An Act to Make the ConnectMaine Authority Responsible for Attachments to and Joint Use of Utility Poles and to Establish Procedures for Broadband Service Infrastructure Crossing Railroad Tracks
Maine Legislature, Session 131, LD 1791
Committee: Energy, Utilities and Technology
Sponsors: BENNETT, GROHOSKI
Amends: 35-A MRSA §711, 35-A MRSA §2311, 35-A MRSA §2523, 35-A MRSA §9204-A, 35-A MRSA §9411

Legislative Document
No. 1791
S.P. 716
In Senate, April 25, 2023
An Act to Make the ConnectMaine Authority Responsible for 
Attachments to and Joint Use of Utility Poles and to Establish 
Procedures for Broadband Service Infrastructure Crossing Railroad 
Tracks
Reference to the Committee on Energy, Utilities and Technology suggested and ordered 
printed.
DAREK M. GRANT
Secretary of the Senate
Presented by Senator BENNETT of Oxford.
Cosponsored by Senator: GROHOSKI of Hancock.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  35-A MRSA §711, as amended by PL 2017, c. 199, §1, is further amended 
to read:
§711.  Joint use of equipment
1.  Joint use permitted.  The commission authority may order that joint use be 
permitted 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 joint 
use entity affected, it finds the following:
A.  That public convenience and necessity require a joint use entity to provide 
nondiscriminatory access to any poles, ducts, conduits or rights-of-way owned or 
controlled by another joint use entity;
B.  That joint use will not result in irreparable injury to the owner or other users of the 
poles, ducts, conduits or rights-of-way or in any substantial detriment to the service;
C.  That the joint use entities have failed to agree upon the use or the terms and 
conditions or compensation for the use; and
D.  That the joint use entity seeking access to the poles, ducts, conduits or rights-of-
way owned or controlled by another joint use entity has the technical and financial 
capabilities to fulfill its obligations related to such joint use.
2.  Liability of user.  If joint use is ordered, the joint use entity to whom the use is 
permitted is liable to the owner or other users of the poles, ducts, conduits or rights-of-way 
for damage that may result from its use to the property of the owner or other users.
3.  Interests of customers.  Any actions taken or orders issued by the commission 
authority under this section must take into account the interests of the customers of the 
affected joint use entities.
4.  Rules.  The commission authority shall adopt rules governing the resolution of pole 
attachment disputes and the rates, make-ready work, terms and conditions of joint use. The 
rules must promote competition, further the state broadband policy set forth in section 
9202‑A and ensure safe, nondiscriminatory access on just and reasonable terms. The rules 
must also include a process for ensuring that a new joint use entity seeking access to the 
poles, ducts, conduits or rights-of-way of another joint use entity meets the requirements 
of subsection 1, paragraph D. In establishing rates, the commission authority shall consider 
various formulas, including, but not limited to, the formula adopted by the Federal 
Communications Commission as codified in 47 Code of Federal Regulations, Part 1, 
Subpart J, as amended.  Rules adopted or amended  pursuant to this subsection are routine 
technical rules as defined in Title 5, chapter 375, subchapter 2‑A.
6.  Limited jurisdiction.  A joint use entity not otherwise subject to the jurisdiction of 
the commission authority is subject to commission authority jurisdiction only for the 
limited purpose of matters relating to the use of the poles, conduits, ducts or rights-of-way 
in accordance with this section.
7.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A.  "Information service provider" means a provider of information service as that term 
is defined in 47 United States Code, Section 153(24).
A-1.  "Authority" means the ConnectMaine Authority established under section 9203.
B.  "Joint use entity" means a public utility, voice service provider, dark fiber provider, 
wholesale or retail competitive local exchange carrier, cable television system, unlit 
fiber provider, telecommunications service provider or information service provider.
B-1.  "Make-ready work" has the same meaning as in section 2524, subsection 1, 
paragraph A.
C.  "Telecommunications service provider" means a provider of telecommunications 
service as that term is defined in 47 United States Code, Section 153(53).
D.  "Unlit 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.
E.  "Unlit fiber provider" means a provider of unlit fiber.
8.  Authority fees.  The authority may charge and make part of a rate for an attachment 
and joint use of a pole a reasonable fee to pay for the administration of this section.
Sec. 2.  35-A MRSA §2311, as amended by PL 2001, c. 608, §1, is further amended 
to read:
§2311.  Lines along railroads; application to Public Utilities Commission when 
disagreement
A person maintaining or operating a telephone or electric line may construct a line 
across, upon or along any railroad with the written permit of the person owning or operating 
the railroad.  If the person maintaining or operating a telephone or electric line and the 
person owning or operating the railroad can not agree as to the construction or manner of 
construction of lines upon, along or across the railroad or as to the continued operation of 
lines constructed upon, along or across the railroad, either party may apply to the 
commission, who, after notice to those interested, shall hear and determine the matter.  The 
commission's decision is binding upon the parties.  The commission may grant the person 
seeking to construct or operate a line a permit with appropriate terms and conditions to 
construct or operate the line along, upon or across the railroad or, in the case of a line across 
the railroad, authorize, subject to appropriate terms and conditions, the person to take by 
eminent domain an easement across the railroad.  The taking of an easement authorized by 
the commission pursuant to this section must be in accordance with the procedures 
established in chapter 65.  This section does not permit the commission to authorize the 
taking of an easement over lands owned by the State.  The person seeking to construct lines 
on the railroad shall pay the expenses of the hearing, except that if the commission finds 
that parties owning or operating the railroad have unreasonably refused their consent, those 
parties shall pay the expenses.  Without limiting the commission's jurisdiction under this 
section, if a railroad company and a telephone or transmission and distribution utility enter 
into an agreement involving a utility crossing of railroad property and that agreement or 
some other agreement provides that the commission shall resolve disputes arising under 
the original agreement, the commission may resolve those disputes.  As used in this section, 
the term "railroad" includes, but is not limited to, a railroad whose abandonment has been 
approved pursuant to 49 United States Code, Chapter 109. This section does not apply to a 
broadband service provider under section 9411.
Sec. 3.  35-A MRSA §2523, as enacted by PL 2013, c. 369, Pt. E, §1, is amended to 
read:
§2523.  Street lights; use of poles
This section governs street lights that are attached to utility poles in the public way. 
For purposes of this section, "authority" means the ConnectMaine Authority under section 
9203.
1.  Ownership and maintenance options.  On or after October 1, 2014, a transmission 
and distribution utility shall provide the following options to municipalities for street and 
area lighting provided by light fixtures attached to poles owned by the transmission and 
distribution utility or on shared-use poles in the electrical space under the contractual 
management of the transmission and distribution utility located in the public way:
A.  The transmission and distribution utility provides all of the components of the street 
lighting system, including installation on the utility poles and maintenance, and 
provides electricity delivery to the street lighting system from a power vendor selected 
by the municipality. The transmission and distribution utility shall apply a monthly 
charge for these services as approved by the commission that reflects the total cost to 
provide street lighting equipment for each light and a separate charge for power 
delivery consistent with subsection 3;
B.  The transmission and distribution utility installs all of the components of the street 
lighting hardware as selected, purchased and owned by the municipality on utility poles 
owned by the transmission and distribution utility or in the electrical space under 
contractual management of the transmission and distribution utility on shared-use poles 
and connects the light to the power source on the pole. The transmission and 
distribution utility may apply a one-time charge per light fixture for installation as 
established by the commission authority.
Any repairs made by the transmission and distribution utility to the mounting hardware 
or the power supply wire connection following installation must be billed at a rate 
established by the commission authority.  Maintenance of all components of the light 
fixture is the responsibility of the municipality or its contractor.  Any person 
performing maintenance work on behalf of the municipality pursuant to this provision 
must be qualified pursuant to applicable federal or state standards or any standards 
established by the commission authority for such work and must have liability 
insurance in an amount and with terms determined by the commission authority.  Light 
locations, the street lighting hardware installed and delivery charges are governed by 
subsections 2 and 3; and
C.  The transmission and distribution utility connects to the power lines a light fixture 
either owned by or owned and installed by the municipality or its contractor on a pole 
owned by the transmission and distribution utility or on a shared-use pole in the 
electrical space under the contractual management of the transmission and distribution 
utility.  Light locations, the street lighting hardware installed and delivery charges are 
governed by subsections 2 and 3.  Maintenance of the light fixture and mounting 
hardware is the responsibility of the municipality or its contractor.  Any person 
installing or working on municipally owned street lighting equipment pursuant to this 
paragraph on behalf of the municipality must be qualified pursuant to applicable federal 
and state standards or any standards established by the commission authority for such 
work and must have liability insurance in an amount and with terms determined by the 
commission authority.  The transmission and distribution utility may apply a one-time 
power connection charge per light fixture as established by the commission authority.
2.  Lighting location and installation.  For municipally owned street lighting 
hardware located on poles owned by the transmission and distribution utility or in the 
electrical space under the contractual management of the transmission and distribution 
utility on shared-use poles in the public way, the location on the pole and the street lighting 
hardware installed, as well as any associated charges, are governed by the following 
provisions.
A.  The commission authority shall establish criteria, based on standard utility industry 
practice, for determining possible locations on the utility pole for the street lighting 
hardware, determining any changes that may be needed, including, but not limited to, 
relocating equipment already on the pole, installing a taller pole or bracing an existing 
pole, as well as determining any one-time fees the transmission and distribution utility 
may charge the municipality for making the determinations and undertaking the work 
necessitated by the determinations.  The criteria must also specify the conditions under 
which a request from a municipality to locate a light fixture on a pole may reasonably 
be denied by the transmission and distribution utility.
B.  The commission authority shall establish basic criteria, consistent with standard 
utility industry practice, for municipally owned street lighting hardware installed on 
utility poles that address any reasonable safety and compatibility issues with other 
equipment on or uses of the pole.  The criteria must provide a basis for determining 
when no additional assessment work, and related fees pursuant to paragraph A, would 
be warranted for a replacement light fixture because the new light fixture places 
comparable or lower demands on the utility pole and related utility equipment than the 
light fixture being replaced.
3.  Delivery rates and associated charges.  The commission shall establish through 
appropriate proceedings the charges for the transmission and distribution utility to deliver 
electricity to the municipal street lighting systems as provided in subsection 1.  For 
municipal street lighting system options described in subsection 1, paragraphs B and C, the 
commission shall determine what, if any, ongoing fees beyond the power-only delivery 
charge may be assessed, including except a pole attachment fee, which is determined by 
the authority under section 711, subsection 4.  In making this determination, the 
commission shall weigh, among other factors, the municipal interest to serve the general 
public and the location of the poles in municipal rights-of-way.
4.  Transfer of ownership.  A transmission and distribution utility shall allow a 
municipality to transfer utility-owned street and area lighting for which the municipality is 
billed to either form of municipal ownership in subsection 1, paragraphs B and C in a time 
frame and under terms established by the commission authority.  The commission authority 
shall also determine a fair and equitable cost for all aspects of the transfer and establish 
guidelines to best enable the contiguous ownership of lighting fixtures.
Sec. 4.  35-A MRSA §9204-A, sub-§9 is enacted to read:
9.  Attachments and joint use of utility poles.  The authority shall manage and 
administer the joint use of and attachments to utility poles under section 711.
Sec. 5.  35-A MRSA §9411 is enacted to read:
§9411.  Fiber-optic broadband lines crossing railroads
1. Definitions. As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A. "Actual flagging expenses" means expenses directly attributable to the cost of 
maintaining flaggers at the point of a crossing during the period of time construction is 
actually occurring.
B. "Broadband service provider" means a provider of broadband Internet access service 
as defined in section 9301, subsection 1, paragraph A.
C. "Crossing" means the point at which a broadband service provider's infrastructure 
crosses the tracks of a railroad, including a railroad whose abandonment has been 
approved pursuant to 49 United States Code, Chapter 109.
D. "Direct expenses" means:
(1) The cost of inspecting and monitoring a crossing site; 
(2) Administrative and engineering costs for review of specifications and for 
entering a crossing on the railroad's books, maps and property records and other 
reasonable administrative and engineering costs incurred as a result of the crossing; 
(3) Document and preparation fees associated with a crossing and any engineering 
specifications related to the crossing; and 
(4) Actual flagging expenses associated with a crossing.
E. "Fiber-optic broadband line" means: 
(1) A fiber-optic cable consisting of one or more thin flexible fibers with a glass 
core through which light signals can transmit data as pulses, a coaxial cable or 
other wireline system of technology used for broadband distribution; or
(2) The middle mile infrastructure to Internet service providers.
F. "License fee" means the fee under subsection 7 to be paid by a broadband service 
provider to the railroad company for a crossing, including all occupancy or real 
property rights.
G. "Railroad company" includes a company, trustee or other person that owns, leases 
or operates a railroad or owns or leases the land upon which a railroad is operated and 
any company, trustee or other person to which a railroad company has granted rights 
to collect or retain all or a portion of any revenue stream owed by a 3rd party for use 
of or access to a railroad company's facilities or property.
2. Application to railroad company. If a broadband service provider determines it 
necessary in the construction of the provider's systems to cross the infrastructure of a 
railroad company, including the company's tracks, bridges, facilities and all railroad 
company rights-of-way and easements, the broadband service provider shall submit an 
application for the crossing to the railroad company. The application must include: 
A. The license fee described in subsection 7; 
B. Plans prepared by a registered professional engineer including design plans, 
construction plans, bore plans, fraction mitigation plans, dewatering plans, rigging and 
lifting plans and any other pertinent plans considered necessary; 
C. The location of the crossing, including whether the crossing is located in a public 
right-of-way; 
D. The proposed date of commencement of work; 
E. The anticipated duration of the work on the crossing; 
F. The areas in which personnel will work; and
G. The contact information of the broadband service provider's point of contact. 
Notice must also be provided to the transmission and distribution utility in whose service 
territory the crossing is proposed to be located.
3. Application procedure. The procedure for an application under subsection 2 is as 
set out in this subsection.
A. Upon receipt of the application, the railroad company shall acknowledge receipt to 
the broadband service provider of the application.
B. The railroad company shall review the application and may request additional 
information or clarification from the broadband service provider within 15 days of 
receipt of the application. If additional information or clarification is requested, the 
broadband service provider must respond within 10 days of the receipt of the request.
C. The railroad company shall approve the broadband service provider's crossing 
application within 35 days from the date the application is received unless the railroad 
company petitions the commission pursuant to subsection 9.
4. Crossing requirements. A proposed crossing must be:
A. Located, constructed and operated so as not to impair, impede or obstruct, in any 
material degree, the works and operations of the railroad to be crossed; 
B. Supported by permanent and proper structures and fixtures; and 
C. Controlled by customary and approved appliances, methods and regulations to 
prevent damage to the works of the railroad and ensure the safety of the railroad's 
passengers.
5. Coordination of schedules. Within 30 days of the approval of the crossing 
application or such later date as indicated in the application or mutually agreed upon by the 
railroad company and the broadband service provider, the railroad company and the 
broadband service provider shall coordinate the schedule of the construction dates under 
subsection 2, paragraphs D and E.
6. Responsibilities of the railroad company and the broadband service provider. 
The broadband service provider is responsible for all aspects of the implementation of the 
crossing, including the construction and installation of the fiber-optic broadband lines and 
all related equipment, conduits, wire masts, poles, towers, attachments and other 
infrastructure. The broadband service provider is responsible for ensuring that the crossing 
is constructed and operated in accordance with accepted industry standards, including 
standards established by the National Electrical Safety Code, good utility practice and 
industry-standard joint use processes of electric utilities. The railroad company is 
responsible for flagging operations and other protective measures that the railroad company 
determines appropriate during the actual construction of fiber-optic broadband lines. 
7. Costs; license fee. The broadband service provider is responsible for the costs of a 
crossing under this section. The license fee is $2,000 for each crossing, unless:
A. Otherwise agreed to by the broadband service provider and the railroad company; 
B. The railroad company has petitioned the commission under subsection 9 and the 
commission has ordered a fee of a different amount, in which case the broadband 
service provider shall pay the railroad company the different amount; or
C. The crossing is within a public right-of-way, in which case no license fee may be 
assessed.
8. Reimbursement of railroad company direct expenses. The broadband service 
provider shall reimburse the railroad company for direct expenses in addition to the license 
fee. Direct expenses may not exceed $5,000 unless otherwise agreed to by the broadband 
service provider and the railroad company or the railroad company petitions the 
commission under subsection 9 for additional reimbursement and the commission has 
ordered a different amount of reimbursement. The railroad company shall substantiate with 
documentation and other direct evidence the direct expenses incurred to qualify for 
reimbursement. Actual flagging expenses are pass-through expenses and may not exceed 
the expense incurred by the railroad company.
9. Petition to commission by railroad company. If the railroad company asserts that 
the license fee is not adequate compensation for the proposed crossing, the proposed 
crossing will cause undue hardship on the railroad company or the proposed crossing will 
create the imminent likelihood of danger to public health or safety, the railroad company 
may petition the commission for relief and provide simultaneous notice to the broadband 
service provider within 35 days from the date the broadband service provider's application 
is submitted under subsection 2. The commission may make any necessary findings of fact 
and determinations related to the adequacy of compensation, the existence of undue 
hardship on the railroad company or the imminent likelihood of danger to public health or 
safety and any relief to be granted, including any amount to which the railroad company is 
entitled in excess of the license fee set out in subsection 7. If the railroad company asserts 
only that the license fee is not adequate compensation for the specified crossing, the issue 
of compensation may be considered by the commission after the commencement or 
completion of the work. 
10. Petition to commission by broadband service provider. The broadband service 
provider may petition the commission for relief if the railroad company does not comply 
with this section or has otherwise wrongfully rejected or delayed its application. Upon 
receipt of a petition under this subsection, the commission:
A. May employ expert engineers, to be paid equally by the railroad company and the 
broadband service provider, to advise the commission or a representative of the 
commission in examining the location, plans, specifications and descriptions of 
appliances and the methods proposed to be employed; 
B. Shall hear any objections and consider any modifications offered by the railroad 
company; and 
C. At such time as the commission may determine, shall reject, approve or modify the 
plans and specifications or issue a ruling on any other matter brought before the 
commission. 
11. Period of adjudication. The commission shall issue a final order on any matter 
adjudicated under subsection 9 or 10 within 90 days of the petition's initial filing. The 
commission has sole jurisdiction to hear and resolve claims between a railroad company 
and a broadband service provider concerning a crossing under this section.
12. Abandoned track. Notwithstanding the provisions of subsection 7, if a broadband 
service provider submits an application to a railroad company to cross a section of track 
that has been legally abandoned pursuant to an order of a federal or state agency having 
jurisdiction over the track and that is not being used for railroad service, the license fee 
may not exceed $1,000.
13. State right-of-way. The State shall grant a right-of-way to a broadband service 
provider seeking to use the right-of-way for broadband deployment to the extent that the 
State owns an interest in real property crossed by a railroad or manages real property not 
owned by the State that is crossed by a railroad.
14. Insurance. A broadband service provider shall maintain a commercial general 
liability insurance policy or railroad protective liability insurance policy that:
A. Does not exclude work within 50 feet of a railroad right-of-way;
B. Includes the railroad company as an additional insured; and 
C. Remains in effect during the period of time construction pursuant to this section is 
occurring.
15. Liberal construction. The provisions of this section must be liberally construed 
and construed in favor of broadband expansion.
SUMMARY
This bill directs that the ConnectMaine Authority be responsible for the management 
and administration of attachments to and joint use of utility poles. The bill also establishes 
a procedure by which broadband service providers that need to cross a railroad track with 
broadband infrastructure may apply to a railroad company, provides for responsibility of 
costs in the crossing by the broadband service provider and provides for payment of a 
license fee and reimbursement of expenses to the railroad company. The bill also 
establishes procedures for either the railroad company or the broadband service provider to 
petition the Public Utilities Commission if the railroad company and broadband service 
provider cannot agree on the terms of the crossing of the railroad track.