Section 67.5104

Title VI COUNTY, TOWNSHIP AND POLITICAL SUBDIVISION GOVERNMENT

Chapter 67

Effective - 28 Aug 2013, 2 histories, see footnote   (history) 

  67.5104.  Pole attachment defined — pole attachment fees, terms, and conditions to be nondiscriminatory — review. — 1. As used in this section, "pole attachment" means an attachment by a video service provider, a telecommunications or other communications-related service provider to a pole owned by a municipal utility, but not a wireless antenna attachment or an attachment by a wireless communications provider to a pole.

  2. Notwithstanding sections 67.1830 to 67.1846, any pole attachment fees, terms, and conditions, including those related to the granting or denial of access, demanded by a municipal utility pole owner or controlling authority of a municipality shall be nondiscriminatory, just, and reasonable and shall not be subject to any required franchise authority or government entity permitting, except as provided in this section. A pole attachment rental fee shall be calculated on an annual, per-pole basis. Such rental fee shall be considered nondiscriminatory, just, and reasonable if it is agreed upon by the parties or, in the absence of such an agreement, based on cost but in no such case shall such fee so calculated be greater than the fee which would apply if it were calculated in accordance with the cable service rate formula referenced in 47 U.S.C. Sec. 224(d) as applied by the Federal Communications Commission, except as permitted by subsection 3 of this section.

  3. Either party may seek review of any fee, term, or condition by means of binding arbitration conducted by a single arbitrator mutually agreeable to the parties or, in the absence of such an agreement, by means of binding arbitration conducted by the American Arbitration Association. An arbitrator's award regarding fees shall be confined to ensuring that the municipal utility pole owner recovers its direct costs and a reasonable share of the fully allocated costs attributable to the pole attachment, and that the fee may exceed the fee resulting from the application of the cable service rate formula referenced in this section only if based on an express written finding stated in the award that such award is based on competent and substantial evidence that the revenues produced under the cable service rate formula and other payments made by the service provider do not sufficiently recover the direct costs and a reasonable share of the fully allocated costs attributable to the pole attachment. In addition, a municipal pole owner may be authorized to exceed the rate of return cost components of the Federal Communications Commission formula referenced in this section if necessary to comply with Article X of the Missouri Constitution. Pending the arbitrator's rendering of such an award, the last existent rental fee applicable to the pole attachment shall remain in place and binding upon both parties.

  4. Where no prior contract exists between an attaching entity and the municipal utility pole owner, and a dispute between a municipal utility pole owner and an attaching entity exclusively concerns the per-pole fee, then the attaching entity may proceed with its attachments during the pendency of the arbitration under the agreed-upon terms and conditions.

  5. The provisions of this section shall not supersede existing pole attachment agreements established prior to August 28, 2013.

  6. Nothing in this section shall be construed as conferring any jurisdiction or authority to the public service commission to regulate either the fees, terms, or conditions for pole attachments, or for any state agency to assert any jurisdiction over pole attachments regulated by 47 U.S.C. Sec. 224.

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(L. 2013 H.B. 345)