The Business Council of New York State opposes S. 4349 which amends section 5 of the Public Service Law by adding a subdivision 7 requiring each public utility company, to remove or relocate any utility poles within ninety days if necessary for the construction or improvement of any public roadway by the state or political subdivision. The proposed legislation represents a significant departure from long standing precedent regarding state regulation of utility poles. Additionally, the relocation and removal of poles and strings and their wires within ninety days is impractical.
The proposed legislation represents a significant departure from New York’s current law, which ensures that New York State public utility pole issues are under the exclusive purview of the State. Section 27 of the New York State Transportation Corporations Law provides the following rights to public utilities:
Any such corporation may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways; and through, across or under any of the waters within the limits of this state, and may erect, construct and maintain its necessary stations, plants, equipment or lines upon, through or over any other land, subject to the right of the owners thereof to full compensation for the same.
Additionally, the New York Court of Appeals has confirmed that, pursuant to Section 27, “telegraph and telephone companies derive the right to erect their poles and string their wires directly from the state” and not from local municipalities. See Vill. of Carthage v. Central N.Y. Tel. & Tel. Co., 185 N.Y. 448, 451 (1906).
Furthermore under Public Service Law (PSL) §§ 2(18) and 5(1)(d)(telephone) and 2(12) and 5(1)(b)(electric) the Public Service Commission has general authority over utility operations in New York. The Commission also has specific authority to ensure that utilities equipment is safe, adequate and reliable.
In 2011, after receiving some concerns from municipalities, the New York State Public Service Commission implemented a new program designed to establish better coordination regarding utility poles. The new initiative known as the Standardized Facility and Equipment Transfer (SAFET) program, provides a single database of pole status information as well as, enhanced coordination, communication, monitoring and notification concerning facility transfers between utility poles owned by electric and telephone companies.
The Commission during the proceeding considered the establishment of time frames to address pole removal and relocation. The Commission did not establish strict time frames but instead established guidelines and oversight and reporting requirements. The Commission acknowledged that a target timeframe may not accommodate transfers involving multiple facility attaching entities.
Federal law requires utilities to provide space on its poles to third parties, such as cable companies, competitive local exchange carriers, municipalities and school districts. Pole owners enter agreements with attachers which establish obligations and responsibilities, but these agreements are not standardized between attachers and utilities. Some agreements contain timeframes and penalties from attachers that fail to move their equipment, some agreements do not.
The Commission during the proceeding acknowledged that because of the number of attachments on some poles as well as the lack of control that the Pole Owners have over the attachers, a time constraint is impractical. The Commission instead adopted guidelines recognizing that each pole removal or replacement was inherently different.
A ninety day requirement to move or relocate utility poles when requested by any municipality will also be costly. Currently, utilities can work with municipalities to manage the flow of work during the construction season. Utilities have estimated that it typically costs approximately $1100 to remove an old pole. This amount represents labor costs and the costs of disposing of the old pole. The cost of old pole removal will skyrocket if removal and relocations of utility poles cannot be staggered to watch workforce availability.
For these reasons, The Business Council opposes S.4349 (Lanza).