Ky. PSC Eyes Pole-Attachment Rule Changes to Spur Broadband

The Kentucky PSC must respond to a resolution, signed earlier this month by Gov. Andy Beshear (D), directing it to craft emergency rules that streamline pole attachments for broadband providers (see 2404050004). On April 11, the PSC said it would file emergency rules by June 3 in docket 2023-00416. The agency asked stakeholders to propose amendments to the commission’s pole attachments rules (807 KAR 5:015) by last Friday, while scheduling an informal conference for this Friday. Also, the PSC said it planned on opening a separate docket for a longer-term proceeding.

The PSC should "clarify and tighten its existing application processing timelines," making them consistent with current FCC rules, commented KBCA, representing cable companies including Comcast and Charter Communications. The application review process "has been a significant factor delaying broadband deployment -- more so than any of the construction delays pole attachers face," the state association said. Utilities often fail to say within 10 days if an application is complete, creating uncertainty about next steps including whether shot clocks have begun to conduct surveys and fully review applications, said KBCA: When applications are deemed incomplete, there is no timeline to review any resubmissions.

Require expedited review for attachers who do their own surveys, KBCA proposed. Increase existing limits for large orders to conform with FCC rules and ban utilities from limiting the number of attachment requests, the cable group said. "Require utilities to attain all necessary resources and personnel to meet applicable timelines by a prompt but reasonable date certain, and mandate clear remedies for attachers if and when utilities fail to meet their obligations." Finally, set up an expedited mediation process for pole access disputes, KBCA said. “Under existing regulations, a party may need to wait up to a year to obtain a decision about whether a communications service provider can attach to a pole -- creating significant risk and uncertainty to broadband deployment plans."

AT&T suggested "limited and targeted changes" to Kentucky’s pole-attachment rules. First, the PSC should adjust its policy for survey and make-ready timelines on larger orders, AT&T said. Previously, a utility could add 15 days to a default 45-day period for surveys, and 45 days to a default 30-day period for make-ready, for larger orders involving up to 1,000 poles or 1.5% of the utility's poles statewide, whichever is less. AT&T's proposal would increase that to 3,000 poles or 5%. Also, AT&T proposed dropping a "discriminatory exclusion" in the pole rules for utilities with joint use agreements.

Electric utilities disagree that changes are required. Louisville Gas & Electric (LG&E) and Kentucky Utilities Company (KUC) said “the existing regulation carefully and correctly balances the need for timely access to poles with the important issues of safety and reliability.” Kentucky Electric Cooperatives made a similar statement in its comments, while Kentucky Power and Duke Energy concurred in full with LG&E and KUC’s comments.

If there must be change, said LG&E and KUC, the commission could start by requiring utilities and attachers to negotiate the timing for all requests involving more than 300 poles or 0.5% of the utility's poles in Kentucky, whichever is less. "The key to success in any large broadband deployment is marshaling and matching resources to the location and time of a deployment," said the electric companies: That’s best done “through early coordination and negotiated solutions.”

Require new attachers to perform all required make-ready in the communications space without delay, using a qualified contractor, added LG&E and KUC. The state's existing one-touch, make-ready rule is limited to simple situations "and is, therefore, hardly ever used by new attachers." Also, new attachers may only exercise self-help to complete complex make-ready after waiting for movement by existing attachers, who may be competitors, the utilities said.

The PSC should allow pole owners to prioritize applications related to government-funded projects in unserved or underserved areas, LG&E and KUC said. Currently, owners must provide "nondiscriminatory" access, meaning they must process requests on a "first-in, first out basis,” they said. In addition, for priority projects, require more advance notice from attachers and let pole owners require an escrow account, they said. “Payment-related delays are a frequent impediment to broadband deployment.”

Before applying, attachers should "review the application for completeness and certify in writing that the application satisfies the utility’s requirements, pole attachment tariff, and applicable law, said Kentucky Electric Cooperatives. The group agreed with LG&E and KUC about requiring negotiation rather than have shot clocks for larger requests. Also, the cooperatives said they should be able to require a prospective attacher to put money into a "prepaid fund" for orders exceeding 300 poles.

Treat high-voltage transmission poles differently, warned East Kentucky Power Cooperative. "Transmission facilities are much different than distribution facilities. Allowing attachments to transmission facilities could cause significant safety and reliability concerns."