HomeMy WebLinkAbout1993-05-24 93-277 ORDERSUBSTITUTE COPT 93-2I7
AeeignedW CmmaOor Soucy, June 14, 1993
:,v "_�;p CITY OF BANGOR
4V
(TITLE.)Y11er,..........._Application._for Utility.. Location.. Permit ..............
-- AT&T Communications of New England, Inc.
BE dm City CmeoU of Ow City ofBassor.
ORDERED,
THAT
the attached Application for a Utility Location
Permit is hereby granted subject to the following conditions:
1. The applicant shall amend its certificate of incorpo-
ration as filed with the Maine Secretary of State to comply with
35-A M.R.S.A. S 2301. The applicant shall provide satisfactory
evidence of such amendment to the City Solicitor's office prior to
issuance of the requested Utility Location Permit.
2. The proposed underground fiber optic cable will be
installed in a 4" diameter steel conduit, to be located as shown on
Plans titled "Danforth -Bangor FT2 G 'A' Cable' (Plan No. FA 50233)
and "Bangor -Portland FT2G 'A' Cable" Plan No. FA 5034) dated April
16, 1993, prepared by Survey and Mapping Consultants, Inc. Copies
of these Plana are on file in the City Engineer's office.
3. Except at structure locations, installation of the new
conduit in paved roadways, driveways, and parking areas shall be
accomplished by boring or jacking methods rather than open trench
excavation.
4. Installation of the proposed -underground fiber optic
cable shall additionally counply with the requirements of Chapter
VI, Article 8, Bangor City Ordinances.
5. The applicant shall pay all applicable street opening
feesas provided in Chapter VI, Article 8, Bangor City Ordinances,
including an inspection fee of 830.00 per day during project
construction or as determined by the City Engineer.
6. The time and place of street opening and the location of
the proposed underground fiber optic cable shall be specified in a
written permit to be issued in advance of construction by the City
Engineer, as provided in 35-A M.R.S.A. S 2508.
1. Upon completion of the installation, the applicant shall
provide two complete sets of "as built" drawings or diagrams to the
Bangor City Engineer's office, showing the final sive and location
of the cable and all conduit, structures and appurtenances thereto,
as installed, including the elevation of such cable, conduit,
structures and appurtenances below street or shoulder grade.
8. The applicant shall execute a written waiver agreement,
in a form acceptable to the City Solicitor, holding the City of
Bangor harmless from direct claims by the applicant, or its
successors, and by all affiliated business corporations o
customers, for damage to or interruption of service along the
underground fiber optic cable occasioned by ordinary negligence of
the City, its employees or agents in conducting street maintenance,
street repair, resurfacing, regrading, or relocation operations, or
In excavating for any City of Bangor sewer, storm sewer or other
City utility location or repair project. Such waiver may be
conditioned upon the City of Bangor's prior compliance with all
applicable provisions of the Maine "dig safe' statute, 23 M.R.S.A,
S 3360-A.
9. Following installation, the underground fiber optic
cable shall not be used to carry or transmit any cable television
(CATV) or similar signals or to otherwise engage in the business of
cable television broadcasting or any similar business made subject
to municipal control, franchising, or regulation under Title 30-A
M.R.S.A. S 3008 or other provisions of State or Federal law,
without first giving sixty (60) days prior written notice to the
City of Bangor of the applicant's intention to carry or transmit
such signals or to engage in such business. If the underground
fiber optic cable is used by the applicant or its successors for
any such purpose, the applicant or its successors shall seek all
necessary approvals under Federal, State and local law, regulations
and ordinances, andshall negotiate a written franchise agreement
with the City of Bangor in accordance with all applicable City
ordinances and policies.
10. The Utility Location permit herein approved shall be
deemed personal to the applicant, and shall not be transferred to
any corporation, person or entity, nor shall ownership of the
underground fiber optic cable and appurtenances to be installed
pursuant to the Utility location permit be sold, conveyed,
transferred or leased to any corporation, person or entity, unless
such corporation, person or entity has first qualified, applied for
and received a Utility location permit from the City of Bangor as
provided in Title 35-A M.R.S.A. Chapters 23 and 25.
cxx1B1T B
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iDDay
Assigned to CouncJoT
Saucy 24, 1993
CITY OF
BANGOR
(TITLE.) �ritET,___.
Appl [
.
for Def11Cy L cation
..1.
P at A .11 T d 1. T C Icat ions,
1.
By the City Council of city ofBatcor:
ORDERED,
THAT the attached
ached Application for a Utility Location Permit is hereby
granted subject tothe following conditions:
1. The proposed underground fiber optic cable will be installed in -a
4" diameter steel conduit, to be located as shown on Plans titled "Danforth -
Bangor FT2 G 'A' Cables (Plan No. FA 50233) and "Bangor -Portland FT2G 'A'
Cable" Plan No. FA 5034) dated April 16, 1993, prepared by Survey and
Mapping Consultants, Inc. Copies of these Plans are on file in the City
Engineer's office. -
2. Except at structure locations: installation of the n onduft
in paved roadways, driveways, and parking areas shall be accomplished by
baring or hacking methods rather than open trench excavation.
3. Payment of applicable street opening fees.
4. Execution of an appropriate license
agreement and payment of a
appropriate lice a
a fee negotiated by the Applicant and the City Manager
for occupying portions of City s rights-of-way. Said lice agreement
and fee to be approved by the City Solicitor.
A public notice of this Application has been published in the Bangor
Daily News.
exnlalT c
(. Amired to Coumfla.
CITY OF BANGOR
(TIME.) Mrbtr........... Application -Eos- Utility -Location, Permit __..-
-- AT&T Communications Of New England, Inc.
By 614 C!h' Cound( of Ow all of Bonsor:
ORDERED,
THAT
the attached Application for a Utility Location
-. Permit is hereby granted subject to the following conditions:
1. The applicant shall amend its certificate of incorpo-
ration as filed with the Maine Secretary of State to comply with
35-A M.A.S.A. 4 2301. The applicant shall provide satisfactory
evidence of such amendment to the City Solicitor's office prior to
issuance of the requested Utility Location Permit.
2. The proposed underground fiber optic cable will be
installed in a 4^ diameter steel conduit, to be located as shown on
Plans titled "Danforth -Bangor PT2 G W Cable' (Plan No. FA 50233)
and "Bangor -Portland PT2G 'A' Cable' Flan No. EA 5034) dated April
16, 1993, prepared by Survey and Mapping Consultants, Inc. Copies
of these Plans are on file in the City Engineer's office. -
3. Except at structure locations, installation of the new
conduit in paved roadways, driveways, and parking areas shall be
accomplished by boring or jacking methods rather than open trench
excavation.
4. Installation of the proposed underground fiber optic
cable shall additionally comply. with the requirements of Chapter
Vi, Article 8, Bangor City Ordinances.
5. The applicant shall pay all applicable street opening
fees as provided in Chapter VI, Article 8, Bangor City Ordinances,
including an inspection fee of $30.00 per day during project
construction or as determined by the City Engineer. -
6. The time and place Of street opening and the location of
the proposed underground fiber optic cable shall be specified in a
written permit to be issued in advance of construction by the City
Engineer, as provided in 35-A M.R.S.A. S 2508.
'I. Upon completion of the installation, the applicant shall
provide two complete sets of "as built" drawings or diagrams to the
Bangor City Engineer's office, showing the final size and location
of the cable and all conduit, structures and appurtenances thereto,
as installed, including the elevation of such cable, conduit,
structures and appurtenances below street or shoulder grade.
S. The applicant shall execute a written waiver agreement,
in a form acceptable to the City Solicitor, holding the City of
Bangor harmless from direct claims by the applicant, or its
successors, and by all affiliated business corporations o
customers, for damage to or interruption of service along the
underground fiber optic cable occasioned by ordinary negligence of
the City, its employees or agents in conducting street maintenance,
street repair, resurfacing, regrading, or relocation operations, Or
in excavating for any City of Bangor sewer, storm s or other
City utility location or repair project. Such waiver sewer
be
conditioned upon the City of Bangor's prior compliance with all
applicable provisions of the Maine "dig safe' statute, 23 M.R.S.A.
S 3360-A.
9. Following installation, the underground fiber optic
cable shall not be used to carry or transmit any cable television
(CATV) or similar signals or to otherwise engage in the business of
cable television broadcasting or any similar business made subject
to municipal control, franchising, orregulationunder Title 30-A
M.R.S.A. 5 3008 or other provisions of State or Federal law,
without first giving sixty (60) days prior written notice to the
City of Bangor of the applicant's intention to carry or transmit
such signals or to engage in such business. If the underground
fiber optic cable is used by the applicant or its successors for
any such purpose, the applicant or its successors shall seek all
necessary approvals under Federal, State and local law, regulations
and ordinances, and shall negotiate a written franchise agreement
with the City of Bangor in accordance with all applicable City
ordinances and policies.
10. The Utility Location Permit herein approved shall be
deemed personal to the applicant, and shall not be transferred to
any corporation, person or entity, nor shall ownership of the
underground fiber optic cable and appurtenances to be installed
pursuant to the Utility Location Permit be sold, conveyed,
transferred or leased to any corporation, person or entity, unless
such corporation, person or entity has first qualified, applied for
and received a Utility Location permit from the City of Bangor as
provided in Title 35-A M.R.S.A. Chapters 23 and 25.
_ EXHIBIT D'
SURSTISUTE COPY 93-277
_ Awianed to Councilor Soucy. June 14, 1993
CITY OF BANGOR
(TITLE.) (Crba,.-.:...-Application ."for .Utility.Location..Perniit."...........
. _....
- AT&T Communications of New England, Inc.
BY Ow C4 CwacO Oft COY 9f Ban9w:
ORDERED,
THAT
The attached Application for a utility Location
Permit is hereby granted subject to the following conditions:
1. The applicant shall amend its certificate 0£ine0rpo-
ration as filed with the Maine Secretary of State to comply with .
35-9 M.R.S.A.-5 2301. The applicant shall provide satisfactory
-evidence of such amendment to the City Solicitor's officeprior to
issuance of the requested Utility Location Permit.
2. The proposed underground fiber optic cable will be
installed in a 4" diameter steel conduit, to be located as shown on
Plans titled "Danforth -Bangor FT2 G 'A' Cable' (Plan No. FA 50233)
and "Bangor -Portland FEES 'A' Cable' Plan No. FA 5034) dated April
16, 1993,prepared by Survey and Mapping Consultants, Inc. Copies
of these Plans are on file in the City Engineer's office.
3. - Except at structure locations, installation of the new
and
ars shll be
onduit in complishedabyaboringaor� jacking amethods rather than opena
atrench
excavation.
4. Installation of the proposed underground fiber optic
cable shall additionally comply with the requirements of Chapter
VI, Article 0, Bangor City Ordinances. -
S. The applicant shall pay all applicable street opening
fees as provided in Chapter VI, Article B, Bangor City Ordinances,
including an inspection fee of $30.00 per day during project
construction' or as determined by the City Engineer.
IN CITY COUNCIL
June 14, 1993
Emended by Substitution
and Passed SUBSTITUE COPY AMENDED
A True Copy. Attest
CITY CLEUNK
6. The time and place of street opening and the location of
the proposed underground fiber optic cable shall be specified in a
written permit to be issued inadvance of construction by the City
Engineer, as provided in 35-AM.R.S.A. S 2508.
9. Upon completion of the installation, the applicant shall
provide two complete sets o£as built" drawings or diagrams to the
Bangor City Engineer's office, showing the final size and location
of the cable and all conduit, structures and appurtenances thereto,
as installed, including the elevation of such cable, conduit,
structures and appurtenances below street or shoulder grade.
8. The applicant shall execute a written waiver agreement,
in a form acceptable to the City Solicitor, holding the City of
Bangor harmless from direct claims by the applicant, or its
successors, and by all affiliated business corporations --,-
for damage to or interruption of service along the
underground fiber optic cable occasioned by ordinary negligence of
the City, its employees or agents in conducting street maintenance,
street repair, resurfacing, regrading, or relocation operations, or
in excavating for any City of Bangor sewer, storm sewer or other
City utility location or repair project. Such waiveatp2ilbe
conditioned upon the City of Bangor's prior compliance with all
'applicable provisions of the Maine .'dig safe" statute, 23 M.R.S.A.
5 3360-A.
9. Following installatio , the underground fiber optic -
cable shall not be used to car or tra emit any ca Is television
(CATV). or almilar signals or o othena as engage i the business of
cable television broadcasti or any impar bus ass made subject
to municipal control, fee OF, regulatio under Title 30-A
M.R.S.A. g 3008 or other to isio f ate Federal law,
without first giving a ty 44) or itten notice to the
City of Bangor of th ap a Itt tto carry or transmit
such signals or to ngau r as. If the underground
ea
fiber optic cable is u bapplicant or its successors for
any such purpose, the applicanto its s shall seek all
necessary approvals under Federal, successors
local law, regulations
and ordinances, and shall negotiate a written franchise agreement.
with the City of Bangor in accordance with all applicable City
ordinances and policies.
50.. The Utility L0T n Be i ved shall be -
deemed personal to th a t t a transferred to
any corporation, per n or en a o ership of the
underground fiber o b e nd. ap risen a to be installed
pursuant to the Or it Loca 0n 'Pe it be ld, conveyed,
transferred or Is sed to an corp ation, erson or entity, unless
such corporatie person anti y has ff at qualified, applied for
and received a tility L cation Permit from the City of Bangor as
provided in Title 35-A M.R.S.A. Chapters 23 and 25.
9, and 10. AMENDED ON FOLLOWING PAGE
93-2)]
9. If applicant intends to utilize the underground fiber optic cable
to carry or transmit any calbe television (CAIV) or similar signals
Or to otherwise engage in the business of cable television broadcasting
or any similar business made subject to municipal control franchising,
or regulation under Title 30-A M.R.S.A. 5 3008 or other provisions of
State or Federal lav, then applicant shall give sixty (60) days prior
written notice to the City of Sanger of such intention cc carry o
transmit such signals or to
engage such business. If the underground
fiber optic cable is used by the applicant or its successors for any
such purpose, the applicantr Its ¢ shall seek all necessary
approvals under Federal, State and local lave regulations and ordinances
and shall negotiate a written franchise agreement with the City of Bangor
in accordance with all applicable City ordinances. -
10. The Utility Location Permit herein approved shall be deemed personal to
the applicant and may only be transferred t "public utility' as that
term is defined 1n Title 35-A M.R.S.A. Chapters 23 and 25. ownership
of the underground fiber optic cable and appurtenances to be installed
pursuant to the Utility Location Permit may not be sold, conveyed,
transferred of leased to any corporation, person o entity, nunless such
corporation, person or ntity qualifies as a "public utility" under
.Title 35-A M.R.S.A. Chapters. 23 and 21.
STATE OF MAINE Docket No. 89-275
PUBLIC UTILITIES COMMISSION
October 16, 1991
AT&T COMMUNICATIONS OF NEW ORDER APPROVING STIPULATION
ENGLAND, INC. Re: Application
To Provide Custom Network
Services In Maine
GOROON, Chairman) PAINE, Commissioner
on October 9, 1991 AT&T Communications of New England, the
Commission staff and the Publio Advocate and New England
Telephone & Telegraph company filed a Stipulation settling the
issues in this docket. We approve the Stipulation. The
stipulation makes a general finding of public convenience and
necessity and.grants general authority for AT&T Communications of
New England to provide service in Maine without geographic
restriction. -(AT&T had previously. been granted authority to
provide intrastate service to the federal government under the
FTs 2000 System). The Stipulation also Approves terms and
conditions for Custom Network Services generally, and schedules
for Software Defined Network (SDN) services.
The proposed AT&T terms and conditions contain language
which limits AT&T's liability and damages in cases of harm that
may be caused by service provided under these schedules. We have
approved many such limitations in the pact. We have never
adopted any general policies concerning the circumstances in
Which and the extent to which utilities, in their schedules
approved by this Commission, should be able to disclaim or limit
liability and damages to customers or to third persons, where
their service may have caused herrn. We are presently exploring
preliminarily whether we should investigate these issues in
detail, with the goal of adopting uniform policies which would
strike a proper balance among the interests of individual harmed
customers, ratepaying customers as a whole and investors. see
Notice of Summaryo ofOtility Tariffs which Limit
tiability, Docket No. 88-74.
During the month of September, AT&T filed a tariff for an
additional service (Docket No. 91-247). AT&T and Staff agreed
that this tariff should not be considered filed until the
approval, by this Order, of its general Operating authority.
Therefore, the filing date for the schedules filed in Docket No. -
91 -247 shall be the date of this Order.
We have reviewed the terms of the Stipulation and the
attached schedules and find them to be reasonable and hereby
` / approve them. -
4
-2- Docket No 89-375
Wherefore, it is
O R D E R E D
1. That the public convenience and necessity require the
service of AT&T Communications of New England, Inc.,
throughout the State of Maine and it is hereby
authorized to provide that service pursuant to
schedules, terms and conditions approved by this
Commission; and
2. That the schedules, terms and conditions for Custom
Network Services and Software Defined Network Services,
filed with this Commission on October 10, 1991, are
found to be just and reasonable and are hereby
approved. _
Dated at Augusta, Maine, this 16th day of October, 1991.
A true copy.
Attest;
Charles A. Jacobs'
Administrative Director
COMMISSIONERS VOTING FOR: Gordon
Paine
W
BY ORDER OF THE COMMISSION
Charles A_ aacoby _
Charles A. Jacobs
Administrative Director
l i NOTICE OF RIGHTS TO REVIEW OR APPEAL
5 M.R.S.A. g 9061 requires the Public Utilities Commission
to give each party to an adjudicatory proceeding written notice
of the party's rights to review or appeal of its decision made at
the conclusion of the adjudicatory proceeding. The methods of
review or appeal of PUC decisions at the conclusion of an
adjudicatory proceeding are as follows:
1. Reconsideration of the Commission's Order may be
requested under Section 1004 of the Commission's Rules of
Practice and Procedure (65-407 C.M.R.110) within 20 days of
the data of the Order by filing a petition with the
Commission stating the grounds upon which reconsideration is
sought.
2. Anneal of a final decision of the Commission may be
taken to the Law Court by filing, within 30 days of the Hate
of the order, a Notice of Appeal with the Administrative
Director of the Commission, pursuant to 35-A M.R.S.A:-
9 1320(1)-(4) and the Maine Rules of Civil Procedure,
Rule 73 at seg.
3. Additional court revis of constitutional issues o
issues involving the justness or reasonableness of rates may
V
be had by the filing of an appeal with the law Court,,
Pursuant to 35-A M.R.S.A. 5 1320(5).
Note: The attachment of this Notice t0 a document does not
indicate the Commission's view that the particular
document may be subject to review or appeal.
Similarly, the failure of the Commission to attach a
copy of this Notice to a document does not indicate the
Commission's view that the document is not subject to
review or appeal.
CJSTATE OF MAINE Docket No. 89-3'/5
PUBLIC UTILITIES COMMISSION
•October 9:., 1991
AT&T COMMUNICATIONS OF NEW STIPULATION
ENGLAND, INC.
Re: Application for Certificate
of Public convenience and Necessity
1.
On October 12, 1989, AT&T Communications Of New England,
Inc. ("AT&T') filed a petition requesting that the
Commission find that the public convenience and necessity
required that it be allowed to provide intrastate service in
the State of Maine. Previously, in Docket NO. 89-1I, AT&T
had reguested and the Commission had granted authority under
35-A M.R.S.A. 95 2102 and 2105 to provide FTS 2000 service
to United Statesgovernment facilities throughout the state.
AT&T's petition in this docket was also filed pursuant to
35-A M.R.S.A. 9 2102 and Chapter. 280 of the Commission's
rules. As filed, it requested authority only to provide
Software Define Network service (SDN). With its
application, AT&T filed a proposed schedule of rates, terms
i
V
and conditions for SDN.
2.
On October 30, 1990, AT&T filed a letter requesting that its
Application not be limited to SDN service but encompass the
provision of any and all AT&T intrastate servicesthatit
may offer subsequently pursuant to rate schedules or
contracts approved by the Maine Commission. The parties
agree that upon approval of this stipulation AT&T may
provide interexchange service pursuant to approved
schedules, terms and conditions within the State of Maine.
3.
The parties agree that AT&T's application substantially
complies with Chapter 200, g 4(B)(2) and (3)-
4.
The parties; agree that the Commission should find that the
Provision of intrastate service by AT&T is in the public
interest, subjeact to the conditions stated below.
S.
AT&T agrees that it will pay access charges to local
carriers as provided in MET'S and the independent local
exchange companies' (LECs) applicable accessschedules and
u
pursant to Chapter 280 of the Commission's rules. AT&T is
familiar with and agrees that it will abide by all
Provisionu Of the LECs' access schedules and Chapter 280.
6.
`-�
AT&T agrees tlut it will provide gulltcrly Percent
Interstate usage (PTU) reports to the LECs as required in
the LECs' ecce.^.n tariffs. Where the LEC or AT&T is actually
unable to determine the jurisdiction or time of day period
+ -2- Docket No .,@9-375
for the access minutes because neither the LEC nor AT&T
measures, the same PIU and time or day distribution that
results from all measured traffic will apply to the
unmeasured access minutes of use. AT&T agrees to maintain
the billing data from which the PIU is Calculated for six
months, and to provide the results of any third party audit
of. AT&T's Jurisdictional Reporting System to the commission
or any affected LEC 'upon request. The PIU Reports and
supporting Hata will be made available to the Commission
Staff upon request.
7. For purposes of reporting Percent Interstate Usage (PIU) as
provided in paragraph 6, AT&T agrees, in accordance with
47 U_S.C. 9 153(e)(3)0 subject to the entry -exit surrogate
method adopted by the Joint Board and approved by the
Federal Communications Commission, that all traffic that
both originates and terminates in Maine shall constitute
intrastate traffic, even though the routing of some of these
communications may be through another state.
e. AT&T agrees that it shall provide the Commission with an
Updated facilities diagram whenever a reasonably substantial
change is made to its facilities inside Maine, Or outside
Maine whenever the change outside Maine will have a
substantial effect on service in Maine and whenever it.files
tariff, to provide. additional services in Maine.
9. AT&T agrees that it wy1l comply with all apP11cable Public
Utilities commission rules including chapters e1 and 06.
10. The parties agreethat AT&T's replacement schedule of rates
and terms and conditions (attached to this stipulation and
replacing those filed in this docket on October 12, 1969),
applicable to Custom Network Services for business customers
and providing for SDN service, shall be approved upon
approval of this Stipulation by the Commission, and further
agree that approval by the Commission is not intended to
constitute state action for the Purpose of any antitrust
claim.
11.. If not accepted by the Commission in accordance with the
Provisions hereof, this Stipulation shall not prejudice the
positions taken by any party on any issue before the
Commission in this proceeding and shall not be admissible
evidence therein or in any other proceeding before the.
comm.iesion.
12. The Parties intend that this Stipulation be considared by
the Commission for adoption as an integrated sOlOtion t0 the
issues it addresses and shall be null slid void and shall net
bind the parties in this proceeding if the Commission doe::
not accept it. without material modification.
-3- Docket No §y, 375
13. The parties hereby waive the prohibition against ex parte
communication between the staff and the Commission to the
full extent necessary to allow Staff presentation of this
Stipulation to the Commission.
Dated: September 24, 1991
Dated: zaptomber 1991
�Ot /�3 zG
Peter G. Dallou
Deputy General Counsel
Maine Public Utilities
Commission
X" U^"^'
Larry M. Devldow
AT&T Communications of
New England, Inc.
Dated: September , 1991: 1
Richard Owens
Attorney
New England Telephone
hated: September , 1.991
Gilliam --"
Puberal counsel
'
Public Advocate
CERTIFICATE OF SERVICE
I, Roger L. Huber, counsel for AT&T Communications of New
England, Inc., hereby certify that on this date I have caused one
copy of the foregoing Appeal to be served upon Russell McKenna,
Clerk, City of Bangor, by depositing said copy in the United
States mail, postage prepaid.
Dated at Bangor, Maine this ?S, day of June, 1993.
S-\�Lkr
Roger L. Huber, Esq.
EATON, PEABODY, BRADFORD
& PRAGUE, P.A.
P.O. Boz 1210
Bangor, Maine 04402-1210
EATON, PEP B aD V. BRADFORD & VEAOV E: P. A, gnvyB n/✓:'
d"01A. NASA 01,61-1210
LI I IW
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11 ISO
SWA.A..A'.: ...... DEtA;?fu:ENi? .A...,i....A..,.AO.
.n.,... n,. 01."SJune 14, 1993
Erik H. Stumpfel, Esquire
City Solicitor .
City Of Bangor -
73 Harlow Street -
Bangor, Raine 04401
Hand Delivered
RE:AT&T Communications of New England, Inc./Application
for Utility Location Permit/Revisions to draft City
Council order
Dear Erik:
As we discussed, following are our proposed revisions to the
Order of the Bangor City Council pertaining to the above-
mentioned application:
1. Strike paragraph No. a in its entirety because it is
inconsistent with the mandates of State law. The City is
precluded by State law to require such a condition either as
a permit condition or Be a condition of permit issuance.
Accordingly, AT&T objects to its inclusion in the City
'Council's Order. If, however, you intend to include the
paragraph in the final Council Order, we ask that you amend
it at follows in order to be consistent with prior
dis suasion:
a. Strike the reference to `or customers" in the
fourth and fifth line of the paragraph. AT&T's
liability to its customers is limitedpursuant to
federal law and, therefore, there is no basis for
requiring that AT&T indemnify the City against,
such claims.
Erik M. Stumpfel, Esquire
City solicitor
City of Bangor
June 16, 1993
Page Two
b. Replace the word -may- in the tenth line of the
paragraph with 'shall. -
2. Aman paragraph No. 9 as follows:
If applicant intends to utilize the underground fiber
optic cable to carry or transmit any cable television
(MTJI or similar signals at to otherwise engage in tha.
business of cable television broadcasting or any
similar business made subject to municipal control,
franchising, or regulation under Title 30-A M.R.S.A. 5
300E or other provisions of State or Federal law, then
applicant shall give sixty (60) days prior written
notice to the City of Bangor of ouch intention to carry
or transmit such signals or to engage in such business.
If the underground fiber optic cable is used by the
applicant or its successors for any such purpose, the
applicant or its successors shall seek all necessary
approvals under Federal, State and local law,
regulations and ordinances, and shall negotiate a
written franchise agreement with the City of Bangor in
accordance with all applicable City ordinances.
3. Amend paragraph 10 as follows:
The Utility Location Permit herein approved shall be
deemed parental to the applicant and may only be
transferred to a.^public utility+ as that term is
defined in Title 35-A M.R.S.A. Chapters 23 and 25.
Ownership of the underground fiber opticcable and
appurtenances to be installed Formosan to the Utility
Location permit may not be sold, conveyed, transferred
r leased to any, corporation, person or entity, unless
such corprration, person or 'entity qualifies as a
,public utilitym under Title 35-A M.R.S.A. Chapters 23
and 25.
Erik M. Stump£el, Esquire ..
City solicitor
City of Bangor
,Tune 19, 1993
Page Two
b. Replace the word "may" in the tenth line of the
paragraph with "shall."
2. Amend paragraph No. 9 as follows:
If applicant intends to utilize the underground fiber
optic cable to carry or transmit any cable television
(CATV) or similar signals or to otherwise engage in the
business of cable television broadcasting or any
similar business made subject to municipal control,
franchising, or regulation under Title 30-A M.R.S.A. §
3008 or other provisions of State or Federal law, then
applicant shall give sixty (60) days prior written
notice to the City of Bangor of such intention to carry
or transmit such signals or to engage in such business.
if the underground fiber optic cable is used by the
applicant or its successors for any such purpose, the
applicant or its successors shall seek all necessary
approvals under Federal, State and local law,
regulations and ordinances, and shall negotiate a
written franchise agreement with the City of Bangor in
accordance with all applicable City ordinances.
3. Amend paragraph 10 as follows:
The Utility Location Permit herein approved shall be
deemed personal to the applicant and may only be
transferred to a "public utility" as that term is
defined in Title 35-A M.R.S.A. Chapters 23 and 25.
Ownership of the underground fiber optic cable and
appurtenances to be installed pursuant to the Utility
Location Permit may not be sold, conveyed, transferred
or leased to any corporation, person or entity, unless
such corporation, person or entity qualifies as a
"public utility" under Title 35-A M.R.S.A. Chapters 23
and 25.
S. The time and place of street opening and the location of
the proposed underground fiber optic cable shall be specified in a
written permit to be issued in advance of Conetruetion by the City
Engineer, as provided in 35-A m.R.S.A. S 2508.
1. Upon completion of the installation, the applicant shall
provide two complete seta of 'as built" examine Or diagrams to the
Bangor City Engineer's office, shoeing the final sire and location
of the cable and all conduit, structures and appurtenances thereto,
as installed, including the elevation of such table, conduit,
structures and appurtenances below street or shoulder grade.
8. The applicant shall execute a written waiver agreement,
In a form acceptable to the City Solicitor, holding the City of
Bangor harmless from direct claims by the applicant, or Its
successors, and by all affiliated business corporations o
for damage to or interruption of service along the
underground fiber optic cable occasioned by ordinary negligence of
the City, its employees or agents in conducting street maintenance,
street repair, resurfacing, regrading, or relocation operations, or
in excavating for any City of Bangor sewer, atom sewey„8q other
City utility location or repair project. Such waiver y e
conditioned upon the City of Bangor's prior eomplianne with all
applicable provisions of the Maine -dig safe" statute, 23 m.R.S.A.
S 3360-A.
tallaties, the underground Liber optic
t0 carry Or transmit any Cable television
e n� to nMe'wtm annane in the business of
m.R.b.A. 5 lose or ether provisions oI state or reaeral law,
without first giving sixty (60) days prior written notice to the
City of Bangor of the applicant's intention to carry or transmit
such signals or to engage in such business. If the underground
fiber optic cable is used by the applicant on its successors for
any such purpose, the applicant or its successors shall seek all
necessary approvals under Federal, State and local law, regulations
and ordinances, and shall negotiate A written franchise agreement
with the City of Bangor in accordance with all applicable City
ordinances and policies.
16. The Utility Location Permit herein approved shall be
deemed personal to the applicant, and shall not be transferred to
any corporation, person or entity, nos shall ownership of the
underground fiber optic cable and appurtenances to be installed
pursuant to the Utility Location permit be sold, conveyed,
transferred or leased to any corporation, person orentity, unless
such corporation, parson or entity has first qualified, applied for
and received a Utility Location permit from the City of Bangor a0
provided in Title 35-A M.R.S.A. Chapters 23 and 25.
Before the
PENOBSCOT COUNTY
BOARD OF COMMISSIONERS
AT&T CENGLAID, IONSNC. OF )
NEN ENGLAND, INC., 1 Appeal from
corporation organized and 1 Decision of licensing
ratios under the laws of the ) Authority Pursuant
State of New York, 1 Title 35-A M.R.S.A. 525033( (13)
Appellant )
V. )
CITY OF BANGOR, a municipal )
corporation ionated in 1
Penobscot County, State of 1
Maine,
Appellee. )
1
NOW COMB AT&T Communications of New England, Inc., by
and through its attorneys, Eaton, Peabody, Bradford & veague„
P.A., and appeals the decision of the Bangor City Council to
conditionally grant an underground utility location permit
pursuant to Title 35-A M.R.S.A. 35 2501 et Seq.
.NRISDICTION
The Penobscot County Board of Commissioners is authorized to
hear this appeal pursuant to Title 35-A M.R.S.A. S 2503(13). The
statute authorizes de novo review by the Commissioners. Id.;
Town of Windham v , 537 A.2d 216 (Me.
1988).
INTRODUCTION
Maine law grants public utilities the absolute right to
construct their lines under the public ways of any municipality,
provided the utility first obtain an underground utility location
permit from the municipality. Maine law also strictly limits the
types of conditions which municipalities can impose on public
utilities in connection with the issuance of underground utility
location permits. Under State law, municipalities can only
impose conditions which are related to public safety and the use
of the right-of-way so as not to obstruct use for public travel.
AT&T Communications of New England, Inc. (hereinafter
"Appellant") seeks to locate a fiber optic cable beneath certain
public rights-of-way in the City of Bangor. The Bangor City
Council recently approved Appellant's underground utility
location permit request. That approval, however, was conditioned
upon Appellant agreeing to hold the City harmless for damage to
the cable resulting from the negligent acts of. the City's
employees and agents. That condition is simply unrelated to
public safety or the use of the right-of-way and, therefore, is
violative of State law.
Accordingly, Appellant takes this appeal to the Penobscot
County Board of Commissioners to have the condition of permit
issuance relating to execution of a hold harmless agreement
stricken in its entirety.
ISSUE
whether State law prohibits the City from requiring that
Appellant agree to hold the City harmless 'from the negligent acts
of City employees and agents because such a condition is
unrelated to public safety and the use of the right-of-way so as
not to obstruct use for public travel?
P TB
Appellant is proposing to construct, maintain, and operate
approximately 9.9 miles of fiber optic cable beneath certain
public ways in the City of Bangor. The proposal is a small, but
significant, portion of a much larger project which will provide
the citizens of Bangor, Penobscot County, and the State of Maine
with ^cutting edge' long distance telecommunications
capabilities.
The facilities, as approved by the City Engineer and Bangor
City Council, will consist of a single four -inch steel pipe
containing two 1.5 inch PVC innerducts. One ilmerduct will
contain a single fiber Optic cable. The other innerduct will be
reserved for maintenance and repairs. The facilities will be
buried within the limits of the public ways identified in
Appellant's application to the City of Bangor. See Exhibit A.
Importantly, however, the facilities will generally be located
outside the part of the public ways customarily used for
vehicular traffic.
The underground utility location permit application was
filed with the City on April 16, 1993. Cases Ring, City
Engineer, reviewed and approved the project design, subject to
two important modifications aimed at addressing public safety
issues. First, the original design location was modified to
accommodate City sewer lines and to maintain a SO foot separation
from all water lines. Second, Appellant agreed to coordinate its
construction schedule t0 coincide with road improvement projects
(i.e., paving) planned by the City, thereby reducing any impact
to public travel. The City. Engineer's approval paved the way for
City Council approval.
The Bangor City Council initially addressed the permit
request on May 24, 1993. A copy of the City Council's May 24,
1993 draft Order, prepared by the City's Legal Department, is
attached as Exhibit B. That original draft Order contained a
condition that Appellant enter into an agreement with the City to
indesmlfy the City against any claims arising out of the
existence of the cable beneath the public ways. Me Order also
required Appellant to pay a "licensing fee," a fee never before
charged by the City. rhe Appellant attended the City Council's
May 24th meeting and sought approval of the Order without the
Above stated conditions. The Council, instead, voted to send the
permit request to the City Council's Municipal Finance Committee
for further review.
After extended discussions, the City conceded that State law
prohibited the imposition of permit conditions unrelated to
public safety and use of the right-of-way so as not to obstruct
use for public travel. Accordingly, it dropped its demand for a
licensing fee. However, the City contradicted itself by staying
the course on the requirement that Appellant agree to indevmify
the City against any and all claims arising out of the existence
of the cable beneath the public ways.
On or about June 10, 1993, Appellant received a revised
draft Council Order prepared by the City's Legal Department. A
copy of that Order is attached as Exhibit C. That Order
contained a number of conditions. All of the conditions are
permissible under State law, except the condition relating to
4
Appellant's obligation to enter into a written agreement to hold
the City harmless from the negligent acts of its employees and
agents.
On June 14, 1993, the Bangor City Council voted t0 grant
Appellant an underground utility location permit. Despite
Appellant's request, however, the Council refused to Strike the
requirement that Appellant agree to hold the City harmless for
the negligent acts of its employees and agents. A copy of the
final Order is included as Exhibit D.
Appellant is concerned that the City's inclusion of a
condition contrary to State law could, and most likely would, be
used by other municipalities to impose other, perhaps more
onerous, permit Conditions. The Maine Legislature, apparently,
was similarly concerned as evidenced by the provision of State
law Severely restricting the scope of permissible conditions.
The residents of the City of Hanger, Penobscot County, and the
State Should be equally concerned given that such unchecked power
exercised by a single municipality could conceivably impede the
development of important technological advancements of direct
benefit to Maine residents. Consequently, Appellant appeals to
the Penobscot County Board of Commissioners pursuant to Title 35-
A M.E.S.A. 5 2503(13) for relief from this condition of permit
issuance.
5
DISCUSSION
STATE LAW PROHIBITS THE CITY FROM REQUIRING THAT APPELLANT AGREE
TO HOLD THE CITY HARNLESS FROM THE NEGLIGENT ACTS OF CITY
EMPLOYEES AND AGENTS BECAUSE SUCH A CONDITION IS UNRELATED TO
PUBLIC SAFETY AND THE USE OF THE RIGHT-OF-WAY SO AS NOT TO
OBSTRUCT USE FOR PUBLIC TRAVEL.
The argument is simple. State law grants Appellant the
absolute right to locate its facilities in the public way. That
same law strictly limits the types of conditions that
municipalities can impose on that right. The condition imposed
by the City of Bangor requiring that Appellant agree to hold the
City harmless for damage to the cable caused by the negligent
acts of City employees and agents clearly exceeds the limitations
imposed by State law and, therefore, must be stricken in its
entirety.
A. Appellant Hae The Absolute Right Under State Law To Locate
Its Facilities In The Public Way.
Under Maine law, public u-___— - enjoy the right to
construct their lines under the roads and streets of any
municipality. 35-A M.R.S.A. Chapters 23 and 25. Specifically,
the law provides that
[p]ublic utilities may, in any municipality, place
their pipes and appurtenances, wire and cables and all
conduits and other structures for conducting and
maintaining the pipes, wires and cables under the
surface of those streets and highways in which the
utilities are authorized to obtain locations for their
pipes and appurtenances, poles, and wires, subject to
the written permit of the [municipal officers] . A
vermit most he obtained under sections 2501 to 25ofl_
35-A M.R.S.A. S 2307 (emphasis added). The term "public utility"
includes every corporation ^owning, controlling, operating, or
6
managing any telephone line for compensation within this State."
35-A M.R.S.A. S 102(20).
Appellant is a 'public utility" under Maine law because it
"owns, controls, operates, and manages" telephone lines for
compensation within the State of Maine. The issue of whether
Appellant qualifies as a public utility is not disputed by the
parties
The law cited above restricts a public utility's right to
lay its pipe and cable to "those streets and highways in which
the utilit[y is] authorized to obtain locations for [its] pipes,
appurtenances, poles and wires." 35-A M.R.S.A. 52307. Maine's
public Utilities Comedesion has granted the Appellant "general.
authority . . . to provide service in Maine without geographic
restriction.' ggg Exhibit E. Accordingly, the Appellant is
entitled, by law, to place the proposed fiber optic cable beneath
the streets and highways of Bangor, subject to a written permit
issued by the City in accordance with State law (i.e. 35-A
M.R.S.A. SS 2501-2508).
B. es of Vgnditions which
Me Cityn Im The Abbellant
M.R.S.A. Chapter 25
All corporations engaged in the business of the tranemlesion
of communications are Subject to the duties, restrictions and
liabilities prescribed in Chapter 25. 35-A M.R.S.A. S 2501(1).
Under Chapter 25,
[n]o person may construct facilities upon and along
highways and public roads, without applying for and
obtaining a written location permit from the [local
municipality]. Included within this requirement is
7
every person operating . telephones . and any
other person engaged in telecommunications.
35-A M.R.S.A. S 2501(2) -
Chapter 25 details the exclusive procedure for securing a
permit to locate facilities in the public way. 35-A M.R.S.A. S
2503. Specifically, Chapter 25 law provides that
Exclusive method. Compliance with this section by any
person is the exclusive method of obtaining the rights
and privileges conferred in this section and n
r cooperativewith respect to person
e
locationofits facilities�
to caly with or bg
gy iFject to any other law, including, but not limited to
[Title 30 M.R.S.A. SS 4991 et seq.1.
35-A M.R.S.A. 5 2503(20) (emphasis added). Consequently, an
applicant for an underground utility location permit cannot be
compelled to comply with any conditions or requirements which
exceed the limitations imposed by Chapter 25.
Chapter 25 addresses a number of issues related to permit
issuance, including: (1) application form; (2) notice; (3)
objections; (4) hearing; (5) liability; and (6) alterations and
relocation. With respect to permit conditions, Chapter 25
specifically provides that
[tlhe location permit shall specify the approximate
location of the facility and the minimum depth of any
pipes or conduits below . the earth's surface. The
local ni lit specify
reauipe�ts determined necessary in the best interests
of the publicf f the right-of-way
not to obstruct use for public travel.
35-A M.R.S.A. @2503(5)(emphasis added).
The Maine Supreme Judicial Court has consistently declared
that a deliberative body's first task when interpreting a statute
is to ascertain the real purpose of the legislation. °f=
generally State v. Niles, 585 A.2d 181 (Me. 1990). Once the
purpose of the legislation is found, the deliberative body should
give effect to it, avoiding results that are absurd,
inconsistent, unreasonable, or illogical, if the language of the
statute is fairly Susceptible to such construction. $d.
The real purpose of the statute limiting the conditions
which a municipality can impose on a public utility in connection
with a utility location permit is grounded in public policy.
Sound public policy supporta limiting the types of conditions
which a municipality can impose upon a public utility to those
conditions determined necessary for public safety and use of the
right-of-way for public travel. First, public utilities, by
definition, provide the citizenry with important and essential
services. The continued flow of these essential services could
easily be jeopardized if municipalities were unrestrained in
their ability to impose permit conditions on public utilities.
For example, a utility may elect not to upgrade existing
facilities because of the uncertainty surrounding the demands
that an affected municipality may extract. Moreover, unchecked
municipal regulation would likely result in increased service
fees to all customers.
Municipalities should not and, indeed, by law, cannot impose
any condition they so desire._ Obviously, public safety and
continued use of the right-of-way so as not to obstruct travel
are vitally important to the local residents and, indeed, to the
State. Accordingly, the statute specifically allows the
imposition of conditions strictly addressing those issues.
Second, the cost of services provided by public utilities is
borne by the public. Consequently, it is in the public's best
interest for such utilities to be able to develop their
technological infrastructure as cost effectively as possible. In
order to accomplish this, however, utilities moat be able to
calculate the entire cost of a project prior to comencing that
project, and invest accordingly. If municipalities are allowed
to impose permit conditions without limitation, then public
utilities will be unable to forecast accurately the potential
coat of any given project. AS a result, public utilities may
undertake projects which appear at the outset to benefit the
public but which, because of the actions of certain
municipalities, may wind up costing the rest of the County and
State unnecessary service fees. Squally unfortunate would be the
situation where the utility simply elected not to undertake a
given project for fear of being held hostage by a municipality's
unlawful demands. The County and the State could easily suffer
from the Shortsightedness of a few municipalities.
Third, Appellant's project, like vany similar utility'
projects, is being constructed in two different directions.
Construction is on-going in a northerly direction and in a
southerly direction. If municipalities were unrestrained in
their ability to impose permit conditions, then the municipality
representing the final "link" (and, indeed, any municipality)
could (and, moat likely would) require the payment of an
10
exorbitant fee or other such unlawful demand. In Such a case,
the utility's options would be to either accede to the
municipality's demands or abandon the project altogether. The
cost of such additional conditions could easily surpass the
benefits derived by the project, both by Applicant and the
public. The Maine legislature certainly did not intend this
result.
The Maine Law Court has also stated that in order to
determine legislative intent in relation to a particular
provision of a statute, the deliberative body should consider the
entire statutory scheme employed by the legislation. Freeport
Minerals Co. v Inhabitants o£ To , 437 A.2d 642
(Me. 1981). Chapter 25 is drafted to favor the issuance of a
permit without conditions. For example, if a municipality does
not issue a permit within 60 days from the date the application
is submitted, then a permit is deemed to have been issued. Very
few Maine statutes, if any, deem a permit to issue in the event a
governmental agency fails to act on the permit request. The
approach adopted by the Legislature in Chapter 25 evidences the
Legislature's intention that public utilities not be stalled, or
otherwise thwarted, in their efforts to provide essential
services to the residents of Maine.
The Maine Legislature clearly and emphatically declared that
Chapter 25 provides the exclusive method for securing the rights
and obligations conferred by that section and that utilities
cannot be required to comply with any other law with regard to
11
location of its facilities. The Legislature also unequivocally
declared that the only permissible conditions are those relating
to public safety and use of the right-of-way, so as act to
obstruct use for public travel. The Legislature, for legitimate
public policy reasons, left no opening for a municipality to
impose any other conditions, much lees those simply relating to
financial matters. If the City is unhappy with the limits
imposed by the statute, than its only recourse is to seek to
amend the law. Interestingly, the City Solicitor apparently
recognizes the weakness of the City's position and has suggested
that the City may actually approach the Legislature for relief
from the limitations imposed by Chapter 25.
C. The Condition of Permit Issuance Relating to Execuli=
Of a Hold Harmless Agreement Imposed By The City Par
ExTeads the Limitations
As noted above, Chapter 25 specifically provides that
(t]he location permit shall specify the approximate
location of the facility and the minimum depth of any
pipes or conduits below . the earth's surface. Th€
[local mumicipalityl y specify in the Permit other
n the best interests
e Xight-gf-way so as
not to obstruct use for public travel.
35-A M.R.S.A. 52503(5)(ecphasis added). The location permit
application submitted by the Appellant clearly specifies the
location of the facility and the minimum depth of all pipes below
the earth's surface. See Exhibit A.
As noted, the final Order approved by the City Council
contains a number of conditions in addition to the hold harmless
condition. These additional conditions are either related to
12
public safety or use of the right-of-way or are simply
restatements of the law. For example, the City Engineer
proposed, and the City Council approved, a permit condition
requiring that the
installation of the new conduit in paved roadways,
driveways, and parking areae shall be accomplished by
boring or jacking methods rather than open trench
excavation.
This condition is obviously related to public safety concerns
and, therefore, is permitted under Chapter 25. The Appellant
does not contest the imposition of this condition, but merely
cites it as an example of a permissible condition. Moreover, as
noted above, public safety concerns were fully addressed between
Appellant and the City Engineer prior to the application even
being submitted to the City Council.
The condition of permit issuance relating to the hold
harmless agreement, however, is not even remotely related to
public safety or the use of the right-of-way so as not to
obstruct use for public travel. In fact, the hold harmless
requirement Is very similar to the licensing fee initially
demanded by the City in that they both focus squarely on
financial issues, not issues of public safety or the use of the
right-of-way for public travel. Recall, the City retracted its
demand for a licensing fee in recognition of the fact that such a
condition exceeds the limitations imposed by Chapter 25.
The City has taken the position that the hold harmless
requirement is related to public safety because the City may not
undertake certain road improvement activities for fear of
23
damaging the cable, thus causing the road to fall into an unsafe
condition. This argument has a number of significant
shortcomings. First, the cable will be located four feet below
the surface of the ground. Most, if not all, road improvement
activities occur well above this level. Indeed, any road
improvement project requiring excavation to a depth of a feet
would be a major undertaking requiring massive recontouring of
entrances to local residences and businesses.
second, the `public safety" issues surrounding this project
were fully addressed by the City Engineer prior to the
application even being submitted to the City Council. As noted
above, the original design location was modified to accommodate
the City's sewer line and to maintain a 10 foot separation from
all water lines. Moreover, Appellant offered to coordinate its
construction schedule to coincide with the City's planned road
improvement projects. These modifications, the coat of which.
will be borne solely by the Appellant, mollify any public safety
Third, the proposed cableinstallation constitutes a drastic
improvement over existing practices. For example, Appellant
currently provides long distance service over cables owned by
New England Telephone Cmspany (NET). Those underground cables
are located in the City's public ways. However, those
underground cables are located at depths ranging from 2.5 to 4
feet, and averaging 3 to 3.5 feet. Moreover, those cables are
only protected by PVC piping, not steel and PVC as proposed by
14
Appellant. Consequently, Appellant's proposal to locate its
cables 4 feet beneath the surface in a steel conduit is a vast
improvement over existing methodologies and, more importantly,
addresses all reasonable public safety issues.
Fourth, the Maine Dig Safe System, of which both the City
and Appellant are members, requires that the City notify the
-System" prior to any excavation. The -System," in turn,
notifies the Appellant of the planned excavation and the
Appellant is required, by law, to,mark the boundaries of the
cable. The Appellant's practice, however, is to actually be on-
site during the excavation. Consequently, the likelihood that a
cable located four feet beneath the surface will be damaged is
minimal, except by acts of willful misconduct or groes
negligence. The City is not seeking an indemnification from acts
of willful misconduct or gross negligence.
Finally, and perhaps most significantly, the City Engineer
approved the engineering aspects of the project prior to its
submission to the City Council for approval. If the City
Engineer were concerned that the location of the cable would
interfere with road construction activities, then he could have
required that the cables be placed even deeper beneath the
rights-of-way. The City Engineer was apparently of the opinion
that the proposed location provided an adequate margin of safety.
Mm2LUSI�
The City has imposed a.condition of permit issuance which is
clearly prohibited under State law. In so doing, the City has
15
stalled a project which will both directly and indirectly benefit
the residents of the City of Bangor, the County, the State and,
indeed, the Nation. The City, to our knowledge, has never
imposed such a condition on any other public utility. Indeed,
the City has unfairly singled out this particular project as a
test case. The law is clear: municipalities can only impose
conditions relating to public safety and the use of the right-of-
way so as not to obstruct travel. The condition relating to
execution of a hold harmless agreement violates not only the
letter of the law, but also the spirit.
RBOeRBT EM MIRF
Appellant respectfully requests that the Penobscot County
Board of Commissioners strike condition number 8 of the Bangor
City Council's final Order requiring that Appellant agree to hold
the City harmless for damage to the cable resulting from the
negligent acts of City employees and agents in its entirety.
Dated: j'Ls wci3 By:l �. '""'
RogerL. Buber, Req
of the firm of
BATON, PEABODY, BRADFORD
& VRAGDE, P.A.
P.O. Box 1210
Bangor, Maine 04402-1210
(207)-947-0111
Attorneys for Appellant AT&T
Communications of New England,
Inc.
16
EXHIBIT LIST
A -
Application
of AT&T Communications of New
England,
Inc. for
a Utility
Location Permit.
B -
Draft Order of Bangor City Council, dated
May 24,
1993.
C -
Draft Order of Bangor City Council, dated
Suns 14,
1993.
D -
Final Order of Bangor City Council, dated
June 14,
1993-
E -
Maine Public Utilities Commission Order Approving
Stipulations,
dated October 16, 1991.
FORM432A-Bp
-C TION FOR nTILITY LOCATION PERMIS PLAN F
TO: BANGORCITY COUNCIL - CITY OF BANGOR
-ATAT Communications, Inc. (AT&T), a Delaware corporation, being
duly authorized to provide interstate telecommunications, hereby
applies for a permit authorizing. said company the, right to
construct, operate .and maintain its facilities, hereinafter
'.described, upon along, across and under certain public ways
Situated in the City of Bangor, Maine.
LOCATION:
DANFORTH BANGOR FT2G "A" CABLE
permit - City, of Bangor: 35 Hillside Avenues beginning at said
company terminal, thence northerly within certain public ways as
follows: Hillside Avenue, Grandview Avenue and Broadway (Route 15),
to the right-of-way of the Bangor and Aroostook Railroad, a
distance Of approximatelY twenty-three thousand one hundred feet
.(23, 100). The proposed route is more particularly shown. on a set
of plans entitled "Saint John, NB to Bangor, ME, Danforth - Bangor
..Section, Lightguide System,_ Utility Location Permit, City' of
-Bangor, Consisting of eleven (11) sheets, drawing FA. 50233.
`BANGOR— PORTLAND PICO "A" CABLE _
Permit + City of Bangor: 35 Hillside Avenue, beginning at said
company" terminal, thence westerly within certain public ways a
'follows: Hillside. Avenue, School Street, Broadway (Route 15)5
Hudson Avenue, Kenduakeag Avenue, Griffin Road and Union Street to
- the right-of-way of the Bangor and Aroostook Railroad, a distance
of approximately twenty-three thousand four hundred feet (23,400).
The proposed route is more particularly showwin a set of t Section,
"Bangor to Portland, Bangor
Lightguide System, Utility Location Permit, City Of Bangor,
consisting of thirteen (13) sheets, drawing FA 50234.
Gounrii Artion
Dam 5-24-1993 Ilam No. 93-277
Item%Subjeel: Application for Utility Location Permit - A T 6 T Communications,
Feeponsible Department: Bngiaeering
Commentary:
The attached Council Order would grant a Utility Location Permit to A T A T
Communications. Inc. to install an underground fiber optic cable along
portions of Broadway. Grandview Ave., Hillside Ave.. School Street, Musson
Ave., Readuskeag Ave., Griffin Road, and Outer Union Street, subject to certain
conditions and fees. The proposed installation would generally be located
[aide street travelled ways, away from sever linen and other underground
public utilities, and would encompass a total length of 46.500 linear feet.
The new cable would connect the United States and Canada, and provide system
diversity for corammicaticow between the U.S.. Canada. and Europe.. The City
Manger has raised the question of whether the City is obligated under State
Statutes to provide a Location Permit free of charge because of the Applicant's
corporate status in Maine. The Legal Department has investigated this issue
as outlined in the attached Memo prepared by the Assistant .City Solicitor.
Representatives from A T A T Communications, Inc. will attend the Council"
meeting to answer questions relative to the project.
Deyn-ar ward'
Managers Conments:.rs
oLou�)u�b�g�.ea[�Q,LQW�11�ap�d� Bevat-%2t\[s+0+ynsttarao\
Aasoriamd Information: ]
Budget Approval:
F:m uDi,[
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SUBSTITUTE COPY 93-317
Awepud lO Cuunctor Souay, lune 14, 1993
CITY OF BANGOR
(TITLE) Orbera_.._application. for utility Location.. Permit
AUT COMentcations of New England, Lac.
By w city Covent Of w a:Y M Baser:
ORDERED,
THAT
the attached Application for a utility Location
Permit is hereby granted subject to she following conditions$
1.The applicant shall amend Its Certificate Of SnCOrPO-
ratlon as f11ed with the Maine Secretary of State to comply with
35-A M.B.S.A. S 2301. The applicant shall provide Satisfactory
evidence of soon amendment t0 the City Solicitor's Office prior to
Issuance of the requested utility Location Permit.
2. The proposed underground fiber optic cable will be
installed in a 4" diameter steel conduit, to be located as shown on
Plans titled-tanEorth-Sangor PT3 G 'A' Cable- (Plan No. FA 50233)
and -Banger-Portland FT2G 'A' Cable- Plan No. PA 5034) dated April
16, 1993, prepared by Survey and Napping Consultants, Inc. copies
of these Plans are file in the City enginaer•s office.
3. Except At structure locations, installation of the new
conduit in paved roadways, driveways, and parking areas shall be
accomplished by boring or jacking methods rather than bpeh trench
_excavation.
4. Installation of the proposed undorgrovul fiber optic
Cable shall additionally comply with the requirements of Chapter
VI, Article S, Bangor City ordinances:
5. The applicant shall pay all applicable street opening
fees as provided In Chapter VT, Article 8, Danger City Ordinances,
including an inspection fee of $30.00 Paz day during project
construction or as determined by the City Engineer.
June 14, 1993
Amended by Substitution and Passed
Substituted copy amended
Delete the ward or n the 5th line
paragraph 8 and the word customers in 11ne6
also in paragraph 8 delete the word may and
add the word shall in the 10th line
amended in additon by replacing
paragraphs a 10 v[gn 'he eater recceied rom paragraphs
Attorney
Huber Ltter`Attached
IM CLERK'S CdFsA
MNGOA MNNE
JUL 9-y3
It RUE COPY AiiBl
,aPa�-IV cz/ , .
6. The time and place of street opening and the location of
the proposed underground fiber optic =his shall be specified in a
Kitten permit to be issued in advance of construction by the City
Engineer, as provided in 35-A M.A.S.A. 5 2508.
7. Upon completion of the Installation, the applicant shall
provide two complete sate of -as built- drawings or diagrams to the
Bangor City engineer's office, showing the final size and location
of the cable and all conduit, structures and appurtenances thereto,
as installed, including the elevation of such cable, conduit,
structures and appurtenances below street or shoulder grade.
G. The applicant shall execute
rcutea written waiver agreement,
in a form acceptable to the City Solicitor, holding the City of
Bangor harmless free direct claims by the aplicant, or its
uccesiors, and by all affiliated business Corporations as
mstomer , for damage to or interruption of service along the
underground fiber optic cable occaefonep by ordinary negligence of
the City, its employees or agents in conducting errant maintenance,
street repair, resurfacing, regrading, or relocation operations, or
in excavating for any City of Bangor sewer, atoms sewxr,gx other
e with all
23 M.R.S.A.
9. Following installation, the underground fiber optic
cable shall not be used to carry or transmit any cable television
JCATV) or similar signals or to otherwise engage in the business of
cable television broadcasting or any similar business made subject
to municipal Control, franchising, or xegvlation under Title 30-A'
X.R.S.A. S 3008 or other provisions of State or Federal law,
without first giving sixty (60) days prior written notice to the
City of Bangor of the applicant's intention to carry or transmit
such signals or to engage in such business. If the underground
fiber optic cable is used by the applicant or its successors for
any such purpose, the applicant or its successors shall seek all
necessary approvals under Federal, State and local law, regulations
and ordinances, and shall negotiate a written franchise agreement
with the City of Bangor in accordance with all applicable City
ordinances and policies.
10. The Utility Location Permit herein approved shall be
deemed personal to the applicant, and shall not be transferred to
any corporation, person or entity, nor shall ownership of the
underground fiber optic cable and appurtenances to be installed
pursuant to the Utility Location Permit be Bold, conveyed,
transferred or leased to any corporation, personorentity, unless
such corporation, person or entity has first qualified, applied for
and received a Utility Location PataLLt from the City of Bangor an
provided in Title 35-A M.R.S.A. Chapters 23 and 25,
993]]
S
Msgned to Co:mdot swcy May 24, 1993
_ CITY OF BANGOR
alffl.) (J@rbtr, Application for Utility Location._ Permit A T 6_T Communications.
By the City CouMi of Gu Oft of Danger:
ORDERED,
TUT the attached Application for a Utility Location Permit is hereby
granted subjecttothe fallowing conditions:
1. The proposed underground fiber optic cable will be installed in a
4" diameter steel conduit, to be located a shown n Plans titled "Danforth -
Bangor Ff2 G 'A' Cable" (Plan No. FA 50233) and "Bangor -Portland FT2G 'A`
Cable" Plan No. FA 5034) dated April 16, 1993, prepared by Survey and
Napping Consultants, Inc. Copies of these Plans are on file in the City
Engineer's office.
2. ,Except at structure locations, installation of the new conduit
in paved roadways, driveways, and parking areas &ball be accomplished by
boring or jacking methods rather than open trench excavation.
3. Payment of applicable street opening fees.
4. Execution of an appropriate license agreement and payment of a
appropriate license fee as negotiated by the Applicant and the City Manager
for occupying portions of City street rights-of-way. Said license agreement
and fee to be approved by the City Solicitor.
A public notice of this Application has been published in the Bangor
Daily News.
In City Council May RC, 1993
Referred to Finawe Committee
,rm.il
City'Clerk
s
93-R]]
ORDER
Title,
Application for Vtiliry [oration Permit
A
...................
T 6T CammnnicdY ions Inc.
......................................
IN CITY COUNCIL
June 14, 1993
�/ -
O g
Amended by Substitution.
Amiged to
amended in the Sth Paragraph in the
4tb Line by delete the word "or
d In" rtl the the 5th line by
deleting the word "cuscomed' and in
m n
fAuncilman
the 10th line Change the word "May"
to "Sbnll". Amended also by replacement
of paragraph 9 and 10 with paragraphs
9 and 10 In the letter received from
Attorney Roger Shebat representing AM
Corporation June 14, 1993.
Passed as Amended be�y// Substitution.
v[(
CIT�/CLHR%
A�P
` ..rte _
EATON. PEABOOV. H PninaU a V RAG V E P.P.
? /a
Dear Erik:
As we discussed, following are our proposed revisions to the
Order of the Bangor City Council pertaining to the above-
mentioned application: _
1. Strike paragraph No. a in its entirety because it is
inconsistent with the mandates of State law. The City i
precluded by State law to require such a condition either as
a permit condition or as a condition of permit issuance.
Accordingly, AT&T objects to its inclusion in the City
Council's Order. If, however, you intend to include the
paragraph in the final Council Order, we ask that you amend
it as follows in order to be consistent with prior
discussions:
a. Strike the reference to "or customers” in the
fourth and fifth line of the paragraph. AT&T's
liability to its customers is limited pursuant to
federal law and, therefore, there is no basis for
requiring that AT&T indemnify the City against
such claims.
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AAMILL 1.
June 14, 1993
,,,,2,„1. A„,
ae„2221,,,
Erik M.
Stumpfel, esquire
City Solicitor
City of
Bangor -
73 Harlow Street
Bangor,
Maine 04401
Hand Delivered
RE:
AT&T Communications
of New England, Inc./Application
for Utility Location Permit/Revisions to draft
City
Council Order
Dear Erik:
As we discussed, following are our proposed revisions to the
Order of the Bangor City Council pertaining to the above-
mentioned application: _
1. Strike paragraph No. a in its entirety because it is
inconsistent with the mandates of State law. The City i
precluded by State law to require such a condition either as
a permit condition or as a condition of permit issuance.
Accordingly, AT&T objects to its inclusion in the City
Council's Order. If, however, you intend to include the
paragraph in the final Council Order, we ask that you amend
it as follows in order to be consistent with prior
discussions:
a. Strike the reference to "or customers” in the
fourth and fifth line of the paragraph. AT&T's
liability to its customers is limited pursuant to
federal law and, therefore, there is no basis for
requiring that AT&T indemnify the City against
such claims.
EATON, pEP ROO Y. BRADFORD A VEAO VE. p. A.
0"001 Cuts, M112,Z11
ei: m e"":Y i�F M�! M1.101,
^^
-.o..r.NV...111. 1, AILLIMCICAMILUI,
L35i-Ari"i�kEN? .,..,1..,4
-,1,,,1,111 11.11.,..„ lune 14, 1993
Erik M. Stumpfel, Esquire
City Solicitor
City of Bangor
73 Barlow Street
Bangor, Maine 04401 -
Sena Delivered
RE:AT&T Communications of New England, Int./ApplicatiOn
for Utility Location Permit/Revisions to draft City
Council order
Dear Erik:
As we discussed, following are our proposed revisions to the
Order of the Bangor City Council pertaining to the above. -
mentioned applination:
1.. Strike paragraph No. E in its entirety because it is
consistent with the mandates of State law. The City is
precluded by State law to require such a condition either as
a permit condition or as a condition of permit issuance.
Accordingly. AT&T objects to its inclusion in the City
Council's Order. 1f, however, you intend to include the
paragraph in the final Council Order, we ask that you amend
it as follows in order to be consistent with prior '
discussions:
a. Strike the reference to "or customers" in the
fourth and fifth .line of the paragraph. AT&T's
liability to its customers is limited pursuant to
federal law and, therefore, there is no basis for
requiring that AT&T indemnify the City against
such claims. - L
Erik M. Stumpfel, Esquire
City Solicitor
City of Bangor _
June 14, 1993
Page Two
b. Replace the word "may" in the tenth line of the
paragraph with •Shall.°
2. Amand paragraph NO. 9 as follows:
if applicant intends to utilize the underground fiber,
optic cable to carry or transmit any cable television
(CAM or similar signals or to otherwise engage in the
- business of cable television broadcasting or any
similar business made Subject to municipal Control,
franchising, Or regulation. under Title 30-A M.R.S.A. 5
3008 or other provisions of State or Federal law, then
applicant Shall give sixty (60) days prior written
notice to the City of Bangor of such intention to carry
or transmit such signals or to engage in such business.
If the underground fiber optic cable is used by the
applicant or its successors for any such purpose, the
applicant or its successors shall Seek all necessary
approvals under Federal, State and local law,
regulations and ordinances, and shall negotiate a
written franchise agreement with the City of Bangor in
3. Amend paragraph 10 as follows
The Utility Location permit herein approved shall be
deemed personal to the applicant and may only be
transferred to a "public utilitym as that term is
defined in Title 35'-A M.R.S.A. Chapters 23 and 25.
Ownership of the underground fiber optic cable and
appurtenances to be installed pursuant to the Utility
Location permit may not be said, conveyed, transferred
r leased to any corporation; person Or entity, unless
Such corporation, person or entity qualities an a
"publicutility' under Title 35-A M.R.S.A. chapters 23
and 25.
EATON, PEABODY, BRADFORD & VEAGOE,P A
FLEET CENTER - EXCHANGE OFFULET
IT WOX1210
BANGOR. MAINE 04401 1210
MERCHANT MIJ 'ALEX A III. EXPAND.. NOT IJ 11 111111 1 AGAIN 1111111111
I... 1. AEG' PIRELLI BIONDI
1.1.11 A 111.1 PAULL GIBBONS
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1101". I".,D. JONATHAN 0 AFTERNOON ABOULA, MAINE WAR
""'"A A ILICADI Ill' Al COBALT
I RARE 0. MALAY BEAT A 1. AMEX 111 'All "I
"In" A """I I'll 1. IWITIIAXV MUCANT M. EARN HAV I
"All 110" A RIVAL IIANA 1, 11" June 25, 1993 RAAMINGTON DIRECT
DRAWN. GUAMe,.«
JUNE 1. I'l... ALAN A CARRIER LUCY
WILLIAM 1. DEVOE I'll A 1. BORDER DOVE YANG LEFT, MAINE LEGE
AT Il
11 RUDE 1. FIRMLY GFULL N MADPORL
Russell MCxema, Clerk
City of Bangor
93 Barlow Street
Bangor, Maine 06601
Re: AT&T Communications of New England, Inc./Appeal to
Penobscot County Board of Commissioners
Dear Russ:
Enclosed with this letter please find AT&T Communications of
New England, Inc.'s appeal to the Penobscot County Board of
Commlissioners of the Bangor City Council's decision to
conditionally grant an underground utility location permit.
If you have any questions, please do not hesitate to call.
Sincerely,
RRR��*dam
n,
Huber
O48310 ,110
�P.
RQ /N, A7. Will £6
FORM 432A -BC
ERMIT PLAM j
TO: BANGOR CITY COBNCIL - CITY OF HARBOR
AT&T Communications, Inc. (AT&T), a Delaware corporation, being
duly authoriaed to provide interstate telecommunications, hereby
applies for a permit authorizingsaid company the right to
construct, operate and maintain its facilities, hereinafter
described, upon, along, across and under certain public ways
situated in the City of Bangor, Maine.
LOCATION:
OANFORTH - BANGOR FT26 "A" CABLE
Permit - City of Bangor: 35 Hillside Avenue, beginning at said
company terminal, thence northerly within certain public ways as
follows: Hillside Avenue, Grandview Avenue and Broadway (Route 15),
to the right-of-way of the Bangor and Aroostook Railroad, a
distance of approximately twenty-three thousand one hundred feet
(23,100). The proposed route is more particularly shown on a set
of plans entitled "Saint .Sohn, MB to Bangor, MB, Danforth - Bangor
Section, Lightguide System, Utility Location Permit, City of
Bangor, consisting of eleven (11) sheets, drawing FA 50233.
BANGOR - PORTLAND FT20 "A" CABLE
Permit - City of Bangor: 35 Hillside Avenue, beginning at said
company terminal, thence westerly within certain public ways as
follows: Hillside Avenue, School Street, Broadway (Route 15),
Husson Avenue, Rendusksag Avenue, Griffin Road and Union Street to
the tight -of -way of the Bangor and Aroostook Railroad, a distance
of approximately twenty-three thousand four hundred feet (23,400).
The proposed route is more particularly shown on a set of plans
entitled "Bangor to Portland, 'ME, Bangor - winterport Section,
Lightguide System, Utility Location Permit, City of Bangor,
consisting of thirteen (13) sheets, drawing FA 50234.
,93-2JJ 7
CERCRIPTI03H
The facilities will consist of one four (4) inch steel pipe
containing two (2) 1.5 inch PVC innerducts (one innerduct will
contain a single fiber cable), upon, along, across and under
certain public ways situated within the City of Bangor. In
addition, the facilities will consist of splice handholes (precast
concrete and gn82ite material), splices, repeaters, surface testing
terminals, marker poles and other appurtenances. The facilities
will be buried within the limits of the public ways, herein before
mentioned, but will be outside the part thereof customarily used
for vehicular traffic.
Dated at Boston, Massachusetts
on April 16, 1993. By: AT&T Commun'c ions Inc.
Kevin Hanley, PLS
President, Surveyin and
mapping Consultants, Inc.
Agent for AT&T
EATON. PEABODY. BRADFORD BSEARNE IMA
NAME CENTER . EARNINGS NISSAN
11 1,11210
HANSON, AMID ERNEST 210
Enclosed with this letter please find the appeal of AT&T
Communications of New England, Inc. from the decision of the
Bangor City Council to conditionally grant an underground utility -
location permit pursuant to 35-A M.R.S.A. 55 2501-2520.
The Bangor City Council, on rune 14, 1993, approved the
issuance of an underground utility location permit to AT&T
Communications of New England, Inc. However, the City
conditioned the issuance of that permit upon AT&T agreeing to
hold the City harmless for damage to the underground cable
resulting from the negligent acts of the City's employees and
agents.
Maine law is clear, municipalities can only impose
conditions relating to public safety and the use of the right-of-
way so as not to obstruct public travel. The condition imposed
by the City is completely unrelated to either of these issues.
Accordingly, the condition is violative Of State law And AT&T
requests that the Board strike the condition in its entirety.
KONG 1 11.1 I ..0111 A11ITII
RULING I "I I. ALL WAS
11.11, WAR., "SELL 1, 1111111111
IDWARMS U LIONAME III ALAN. GERMAN
OWNER MILLI
WARSAW 1. '.CIA'.. LAOS A, 1. MITI
""LAI EU MAKER ALL I" LAI
MORAL S, TRAINOR ""AIN LI ANAMI
LOAN A. IIWAUAIIHAI ALLISON CARTER LURE
AREA" 1, A LOS SANTA I "I'll
ANNE LAI MAINE WAR 20
RE CMRA1
1 "MILLI MAKERS"
WARN,,,,..,,, III .......
June 25, 1993
Penobscot County Board
of Commissioners
99 Hanmwnd Street
Bangor, Maine 09901
Re: AT&T Communications
of New England, Inc./Appeal
from
Decision of Licensing Authority pursuant
to 35-A
M.R.S.A. g 2503(13).
Dear Commissioners:
Enclosed with this letter please find the appeal of AT&T
Communications of New England, Inc. from the decision of the
Bangor City Council to conditionally grant an underground utility -
location permit pursuant to 35-A M.R.S.A. 55 2501-2520.
The Bangor City Council, on rune 14, 1993, approved the
issuance of an underground utility location permit to AT&T
Communications of New England, Inc. However, the City
conditioned the issuance of that permit upon AT&T agreeing to
hold the City harmless for damage to the underground cable
resulting from the negligent acts of the City's employees and
agents.
Maine law is clear, municipalities can only impose
conditions relating to public safety and the use of the right-of-
way so as not to obstruct public travel. The condition imposed
by the City is completely unrelated to either of these issues.
Accordingly, the condition is violative Of State law And AT&T
requests that the Board strike the condition in its entirety.
Penobscot County Board
of Commissioners
June 23, 1993
Page Two
If the Board requires any additional information, please let
me know. Otherwise, I look forward to meeting with you on this
matter.
Sincerely,
Roger I. Huber
RIH/fe
enc.
cc: Brian M. Kelleher, Esq., AT&T
Bob MacSwain, MacSwain & Co.
Erik M. Stumpfel, Esq.
Russell McKenna, City Clerk