MassachusettsMA
- Cooperative poles
- No electric distribution cooperative was identified in Massachusetts, so the question has no subject matter in this state. If one existed it would be covered: the definition of Utility in M.G.L. c. 166, section 25A is keyed to ownership or control of poles rather than to corporate form, and it carries no exemption or exception clause of any kind
- Municipal poles
- Yes. M.G.L. c. 166, section 25A names a municipal lighting plant in the definition of Utility itself, and 220 CMR 45.02 carries the identical definition, so municipal lighting plants sit inside the rate, terms and conditions regime with no exemption statute to weigh against. One narrow carve out: the wireless access paragraph of section 25A ends by providing that the paragraph shall not apply to municipal lighting plants, so a municipal lighting plant owes no statutory nondiscriminatory access duty to a wireless provider while remaining fully inside the rate regime. A rate complaint against a municipal lighting plant was adjudicated at the Department of Telecommunications and Cable in D.T.C. 14-2, with a Phase I Order issued 2014-09-03 and later designated final; what that order held is not established in this record
- Rate standard
- State just and reasonable standard set by statute, not the FCC formula. M.G.L. c. 166, section 25A sets a band rather than a formula: not less than the additional costs of making provision for attachments, and not more than the proportional capital and operating expenses of the utility attributable to the portion of the pole, duct or conduit occupied by the attachment, that portion computed as the percentage of total usable space the attachment occupies. The operative method is a case law formula known as the Massachusetts Formula, from Greater Media, A-R Cable Services and Cablevision of Boston; it is codified in neither the statute nor 220 CMR 45.00, the Departments have twice declined to codify it, and in 2021 they expressly declined to adopt the FCC rate formula in order to preserve state autonomy. The band is not keyed to 47 CFR, so an amendment to the federal formula does not move the Massachusetts number. The content of the formula itself was not read in this record and is not established
- Where a dispute goes
- Massachusetts Department of Public Utilities and Department of Telecommunications and Cable, never the FCC. 220 CMR 45.02 defines Department as the DPU and/or the DTC, and which agency adjudicates is decided case by case by the primary purpose of the attachment under a Memorandum of Agreement between the two, so the complaint is filed concurrently with both. A complaint may be brought by a licensee or a utility, and must recite, with dates, the steps taken to reach agreement before filing or state why none were taken. Neither M.G.L. c. 166, section 25A nor any of the eleven sections of 220 CMR 45.00 contains a limitation period or filing deadline for a complainant; the one hard clock, 180 days under 220 CMR 45.08, is a decision deadline running against the Department and is not an attacher's filing deadline. The remedy under 220 CMR 45.07 is prospective: prescribe a just and reasonable rate, terminate the unjust one, substitute the reasonable one into the attachment agreement, or order such relief as the Department finds appropriate. It carries no express refund power, and whether historic overcharges are recoverable in Massachusetts is not established. Because Massachusetts is certified, the FCC's pole attachment rules do not govern a Massachusetts pole, and the rule in force contains no make ready timeline at all; the only access clock is 220 CMR 45.03(2), under which a utility that has not granted access within 45 days of a written request must confirm the denial in writing, with reasons, by the 45th day. The whole of 220 CMR 45.00 is proposed to be replaced in D.P.U. 26-10 / D.T.C. 26-1, opened 2026-03-06, and none of that proposal is in force
- Confidence
- High confidence on certification and the absence of FCC jurisdiction, on the statutory definition of Utility including municipal lighting plants and the absence of any owner class exemption, on the statutory rate band, on the forum and the concurrent filing practice, on the absence of any limitation period, on the 180 day agency decision deadline, on the absence of any make ready timeline in the rule in force, and on the prospective remedy in 220 CMR 45.07. Good confidence on whether the Massachusetts Formula functions as a ceiling, a presumption or a mandatory rate, which rests on the agencies' own characterisations rather than on a rate order read this run. Provisional on the content of the Massachusetts Formula, none of the three underlying orders having been retrieved, on the D.T.C. 14-2 Phase I Order's holding that the formula applies to a municipal lighting plant, on the absence of any electric cooperative in Massachusetts, on pole owner identities and every pole count, on all BEAD figures, and on the joint ownership billing practice. Indicative only on federal installation pole ownership and on the absence of a tribally owned pole owner, each a not found rather than an established absence
Authorities47 U.S.C. 224(c)47 CFR 1.1405FCC DA 22-630FCC DA 26-579M.G.L. c. 166, section 25A220 CMR 45.00220 CMR 45.02220 CMR 45.03(2)220 CMR 45.04(2)(f)220 CMR 45.07220 CMR 45.08Greater Media, Inc. v. New England Telephone & Telegraph Co., D.P.U. 91-218 (1992)Cablevision of Boston Co. et al. v. Boston Edison Co., D.P.U./D.T.E. 97-82 (1998)A-R Cable Services, Inc. et al. v. Massachusetts Electric Co., D.T.E. 98-52 (1998)D.P.U. 19-76-A / D.T.C. 19-4-AD.T.C. 14-2D.P.U. 26-10 / D.T.C. 26-1