Municipal Make-ready Exemption and Why it Matters

For utility poles that are located in the public right of way, the term “municipal space” refers to a section of the utility pole reserved for municipal use. When municipalities first allowed utility poles to be set in the public rights of way over 120 years ago, part of the agreement was that in return for using public space, the pole owner would make space on the pole available to the town. In the early days the municipal space was used mostly for fire alarm circuits and other internal municipal needs. As those needs diminished, the municipal space was used less or not at all.

As the Internet became more important, municipalities came to see Internet infrastructure as a vital necessity and also became frustrated with the lack of private investment.  As a result, some municipalities started to see the potential of using the municipal space to locate fiber-optic cables to provide municipal broadband service. There were two problems with this municipal use. First, in many locations where the municipality was not using the municipal space over time pole pole owners had located other attachments in that space. Recovering that municipal space would require costly “make-ready” work, including in some cases taller poles. Second, because the municipal space dated back over a century, it was not clearly defined in law. In places where the poles are owned by the incumbent telephone company, the telephone company objected to the use of the municipal space by a municipally owned potential competitor.

In an effort to stop these arguments and to promote broadband infrastructure where it was lacking, in 2019 the Maine legislature passed “An Act To Establish Municipal Access to Utility Poles Located in Municipal Rights of Way,” P.L. 2019, Ch. 127. That act amended M.R.S.A. Ch. 35-A, Section 2524 to state that it was the pole owners’ and current attachers’ responsibility to do  make-ready at their expense to permit the municipal space to be used “… for a government purpose consistent with the police power of the municipality; or for the purpose of providing broadband service to an unserved or underserved area.

In November 2019, the Maine PUC updated Chapter 880 of its rules to reflect the new law. The language from the law can be found in Section 5: “Separate Charges”.

An important point about the law is that it only applies to areas that are unserved or underserved (as defined by the ConnectMaine Agency of the State of Maine). This reflects an elegant compromise which made the passage of the law smoother. Telephone company pole owners objected to the ability of municipalities to compete against their existing service by providing broadband via the municipal space. By restricting the law to only areas that are “unserved or underserved” this issue was avoided because by definition there was either no broadband or insufficient broadband service in those areas. Also, in those areas lack of broadband implies less wires on the poles so it was likely there was existing space for the municipality without necessitating significant make-ready. 

Finally, there is universal agreement that broadband infrastructure is vital to communities. One of the lessons of the past two years is the critical importance of broadband to the heath, welfare, educational, and economic needs of Maine’s citizens. It is unconvincing for private companies to argue that in areas they are not willing to invest, the municipality can’t help itself by making the infrastructure investment on its own behalf.

This law is important because it is another way of steering government funding, in this case municipal funding, towards areas that are unserved and underserved. It also makes what funding is available stretch further. If we look back over the last decade, in the beginning make-ready was making up close to 30% of the cost of a fiber network project in Maine. After several reforms over that decade in Maine’s pole attachment regime, the cost is more like 17%-20% of a project. For municipalities and municipal utility districts in unserved areas this law drops that percentage to zero allowing up to 20% more coverage.

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