§ 8-1-2-5.5 — Attachments by cable operators to electric distribution poles owned by rural electric cooperatives or municipalities; calculation of rental fees; unauthorized attachments; transfers and relocations

Indiana § 8-1-2-5.5

• Jurisdiction: Indiana
• Art. 1: UTILITIES GENERALLY
• Ch. 2: Utility Regulation

Text

5. (a) As used in this section, "attaching entity"
means a cable operator (as defined in 47 U.S.C. 522(5)) that seeks an
attachment, or has an attachment, to a pole.
(b) As used in this section, "carrying charge factor", or "ccf", refers
to the carrying charge factor, as described in subsection (i)(2)(B)(ii),
that is used in calculating a pole attachment rental fee under subsection
(i)(2)(B).
(c) As used in this section, "net bare pole cost", or "nbp", refers to
the average net cost of a bare pole to the pole owner, as described in
subsection (i)(2)(B)(iii), that is used in calculating a pole attachment
rental fee under subsection (i)(2)(B).
(d) As used in this section, "pole" refers to an electric distribution
pole.
(e) As used in this section, "pole owner" means a:
(1) corporation organized under IC 8-1-13;
(2) corporation organized under IC 23-17 that is an electric
cooperative and that has at least one (1) member that is a
corporation organized under IC 8-1-13; or
(3) municipality providing electric service;
that owns or controls one (1) or more poles.
(f) As used in this section, "space allocation factor", or "saf", with
respect to a pole, means the quotient of:
(1) the space on the pole occupied by an attaching entity; divided
by
(2) the usable space on the pole;
as described in subsection (i)(2)(B)(i), that is used in calculating a pole
attachment rental fee under subsection (i)(2)(B).
(g) Subject to subsections (h) through (s), a pole owner shall permit
attachments by attaching entities to the poles owned or controlled by
the pole owner.
(h) A rate, term, or condition imposed by a pole owner for access to
poles owned or controlled by the pole owner:
(1) must be nondiscriminatory, just, and reasonable; and
(2) must not favor:
(A) the pole owner or an affiliate of the pole owner; or
(B) any other entity with facilities attached to the pole.
(i) Any pole attachment rental fee imposed by a pole owner for
access to poles owned or controlled by the pole owner:
(1) must be calculated on an annual, per-pole basis; and
(2) is considered to provide reasonable compensation and to be
nondiscriminatory, just, and reasonable if the fee:
(A) is agreed upon by the parties; or
(B) is not greater than the fee that would apply if the pole
attachment rental fee were calculated by multiplying the
following factors:
(i) Subject to subsection (j), the percentage of the total usable
space that is occupied by the pole attachment.
(ii) The sum of the pole owner's annual administrative,
maintenance, and depreciation expenses, plus cost of debt.
(iii) The net bare pole cost.
Expressed mathematically:
(saf) times (ccf) times (nbp)
(j) For purposes of determining the percentage of a pole's usable
space that is occupied by a pole attachment under subsection
(i)(2)(B)(i):
(1) the usable space is presumed to be sixteen (16) feet, based on
an average pole height of forty (40) feet; and
(2) the pole attachment is presumed to occupy two (2) feet of
usable space;
resulting in a space allocation factor of twelve and one-half percent
(12.5%).
(k) If an attaching entity and a pole owner fail to agree upon:
(1) access to poles owned or controlled by the pole owner; or
(2) the rates, terms, and conditions for attachment to poles owned
or controlled by the pole owner;
the attaching entity may apply to the commission for a determination
of the matter.
(l) Upon receiving a request for a determination under subsection
(k), the commission shall:
(1) proceed to determine whether:
(A) the denial of access to one (1) or more poles was unlawful;
or
(B) the rates, terms, and conditions complained of were not just
and reasonable as determined under subsection (i)(2)(B);
as applicable; and
(2) issue an order:
(A) directing that access to the poles at issue be permitted; and
(B) prescribing for such access such rates, terms, conditions,
and compensations that:
(i) are reasonable; and
(ii) comply with subsections (h) and (i).
(m) In any case in which the commission issues an order under
subsection (l):
(1) the access ordered by the commission under subsection
(l)(2)(A) shall be permitted by the pole owner; and
(2) the rates, terms, conditions, and compensations prescribed by
the commission under subsection (l)(2)(B) shall be observed,
followed, and paid by the parties, as applicable;
subject to recourse to the courts upon the complaint of any interested
party as provided in this chapter and in IC 8-1-3. Any order of the
commission under subsection (l) may be revised by the commission
from time to time upon application of any interested party or upon the
commission's own motion.
(n) Any attachment to a pole may only be made with the written
permission of the pole owner. If a contract does not exist between a
pole owner and an attaching entity at the time an attachment is made,
an attaching entity that violates this subsection shall pay a fine of five
hundred dollars ($500) for each pole on which an unauthorized
attachment is made.
(o) An attachment to a utility pole made without notification to the
pole owner and without the pole owner's written authorization, as
required by subsection (n), is considered to have been made on:
(1) the date of the most recent survey; or
(2) the date that is five (5) years before the date of first discovery
of the unauthorized attachment by the pole owner;
whichever date is more recent. However, if the unauthorized pole
attachment is discovered by survey, the unauthorized attachment is
considered to have been made on the date of that survey.
(p) A pole owner's acceptance of payment for unauthorized pole
attachments does not constitute a waiver of any other rights or remedies
under an existing agreement or under any law.
(q) An attaching entity that has been given written permission from
a pole owner for an attachment to the pole owner's pole is responsible
for transferring the attachment not later than ninety (90) days after
receiving written notice from the pole owner to do so. If:
(1) after the expiration of the ninety (90) day period described in
this subsection; or
(2) after having been given as much notice as possible, in the case
of an emergency;
the attaching entity has failed to rearrange or transfer the attaching
entity's system, or an applicable portion of that system, the pole owner
may rearrange the system or portion of the system, transfer the system
or portion of the system to one (1) or more substituted poles, or relocate
the system or portion of the system, and the attaching entity shall
reimburse the pole owner for the pole owner's costs in doing so.
However, this section does not relieve the attaching entity from
maintaining adequate workforces readily at hand to handle the
rearrangement, repair, service, or maintenance of the attaching entity's
attached system, or any portions of that system, in the event that the
condition of the attached system, or any portion of the system, hinders
the pole owner's operations.
(r) An attaching entity is primarily responsible for:
(1) scheduling; and
(2) coordinating directly with all other users of a pole;
all relocations required as part of any project of the attaching entity.
The pole owner shall assist in coordinating the relocation of the
attaching entity's attachments or of other attachments to the pole
owner's poles whenever the relocation is caused by any project of the
attaching entity. The attaching entity shall indemnify and hold harmless
the pole owner from any loss or liability that is incurred or claimed by
the attaching entity or the attaching entity's contractor, and that arises
from or is related to the failure of the pole owner to timely relocate a
pole if that same attaching entity has not timely removed its attachment
from the pole owner's pole.
(s) To the extent any provision set forth in this section conflicts with
a provision in a contract in effect on July 1, 2021, the provision in the
contract controls unless otherwise agreed to by the attaching entity and
the pole owner.

Legislative History

As added by P.L.177-2021, SEC.3. Amended by P.L.9-2022, SEC.12.