Summary of the Committee Version of the Bill
HCS HB 1361 -- UTILITIES
COMMITTEE ACTION: Voted "do pass" by the Committee on Utilities
by a vote of 18 to 0.
This substitute allows telecommunications companies or rural
electrical cooperatives to attach, maintain, and operate their
equipment on another’s pole in order to promote, encourage, and
facilitate the deployment of electrical smart grid technologies,
broadband communications, and similar advanced technologies in
rural areas of the state under specified terms and conditions.
Currently, pole attachment rules are enforced by the Federal
Communications Commission (FCC). No attachment can be made
without a written agreement between the pole owner and the
attaching entity. The provisions of the substitute must be
interpreted in a manner consistent with FCC rules for pole and
conduit attachments unless otherwise specified.
The attaching party must give notice to a pole owner of the
intent to attach and the specific location of the attachment, and
the owner, unless otherwise agreed, must respond within 15 days
with specified exceptions. If proper notice is not given, the
parties may determine a penalty or, if the parties cannot agree
on a reasonable penalty, it must equal 25% of the pole rate for a
maximum period of 12 months. The attaching entity must pay for
any damages and modification costs incurred by the pole owner to
facilitate attachments, and the continued reliability and safety
of the pole owner’s system must have priority over the
A pole owner must be entitled to a reasonable rate for permitting
attachments that may be specified by contract, but the rate must
not exceed reasonable costs to the pole owner’s system as
calculated in a manner similar to the FCC rules for pole and
conduit attachments. Additional costs may be charged upon a
showing of inefficiencies in its maintenance of its system caused
by attachments. An existing contract must remain in full force
for its full term. The substitute specifies cost limitations for
new contracts which may be enforced in circuit court, and also
allows the use of non-binding mediation to resolve rate disputes.
A pole owner may collect interest and penalties on the amount
determined to be owed to him or her in court but must give 45
days’ notice prior to filing a collection action.
A pole owner may allow an attachment under the scope of its
existing property easement with the property owner if the
attachment does not unreasonably burden the property owner or
cause a diminution in value to the property owner’s property. A property owner retains the right to file suit for diminution in
value, lack of use of property, and physical damages to property
caused by the use and installation of poles and attachments.
However, evidence of revenues or profits derived by
telecommunication providers or rural electrical cooperatives from
providing these services is not admissible in any proceeding by
the property owner to recover damages.
The provisions of Section 523.283, RSMo, must continue to govern
and apply to all easements or right-of-way interests acquired
after August 28, 2006, and these provisions cannot be construed
to abrogate or conflict with the provisions of Chapter 523 or to
confer the power of eminent domain on any entity not granted that
power prior to August 28, 2012.
The substitute contains a nonseverability clause and if any
provision of the substitute is held to be invalid for any reason,
the remaining provisions will be invalid.
FISCAL NOTE: No impact on state funds in FY 2013, FY 2014, and
PROPONENTS: Supporters say that the bill will help expand rural
broadband coverage in a cost-effective manner. The bill does not
expand the power of eminent domain and reflects agreements over
infrastructure use by utilities regulated by the Missouri Public
Service Commission. Most pole owners and telecommunications
companies agree to shared use, but in a few instances there is a
need for a legal process to bring about a resolution.
Testifying for the bill were Representative Pollock, Association
of Missouri Electric Cooperatives, and CenturyLink.
OPPONENTS: Those who oppose the bill say that property rights
should be protected so that land owners can receive just
compensation for new uses of their property. The bill contains a
requirement that easements must expressly state that poles cannot
be used for broadband technology in order to be enforced. This
is the opposite of traditional protection for property rights
which forces an owner and user to come to an agreement. There is
ongoing litigation over whether new uses such as broadband which
go beyond the terms of existing easements are a taking of
property that is compensable under the state or federal
Testifying against the bill were Fred O’Neil; and Heidi Dearhoff.
OTHERS: Others testifying on the bill say that the use of
agreements to expand rural broadband is fine if a land owner is
compensated for any actual damages or restricted use that occurs to the property.
Testifying on the bill was Missouri Farm Bureau.
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