BILL REQ. #:  H-5569.1 

READ FIRST TIME 02/12/08.   

     AN ACT Relating to attachments to utility poles of locally regulated utilities; amending RCW 54.04.045; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 54.04.045 and 1996 c 32 s 5 are each amended to read as follows:
     (1) As used in this section:
     (a) "Attachment" means the affixation or installation of any wire, cable, or other physical material capable of carrying electronic impulses or light waves for the carrying of intelligence for telecommunications, information services as defined in 47 U.S.C. Sec. 153(20), or television, including, but not limited to ((cable, and)) any or all related devices, apparatuses, or auxiliary equipment, within the licensee's allocated space, and facilities or equipment related to such attachments required to ensure that the attachments meet safety or engineering requirements, including but not limited to risers, guys, or anchors, upon any pole owned or controlled in whole or in part by one or more locally regulated utilities where the installation has been made with the necessary consent.
     (b) "Licensee" means any person, firm, corporation, partnership, company, association, joint stock association, or cooperatively organized association, which is authorized to construct attachments upon, along, under, or across public ways.
     (c) "Locally regulated utility" means a public utility district not subject to rate or service regulation by the utilities and transportation commission.
     (((c))) (d) "Nondiscriminatory" means that pole owners may not ((arbitrarily)) differentiate without good cause among or between similar classes of ((persons)) licensees approved for attachments.
     (2) All rates, terms, and conditions made, demanded, or received by a locally regulated utility for ((attachments to)) allocated space on its poles for the placement of licensees' attachments must be just, fair, reasonable, nondiscriminatory and sufficient. ((A locally regulated utility shall levy attachment space rental rates that are uniform for the same class of service within the locally regulated utility service area.
     (3) Nothing in)) A just and reasonable rate must ensure the locally regulated utility the recovery of not less than all the additional costs of procuring and maintaining pole attachments nor more than the actual capital and operating expenses, including just compensation, of the locally regulated utility attributable to that portion of the pole, duct, or conduit used for the pole attachment, including a share of the required support and clearance space, in proportion to the space used for the pole attachment, as compared to all other uses made of the subject facilities and uses that remain available to the owner or owners of the subject facilities.
     (3) Except in extraordinary circumstances, a locally regulated utility must respond to a licensee's request to attach within forty- five days. A request to attach may only be denied on a nondiscriminatory basis (a) where there is insufficient capacity and (b) for reasons of safety, reliability, and generally applicable engineering purposes.
     (4) Any dispute between the locally regulated utility and a licensee, including but not limited to disputes over a specific request to attach or over any rate, term, or condition sought by the locally regulated utility or a licensee for attachments, must first be presented to the governing board of the locally regulated utility for resolution. If the dispute is not resolved by or before the governing board of the locally regulated utility within forty-five days from the date the dispute is presented to the governing board, either the licensee or the locally regulated utility may initiate a proceeding in the superior court for Thurston county or the county containing the headquarters of the locally regulated utility.
     (5) In any review proceedings under this section the superior court shall:
     (a) Conduct an independent examination of the rates, terms, and conditions made, demanded, or received by the locally regulated utility to determine whether those rates, terms, and conditions seek to impose a just and reasonable rate; and
     (b) Review whether the rates, terms, and conditions made, demanded, or received by the locally regulated utility further the public interest by affirmatively promoting the joint use of poles and the development of competition for the provision of telecommunications and information services.
     (6) If the superior court concludes by a preponderance of the evidence that the rates, terms, and conditions made, demanded, or received by the locally regulated utility exceed a just and reasonable rate, or that those rates, terms, and conditions do not further the public interest, the court shall order that the locally regulated utility enter into an agreement on such terms that the court determines are just, fair, reasonable, nondiscriminatory, and sufficient.
     (7) Nothing in this section shall be construed or is intended to confer upon the utilities and transportation commission any authority to exercise jurisdiction over locally regulated utilities.

NEW SECTION.  Sec. 2   If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2008, in the omnibus appropriations act, this act is null and void.