Comcast of Maine/New Hampshire, Inc., 011121 NHPUC, 26, 443

Docket Nº:26, 443
Opinion Judge:DIANNE MARTIN CHAIRWOMAN
Judge Panel:Kathryn M. Bailey Commissioner
Case Date:January 11, 2021

COMCAST OF MAINE/NEW HAMPSHIRE, INC.

No. 26, 443

DT 20-111

New Hampshire Public Utilities Commission

January 11, 2021

Petition for Resolution of Dispute and Declaratory Ruling

Order on Declaratory Ruling

Orr and Reno, by Susan S. Geiger, Esq., on behalf of Comcast of Maine/New Hampshire, Inc.; Patrick C. McHugh, Esq., on behalf of Consolidated Communications of Northern New England Company, LLC d/b/a Consolidated Communications-NNE; and David K. Wiesner, Esq., on behalf of Commission Staff.

DIANNE MARTIN CHAIRWOMAN

In this Order, the Commission grants Comcast's petition for declaratory ruling, having found that Consolidated's denial of riser access in the absence of capacity, safety, reliability, or generally applicable engineering purposes, and Consolidated's insistence upon ownership and control of the risers and conduit between risers attached to Consolidated's poles, constitute unlawful, unjust, and unreasonable pole attachment terms and conditions in violation of the New Hampshire pole attachment statute and the Commission's pole attachment rules.

I.

PROCEDURAL HISTORY

On July 14, 2020, Comcast of Maine/New Hampshire, Inc. (Comcast) filed a Petition for Resolution of Dispute and Declaratory Ruling (Petition) regarding a pole attachment dispute with Consolidated Communications of Northern New England Company, LLC d/b/a Consolidated Communications-NNE (Consolidated). Comcast's filing included the pre-filed testimony of its witness, Terrance O'Brien. On August 10, Consolidated filed a response to the Petition.

On August 13, the Commission convened a prehearing conference, during which Comcast requested that the dispute resolution aspect of its Petition be held in abeyance and that the Commission proceed only with the declaratory ruling portion of the Petition.

On October 13, Comcast filed a stipulation of uncontested facts (Stipulation) on behalf of both Comcast and Consolidated. On October 26, Consolidated submitted the pre-filed testimony of its witness, Glen Fournier. On November 23, Comcast submitted the pre-filed rebuttal testimony of Terrance O'Brien.

On December 4, the Commission held an evidentiary hearing, where it received testimony from Terrance O'Brien and Glen Fournier and admitted into evidence a number of exhibits. On December 11, Comcast and Consolidated filed initial legal briefs, and on December 18, they both filed reply briefs.

The Petition, Consolidated's response, the Stipulation, exhibits, briefs, and other docket filings, other than any information for which confidential treatment has been requested of or granted by the Commission, are posted on the Commission's website at https://www.puc.nh.gov/Regulatory/Docketbk/2020/20-111.html.

II.

STIPULATION OF FACTS

According to the Stipulation, Comcast1 is a cable television operator that, along with affiliates, provides competitive communications services over its network, including cable television service, broadband internet, and Voice over Internet Protocol services. Stipulation, Exh. 20 at 1. Consolidated is an incumbent local exchange carrier2 regulated in New Hampshire as a public utility, which provides competitive communications services, including voice and internet services. Id. at 2. Consolidated owns and controls, in whole or in part, utility poles in New Hampshire. Id. Comcast and Consolidated are in direct competition with each other for voice, video, and internet services in the state. Id.

Comcast and Consolidated are successors in interest to a Pole Attachment Agreement (Agreement) dated April 15, 2003, between Verizon New England Inc., Public Service Company of New Hampshire, and MediaOne of New England, Inc. Id.; Ex. 3. The Agreement contains terms relating to licensing attachments, response deadlines, make-ready work, and risers. Id. at 2-3. Comcast and Consolidated are also parties to a conduit agreement. Id. at 3. Comcast and Consolidated agree that Comcast has facilities in Consolidated-owned conduit in numerous locations in New Hampshire. Id.

On or about August 16, 2019, Comcast applied to Consolidated for aerial pole attachment licenses for three consecutive poles in Belmont, New Hampshire (Belmont poles). Id. at 4. Comcast and Consolidated conducted a joint field survey of the Belmont poles on or about October 17, 2019, and the field survey crews agreed that the middle one of the three Belmont poles (Pole 1100/1) had insufficient capacity to accommodate additional aerial attachments, and could not be replaced by a taller pole due to overhead high-tension electrical facilities that cross the pole line. Id.

Comcast and Consolidated engaged in negotiations to find a mutually agreeable way to bypass Pole 1100/1. Id. at 5. Each proposed to install and own risers on the first and third of the Belmont poles, and to install and own conduit in the public right-of-way between the risers on those poles in order to bypass Pole 1100/1. Id. Neither Comcast nor Consolidated agreed to the other's proposal to own the risers and conduit. Id. at 5-6.

Consolidated would not license the risers as requested by Comcast based on Consolidated's internal policy restricting third party access to its owned or jointly-owned poles. Id. That internal policy states as follows: Consolidated will only allow one point of access from its asset to a third party asset. Consolidated will also not allow a second access point to an existing third party asset which already has access to a Consolidated asset. If the third party has a pull box/manhole to which it needs service, then an additional conduit would come from either the pole or the manhole, but not both, and only that additional conduit may be placed by the third party.

Id. at 5. Consolidated's policy is not detailed in the Agreement. Id. at 6.

Comcast and Consolidated agreed that there are no risers presently attached to the first and third Belmont poles, and that both poles have sufficient capacity to install a riser. Id. According to the Stipulation, "the reasons for Consolidated's denial of Comcast's request for riser access to the [Belmont] Poles are contained in, among other communications, Attachment 9 to [the Petition]." Id. Consolidated stated that Comcast needed to abide by Consolidated's policy requirement that Comcast either pay make-ready for Consolidated to install the conduit or Comcast could install the conduit itself, convey ownership to Consolidated, and then lease space in the new conduit from Consolidated. Id.

Comcast would not agree to Consolidated's requirement that Consolidated own the pole risers and intervening conduit, and lease them back to Comcast, based on Comcast's preference to own and control its network facilities. Id. In addition, Comcast has received permission from the Town of Belmont to place conduit in the public right-of-way between the first and third Belmont poles. Id.

According to the Stipulation, it is "likely" that there are Consolidated poles in New Hampshire with more than one riser and that those risers are owned by different entities. Id. at 7. Comcast and Consolidated also stipulated that Comcast is currently engaged in a construction project in Salem, New Hampshire, that involves installation of Comcast-owned conduit and risers, with the conduit connecting to poles owned by Consolidated. Id.

The Stipulation cites to and quotes from provisions of the National Electrical Safety Code (2017 Edition) (NESC) and the Telcordia Blue Book (2017 Edition) that address the placement of risers, ducts, guards, and vertical conduit or cable runs on utility poles in such a manner as to limit potential climbing hazards and exposure to traffic damage. Id.

III.

POSITIONS OF THE PARTIES

A. Comcast

Comcast requested a declaratory ruling that Consolidated's refusal to license attachment of risers installed and owned by Comcast on the first and third Belmont poles was and is unlawful. Petition at 1. Comcast argued that, because Consolidated failed to provide evidence demonstrating any actual capacity, safety, reliability, or engineering concerns specific to the first and third Belmont poles, pursuant to RSA 374:34-a, VI and N.H. Admin. R., Puc 1303.01(b), Consolidated's rejection of Comcast's riser application constituted an unlawful and discriminatory denial of pole access. Comcast Initial Brief at 13, 15-19.

Comcast also requested a declaratory ruling invalidating Consolidated's general "one point of access" policy. Petition at 1. Comcast refuted Consolidated's position that its policy is supported by legitimate safety concerns, noting that neither the NESC nor the Telcordia Blue Book prohibit the installation of multiple risers on a pole or require that the pole owner own the risers or intervening conduit; rather, the Blue Book specifically contemplates that the protective conduit that houses a riser cable can be owned by attachers such as Comcast. Comcast Initial Brief at 13, 19-23.

According to Comcast, Consolidated's policy constitutes a "blanket ban" prohibiting competitors from owning risers on its poles without examining whether the risers present specific actual capacity, safety, reliability, or engineering issues affecting the particular poles in question. Id. at 20. Comcast argued that such a "blanket ban" is unlawful, unjust, unreasonable, discriminatory, and anti-competitive. Id. In addition to the state pole attachment statute and rules, Comcast cited a recent declaratory ruling issued by the Federal Communications Commission (FCC), Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 35 FCC Rcd 7936, 7939 (July 29, 2020). Id.; Exh. 13.

Comcast further argued that Consolidated's duty to provide nondiscriminatory access to its poles does not authorize it to reserve pole space for...

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