CHARLESTON – The West Virginia Public Service Commission has again made it clear that electric and telephone utility companies cannot place the responsibility of replacing aging poles on internet service providers trying to install broadband equipment.

In an order released Thursday, the PSC clarified a previous order issued in August, stating that poles that are “red-tagged,” poles that require replacement due to age, condition and safety issues, must be replaced by the owner of the pole.

“We wish to make it clear that poles that require replacement due to age, deterioration, safety violations, accident, or any other cause must be replaced at the cost of the owners,” the order said. “We are concerned that pole owners have not been consistent and aggressive in identifying poles that should be replaced.

“Failure to ‘red-tag’ a pole that should have been red-tagged, would have been red-tagged upon close inspection, or is likely to be red-tagged in the near future does not place that pole in the category of an acceptable pole with remaining life that is replaced solely to accommodate an attacher.

“We direct the pole owners to determine if a pole needs to be replaced and should have been red-tagged already, or is likely to require replacement in the near future, when faced with the need to replace poles upon a request for attachment(s),” the order continued. “Such poles should be considered as red-tagged unrelated to the new attachment request for purposes of replacement.”

In August, the commission issued an order requiring cost-sharing among all new pole attachers and the owner of the pole being replaced, updating the PSC’s own pole attachment rules. The commission reaffirmed its August order in the Thursday order.

“The commission’s intention is to protect new attachers from unreasonable responsibility for pole replacement costs, not to insulate them entirely from expenditures on poles from which they benefitted,” the commission wrote. “Burdening only new attachers or only existing attachers or only pole owners is inconsistent with our rules and the (Federal Trade Commission) policies as expressed in the 2023 FCC Order.”

The pole attachment issue has been one of the central issues surrounding broadband expansion in the state with Citynet in Bridgeport in a dispute with Akron-based FirstEnergy subsidiaries Mon Power and Potomac Edison and Comcast in a dispute with Columbus-based American Electric Power subsidiaries Appalachian Power and Wheeling Power.

In a July order, the commission prohibited Appalachian Power from enforcing a “pre-existing violation” policy to place the cost of repairs or replacement of utility poles on internet service providers, instead of the electric utility that owns the poles. Appalachian Power has cited its pre-existing violation policy when issues are discovered with the pole or prior attachments to the pole during make-ready, the process of modifying utility poles for new internet service provider (ISP) equipment.

Current laws prohibit pole owners from denying access to utility poles to new attachers, such as ISPs, due to safety concerns stemming from pre-existing code violations caused by other attachers.

The 2023 order issued by the FCC also determined that pole owners cannot charge new attachers for replacements of utility poles due to pre-existing conditions on the pole, if the pole is already scheduled for replacement or if the pole is non-compliant with safety standards.

The Public Service Commission issued an order on June 27 establishing a Pole Attachment Working Group to address various issues, including make-ready timelines, cost allocation and rule updates. The commission mandated the creation of a pole inspection database to aid broadband providers, contingent on funding, and required pole owners to file annual reports on attachment requests. The order also addressed specific rule modifications, such as allowing temporary pole attachments during pole replacements.

West Virginia is already a whole construction season behind due to delays in the federal Broadband Equity, Access and Deployment program. The U.S. Department of Commerce’s National Telecommunications and Information Administration released updated guidance in June for BEAD, established by the 2021 Infrastructure Investment and Jobs Act to allocate more than $42 billion to expand high-speed broadband access across the United States.

West Virginia submitted its BEAD Final Proposal on Sept. 3, kicking off a 90-day comment period, with the NTIA expected to render a decision on the state’s BEAD proposal in December. West Virginia already has broadband projects underway and funded through other federal programs. In its order, the commission said it was vital for pole attachment disagreements to be worked out between utilities and ISPs.

“We are concerned that continuing delays are jeopardizing the availability of federal funding for broadband expansion. That is unacceptable,” the commission wrote. “We expect attachment requests to be processed without delay. The Owners should replace poles that require replacement as discussed herein to expedite attachment projects.”

“Frontier and the electric utilities should follow their pole sharing agreements and not delay replacement of their own poles or jointly owned poles,” the PSC continued.

“We expect the electric utilities to take the lead in getting poles replaced when needed and resolving any disputes with other owners without delaying needed replacements.”