Massachusetts Law To Remove Pole Attachment Fees For Muni Broadband Projects Stalled

Last December we wrote about Connecticut’s long-awaited victory by court affirmation in the fight to let its cities attach to utility poles at no cost in pursuit of spurring municipal broadband efforts. A similar effort seems to have stalled in its neighbor to the north, with HD 4492 languishing in the Massachusetts Legislature’s Telecommunications, Utilities and Energy Committee. 

The bill, “An Act To Establish Municipal Access To Utility Poles Located In Municipal Rights-Of-Way,” is simple. It modifies Chapter 166, Section 22a of the state’s General Laws to eliminate pole attachment fees for cities working to build broadband networks to reach “unserved or underserved areas” (as defined by the Massachusetts Broadband Institute (MBI)), shifting the expense instead to the current pole owner(s). John Barrett introduced the bill and two dozen fellow legislators co-signed it. It calls for: 

Notwithstanding any provision of law to the contrary, for the purpose of safeguarding access to infrastructure essential to public health, safety and welfare, an owner of a shared-use pole and each entity attaching to that pole is responsible for that owner's or entity's own expenses for make-ready work to accommodate a municipality's attaching its facilities to that shared-use pole: a) For a governmental purpose consistent with the police power of the municipality; or b) For the purpose of providing broadband service to an unserved or underserved area.

Up in the Air

For parts of the country where aerial fiber sits at the core of network builds as a result of challenges posed by underlying geology (bedrock), overlying geography (topography), or other concerns that preempt underground construction, utility poles are the answer. Massachusetts has more than a million of them, and for projects just navigating the franchise areas of electric utility pole owners [pds] alone could be a daunting task. Getting timely, affordable access for make-ready work is an obstacle which can easily stall and kill a broadband project even when the pole owner is willing to make things work. 

Costs matter too. State funds being distributed to the municipalities in various stages of building their own networks are in part based on the number of utility poles to which they will need to attach. This became a problem in 2017 when the city of Charlemont found that MBI had undercounted poles by as much as 40%, assessing the number at 1,253 when it should’ve been 1,765. With pole fees as high as $400 each, that leaves a nearly quarter-million-dollar gap for residents to cover in some way or another. 

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There’s no doubt that passage of the law would help beyond Charlemont. Westfield Gas and Electric’s fiber arm, Whip City Fiber, is currently working with 20 towns in various stages of municipal network planning and construction. Eliminating pole fees would no doubt save them millions of dollars. The Berkshire Eagle reported last October that nearly $11 million was spent in the make-ready process by 22 towns in the state preparing to build their own networks, though no comprehensive database of the number of utility poles or the amount collected by owners through attachment fees exists. 

Pole fees, of course, remain just part of the picture. Make-ready work constitutes a significant portion of planning effort and time to keep network deployment on schedule. Projects that stall run the risk of souring relationships with local officials and residents and losing money — factors that incumbent providers like AT&T have used to stifle competition in places like Kentucky. And while some cities have passed One Touch Make Ready ordinances in recent years, widespread action remains absent. In Massachusetts, roughly 40% of all utility poles [pdf] are owned by Verizon, whose FiOS service would be a direct competitor to any area municipal service.

"The only way there's going to be effective competition is to have municipalities take it on. It's got to be put on the table. Municipalities, if they can find it affordable, will do their own [networks]," Barrett told The Berkshire Eagle at the time.

The bill was referred to the Telecommunications, Utilities and Energy Committee for study last February. The committee is required to report on it by the end of this year, and we’ll update if anything happens. Read the full bill below.