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BILL AS PASSED BY HOUSE 2007-2008

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H.881

AN ACT RELATING TO THE ROLE OF ELECTRIC AND GAS UTILITIES IN FACILITATING THE DEPLOYMENT OF COMMUNICATIONS FACILITIES THROUGHOUT THE STATE

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  FINDINGS AND PURPOSE                                          

The general assembly finds that:

(1)  No. 79 of the Acts of 2007 stated that the universal availability of mobile telecommunications and broadband services is essential.

(2)  Electric and gas companies have networks that extend throughout the state.  These networks can be leveraged to improve the economics of deploying mobile telecommunications and broadband service throughout the state.

(3)  Electric and gas companies hold easements that allow for specific utility use, but these easements may not allow the installation of communications facilities.

(4)  Therefore, it is the goal of the general assembly to ensure that:

(A)  Electric and gas utilities have a duty to allow and enable access to their facilities and easements to communications companies as a necessary element of serving the public good;

(B)  All new electric and gas utility easements shall include the right to install communications facilities; and

(C)  There is an expedited mechanism for companies to add the right to install communications facilities to existing easements.

Sec. 2.  30 V.S.A. chapter 92 is added to read:

CHAPTER 92.  ACCESS FOR THE INSTALLATION AND MAINTENANCE OF COMMUNICATIONS FACILITIES

§ 8090.  DEFINITIONS

For the purposes of this chapter:

(1)  “Communications facilities” shall mean facilities that are used to send and receive information.

(2)  “Company” or “Companies” shall have the same meaning as defined in section 201 of this title.

§ 8091.  ACCESS TO FACILITIES

(a)  Any company subject to public service board jurisdiction pursuant to this title and providing electric or gas service within the state shall allow and enable access to its plant and equipment for the installation and maintenance of communications facilities.

(b)  When constructing or substantially reconstructing lines or structures used for electric or gas transmission or electric distribution, a company shall construct and maintain communications facilities thereupon, if requested by a communications service provide.

(c)  Access and services required by this section shall be subject to regulation by the public service board and department of public service and shall be offered on rates, terms, and conditions, including terms of ownership of facilities, established in section 8092 of this chapter, except that services under tariffs developed pursuant to public service board rules regarding pole attachments shall be governed by those rules;

(d)  Owners of noncommercial generation facilities, including net-metered generators, shall not be obligated to comply with this section. 

(e)  Nothing in this title shall prohibit an affiliate of an electric or gas company from making installation requests under this section.

(f)  Companies may limit access and services required under this section to those communications service providers that have the right to attach facilities to electric distribution poles in the state.

§ 8092.  RATES; TERMS; CONDITIONS

(a)  Any company providing electric or gas service under public service board jurisdiction pursuant to this title shall prepare and file with the public service board, with a copy provided to the commissioner of the department of public service and the director for public advocacy, a statement of generally available rates, terms and conditions for attachments and installations required under section 8091 of this chapter.

(b)  The department of public service and the public service board shall review the statement of generally available rates, terms, and conditions filed by each company.  In the event that the board or the department has grounds to believe that the terms are not just and reasonable, the board may open an investigation into the statement, either upon its own motion or upon a petition from the department.  In the investigation, the board shall hear evidence on the matter and make such orders as justice and law requires.  In the absence of an investigation, or while such an investigation is pending, the company’s filed statement of terms and conditions shall take effect or shall remain in effect without requiring the approval of the board.  Changes to any company’s filed statement of rates, terms, and conditions shall not take effect until 45 days after the statement has been filed with the board and the department.

(c)  In the event of a public service board investigation into a company’s statement of rates, terms, and conditions pursuant to this chapter, the board may alter or change the rates in effect for attachments and installations after notice and hearing, upon a finding that the company’s rates, terms, or conditions are not just and reasonable.  Any change in rates, terms, and conditions required as a result of a board investigation shall be effective as of the date of the board’s order without refund.

(d)  The statement shall include rates, terms, and conditions for services for which the company may reasonably expect to receive requests, including at a minimum:

(1)  For wireline communications facilities:

(A)  Attachment of communications facilities to electric transmission facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric and gas company facilities when requested by a communications service provider.

(2)  For wireless communication facilities:

(A)  Attachment of communications facilities to electric transmission and generation facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric company facilities when requested by a communications service provider.

(e)  Rates for contributions to construction and for maintenance of communications facilities installed concurrently when companies are constructing or substantially reconstructing electric transmission or distribution lines or structures or gas transmission lines shall be based on the incremental cost of adding the communications facility to the project, as long as the communications facilities will provide service in the community in which they are located.

(f)  The company may negotiate rates, terms, and conditions of service that deviate from the statement of rates, terms, and conditions on file, but the company may not refuse a request to provide service in accordance with the rates, terms and conditions on file.  Section 229 of this title does not apply to deviations from the statement of rates, terms, and conditions. 

(g)  Companies with facilities meeting the requirements of this section shall submit their statement of rates, terms, and conditions within 150 days of the date of the enactment of this legislation.

(h)  A company may limit wireline attachments on electric transmission structures to fiber-optic facilities attached and maintained by the company, if the company allows communications service providers to use fiber-optic facilities installed and maintained by the company and offers to install such fiber-optic facilities along electric transmission routes where there are not sufficient facilities for use by communications service providers.  Rates, terms, and conditions for access to such company-attached and company-maintained  facilities shall be made available consistent with the requirements of this section.

(i)  The public service board may establish rules to implement this section.  Such rules may include default rates, terms, and conditions for services listed in subsections (c) and (h) of this section.

§ 8093.  NOTIFICATION

(a)  For cases of gas transmission projects and electric linear projects requiring approval pursuant to section 248 of this title, companies shall provide notice to the Vermont telecommunications authority at the same time that they provide notice pursuant to subdivision 248(a)(4)(C) of this title.

(b)  In cases of electric linear projects which do not require approval pursuant to section 248 of this title, and which are greater than 2,500 feet, companies under the jurisdiction of the public service board shall notify the Vermont telecommunications authority of the project at least 90 days prior to planned commencement of construction for company-initiated projects, or as soon as possible for customer-initiated projects or projects required for urgent reasons of service quality or reliability.

(c)  The notice shall include:

(1)  The location of the project, including the town and a description of the route to be followed;

(2)  The nature of the project;

(3)  The date the project is planned to commence;

(4)  The contact person for the project and his or her contact information.

(d)  For good cause shown by a company, the public service board may shorten or eliminate the notice period required under this section.

(e)  In the alternative to filing notice under subsection (b) of this section, a company may file with the public service board, the department of public service, and the Vermont telecommunications authority its capital plan or construction work plan, describing the location of linear projects which do not require approval pursuant to section 248 of this title, and in the case of a

multi-year plan, the year in which a linear project is scheduled to commence.  No construction called for under the capital plan or construction work plan shall commence until the plan has been on file for at least 90 days, unless the construction is required for customer-initiated projects or for urgent reasons of service quality or reliability.

(f)  A company may specify in its statement of rates, terms, and conditions a deadline or procedure for requests to attach or add communications facilities to a project.  Unless otherwise specified by the company in its statement of rates, terms, and conditions, a company shall provide a period for responses of not less than either 45 days after notice is provided, if the company provides notice pursuant to subsection (b) of this section, or 45 days before the planned construction commences, if the company provides notice pursuant to subsection (e) of this section.  If a company does not receive a response by the deadline or according to the procedure established for responding to the notice required by this section, it may commence construction of a project prior to the end of the notice period required under subsection (b) or (e) of this section.

§ 8094.  EVALUATION OF COMMERCIAL WIRELESS NETWORKS

(a)  No company subject to public service board jurisdiction and providing electric service shall begin construction of a two-way point-to-multipoint mobile wireless communication network for the purpose of communication between its facilities for its own personnel unless:

(1)  The company has solicited proposals from commercial wireless service providers; and

(2)  For solicitations issued after July 1, 2008, the company has provided notice prior to the solicitation to the Vermont telecommunications authority and to the commissioner of the department of public service and the director for public advocacy.

(b)  Nothing in this section shall be construed to authorize or disallow the costs of such a network for the purpose of a rate proceeding for the company.  

* * * Condemnation Rights * * *

Sec. 3.  30 V.S.A. § 110a is added to read:

§ 110a.  CONDEMNATION RIGHTS

(a)  Acquisition of property, or an easement or other limited right in property, pursuant to this chapter shall also include the right to install and use for any lawful purpose communications facilities, including facilities for the provision of broadband and wireless services.

(b)  In the event that a company, as defined in section 201 of this title, under the jurisdiction of the public service board seeks to add communications facilities to facilities whose placement is authorized by a preexisting easement or other right in property, whether by condemnation or voluntary acquisition, if either the company or the landowner disputes the right of the company to add communications facilities under the existing terms of the easement or property right, the following procedure shall be followed:

(1)  The company or the landowner may petition the public service board, with notice provided to the commissioner of the department of public service and the director for public advocacy.  The petition shall include:

(A)  A description of the property involved;

(B)  A description of the communications facilities to be authorized;

(C)  The preexisting property right granting utility access to the land, including a copy of the easement, deed, or property record;

(D)  The current value of the land, with supporting evidence;

(E)  The proposed diminution in value of the land, with supporting evidence;

(F)  Support for the argument that communications facilities are or are not included in the preexisting property right.

(2)  The public service board may in its discretion conduct a hearing on the matter.

(3)  In all such proceedings, there shall be rebuttable presumptions that:

(A)  the diminution in value of the land due to the addition of the communications facilities is limited to the incremental harm caused by the addition of the communications facilities to the preexisting electric or gas facilities; and

(B)  placing communications facilities in the location of the preexisting utility facilities is necessary to render adequate service to the public in the conduct of its business.

(4)  The public service board shall issue its decision within 90 days of receipt of a completed petition.

(5)  If the utility facilities to which communications facilities are to be added cross more than one property and the right to add communications facilities is similarly in question on those other properties, the company or the department of public service may petition the board to hold a single hearing involving all of the landowners, or the board may do so in its own discretion.  In the event that a consolidated hearing is convened, the board shall issue its decision within 150 days of the receipt of the original completed petition.

(6)  Section 112 of this title does not apply to petitions filed under this subsection.  An appeal or review relating to action under this section shall be to the supreme court pursuant to section 12 of this title.

(7)  When a company files its petition with the board and department, any pending actions and proceedings against the petitioner regarding the scope of the petitioner’s property interest on the land in question shall be automatically stayed.

(c)  If the extension of the easement to include the right to install communications facilities pursuant to subsection (b) of this section is made due to a request from a communications provider under section 8091 of this title, then the communications provider shall be responsible for all costs associated with the process, including compensation and legal fees.

Sec. 4.  INVESTIGATION INTO SUBSTATION NETWORKS

The public service board shall conduct an investigation into the benefits and costs of construction of fiberoptic or other telecommunications facility networks linking electric company substations and submit a report to the committees of jurisdiction of the general assembly on or before January 15, 2009.  In addition to other information it deems appropriate, the public service board shall require from each electric company an analysis of the likely cost of connecting its substations with fiberoptic facilities and other alternative means, and the benefits to electric company operations, including benefits for system management and reliability.  In the event that the public service board determines that the benefit of such a network exceeds its costs, it shall recommend an implementation schedule for construction of such a network and include the schedule in its report.  The board may issue an implementation schedule for individual companies prior to January 15, 2009.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us