FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011 Page: 5,265
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contingent on the attacher's agreement to make payment in advance for the survey.'s4 We emphasize that
any negotiations regarding a pole attachment agreement must be conducted in good faith, and that
dragging out negotiations on the master agreement while the clock is stopped on a particular application
would not be considered reasonable.
48. We also conclude that section 1.1403(b) of our rules, which generally requires that a
utility approve or deny pole access within 45 days of a request,'42 continues to apply to all requests for
access under section 224, independent of any application of the timeline.'43 For example, if the requested
access concerns attachment in the electric space on a pole, attachment to a duct or conduit, or attachment
of equipment that requires the development of new engineering specifications, the 45-day response rule
and all its terms continue to apply. Also, in contrast to the timeline survey rule, section 1.1403(b) of our
rules does not distinguish pole access requests by size. Where a utility denies any request for access, the
utility must explain its reasons for doing so within 45 days, in writing, with specificity, and with all
supporting evidence and information, and also must explain how the information and evidence relate to
insufficient capacity, safety, reliability or engineering purposes.
3. Remedy: Utility-Approved Contractors
49. Requesters need a way to obtain access to poles if a utility does not meet the deadlines we
impose. We adopt the proposal in the Further Notice and hold that, if a utility does not meet the deadline
to complete a survey or make-ready established in the timeline, an attacher may hire contractors to
complete the work in the communications space.'"44 We require each utility to make available a
reasonably sufficient list of contractors that it authorizes to perform surveys or make-ready on its poles,
and require that the attacher must use contractors from this list. We also seek to ensure that safety and
network integrity are preserved at all costs. Thus, we require attachers that hire contractors to perform
survey and make-ready work to provide a utility with an opportunity for a utility representative to
accompany and consult with the attacher and its contractor prior to commencement of any make-ready
work by the contractor. Consulting electric utilities are entitled to make final determinations in case of
disputes over capacity, safety, reliability, and generally applicable engineering purposes.
50. General Right To Hire Contractors. We concur with the Public Service Commission of
New York that "it is reasonable to require the utilities either to have an adequate number of their own
workers available to do the requested work, to hire outside contractors themselves to do the work, or to
allow [a]ttachers to hire approved outside contractors."145 The transfer of control to the new attacher,
including the ability to hire contractors, is key to the effectiveness of the timeline. First, the prospect of
surrendering control of the pole to an attacher may spur a utility to complete a survey or make-ready that
it might otherwise not timely perform. Second, if the pole owner lacks the resources or the will to
perform make-ready, the prospective attacher may pursue the project through any lawful means, including
141 See Level 3 Comments at 7 (arguing that attaching parties should have the right to proceed with the survey of
pole availability before completion of a master pole attachment agreement, provided that the attaching party agrees
to make payment in advance of the pole owner's standard costs for the survey); Alliance Jan. 27, 2011 Ex Parte
Letter at 2 (asking the Commission to clarify that the utility is allowed to charge the applicant up front for the entire
costs of the survey and collect such amount before commencing the survey).
142 47 C.F.R. I.1403(b).
144 As discussed in para. 42, supra, the contractor remedy does not apply to requests by wireless providers to attach
outside the communications space on a pole. Rather, the remedy for a failure to meet the timeline for wireless
attachments above the communications space is a complaint filed under the Commission's existing complaint
145 New York Order at 3.
Federal Communications Commission
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United States. Federal Communications Commission. FCC Record, Volume 26, No. 7, Pages 4843 to 5761, March 28 - April 08, 2011, book, April 2011; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc52169/m1/437/: accessed September 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.