§  1.1411   Timeline for access to utility poles.

   (a) Definitions.

   (1) The term “attachment” means any attachment by a cable television
   system or provider of telecommunications service to a pole owned or
   controlled by a utility.

   (2) The term “new attacher” means a cable television system or
   telecommunications carrier requesting to attach new or upgraded
   facilities to a pole owned or controlled by a utility.

   (3) The term “existing attacher” means any entity with equipment on a
   utility pole.

   (b) All time limits in this subsection are to be calculated according
   to § 1.4.

   (c) Application review and survey—(1) Application completeness. A
   utility shall review a new attacher's attachment application for
   completeness before reviewing the application on its merits. A new
   attacher's attachment application is considered complete if it provides
   the utility with the information necessary under its procedures, as
   specified in a master service agreement or in requirements that are
   available in writing publicly at the time of submission of the
   application, to begin to survey the affected poles.

   (i) A utility shall determine within 10 business days after receipt of
   a new attacher's attachment application whether the application is
   complete and notify the attacher of that decision. If the utility does
   not respond within 10 business days after receipt of the application,
   or if the utility rejects the application as incomplete but fails to
   specify any reasons in its response, then the application is deemed
   complete. If the utility timely notifies the new attacher that its
   attachment application is not complete, then it must specify all
   reasons for finding it incomplete.

   (ii) Any resubmitted application need only address the utility's
   reasons for finding the application incomplete and shall be deemed
   complete within 5 business days after its resubmission, unless the
   utility specifies to the new attacher which reasons were not addressed
   and how the resubmitted application did not sufficiently address the
   reasons. The new attacher may follow the resubmission procedure in this
   paragraph as many times as it chooses so long as in each case it makes
   a bona fide attempt to correct the reasons identified by the utility,
   and in each case the deadline set forth in this paragraph shall apply
   to the utility's review.

   (2) Application review on the merits. A utility shall respond to the
   new attacher either by granting access or, consistent with § 1.1403(b),
   denying access within 45 days of receipt of a complete application to
   attach facilities to its utility poles (or within 60 days in the case
   of larger orders as described in paragraph (g) of this section). A
   utility may not deny the new attacher pole access based on a
   preexisting violation not caused by any prior attachments of the new
   attacher.

   (3) Survey. (i) A utility shall complete a survey of poles for which
   access has been requested within 45 days of receipt of a complete
   application to attach facilities to its utility poles (or within 60
   days in the case of larger orders as described in paragraph (g) of this
   section).

   (ii) A utility shall permit the new attacher and any existing attachers
   on the affected poles to be present for any field inspection conducted
   as part of the utility's survey. A utility shall use commercially
   reasonable efforts to provide the affected attachers with advance
   notice of not less than 3 business days of any field inspection as part
   of the survey and shall provide the date, time, and location of the
   survey, and name of the contractor performing the survey.

   (iii) Where a new attacher has conducted a survey pursuant to paragraph
   (j)(3) of this section, a utility can elect to satisfy its survey
   obligations in this paragraph by notifying affected attachers of its
   intent to use the survey conducted by the new attacher pursuant to
   paragraph (j)(3) of this section and by providing a copy of the survey
   to the affected attachers within the time period set forth in paragraph
   (c)(3)(i) of this section. A utility relying on a survey conducted
   pursuant to paragraph (j)(3) of this section to satisfy all of its
   obligations under paragraph (c)(3)(i) of this section shall have 15
   days to make such a notification to affected attachers rather than a 45
   day survey period.

   (d) Estimate. Where a new attacher's request for access is not denied,
   a utility shall present to a new attacher a detailed, itemized
   estimate, on a pole-by-pole basis where requested, of charges to
   perform all necessary make-ready within 14 days of providing the
   response required by paragraph (c) of this section, or in the case
   where a new attacher has performed a survey, within 14 days of receipt
   by the utility of such survey. Where a pole-by-pole estimate is
   requested and the utility incurs fixed costs that are not reasonably
   calculable on a pole-by-pole basis, the utility present charges on a
   per-job basis rather than present a pole-by-pole estimate for those
   fixed cost charges. The utility shall provide documentation that is
   sufficient to determine the basis of all estimated charges, including
   any projected material, labor, and other related costs that form the
   basis of its estimate.

   (1) A utility may withdraw an outstanding estimate of charges to
   perform make-ready work beginning 14 days after the estimate is
   presented.

   (2) A new attacher may accept a valid estimate and make payment any
   time after receipt of an estimate, except it may not accept after the
   estimate is withdrawn.

   (3) Final invoice: After the utility completes make-ready, if the final
   cost of the work differs from the estimate, it shall provide the new
   attacher with a detailed, itemized final invoice of the actual
   make-ready charges incurred, on a pole-by-pole basis where requested,
   to accommodate the new attacher's attachment. Where a pole-by-pole
   estimate is requested and the utility incurs fixed costs that are not
   reasonably calculable on a pole-by-pole basis, the utility may present
   charges on a per-job basis rather than present a pole-by-pole invoice
   for those fixed cost charges. The utility shall provide documentation
   that is sufficient to determine the basis of all estimated charges,
   including any projected material, labor, and other related costs that
   form the basis of its estimate.

   (4) A utility may not charge a new attacher to bring poles,
   attachments, or third-party equipment into compliance with current
   published safety, reliability, and pole owner construction standards
   guidelines if such poles, attachments, or third-party equipment were
   out of compliance because of work performed by a party other than the
   new attacher prior to the new attachment.

   (e) Make-ready. Upon receipt of payment specified in paragraph (d)(2)
   of this section, a utility shall notify immediately and in writing all
   known entities with existing attachments that may be affected by the
   make-ready.

   (1) For attachments in the communications space, the notice shall:

   (i) Specify where and what make-ready will be performed.

   (ii) Set a date for completion of make-ready in the communications
   space that is no later than 30 days after notification is sent (or up
   to 75 days in the case of larger orders as described in paragraph (g)
   of this section).

   (iii) State that any entity with an existing attachment may modify the
   attachment consistent with the specified make-ready before the date set
   for completion.

   (iv) State that if make-ready is not completed by the completion date
   set by the utility in paragraph (e)(1)(ii) in this section, the new
   attacher may complete the make-ready specified pursuant to paragraph
   (e)(1)(i) in this section.

   (v) State the name, telephone number, and email address of a person to
   contact for more information about the make-ready procedure.

   (2) For attachments above the communications space, the notice shall:

   (i) Specify where and what make-ready will be performed.

   (ii) Set a date for completion of make-ready that is no later than 90
   days after notification is sent (or 135 days in the case of larger
   orders, as described in paragraph (g) of this section).

   (iii) State that any entity with an existing attachment may modify the
   attachment consistent with the specified make-ready before the date set
   for completion.

   (iv) State that the utility may assert its right to 15 additional days
   to complete make-ready.

   (v) State that if make-ready is not completed by the completion date
   set by the utility in paragraph (e)(2)(ii) in this section (or, if the
   utility has asserted its 15-day right of control, 15 days later), the
   new attacher may complete the make-ready specified pursuant to
   paragraph (e)(1)(i) of this section.

   (vi) State the name, telephone number, and email address of a person to
   contact for more information about the make-ready procedure.

   (3) Once a utility provides the notices described in this section, it
   then must provide the new attacher with a copy of the notices and the
   existing attachers' contact information and address where the utility
   sent the notices. The new attacher shall be responsible for
   coordinating with existing attachers to encourage their completion of
   make-ready by the dates set forth by the utility in paragraph
   (e)(1)(ii) of this section for communications space attachments or
   paragraph (e)(2)(ii) of this section for attachments above the
   communications space.

   (f) A utility shall complete its make-ready in the communications space
   by the same dates set for existing attachers in paragraph (e)(1)(ii) of
   this section or its make-ready above the communications space by the
   same dates for existing attachers in paragraph (e)(2)(ii) of this
   section (or if the utility has asserted its 15-day right of control, 15
   days later).

   (g) For the purposes of compliance with the time periods in this
   section:

   (1) A utility shall apply the timeline described in paragraphs (c)
   through (e) of this section to all requests for attachment up to the
   lesser of 300 poles or 0.5 percent of the utility's poles in a state.

   (2) A utility may add 15 days to the survey period described in
   paragraph (c) of this section to larger orders up to the lesser of 3000
   poles or 5 percent of the utility's poles in a state.

   (3) A utility may add 45 days to the make-ready periods described in
   paragraph (e) of this section to larger orders up to the lesser of 3000
   poles or 5 percent of the utility's poles in a state.

   (4) A utility shall negotiate in good faith the timing of all requests
   for attachment larger than the lesser of 3000 poles or 5 percent of the
   utility's poles in a state.

   (5) A utility may treat multiple requests from a single new attacher as
   one request when the requests are filed within 30 days of one another.

   (h) Deviation from the time limits specified in this section. (1) A
   utility may deviate from the time limits specified in this section
   before offering an estimate of charges if the parties have no agreement
   specifying the rates, terms, and conditions of attachment.

   (2) A utility may deviate from the time limits specified in this
   section during performance of make-ready for good and sufficient cause
   that renders it infeasible for the utility to complete make-ready
   within the time limits specified in this section. A utility that so
   deviates shall immediately notify, in writing, the new attacher and
   affected existing attachers and shall identify the affected poles and
   include a detailed explanation of the reason for the deviation and a
   new completion date. The utility shall deviate from the time limits
   specified in this section for a period no longer than necessary to
   complete make-ready on the affected poles and shall resume make-ready
   without discrimination when it returns to routine operations. A utility
   cannot delay completion of make-ready because of a preexisting
   violation on an affected pole not caused by the new attacher.

   (3) An existing attacher may deviate from the time limits specified in
   this section during performance of complex make-ready for reasons of
   safety or service interruption that renders it infeasible for the
   existing attacher to complete complex make-ready within the time limits
   specified in this section. An existing attacher that so deviates shall
   immediately notify, in writing, the new attacher and other affected
   existing attachers and shall identify the affected poles and include a
   detailed explanation of the basis for the deviation and a new
   completion date, which in no event shall extend beyond 60 days from the
   date the notice described in paragraph (e)(1) of this section is sent
   by the utility (or up to 105 days in the case of larger orders
   described in paragraph (g) of this section). The existing attacher
   shall deviate from the time limits specified in this section for a
   period no longer than necessary to complete make-ready on the affected
   poles.

   (i) Self-help remedy—(1) Surveys. If a utility fails to complete a
   survey as specified in paragraph (c)(3)(i) of this section, then a new
   attacher may conduct the survey in place of the utility and, as
   specified in § 1.1412, hire a contractor to complete a survey.

   (i) A new attacher shall permit the affected utility and existing
   attachers to be present for any field inspection conducted as part of
   the new attacher's survey.

   (ii) A new attacher shall use commercially reasonable efforts to
   provide the affected utility and existing attachers with advance notice
   of not less than 3 business days of a field inspection as part of any
   survey it conducts. The notice shall include the date and time of the
   survey, a description of the work involved, and the name of the
   contractor being used by the new attacher.

   (2) Make-ready. If make-ready is not complete by the date specified in
   paragraph (e) of this section, then a new attacher may conduct the
   make-ready in place of the utility and existing attachers, and, as
   specified in § 1.1412, hire a contractor to complete the make-ready.

   (i) A new attacher shall permit the affected utility and existing
   attachers to be present for any make-ready. A new attacher shall use
   commercially reasonable efforts to provide the affected utility and
   existing attachers with advance notice of not less than 5 days of the
   impending make-ready. The notice shall include the date and time of the
   make-ready, a description of the work involved, and the name of the
   contractor being used by the new attacher.

   (ii) The new attacher shall notify an affected utility or existing
   attacher immediately if make-ready damages the equipment of a utility
   or an existing attacher or causes an outage that is reasonably likely
   to interrupt the service of a utility or existing attacher. Upon
   receiving notice from the new attacher, the utility or existing
   attacher may either:

   (A) Complete any necessary remedial work and bill the new attacher for
   the reasonable costs related to fixing the damage; or

   (B) Require the new attacher to fix the damage at its expense
   immediately following notice from the utility or existing attacher.

   (iii) A new attacher shall notify the affected utility and existing
   attachers within 15 days after completion of make-ready on a particular
   pole. The notice shall provide the affected utility and existing
   attachers at least 90 days from receipt in which to inspect the
   make-ready. The affected utility and existing attachers have 14 days
   after completion of their inspection to notify the new attacher of any
   damage or code violations caused by make-ready conducted by the new
   attacher on their equipment. If the utility or an existing attacher
   notifies the new attacher of such damage or code violations, then the
   utility or existing attacher shall provide adequate documentation of
   the damage or the code violations. The utility or existing attacher may
   either complete any necessary remedial work and bill the new attacher
   for the reasonable costs related to fixing the damage or code
   violations or require the new attacher to fix the damage or code
   violations at its expense within 14 days following notice from the
   utility or existing attacher.

   (3) Pole replacements. Self-help shall not be available for pole
   replacements.

   (j) One-touch make-ready option. For attachments involving simple
   make-ready, new attachers may elect to proceed with the process
   described in this paragraph in lieu of the attachment process described
   in paragraphs (c) through (f) and (i) of this section.

   (1) Attachment application. (i) A new attacher electing the one-touch
   make-ready process must elect the one-touch make-ready process in
   writing in its attachment application and must identify the simple
   make-ready that it will perform. It is the responsibility of the new
   attacher to ensure that its contractor determines whether the
   make-ready requested in an attachment application is simple.

   (ii) The utility shall review the new attacher's attachment application
   for completeness before reviewing the application on its merits. An
   attachment application is considered complete if it provides the
   utility with the information necessary under its procedures, as
   specified in a master service agreement or in publicly-released
   requirements at the time of submission of the application, to make an
   informed decision on the application.

   (A) A utility has 10 business days after receipt of a new attacher's
   attachment application in which to determine whether the application is
   complete and notify the attacher of that decision. If the utility does
   not respond within 10 business days after receipt of the application,
   or if the utility rejects the application as incomplete but fails to
   specify any reasons in the application, then the application is deemed
   complete.

   (B) If the utility timely notifies the new attacher that its attachment
   application is not complete, then the utility must specify all reasons
   for finding it incomplete. Any resubmitted application need only
   address the utility's reasons for finding the application incomplete
   and shall be deemed complete within 5 business days after its
   resubmission, unless the utility specifies to the new attacher which
   reasons were not addressed and how the resubmitted application did not
   sufficiently address the reasons. The applicant may follow the
   resubmission procedure in this paragraph as many times as it chooses so
   long as in each case it makes a bona fide attempt to correct the
   reasons identified by the utility, and in each case the deadline set
   forth in this paragraph shall apply to the utility's review.

   (2) Application review on the merits. The utility shall review on the
   merits a complete application requesting one-touch make-ready and
   respond to the new attacher either granting or denying an application
   within 15 days of the utility's receipt of a complete application (or
   within 30 days in the case of larger orders as described in paragraph
   (g) of this section).

   (i) If the utility denies the application on its merits, then its
   decision shall be specific, shall include all relevant evidence and
   information supporting its decision, and shall explain how such
   evidence and information relate to a denial of access for reasons of
   lack of capacity, safety, reliability, or engineering standards.

   (ii) Within the 15-day application review period (or within 30 days in
   the case of larger orders as described in paragraph (g) of this
   section), a utility may object to the designation by the new attacher's
   contractor that certain make-ready is simple. If the utility objects to
   the contractor's determination that make-ready is simple, then it is
   deemed complex. The utility's objection is final and determinative so
   long as it is specific and in writing, includes all relevant evidence
   and information supporting its decision, made in good faith, and
   explains how such evidence and information relate to a determination
   that the make-ready is not simple.

   (3) Surveys. The new attacher is responsible for all surveys required
   as part of the one-touch make-ready process and shall use a contractor
   as specified in § 1.1412(b).

   (i) The new attacher shall permit the utility and any existing
   attachers on the affected poles to be present for any field inspection
   conducted as part of the new attacher's surveys. The new attacher shall
   use commercially reasonable efforts to provide the utility and affected
   existing attachers with advance notice of not less than 3 business days
   of a field inspection as part of any survey and shall provide the date,
   time, and location of the surveys, and name of the contractor
   performing the surveys.

   (ii) [Reserved]

   (4) Make-ready. If the new attacher's attachment application is
   approved and if it has provided 15 days prior written notice of the
   make-ready to the affected utility and existing attachers, the new
   attacher may proceed with make-ready using a contractor in the manner
   specified for simple make-ready in § 1.1412(b).

   (i) The prior written notice shall include the date and time of the
   make-ready, a description of the work involved, the name of the
   contractor being used by the new attacher, and provide the affected
   utility and existing attachers a reasonable opportunity to be present
   for any make-ready.

   (ii) The new attacher shall notify an affected utility or existing
   attacher immediately if make-ready damages the equipment of a utility
   or an existing attacher or causes an outage that is reasonably likely
   to interrupt the service of a utility or existing attacher. Upon
   receiving notice from the new attacher, the utility or existing
   attacher may either:

   (A) Complete any necessary remedial work and bill the new attacher for
   the reasonable costs related to fixing the damage; or

   (B) Require the new attacher to fix the damage at its expense
   immediately following notice from the utility or existing attacher.

   (iii) In performing make-ready, if the new attacher or the utility
   determines that make-ready classified as simple is complex, then that
   specific make-ready must be halted and the determining party must
   provide immediate notice to the other party of its determination and
   the impacted poles. The affected make-ready shall then be governed by
   paragraphs (d) through (i) of this section and the utility shall
   provide the notice required by paragraph (e) of this section as soon as
   reasonably practicable.

   (5) Post-make-ready timeline. A new attacher shall notify the affected
   utility and existing attachers within 15 days after completion of
   make-ready on a particular pole. The notice shall provide the affected
   utility and existing attachers at least 90 days from receipt in which
   to inspect the make-ready. The affected utility and existing attachers
   have 14 days after completion of their inspection to notify the new
   attacher of any damage or code violations caused by make-ready
   conducted by the new attacher on their equipment. If the utility or an
   existing attacher notifies the new attacher of such damage or code
   violations, then the utility or existing attacher shall provide
   adequate documentation of the damage or the code violations. The
   utility or existing attacher may either complete any necessary remedial
   work and bill the new attacher for the reasonable costs related to
   fixing the damage or code violations or require the new attacher to fix
   the damage or code violations at its expense within 14 days following
   notice from the utility or existing attacher.

   [ 76 FR 26640 , May 9, 2011. Redesignated and amended at  83 FR 44841 ,
   Sept. 4, 2018;  83 FR 46836 , Sept. 14, 2018]