Rule-Making Notices (Hearing Notices)

This building is accessible to people in wheelchairs through the Whitney Way first floor (lobby) entrance. Parking for people with disabilities is available on the south side of the building. Any person with a disability who needs additional accommodations should contact the docket coordinator listed below.

Written Comments

Any person may submit written comments on these proposed rules. The hearing record will be open for written comments from the public, effective immediately, and until Friday, July 20, 2001, at noon (Thursday, July 19, 2001, at noon, if filed by fax). All written comments must include a reference on the filing to docket 1-AC-188. File by one mode only.

If filing by mail, courier, or hand delivery: Address as shown in the box. Industry parties should submit an original and 15 copies. Members of the general public need only file an original.

If filing by fax: Send fax comments to [phone]. Fax filing cover sheet MUST state “Official Filing," the docket number (1-AC-188), and the number of pages (limited to 20 pages for fax comments).

Hearing Date:	Friday, July 27, 2001 at 9:00 a.m.
Hearing Location:	Public Service Commission 610 North Whitney Way Madison, WI

Comments Due: Friday July 20, 2001 - Noon FAX Due: Thursday July 19, 2001 - Noon

Address comments to:   Lynda L. Dorr   Secretary to the Commission   Public Service Commission   P.O. Box 7854   Madison, WI 53707-7854   FAX [phone]

Analysis prepared by the Public Service Commission of Wisconsin

Statutory authority: ss. 196.02 (3) and 227.11 (2)

Statutes interpreted: ss. 196.499 (14) and 196.58 (4)

Upon complaint, the Commission has authority to determine the reasonableness of an ordinance, contract or resolution (ordinance) promulgated by a municipality that regulates the location of utility facilities in municipal rights-of-way (ROW). This rule creates several criteria the Commission will apply when considering a complaint involving utility access to and use of ROW within a municipality. These include the following:

Under the rules, the Commission will consider an ordinance to be unreasonable if it unduly discriminates between utilities seeking access to municipal ROW or if it denies a utility access to ROW without good cause.

The rules recognize that a municipality may require a utility to pay the actual cost of functions undertaken by a municipality to manage utility access to ROW, and identifies specific costs that may be collected through a pre-excavation permit fee.

The rules specify that it is unreasonable for a municipality to require a utility to install underground a 100 kilovolt or greater electric transmission line at the utility's expense, but such a requirement would be reasonable if the municipality or a third party agrees to pay the difference in construction costs between overhead and underground installation.

Similarly, it is unreasonable for a municipality to require special construction conditions to be followed at the utility's expense unless there is an adequate health or safety justification. Aesthetics alone is not a reasonable basis for requiring underground construction. Special construction conditions would be reasonable if the municipality or a third party agrees to pay the difference in construction costs between the standard and special construction conditions.

Under the rules it is unreasonable for a municipality to require a utility to restore a ROW to a condition that is better than the pre-excavation condition.

The rules specify that it is reasonable for a municipality to require a utility to provide adequate bonding and insurance if the municipality has reasonable grounds to question the utility's financial responsibility or compliance ability. The rules also identify advance workplan notification requirements and mapping requirements.

A Statement of Scope on this rule was approved by the Commission on June 2, 1999, and was published in the Wisconsin Administrative Register on June 30, 1999.

Text of Proposed Rule

SECTION 1. Chapter PSC 130 is created to read:

Chapter PSC 130
Municipal Regulation of Utility Rights-of-Way

PSC 130.01 Definitions. In this chapter:

(1) “Actual cost" means identifiable costs that are reasonably incurred by a municipality, but does not include a contribution of surplus income to general revenues.

(2) “Municipality" means a city, village, or town.

(3) “Ordinance" includes any ordinance or resolution adopted by the governing body of a municipality relating to municipal rights-of-way or any contract entered into by a municipality relating to municipal rights-of-way.

(4) “Transmission and distribution facilities" includes any utility pipe, pipeline, wire, cable, duct, conduit, fiber optics or radio signal transmission equipment and associated utility plant and equipment, whether underground or above ground, in a municipal right-of-way.

(5) “Utility" means a public utility, as defined in s. 196.01 (5), Stats., and includes a telecommunications carrier, as defined in s. 196.01 (8m), Stats.

PSC 130.02 Scope. This chapter applies to complaints involving utility access to and use of rights-of-way within a municipality under ss. 196.499 (14) and 196.58 (4), Stats.

PSC 130.03 Undergrounding and special construction conditions. (1) (a) Except as provided in par. (b), an ordinance that requires a utility to install underground a 100 kilovolt or greater transmission line at the expense of the utility is unreasonable.

(b) Paragraph (a) does not apply if the municipality or a third party agrees to reimburse the utility for the difference in cost between above ground and underground construction.

(2) (a) Except as provided in par. (b), an ordinance that requires a utility to install, at the utility's expense, transmission or distribution facilities which are not consistent with the utility's practice for design or construction of utility facilities is unreasonable unless there is an adequate health, safety, or public welfare justification for the requirement. Aesthetics alone is not an adequate basis to justify an undergrounding requirement.

(b) Paragraph (a) does not apply if all of the following conditions are met:

1. The municipality or a third party agrees to reimburse the utility for the difference in cost or between the standard design or construction techniques of the utility and any special design or construction requirement sought by the municipality.

2. The special design or construction requirement is consistent with safe and reliable construction practices.

PSC 130.04 Discrimination. (1) It is unreasonable for a municipality to unduly discriminate between utilities seeking access to municipal rights-of-way.

(2) If space availability is limited, a municipality may permit a utility with an obligation to serve to receive access to a particular right-of-way before a utility that is not bound by an obligation to serve.

(3) It is unreasonable for a municipality to deny a utility any access to municipal rights-of-way without good cause.

PSC 130.05 Management function costs. (1) A municipality may require a utility to pay the actual cost of functions undertaken by the municipality to manage utility access to and use of rights-of-way. These management functions include all of the following:

(a) Registering utilities.

(b) Except as provided in sub. (2), issuing, processing, and verifying excavation or other utility permit applications, including supplemental applications.

(c) Inspecting utility job sites and restoration projects before, during, and after construction.

(d) Maintaining, supporting, protecting, or moving user equipment during work in the streets, highways, and other public places.

(e) Undertaking restoration work inadequately performed by a utility after providing notice and the opportunity to correct the work.

(f) Revoking utility permits.

(g) Maintenance of databases.

(h) Scheduling and coordinating highway, street, and right-of-way work relevant to a utility permit.

(2) A municipality shall be responsible for its costs incurred as a member of the one-call system under s. 182.0175, Stats.

(3) It is reasonable for a municipality to recover costs incurred under sub. (1) (a), (b), and (c) through a pre-excavation permit fee.

(4) A municipality may recover costs incurred under sub. (1) (d), (e), and (f) only from the utility that is responsible for causing the municipality to incur the costs.

PSC 130.06 Bonds and insurance. A municipality may impose reasonable bonding and insurance requirements on a utility seeking a permit to use a right-of-way, provided the municipality has reasonable grounds to question the financial responsibility or compliance ability of the utility.

PSC 130.07 Restoration. An ordinance is unreasonable if it requires a utility to restore a right-of-way to a condition that improves upon the pre-excavation condition. At the utility's option, a utility may undertake the restoration or pay the municipality a fee to cover the actual cost of restoration.

PSC 130.08 Compliance with existing law. An ordinance is unreasonable if it is not in substantial compliance with state statutes, including ss. 66.0831 and 80.32 (4), Stats.

PSC 130.09 Permanent relocation of utility facilities. (1) An ordinance that requires a utility to permanently relocate transmission or distribution facilities in a right-of-way at the expense of the utility is unreasonable unless there is an adequate health, safety, or public welfare justification for the requirement.

(2) An ordinance that requires a utility to permanently relocate transmission or distribution facilities in a right-of-way at the expense of the utility substantially for the benefit of a person other than the municipality is unreasonable.

PSC 130.10 Advanced excavation workplans. An ordinance that requires a utility to submit to a municipality its future construction or excavation workplans is reasonable in order for the municipality to coordinate work within a right-of-way. It is unreasonable for a municipality to deny a permit for a utility excavation not identified on a workplan if the excavation is needed by the utility to restore service to an existing customer, to provide service to a new customer, or for other good cause.

PSC 130.11 Facilities mapping. For purposes of acquiring a permit, a municipality may not require a utility to submit facilities mapping, other than utility right-of-way construction plans and field sketches in the format maintained by the utility, for facilities that are the subject of the permit.

PSC 130.12 Abandonment. An ordinance is not unreasonable if it requires a utility to notify the municipality of the utility's intent to abandon transmission or distribution facilities and requires the utility to provide a map, at the utility's expense, depicting the location of any facility within that municipality that the utility intends to abandon. The format of the map shall be mutually agreed upon by the municipality and the utility.

PSC 130.13 Ordinance challenges. An ordinance is unreasonable if it requires that, as a condition of obtaining a permit, the utility agree that the ordinance is valid and not subject to challenge.

________________________

Initial Regulatory Flexibility Analysis

The proposed rules would apply to complaints regarding municipal rights-of-way ordinances. Current law authorizes the Commission to investigate such complaints and to determine if an ordinance is reasonable. The Commission anticipates complaints would primarily come from utilities, which would include some small businesses, as defined in s. 227.114 (1), Stats. (There are approximately 76 small telecommunications utilities in Wisconsin.) The proposed rule does not create any new obligations or responsibilities for complainants, including small businesses. Therefore, the proposed rule does not have an effect on small businesses.

Fiscal Estimate

This rule has no fiscal impact.

Contact Person

Questions from the media may be directed to Jeffrey L. Butson, Public Affairs Director at [phone]. Other questions regarding this matter should be directed to docket coordinator Scot Cullen at [phone]. Hearing or speech-impaired individuals may also use the Commission's TTY number, [phone].

The Commission does not discriminate on the basis of disability in the provision of programs, services, or employment. Any person with a disability who needs accommodations to participate in this proceeding or who needs to obtain this document in a different format should contact the docket coordinator listed above.