GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2015
SENATE BILL 88
RATIFIED BILL
AN ACT to assign pole attachment disputes to the north carolina utilities commission.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 62‑350(a) reads as rewritten:
"(a) A municipality, or
a membership corporation organized under Chapter 117 of the General Statutes,
that owns or controls poles, ducts, or conduits conduits, but which
is exempt from regulation under section 224 of the Communications Act of 1934,
as amended, shall allow any communications service provider to utilize its
poles, ducts, and conduits at just, reasonable, and nondiscriminatory rates,
terms, and conditions adopted pursuant to negotiated or adjudicated agreements.
A request to utilize poles, ducts, or conduits under this section may be denied
only if there is insufficient capacity or for reasons of safety, reliability,
and generally applicable engineering principles, and those limitations cannot
be remedied by rearranging, expanding, or otherwise reengineering the
facilities at the reasonable and actual cost of the municipality or membership
corporation to be reimbursed by the communications service provider. In
granting a request under this section, a municipality or membership corporation
shall require the requesting entity to comply with applicable safety requirements,
including the National Electrical Safety Code and the applicable rules and
regulations issued by the Occupational Safety and Health Administration. Any
fees due from a communications service provider accessing or attaching to
poles, ducts, or conduits under this section must be billed by separate invoice
and shall not be bundled with charges for electric service."
SECTION 2. G.S. 62‑350(c) reads as rewritten:
"(c) In the event the
parties are unable to reach an agreement within 90 days of a request to negotiate
pursuant to subsection (b) of this section, or if either party believes in good
faith that an impasse has been reached prior to the expiration of the 90‑day
period, either party may bring an action in Business Court in accordance
with the procedures for a mandatory business case set forth in G.S. 7A‑45.4,
and the Business Courtinitiate proceedings to resolve the dispute before
the Commission. The Commission shall have exclusive jurisdiction over such
actions.proceedings arising under this section and shall adjudicate
disputes arising under this section on a case‑by‑case basis. The
Commission shall not exercise general rate‑making authority over
communication service provider utilization of municipal or membership corporation
facilities. This section does not impact or expand the Commission's authority
under G.S. 62‑133.5(h) or (m). The Public Staff may, at the discretion
of the Commission, be made a party to any proceedings under this section as may
be appropriate to serve the using and consuming public. The parties shall
identify with specificity in their respective pleadings filings the
issues in dispute, and the Business Court shall (i) establish a procedural
schedule which, unless otherwise agreed by the parties, is intended to resolve
the action within a time period not to exceed 180 days of the commencement of
the action, (ii) dispute. The Commission, in its discretion, may
consider any evidence or rate‑making methodologies offered or proposed by
the parties and shall resolve any dispute identified in the pleadings filings
consistent with the public interest and necessity so as to derive just and
reasonable rates, terms, and conditions, taking into consideration and
applying such other factors or evidence that may be presented by a party,
including without limitation the rules and regulations applicable to
attachments by each type of communications service provider under section 224
of the Communications Act of 1934, as amended, and (iii) conditions. The
Commission shall apply any new rate adopted as a result of the action
retroactively to the date immediately following the expiration of the 90‑day
negotiating period or initiation of the lawsuit,proceeding,
whichever is earlier. If the new rate is for the continuation of an existing
agreement, the new rate shall apply retroactively to the date immediately
following the end of the existing agreement. Prior to commencing any actioninitiating
any proceedings under this subsection, a party must pay any undisputed fees
related to the use of poles, ducts, or conduits which are due and owing under a
preexisting agreement with the municipality or membership corporation. In any action
proceeding brought under this subsection, the court Commission
may resolve any existing disputes regarding fees alleged to be owing under
a preexisting agreement or regarding safety compliance arising under subsection
(d) of this section. The provisions of this section do not apply to an entity
whose poles, ducts, and conduits are subject to regulation under section 224 of
the Communications Act of 1934, as amended."
SECTION 3. G.S. 62‑350(d)(4) reads as rewritten:
"(4) All attaching
parties shall work cooperatively to determine the causation of, and to
effectuate any remedy for, noncompliant lines, equipment, and attachments. In the
event of disputes under this subsection, the involved municipality or
membership corporation or any attaching party may bring an action in the
Business Court in accordance with the procedures for a mandatory business case
set forth in G.S. 7A‑45.4, and the Business Court initiate
proceedings to resolve any dispute before the Commission. The Commission
shall have exclusive jurisdiction over such actions. proceedings
arising under this section and shall adjudicate disputes arising under this
section on a case‑by‑case basis. The Commission shall not exercise
general rate‑making authority over communication service provider
utilization of municipal or membership corporation facilities. This section
does not impact or expand the Commission's authority under G.S. 62‑133.5(h)
or (m). The Public Staff may, at the discretion of the Commission, be made a
party to any proceedings under this section as may be appropriate to serve the
using and consuming public. The Business CourtCommission
shall resolve such disputes consistent with the public interest and necessity.
Nothing herein shall prevent a municipality or membership corporation from
taking such action as may be necessary to remedy any exigent issue which is an
imminent threat of death or injury to persons or damage to property."
SECTION 4. G.S. 62‑350(f) reads as rewritten:
"(f) The Business
CourtCommission may adopt such rules as it deems necessary to implement
its jurisdiction and authority under this section.exercise its
responsibility to adjudicate any disputes arising under this section."
SECTION 5. G.S. 62‑350 is amended by adding a new subsection to read:
"(h) As part of final adjudication, the Commission may assess the costs, not to exceed ten thousand dollars ($10,000), of adjudicating a dispute under this section against the parties to the dispute proceeding. If the Public Staff is a party to a dispute proceeding and the Executive Director of the Public Staff deems it necessary to hire expert witnesses or other individuals with professional expertise to assist the Public Staff in the dispute proceeding, the Commission may assess such additional costs incurred by the Public Staff by allocating such costs against the parties to the dispute proceeding."
SECTION 6. G.S. 7A‑45.4(b)(3) is repealed.
SECTION 7. Notwithstanding the deletion of language referencing the factors or evidence that may be presented by a party in Section 2 of this act, the Commission may consider any evidence presented by a party, including any methodologies previously applied.
SECTION 8. This act is effective when it becomes law and applies to any action filed on or after that date.
In the General Assembly read three times and ratified this the 25th day of June, 2015.
s/ Philip E. Berger
President Pro Tempore of the Senate
s/ Tim Moore
Speaker of the House of Representatives
_____________________________________
Pat McCrory
Governor
Approved __________.m. this ______________ day of ___________________, 2015