§ 62-350. (See Editor's note) Regulation of pole attachments.
Article 17.
Miscellaneous Provisions.
§ 62‑350. (See Editor'snote) Regulation of pole attachments.
(a) A municipality, ora membership corporation organized under Chapter 117 of the General Statutes,that owns or controls poles, ducts, or conduits shall allow any communicationsservice provider to utilize its poles, ducts, and conduits at just, reasonable,and nondiscriminatory rates, terms, and conditions adopted pursuant tonegotiated or adjudicated agreements. A request to utilize poles, ducts, or conduitsunder this section may be denied only if there is insufficient capacity or forreasons of safety, reliability, and generally applicable engineeringprinciples, and those limitations cannot be remedied by rearranging, expanding,or otherwise reengineering the facilities at the reasonable and actual cost ofthe municipality or membership corporation to be reimbursed by thecommunications service provider. In granting a request under this section, amunicipality or membership corporation shall require the requesting entity tocomply with applicable safety requirements, including the National ElectricalSafety Code and the applicable rules and regulations issued by the OccupationalSafety and Health Administration.
(b) Following receiptof a request from a communications service provider, a municipality ormembership corporation shall negotiate concerning the rates, terms, andconditions for the use of or attachment to the poles, ducts, or conduits thatit owns or controls. Following a request from a party to an existing agreementmade pursuant to the terms of the agreement or made within 120 days prior to orfollowing the end of the term of the agreement, the communications serviceprovider and the municipality or membership corporation which is a party to thatagreement shall negotiate concerning the rates, terms, and conditions for thecontinued use of or attachment to the poles, ducts, or conduits owned orcontrolled by one of the parties to the agreement. The negotiations shallinclude matters customary to such negotiations, including a fair and reasonablerate for use of facilities, indemnification by the attaching entity for lossescaused in connection with the attachments, and the removal, replacement, orrepair of installed facilities for safety reasons. Upon request, a party shallstate in writing its objections to any proposed rate, terms, and conditions ofthe other party.
(c) In the event theparties are unable to reach an agreement within 90 days of a request tonegotiate pursuant to subsection (b) of this section, or if either partybelieves in good faith that an impasse has been reached prior to the expirationof the 90‑day period, either party may bring an action in Business Courtin accordance with the procedures for a mandatory business case set forth inG.S. 7A‑45.4, and the Business Court shall have exclusive jurisdictionover such actions. The parties shall identify with specificity in theirrespective pleadings 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 daysof the commencement of the action, (ii) resolve any dispute identified in thepleadings consistent with the public interest and necessity so as to derivejust and reasonable rates, terms, and conditions, taking into consideration andapplying such other factors or evidence that may be presented by a party,including without limitation the rules and regulations applicable to attachmentsby each type of communications service provider under section 224 of theCommunications Act of 1934, as amended, and (iii) apply any new rate adopted asa result of the action retroactively to the date immediately following theexpiration of the 90‑day negotiating period or initiation of the lawsuit,whichever is earlier. If the new rate is for the continuation of an existingagreement, the new rate shall apply retroactively to the date immediatelyfollowing the end of the existing agreement. Prior to commencing any actionunder this subsection, a party must pay any undisputed fees related to the useof poles, ducts, or conduits which are due and owing under a preexistingagreement with the municipality or membership corporation. In any action broughtunder this subsection, the court may resolve any existing disputes regardingfees alleged to be owing under a preexisting agreement or regarding safetycompliance arising under subsection (d) of this section. The provisions of thissection do not apply to an entity whose poles, ducts, and conduits are subjectto regulation under section 224 of the Communications Act of 1934, as amended.
(d) In the absence ofan agreement between an attaching party and the involved municipality ormembership corporation that provides otherwise, the following shall apply:
(1) When the lines,equipment, or attachments of a communications service provider that areattached to the poles, ducts, or conduits of a municipality or membershipcorporation do not comply with applicable safety rules and regulations setforth in subsection (a) of this section, the municipality or membershipcorporation may provide written notice of the noncompliant lines, equipment, orattachments, and make demand that the communications service provider bringsuch lines, equipment, and attachments into compliance with the specifiedsafety rules and regulations. Within the 60‑day period following the dateof the notice and demand, the communications service provider shall eithercontest the notice of noncompliance in writing or bring its lines, equipment,and attachments into compliance with the specified applicable safety rules andregulations. If the work required to bring the facilities into compliance isnot reasonably capable of being completed within the 60‑day period, theperiod for compliance shall be extended as may be deemed reasonable under thecircumstances so long as the communications service provider promptly commencesand diligently pursues within the 60‑day period such actions as are reasonablynecessary to cause the facilities to be brought into compliance.
(2) When thecommunications service provider or, if applicable, another responsibleattaching party fails to bring any noncompliant lines, equipment, orattachments into compliance (i) within the 60‑day period following thedate of notice and demand pursuant to subdivision (1) of this subsection, or(ii) within 120 days following the date of notice and demand when the period isextended pursuant to subdivision (1) of this subsection, the municipality ormembership corporation shall be entitled to take such remedial actions as arereasonably necessary to bring the lines, equipment, and attachments of thecommunications service provider into compliance, including removal of thelines, equipment, or attachments should removal be required to achievecompliance with the applicable safety rules and regulations.
(3) A municipality ormembership corporation that removes or brings into compliance the noncompliantlines, equipment, or attachments of a communications service provider pursuantto subdivision (2) of this subsection shall be entitled to recover itsreasonable and actual costs for such activities from the communications serviceprovider or other attaching party whose action or inaction caused thenoncompliance, and the responsible attaching party shall reimburse themunicipality or membership corporation within 45 days of being billed for suchcosts.
(4) All attachingparties shall work cooperatively to determine the causation of, and to effectuateany remedy for, noncompliant lines, equipment, and attachments. In the event ofdisputes under this subsection, the involved municipality or membershipcorporation or any attaching party may bring an action in the Business Court inaccordance with the procedures for a mandatory business case set forth in G.S.7A‑45.4, and the Business Court shall have exclusive jurisdiction oversuch actions. The Business Court shall resolve such disputes consistent withthe public interest and necessity. Nothing herein shall prevent a municipalityor membership corporation from taking such action as may be necessary to remedyany exigent issue which is an imminent threat of death or injury to persons ordamage to property.
(e) For purposes ofthis section, the term "communications service provider" means aperson or entity that provides or intends to provide: (i) telephone service asa public utility under Chapter 62 of the General Statutes or as a telephonemembership corporation organized under Chapter 117 of the General Statutes;(ii) broadband service, but excluding broadband service over energizedelectrical conductors owned by a municipality or membership corporation; or(iii) cable service over a cable system as those terms are defined in Article42 of Chapter 66 of the General Statutes.
(f) The Business Courtmay adopt such rules as it deems necessary to implement its jurisdiction andauthority under this section.
(g) Nothing hereinshall preclude a party from bringing civil action in the appropriate divisionof the General Court of Justice seeking enforcement of an agreement concerningthe rates, terms, and conditions for the use of or attachment to the poles,ducts, or conduits of a municipality or membership corporation. (2009‑278, s. 1.)