Discussion
of Issues
Issue 1:
Should the Commission propose the adoption of Rule
25-18.020, F.A.C., Pole Safety, Inspection, Maintenance, and Vegetation
Management?
Recommendation:
Yes, the Commission should propose the adoption of
Rule 25-18.020, F.A.C., Pole Safety, Inspection, Maintenance, and Vegetation
Management, as set forth in Attachment A. Also, the Commission should certify
that Rule 25-18.020, F.A.C., is not a minor violation rule. (DuVal, Harper,
Buys, Maloy)
Staff Analysis:
Section 366.04(9)(a), F.S., requires the Commission
to regulate the safety, vegetation management, repair, replacement,
maintenance, relocation, emergency response, and storm restoration requirements
for communications services providers’ poles. Staff believes that the draft
rule set forth in Attachment A implements the Legislature’s directions to the
Commission to adopt rules to implement Section 366.04(9), F.S. Below is a more
detailed explanation of each section of the draft rule.
Application of the Rule
Subsection (1) of draft Rule 25-18.020, F.A.C., identifies
the type of communications services providers that must comply with the rule.
Specifically, the rule states that it applies to companies that meet the
definition of a communications services provider pursuant to Section 366.02(5),
F.S., and also own poles as defined in Section 366.02(6), F.S.
The rule goes on to specify that it does not apply to
poles used solely to support wireless communications service facilities or to
poles that do not have public utilities’ electrical overhead facilities
attached to them. Staff recommends that this language is necessary to help
identify which poles are subject to the Commission’s jurisdiction. Moreover, Florida
law specifically exempts wireless telecommunications from the Commission’s
oversight pursuant to Chapter 364, F.S. Therefore, the draft rule language is meant
to clarify and reiterate that the Commission does not have the authority to
regulate wireless telecommunications providers’ poles that do not have public
utilities attached to them.
Further, subsection (1) defines “overhead facilities,” for
purposes of the rule, as fixtures, conductors, wires, cables, and other devices
owned by public utilities that are attached to poles owned by a communications
services provider.
Safety, Inspection, and Maintenance Standards
Subsection (2) of draft Rule 25-18.020, F.A.C., states
that a communications services provider must exercise due care to reduce
potential hazards caused by its poles with public utility attachments. There
was a consensus among the stakeholders that the Commission’s safety rules
should reference the National Electric Safety Code (NESC) as the source for any
such rules. The NESC is a set of safety standards relevant to the national
electric grid and communications systems that is published by the IEEE and
updated every five years. The NESC has been an industry-used resource since
1915 and “sets the ground rules and guidelines for practical safeguarding of
utility workers and the public during the installation, operation, and
maintenance of electric supply, communication lines and associated equipment.”
The NESC provides strength and clearance requirements that
vary depending on the type and location of a pole. The NESC is structured to
ensure that regardless of the type or location of the pole, the pole is to
maintain a certain percentage of its original constructed strength. Thus, while
the NESC standards vary based on a variety of factors such as material,
construction practice, and geographical location, their purpose is to ensure
pole integrity. As such, the draft rule requires communications services providers
to adhere to the NESC for the construction, installation, maintenance,
relocation, and inspection of poles that are subject to the Commission’s
jurisdiction.
Inspection, Repair, and Replacement of Poles
Section 366.04(9)(b), F.S., requires the Commission to
adopt rules that address mandatory pole inspections, including repair or
replacement. Subsection (3) of draft Rule 25-18.020, F.A.C., satisfies this
requirement and requires communications services providers to conduct inspections
of its poles that are subject to the Commission’s jurisdiction at least every eight
years. Such inspections must include visual checks and be conducted to ensure
adherence to the strength and clearance standards of the NESC.
As discussed above, the NESC requires that poles maintain
a certain percentage of their originally constructed strength and that
percentage may vary based on the type of pole and its construction. Instead of
mandating the performance of specific tests to determine compliance with its
strength and clearance standards, the NESC allows companies the flexibility to use
any measures needed to meet those standards and their underlying purpose to
ensure that a pole maintains a certain percentage of its originally constructed
strength. The draft rule specifically states that inspections must include
visual checks. Visual checks can easily identify structural issues such as
decay, loose guy wires, insect or woodpecker damage, cracked poles, etc. Thus, staff
believes inspections should start with visual checks and can be expanded to
include other measures (sound and bore inspections, etc.) in order to ensure
that poles remain in compliance with the NESC’s requirements. If a
communications services provider’s inspection identifies poles that are not in
compliance with the NESC, such poles must be repaired or replaced in accordance
with the appropriate NESC standards.
Stakeholder Comments
Both CenturyLink and Frontier recommend a 10-year cycle to
review a pole inventory in its entirety. Frontier provides that other states,
such as Oregon, require inspections to be conducted at least every 10 years and
submits that such an inspection cycle is reasonable and should be adopted by
the Commission. Frontier further suggests that a recommended inspection rate of
10 percent of poles per year should be included in this subsection of the draft
rule. Meanwhile, CenturyLink suggests that the rule language should allow
flexibility for different inspection percentages, but supports the
establishment of a “maximum interval” between detailed inspections with a
“recommended inspection rate” of 10 percent of overhead facilities per year.
Additionally, CenturyLink recommends that an inspection
should be defined to include “visual checks or practical tests” of the
facilities, to the extent required to identify violations of Commission safety
rules that are sourced from the NESC. Similarly, Frontier recommends that the
draft rule language should set forth that inspections include, but are not
limited to, visual checks or practical tests to the extent required to identify
violations of NESC standards. Frontier further suggests that staff include
language in the draft rule to reflect that poles violating NESC standards must
be remediated to meet those standards; instead of repairing or replacing the
poles to meet those standards.
Both AT&T and FPL recommend that pole inspections be
conducted at least every eight years. FPL points out that the Commission
already requires an 8-year inspection cycle for poles owned by investor-owned
electric utilities that is based on those poles’ historical performance against
the climate, environment, and conditions (including hurricanes) that are
present in the state of Florida. However, in contrast to Frontier’s 10 percent
per year recommendation, FPL believes that companies should have the
flexibility to determine their own allocation of pole inspections per year, so
long as each pole is inspected once per cycle.
FPL further recommends that the rule should specify the
minimum level of pole inspection and testing requirements by including a list
of required forms of testing and inspection. FPL asserts that visual
inspections alone will not suffice and that the rule should also require above
ground line sound and bore inspections, excavations with below ground line
sound and bore inspections, and strength testing that compares the current pole
circumference to the original circumference. FPL further argues that Frontier’s
recommendation to require remediation, instead of repair or replacement, of
poles found to be in violation of the NESC weakens the proposed rule and leads
to ambiguity regarding replacement of poles that could ultimately impair the
reliability of electric and communications services.
Staff agrees with AT&T and FPL’s recommendation, along
with FPL’s provided rationale, that an 8-year inspection cycle is appropriate. In
accordance with CenturyLink and FPL’s recommendations, the draft rule language
does not establish annual inspection percentages in order to afford the companies
with the flexibility to determine their own inspection percentages based on
their individual circumstances and capabilities. Additionally, staff agrees with
the stakeholder comments regarding baseline guidance for inspections, but like
CenturyLink and Frontier, believes that they must include at least visual
checks and only be to the extent required to identify violations of NESC
standards. Further, staff agrees with FPL’s comments that it is necessary for
the draft rule to address the repair or replacement of poles in order for the
Commission to comply with the requirements of Section 366.04(9)(a), F.S.
Vegetation Management of Poles
Pursuant to Section 366.04(9)(b), F.S., the Commission
must adopt rules regarding vegetation management requirements for
communications services providers’ poles with public utility attachments. Subsection
(4) of draft Rule 25-18.020, F.A.C., addresses that statutory obligation and,
based on the stakeholders’ comments, requires communications services providers
to perform vegetation management of its Commission-regulated poles pursuant to Part
2 of the NESC. Specifically, Part 2, Section 218, of the NESC states that:
Vegetation management should be performed around
supply and communication lines as experience has shown to be necessary.
Vegetation that may damage ungrounded supply conductors should be pruned or
removed.
The purpose of the NESC’s requirements is to ensure that
lines are free of vegetation that may interfere with the lines or that may cause
a hazard. The NESC does not mandate the performance of specific vegetation
management techniques, but instead allows companies the flexibility to use any
measures needed to ensure compliance with the NESC’s requirements and their
underlying purpose to avoid interference with lines and potential hazards.
There was a consensus among the stakeholders that
communications services providers should conduct vegetation management of its
poles and facilities, but not of the electrical overhead facilities attached to
their poles. It is staff’s understanding that compliance with the NESC
standards will encompass vegetation management of a communications services
provider’s poles and aerial communications facilities. Vegetation management of
a public utility’s electrical overhead facilities, however, is to be conducted
by the public utility and is not the responsibility of the communications
services provider.
There were a number of comments regarding agreements for
vegetation management and recommendations that the rule continue to recognize
and allow for such agreements. Subsection (4) of the draft rule language
requires a communications services provider to “ensure” that vegetation
management of its poles meets the NESC standards, regardless of the entity that
actually physically conducts the vegetation management. This phrasing also contemplates
any contracts or agreements between a communications services provider and a
public utility with regard to vegetation management and permits a public
utility to continue conducting the vegetation management of a communications
services provider’s poles if such an agreement exists. Regardless if there is a
contract in place or not to outsource its vegetation management, a
communications services provider’s vegetation management must be in accordance
with the appropriate NESC standards.
Emergency Response and Storm Restoration
Procedures and Protocols
Subsection (5) of draft Rule 25-18.020, F.A.C., requires
communication services providers to submit their emergency response and storm
restoration procedures and protocols to the Commission’s Division of
Engineering; these must include descriptions of how the communications services
provider communicates with emergency operations officials, the ways that the
public can contact the communications services provider, and the ways the
communications services provider coordinates with the public utilities.
If such procedures and protocols are updated, a
communications services provider must submit a new version of the procedures
and protocols to the Commission within 30 days of the change. Furthermore,
every three calendar years after its initial submission, each communications
services provider must notify the Commission in writing that it has reviewed
its emergency response and storm restoration procedures and protocols. Staff
notes that the every 3-year review requirement would always be calculated from
the initial submission date, even if updated procedures and protocols are
submitted mid-cycle.
Stakeholder Comments
In its comments, Frontier argues against the draft rule’s
reporting requirements and recommends the removal of any requirement to submit
emergency response or storm restoration procedure and protocols.
Staff recommends that this rule language is necessary because it implements
the Commission’s statutory obligation set forth in Section 366.04(9)(a), F.S., to regulate communications
services providers’ emergency response and storm restoration efforts as related
to their jurisdictional poles. The information requested by the rule will allow
Commission staff to determine whether a communications services provider has
emergency response and storm restoration procedures and protocols in place.
Additionally, the collection of this information, along with the draft rule’s
requirements regarding review and submission of updated information, will
ensure that a communications services provider’s current procedures and
protocols are readily available for the Commission and Commission staff’s
reference.
Reporting Requirements
Subsection (6) of draft Rule 25-18.020, F.A.C., requires
communications services providers to submit an annual report to the Commission
that contains specified information relevant to the prior calendar year, along
with specified information relevant to the upcoming calendar year.
For the prior calendar year, staff recommends that the
rule require communications services providers to provide information regarding
the inspection, strength testing, repair, replacement, and vegetation
management of their poles that are subject to the Commission’s jurisdiction. For
the upcoming calendar year, staff recommends that the rule require communications
services providers to provide the number of poles to be inspected and the total
miles of vegetation management to be conducted.
Staff notes that under the rule, communications services
providers’ first annual reports would be due by June 1, 2023, and then by June
1 of each year thereafter.
Stakeholder Comments
Comments on the draft rule’s reporting requirements generally
address two areas: (1) the reporting period; and (2) the reporting requirements
for vegetation management.
Reporting Period
In its comments, AT&T argues that an annual reporting
requirement is more frequent than needed for purposes of tracking progress on
pole inspection and maintenance. Instead, AT&T suggests that a reporting
cycle based on the duration of the pole inspection cycle would be more
appropriate. For instance, reports could be submitted every three or five years
if a 10-year pole inspection cycle is approved or they could be submitted every
two or three years if an 8-year pole inspection cycle is approved.
In its comments, Frontier argues that annual reporting
would be unduly burdensome and would not have any meaningful impact on safety.
Accordingly, in the alternative, Frontier recommends that the Commission should
require communications services providers to maintain written records that
demonstrate compliance with the Commission’s rules and provide a report of
their pole inspections during the fifth year of 10-year inspection cycle.
Frontier’s suggestions are based on the pole inspection requirements that were
developed and implemented by the state of Oregon.
In contrast, FPL argues that changing the frequency of the
reporting requirement will not provide the Commission with the data necessary
to fulfill its statutory obligation to regulate communications services
providers’ poles and will allow pole safety and reliability to deteriorate
without Commission awareness. FPL points out that investor-owned electric utilities
must also submit annual reports of their pole inspection programs
and that this method is based upon the Commission’s understanding of utility
poles’ performance when subjected to Florida’s unique climate and environment.
Moreover, FPL maintains that annual reporting is necessary to ensure that the
Commission and its staff have timely, meaningful data in order to take timely
action if a communications services provider’s pole inspection and maintenance
processes are deficient.
FPL specifically argues against Frontier’s suggestion that
communications services providers should simply maintain written records that
demonstrate compliance with the Commission’s rules. FPL maintains that this
suggestion defeats the legislative intent for the Commission to regulate communications
services providers’ poles. Moreover, FPL submits that compiling an annual
report for submission to the Commission cannot be unduly burdensome if
communications services providers have the capacity to maintain written records
containing data representing its compliance with Commission rules.
Staff agrees with FPL’s rationale that an annual reporting
period will assist the Commission in fulfilling its duty required by Section
366.04(9)(a), F.S., and is necessary to verify that the communications services
providers are performing inspections and conducting vegetation management on
its poles as required.
Reporting Requirements for Vegetation Management
Subparagraphs (6)(a)10. and (6)(b)2. of the draft rule
require communications services providers to include information about
vegetation management in their annual reports. AT&T recommends the removal
of such provisions because communications services providers are precluded from
conducting vegetation management in the utilities’ space and because such
information is not meaningful as to either the safety or reliability of any
aerial communications facilities. The company propounds that aerial
communication facilities do not create safety issues for personnel because of
their low voltage, that vegetation does not create a reliability issue unless
it actually breaks a communications facility, and that vegetation management is
typically only conducted on an “as needed” basis consistent with the NESC.
As provided above, FPL argues that any recommendation to
modify the substance of the annual reports should be rejected because the
information requested in the draft rule assists the Commission in understanding
the current inspection, maintenance, and conditions of communications services
providers’ poles with public utility attachments.
Staff agrees with FPL’s reasoning and recommends that the
draft rule provisions regarding reporting requirements for vegetation management
should remain in the rule. Staff recommends that the reporting requirements are
necessary the Commission to fulfill its duty to regulate under Section
366.04(9), F.S., and assists with the Commission’s ability to monitor the
communication services providers’ compliance with the NESC.
Penalties
Section 366.04(9)(b), F.S., requires the Commission to
adopt rules establishing monetary penalties to be imposed upon any
communications services provider that fails to comply with Commission rules for
poles with public utility attachments. Subsection (7) of draft Rule 25-18.020,
F.A.C., addresses that statutory requirement by setting forth the penalties a
communications services provider will be subject to if the Commission finds
that it willfully violates or refuses to comply with the rule.
Local Ordinances and Standards
Subsection (8) of draft Rule 25-18.020, F.A.C., explains
that no language in this rule is meant to supersede a communications services
provider’s responsibility to comply with any local authority’s ordinances and
standards.
Staff added this provision to the draft rule language based
on the written comments provided by the City of Coconut Creek in an effort to
eliminate potential confusion about the applicability of local ordinances or
standards that may conflict with Rule 25-18.020, F.A.C.
Minor Violation Rules Certification
Pursuant to Section 120.695, F.S., for each rule filed for
adoption, the agency head must certify whether any part of the rule is
designated as a rule the violation of which would be a minor violation. Staff
recommends that Rule 25-18.020, F.A.C., is a rule for which a violation would
not be a minor violation because the violation of the rule would result in
economic or physical harm to a person or have an adverse effect on the public
health, safety, or welfare or create a significant threat of such harm. Therefore,
because a violation of Rule 25-18.020, F.A.C., would constitute a major
violation, staff recommends that the Commission should certify that the rule is
not a minor violation rule. No change to the Commission’s current list of minor
violation rules published on the Commission’s website is necessary.
Conclusion
Based on the foregoing, staff recommends that the
Commission propose the adoption of Rule 25-18.020, F.A.C., Pole Safety,
Inspection, Maintenance, and Vegetation Management, as set forth in Attachment
A. Staff further recommends that the Commission should certify that Rule
25-18.020, F.A.C., is not a minor violation rule.
Issue 2:
Should this docket be closed?
Recommendation:
Yes. If no requests for hearing or Joint
Administrative Procedures Committee (JAPC) comments are filed, this rule should
be filed with the Department of State, and the docket should be closed. (DuVal,
Harper)
Staff Analysis:
If no requests for hearing or JAPC comments are
filed, the rule should be filed with the Department of State, and the docket
should be closed.
25-18.020
Pole Safety, Inspection, Maintenance, and Vegetation Management.
(1)
This rule applies to all communications services providers as defined in
Section 366.02(5), F.S., that own poles as defined in Section 366.02(6), F.S.
This rule does not apply to poles used solely to support wireless
communications service facilities or poles with no public utility electrical overhead
facilities attached. For the purposes of this rule, “overhead facilities” are
defined as fixtures, conductors, wires, cables, and other devices owned by
public utilities that are attached to poles owned by a communications services
provider.
(2)
Safety, Inspection, and Maintenance Standards. Each communications services
provider must exercise due care to reduce hazards to which its employees,
customers, and the public may be subjected by reason of its poles. Accordingly,
all poles of communications services providers subject to the Commission’s
jurisdiction under Section 366.04(9), F.S., must be constructed, installed,
maintained, relocated, and inspected in accordance with the National Electrical
Safety Code (NESC) which is incorporated by reference in Rule 25-6.0345, F.A.C.
(3)
Inspection, Repair, and Replacement of Poles. Each communications services
provider must conduct inspections of its poles at least every eight (8) years to
ensure adherence to the strength and clearance standards of the NESC. Inspections must include visual checks to
determine compliance with the strength and clearance standards of the NESC. Poles
not in compliance with NESC standards must be repaired or replaced to meet those
standards.
(4)
Vegetation Management of Poles. Each communications services provider must ensure
that the vegetation management of its poles meets the standards set forth in
Part 2 of the NESC.
(5)
Emergency Response and Storm Restoration Procedures and Protocols. Within six
months of the effective date of this Rule, each communications services
provider must provide a copy of its emergency response and storm restoration
procedures and protocols to the Division of Engineering.
(a)
The procedures and protocols must include the following:
1.
A description of the communications services provider’s procedures and
protocols for communicating with federal, state, and local emergency operations
officials;
2.
A description of how the public can contact the communication services provider
to report issues with its poles, such as broken poles, downed overhead
facilities, or obstructive vegetation; and
3.
A description of how the communication services provider coordinates with
public utilities regarding emergency response or restoration efforts.
(b)
If the communication services provider makes changes to its emergency response
and storm restoration procedures and protocols, the communication services
provider must file the updated emergency response and storm restoration
procedures and protocols with the Division of Engineering within 30 days of the
change.
(c)
Every three calendar years after the initial submission, each communication
services provider must notify the Division of Engineering in writing that it
has reviewed its emergency response and storm restoration procedures and
protocols.
(6)
Reporting Requirements. By June 1 of each year, each communications services
provider must file with the Commission Clerk an Annual Report.
(a)
The Annual Report must include the following information for the prior calendar
year:
1.
The number of poles owned in whole or in part by the communications services
provider at the beginning and at the end of the calendar year;
2.
The number of poles that were scheduled for inspection;
3.
The number of poles actually inspected;
4.
The number of poles that failed inspection;
5.
The number of poles strength tested;
6.
The number of poles that failed strength testing;
7.
The number of poles repaired and a summary of the repairs;
8.
The number of poles replaced and reason for replacement; and
9.
The total miles of vegetation management conducted.
(b)
The Annual Report must include the following information for the upcoming
calendar year:
1.
The number of poles to be inspected; and
2.
The total miles for which vegetation management will be conducted.
(7)
Penalties. A willful violation or refusal to comply with this rule will result
in monetary penalties as follows:
(a)
$500 for the first violation;
(b)
$1,000 for the second violation;
(c)
$1,500 for the third violation;
(d)
$2,000 for the fourth violation; and
(e)
$5,000 for the fifth and any subsequent violation.
(8)
This rule is not meant to relieve communications services providers from
adhering to any local ordinances and standards.
Rulemaking
Authority 350.127(2), 366.04(9)(b) FS.
Law Implemented 366.04(9),
366.095 FS. History-New__________.
