An Act To Enable the Installation of Broadband Infrastructure (AFTER DEADLINE)
Maine Legislature, Session 124, LD 1778
Committee: Utilities and Energy
Sponsors: DILL, BARTLETT, FLETCHER, HINCK, PINGREE, BLISS
Amends: 35-A MRSA §102, 35-A MRSA §711, 35-A MRSA §2301, 35-A MRSA §7902

Legislative Document 
No. 1778 
1265 
House of Representatives, February 8, 2010 
An Act To Enable the Installation of Broadband Infrastructure 
(AFTER DEADLINE) 
(EMERGENCY) 
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
205. 
Reference to the Committee on Utilities and Energy suggested and ordered printed. 
Presented by Representative DILL of Cape Elizabeth. 
Cosponsored by Senator BARTLETT of Cumberland and 
'7J1~ 
1?1.1J?tlC~{ 
MILLICENT M. MacFARLAND 
Clerk 
Representatives: FLETCHER of Winslow, HINCK of Portland, MacDONALD of Boothbay, 
Speaker PINGREE of North Haven, Senators: BLISS of Cumberland, RECTOR ofK.nox. 
Printed on recycled paper 
Emergency preamble. Whereas, acts and resolves of the Legislature do not 
become effective until 90 days after adjournment unless enacted as emergencies; and 
Whereas, the development and expansion of broadbandtelecommunicatiohs service 
is essential to economic development ill the State; and 
Whereas, federal grants 
ar~ available under the American Recovery and 
. Reinvestment Act of 2009 to certain organizations for the development and expansion of 
broadband telecommunications service and infrastructure; and 
Whereas, it is important for broadband development and expansion to begin 
immediately to provide the best opportunities for businesses within the State; and 
Whereas, in order to enable rapid broadband development and expansion, statutory 
changes are needed to facilitate the efforts of dark fiber providers; and 
Whereas, in the judgment of the Legislature, these facts create all emergency with in 
the meaning of the. Constitution of Maine and require the following legislation as 
immediately necessary for the preservation of the .public peace, health and safety; now, 
therefore, 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 35-A MRS A §102, sub-§4-A is enacted to read: 
4-A. Dark fiber. "Dark fiber" means one or more strands within a bundle of fiber-
optic cable through which an associated light signal or light communication transmission 
must be provided to provide- communications service, but excluding the electronic 
equipment required in order to render the fiber capable of transmitting communications. 
Sec. 2. 35-A MRS A §102, sub-§4-B is enacted to read: 
4-B. Dark fiber provider. "Dark fiber provider" means a person, or that person's 
lessee, trustee, receiver or trustee appointed by any court, owning, controlling, operating 
or managing dark fiber that: 
. 
A. Offers its dark fiber on an open-access basis to all carriers and end users without 
unreasonable discrimination as confirmed in a schedule of rates,. terms and conditions· 
filed for informational purposes with, the commission; and 
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B. Is required to conduct its business subject to· restriCtions: established; and' enforced 
by the Federal Government pursuant to Titie Vl onhe federal American: Recovery 
and Reinvestment Act of 2009, Public Law 1'11'-5, 12J Stat .. 115 (2009'} anti!! to grant 
security interests to the Federal Government underthatAct.. 
Sec. 3. 35-A MRSA §102, sub-§13, as amended by PL 1999, c. 579,. §3, is 
further amended to read: 
13. Public utility. "Public utility" includes every gas utility, natural gas pipeline 
utility, transmission and distribution utility, telephone utility, water utility and ferry, as 
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those terms are defined in this section, and each of those utilities is declared to be apub1ic 
utility. "Public utility" does not include a dark fiber provider or the operation of a radio 
paging service, as that term is defined in this section,_ or mobile telecommunications 
services unless only one entity or an affiliated interest Of that entity, as defined in section 
707,' subsection 1, paragraph A, exclusively controls the use of the radio frequency 
spectrum assigned by the Federal Communications Commission to provide mobile 
service to the service area. 
Nothing in this subsection precludes:. 
A. The jurisdiction, control anc;l regulation by the commission pursuant to private and 
special act of the Legislature; 
, 
B. The commission's jurisdiction and control over and regulation of a public utility· 
that provides, in addition to other services, 
radio paging service or mobile 
telecommunications services; 
C. The commission's jwisdiction and control over and regulation of basic exchange 
telephone service offered by a provider of mobile telecommunications services if, 
after investigation and hearing, the commission determines that the provider is 
engaged in the provision of basic exchange telephone service; and 
D. Negotiations for, or negates agreements or arrangements existing on the effective 
dat~ of this paragraph relating to, rates, terms and conditions for interconnection 
provided by a telephone utility to a company providing radio paging or mobile 
telecommunications services. 
Sec. 4. 35-A MRSA §711, as amended by PL 1991, c. 708, § 1, is further amended 
to read: 
§711. Joint us'e of equipment 
1. Joint use permitted. The commission may order that joint use be perrriitted and 
prescribe reasonable compensation and reasonable terms and conditions for the joint use 
when, after a hearing had upon its own motion or upon complaint of a public utility, dark 
fiber provider or cable television system affected, it finds the following: 
A. That public convenience and necessity require the use by one public utility, dark 
fiber provider or cable television system of the conduits, subways, wires, poles, pipes 
or other equipment, or any part of them, on, over or undel' any street or highway and 
belonging to another public utility, dark fiber provider or cable television system; 
B. That joint use will not result in irreparable injury. to the owner 01' other users of 
the conduits, slibways, wires, poles, pipes or other equipment or. in any substantial 
detriment to the service; and 
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C. That the public utilities utility, dai'k fiber provider 01' cable television system fla.v.e 
has failed to agree upon the use or the terms and conditions or compensation for the 
use. 
2. Liability of user; If joint use is ordered, the public utility, dark fiber provider or 
cable television system to whom the use is permitted shall be .i§. liable to the owner or 
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other users of the conduits, subways, wires, poles, pipes or other equipment for damage 
that may result from its use to the property of the owner or other users. 
3. Interests of cable television subscribers. Ariy actions taken or orders issued by 
the commission under this section sfl.aU must take into account the interests of the 
subscribers of the affected cable television system, .as well· as the customers of the 
affected public utilities or the dark fiber providers. 
4. 
Rules. The commission shall adopt a rule governing the resolution of pole 
attachment rate disputes. The commission shall consider various formulas, including, but 
not. limited to, the forinula adopted by the Federal Communications Commission as 
codified in 47 Code of Federal Regulations, Part 1, Subpart J, as amen~ed. 
II 
5. Make-ready work for dark fiber providers. In the case of a dark fiber provider 
that, as to aerial facilities, seeks to attach its dark fiber solely in the communications 
space, the dark fiber provider may carry out any required make-ready engineering and 
perform all required make-ready work at its own expense. In exercising its jurisdiction 
under this section, the commission shall ensure that make-ready engineering and make-
ready work undertaken by or at the request of a dark fiber provider must, to the extent 
. reasonably possible, be completed in a timely fashion taking into account any project 
completion requirements imposed by the Federal Government in connection with a grant 
extended to the dark fiber provider. 
. 
Sec. 5. 
35-A MRSA §2301, as amended by PL 1995, c. 225, §8, IS further 
amended to read: 
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§2301. Telephone utilities, darl{ fiber providers and television· corporations may 
construct lines 
Except as limited, every corporation organized under section 2101 for the purpose of 
operating telephones, every dark fiber provider and every corporation organized for the 
purpose oftransinitting television signals by wire may construct, maintain and operate its 
lines upon and along the route or routes and be.tween the points stated in its certificate of 
. 
incorporation; and may construct its lines and riecessary erections and fixtures for them 
along, over, under and across any of the roads and streets and across or under any of the 
waters upon and along the route or routes subject to the conditions and under the 
restrictions provided in. this chapter and chapter 25. 
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Sec. 6. 35-A MRS A §2501, sub-§2, as amendedt by.: RlL. 2.O057:~. c.:. 26:8\. §2~, is; 
further amended to read: 
2. Applicability of section; 25.03':. EXG.ept as; o~lier:wis~ pli0v.ided\. a~ pens0m mCL).i-' nQ:tt 
construct facilities upon andI along, highways andi publ1i::' [('ladS; w,itli'out: app-J[y,ihg frim and! 
obtaining a written location: permit from the appl'ii::able: IicensiTrg', authority und1'lJl" seeti@.ill 
2503. 
Included; within this requirement is every perS('ln operating telephone.s: or 
. transmitting television signals by wire; every person that owns, controls;. operates. or 
manages any pipeline within or through this State for the transportation as a common 
carrier for hire of oil, gas, gasoline, petroleum or any other liquids or gases; every water 
utility and every person making; generating, selling, distributing and supplying gas or 
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electricity; every water utility or sewer company, district Or system privately or 
municipally owned; every municipally owned or operated' fire alarm, police alarm or 
street lighting circuit or system; every cooperative organized under chapter 35; the 
University of Maine System, for purposes described in section 2301-A; every dark fiber 
provider; and any other person engaged in telecommunications or the transmissi<,Jn of heat 
or electricity, 
. 
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Sec. 7. 35-A MRSA §7902, as amended by PL 1995, c. 225, §14, is further 
. 
amended to read: 
§7902. Lines along highways. and across waters 
Every telephone utility, dark fiber provider or person transmitting television signals. 
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by wire may, except as limited, construct, maintain and operate its lines upon and along 
the routes and between the points stated in its certificate of incorporation; and may, 
subject to the conditions and under the restrictions provided in this Title, construct its 
lines along, over, under and across any of the roads arid .streets and across or under any of 
the wc:iters upon and along the routes, with all necessary erections and fixtures. 
Sec. 8. 35-A MRSA c. 94 is enacted to read: 
CHAPTER 94 
DARK FIBER PROVIDERS 
§9301. Dark fiber provider schedules 
For public informational purposes, dark fiber providers shall, prior to either seeking 
joint use under section 711 or providing dark fiber to carriers or end users, make an 
informational filing with the commission consisting of a schedule of rates, terms and 
conditions applicable to the provision of dark fiber. ' The dark fiber provider shall 
simultaneously make its schedule available for inspection on its publicly accessibie 
website and shall provide copies for inspection by the public on reasonable request. The 
schedule is effective upon filing. If a dark fiber provider elects to file changes to its 
sche'dule, such changes must be filed for informational purposes with the commission and 
posted on the dark fiber provider's publicly accessible website and are effective upon 
filing. 
Dark fiber providers shall provide dark fiber on terms consistent with their 
schedules on file with the commission. . 
. Emergency clause. 
In view of the emergency cited in the preamble, this 
legislation takes effect when approved. 
SUMMARY 
This bill establishes a new entity known as a "dark fiber provider." A dark fiber 
provider is an entity providing fiber-optic cable without equipment for transmitting 
communications and that provides dark fiber to all carriers and end users on an open-
access basis and without unreasonable discrimination and is subject to grant-related 
requirements, restrictions and conditions imposed by the Federal Government and 
secured by security interests granted to the Federal. Government. Dark fiber providers 
must file informational rate schedules with the Public Utilities Commission and adhere to 
those rate schedules and must post their rates on publicly accessible websites. A dark 
fiber provider may use the public right-of-way for its facilities and may enter into joint 
use agreements with respect to the facilities of public utilities and cable television 
providers and may opt to carry out any required'make-ready engineering and make-ready 
work at its own expense. 
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