On December 2, 2013, the Iowa Utilities Board (“IUB”) released an Order adopting amendments to its existing rule governing safety compliance on utility infrastructure. The IUB acted in response to a rulemaking petition filed by the Iowa Utilities Association (“IUA”), a group representing investor-owned electric utilities, in December 2011. In its petition, the IUA asked the IUB to assert jurisdiction over pole attachment rates, terms and conditions so that the IUB would have authority to adopt new safety rules to address alleged safety violations caused by pole occupants. Once a state asserts jurisdiction over the rates, terms and conditions of pole attachments, the Federal Communications Commission (“FCC”) no longer has authority to regulate pole attachments in that state (as a result of the reverse preemption provision in the federal Pole Attachment Act, found at 47 U.S.C. §224(c)). After several rounds of comments and workshops, the IUB determined that it could more effectively achieve safety compliance without asserting jurisdiction over pole attachment rates, terms and conditions, and merely amended its existing safety rule, 199 I.A.C. 25.
The amendments require, among other things, that all pole occupants, including electric utilities (investor-owned, as well as cooperatively and municipally-owned), correct safety violations within 180 days following notice, unless “good cause” is shown for delaying repairs. If the violations are not repaired in the requisite timeframe, the violation-causer could be subject to civil penalties assessed by the IUB (not the pole owner) and/or other IUB actions. The amendments also provide for both informal and formal complaint processes in the event of disputes over the new requirements, including over which party caused a violation, the necessary corrective action and the timing of corrections.
While the IUB did not take pole attachment jurisdiction from the FCC, certain of the amendments, such as requiring (i) pole owners to provide nondiscriminatory access, (ii) access requests to be in writing, and (iii) occupants to provide 30 days’ notice following the installation of a service drop and seven days’ prior notice of overlashing, arguably infringe on the FCC’s authority. With respect to overlashing, while the IUB recognized that the FCC forbids pole owners from requiring permits and approval prior to overlashing, the IUB stated that its seven-day notice requirement relates to safety and does not conflict with FCC rules. The IUB also stated that the burden to show a conflict between its rules and federal law will be on occupants, not the IUB or pole owners.
Another unusual aspect of the amendments relates to electric cooperatives and municipal pole owners. While it is clear that these entities are covered by the amended safety compliance provisions, the cooperatives and municipalities argued during the rulemaking that the IUB has no authority to require them to provide nondiscriminatory access. In response, the IUB included language in the amendments that a pole owner must provide nondiscriminatory access to its poles “to the extent required by federal or state law.” But the IUB took no position on whether or not they believed the IUB could require cooperative and municipal pole owners to provide nondiscriminatory access. That task will arguably be left to individual pole occupants who believe they were unreasonably denied access to cooperative or municipal poles.
Finally, very late in the process, the IUA proposed a rule requiring that pole occupants, as well as pole owners, be required to create their own inspection and maintenance plans for poles they occupy. Pole occupants argued that requiring every occupant, as well as every pole owner, to be subject to these requirements would cause the same plant to be inspected numerous times and instead proposed joint inspections. Pole occupants also asked the IUB to consider the unnecessary cost that would be incurred to comply with such a duplicative program and stressed that the proposal was raised too late in the rulemaking to be properly vetted by the IUB. The IUB rejected the IUA’s proposal in this rulemaking, but plans to open another docket to consider the proposal.
The amendments will be published in the January 8, 2014 Iowa Administrative Bulletin and will become effective on February 12, 2014.