Effective 28 Aug 2014

67.5104. Pole attachment and pole defined — denial of permit on nondiscriminatory basis only — pole attachment fees, terms, and conditions to be nondiscriminatory — review, when — attachment during pendency of dispute — revocation, when. — 1. As used in this section, "pole attachment" means an attachment by an attaching entity, including a video service provider, a telecommunications provider or other communications-related service provider to a pole owned or controlled by a municipal utility or municipality, but not a wireless antenna attachment or an attachment by a wireless communications provider to a pole. As used in this section, "pole" means a utility pole which is owned or controlled by a municipal utility or municipality, but shall not include poles that are not associated with the transmission or distribution of electric power, communications, broadband, or video services. A municipal utility or municipality may only deny an attaching entity access to the utility's poles on a nondiscriminatory basis if there is insufficient capacity or for reasons of safety and reliability and if the attaching entity will not resolve the issue. If a municipal utility or municipality does not find any capacity, safety, or reliability issues, such municipal utility or municipality shall issue the attaching entity a permit to attach to the municipal utility's or municipality's poles. Nothing in this section shall be construed to prohibit a municipal utility or municipality from requiring an attaching entity to enter into a pole attachment agreement consistent with this section.

2. Notwithstanding sections 67.1830 to 67.1846, any pole attachment fees, terms, and conditions, including those related to the granting or denial of access, demanded by a municipal utility pole owner or controlling authority of a municipality shall be nondiscriminatory, just, and reasonable and shall not be subject to any required franchise authority or government entity permitting, except as provided in this section. A pole attachment rental fee shall be calculated on an annual, per-pole basis. Such rental fee shall be considered nondiscriminatory, just, and reasonable if it is agreed upon by the parties or, in the absence of such an agreement, based on cost but in no such case shall such fee so calculated be greater than the fee which would apply if it were calculated in accordance with the cable service rate formula referenced in 47 U.S.C. Sec. 224(d) as applied by the Federal Communications Commission. In addition, a municipal pole owner may be authorized to exceed the rate of return cost components of the Federal Communications Commission formula referenced in this section if necessary to comply with Article X of the Missouri Constitution. In the event of a dispute between the parties, either party may bring an action for review in any court of competent jurisdiction. The court shall rule on any such petition for review in an expedited manner by moving the petition to the head of the docket consistent with subsection 2 of this section. Nothing shall deny any party the right to a hearing before the court.

3. Where no pole attachment agreement exists between an attaching entity and the municipal utility pole owner or controlling authority of a municipality, and a dispute between a municipal utility pole owner or controlling authority of a municipality and an attaching entity exclusively concerns the per-pole fee or any requirement or issue not directly related to pole attachments consistent with this section or both, then the attaching entity may proceed with its attachments during the pendency of the dispute under the agreed-upon terms and conditions at a rental rate of no more than as set forth in subsection 2 of this section. The attaching entity shall comply with applicable and reasonable engineering, safety and reliability standards and shall hold the municipal pole owner or controlling authority of the municipality harmless for any liabilities or damages incurred that are caused by the attaching entity.

4. The provisions of this section shall not supersede existing pole attachment agreements established prior to August 28, 2014.

5. Nothing in this section shall be construed as conferring any jurisdiction or authority to the public service commission or any state agency to regulate either the fees, terms, or conditions for pole attachments, or for any state agency to assert any jurisdiction over attachments to poles regulated by 47 U.S.C. Sec. 224.

6. A municipal utility or municipality may, after reasonable written notice and an opportunity to cure, as provided in the applicable pole attachment agreement between a municipal utility or municipality and an attaching entity, revoke a pole attachment permit granted to an attaching entity and require removal of the attachment with or without fee refund for breach of the pole attachment agreement or permit until the breach is cured, but only in the event of a substantial breach of material terms and conditions of the pole attachment agreement or permit. A substantial breach by an attaching entity shall be limited to:

(1) A material violation of a material provision of the applicable pole attachment agreement or permit;

(2) An evasion or attempt to evade any material provision of the applicable pole attachment agreement or permit;

(3) A material misrepresentation of fact in the applicable pole attachment agreement or permit application;

(4) A failure to complete work by the date and in accordance with the terms specified in the applicable pole attachment agreement or permit, unless an extension is obtained or unless the failure to complete the work is due to reasons beyond the attaching entity's control; or

(5) A failure to correct, within the time and in accordance with the terms specified by the municipal utility or municipality in the applicable pole attachment agreement or permit, work by the attaching entity that does not conform to applicable national safety codes, industry construction standards, or local safety codes that are not more stringent than national safety codes, upon inspection and notification by the municipal utility or municipality of the faulty condition. If the time for correction is not specified in the applicable pole attachment agreement or permit, the time for correction shall be reasonable under the particular circumstances, and in no event less than thirty days.

7. Unless otherwise provided for in an applicable pole attachment agreement, in the event of an imminent threat to public health, life, or safety, a municipal utility or municipality shall, upon notice to the attaching entity, request the attaching entity rearrange, relocate, or remove a pole attachment from a pole or absent action from the attaching entity, have the authority to rearrange, relocate, or remove a pole attachment consistent with industry practices. The attaching entity shall be notified as soon as practicable upon the cessation of the threat to public health, life, or safety, or upon restoration of the attachment by the municipal utility or municipality.

­­--------

(L. 2013 H.B. 345, A.L. 2014 S.B. 653)