursuant to this section of the rules after providing notice.

16.2. Before exercising the requirements set forth in Rule 16.1. a pole owner shall provide the attaching entity or entities 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 the attaching entity must transfer its facilities from an old pole to a new pole and remove the old pole if the attaching entity would be responsible for removing and disposing of the old pole. If there is more than one attacher that needs to move facilities, then the pole owner will first give notice to the attacher who needs to transfer facilities first and repeat the notice and process with each subsequent attacher who has not timely transferred facilities and removed the pole, if required, until all facilities are transferred and the pole removed. The date of service is the date the pole owner mails, emails and otherwise notifies attachers on its other system(s) that the attaching entity must transfer its facilities from an old pole to a new pole and remove the old pole if the attaching entity would be responsible for removing and disposing of the old pole. The notice shall provide:

16.2.1. A description of the facilities that need to be transferred and any other work needed to be done, including removing and disposing of any applicable poles.

16.2.2. 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 transferred and/or removed.

16.2.3. A statement that if attaching entity does not transfer and/or remove the items described in Rule 16.2.1 within 60 days from the date of the notice, the pole owner shall transfer the attaching entity's facilities from the old pole to the new pole and remove and dispose of the old pole and charge the attaching entity or entities the costs incurred by the pole owner for which the attaching entity or entities is responsible.

16.3. The attaching entity may file a "Petition for Temporary Stay" of the action contained in a notice received pursuant to Rule 16.2 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 filed. No further filings under this section will be considered unless authorized by the Commission.

16.3.1. Prior to filing a "Petition for Temporary Stay" the attaching entity shall contact 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 original notice. If the dispute is not resolved, then the attaching entity may file the "Petition for Temporary Stay" no later than 40 days following the service of the original notice.

16.4. The pole owner who proceeds to transfer the attaching entity's facilities from the old pole to the new pole and remove and dispose of old pole(s) pursuant to this section of the rules shall be released and held harmless from liability for its transfer work, except for acts of negligence or willful misconduct.

16.5. The pole owner who transfers the attaching entity's facilities and/or removes and disposes of old pole(s) shall send an invoice to the attaching entity(ies) within 90 days of 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 when payment is due which is no less than 30 days after invoice is provided to the attaching entity or entities.

16.6. If the attaching entity or entities disputes the amount of the invoice for the costs to pole owner to transfer and/or remove facilities (including old pole), 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 or entities must provide detailed support for the amount of costs it believes it should pay, if possible.

16.6.1. 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 referenced in Rule 16.5, 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 owner mails, emails and sends through its system(s) used to notify attachers a copy of the invoice.

16.7. If the pole owner has pursued all reasonable avenues likely to be successful to collect the costs to transfer and/or remove facilities (including old poles) from the attaching entity or entities, 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 transfer, 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:

16.7.1. A copy of all documents sent to the attaching entity or entities, including the notice and invoice (with supporting documentation) required by Rules 16.2. and 16.5.

16.7.2. 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 or entities.

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

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

16.7.5. A proposed notice of the surcharge amount.

W. Va. Code R. § 150-38-16