A defeat on dual utility poles may spur interest in new bill
By Matt McDonald, Globe Correspondent | August 11, 2005
A court decision preventing Bedford from fining utilities for double poles may spur interest in new legislation favoring community operation of lighting plants, supporters say.
Spokesmen for utility companies, however, praised the court ruling. They also expressed skepticism about the municipal lighting plant idea.
On July 28, the Massachusetts Supreme Judicial Court upheld a lower court ruling overturning a Bedford bylaw imposing a $100-a-day fine for each set of double utility poles.
When a utility replaces an old pole that it owns, it often has to wait for other companies to move their wires to the new pole. This leads to two poles that sometimes stand together for months.
''It's fundamentally an eyesore. That's what the town is objecting to. In some cases it becomes a hazard, if they're at an intersection," said Gordon Feltman, who is chairman of the Bedford Board of Selectmen.
A state statute forbids companies from keeping double poles up for more than 90 days, but it provides no penalty for disobeying the law.
In Bedford, Town Meeting approved a double-pole bylaw in October 2003, with the $100-a-day fines. The bylaw was never enforced because NStar and Verizon, which jointly own the utility poles, successfully challenged the bylaw.
A Superior Court judge ruled against the town in August 2004. The town appealed, and the Supreme Judicial Court took up the case.
On July 28, the high court ruled that only the state Legislature has the authority to impose a fine for keeping double pole sets.
Chief Justice Margaret Marshall argued that if communities were allowed to approve individual bylaws on double poles, the companies that own the poles would have a difficult time keeping up with local regulations. Instead, she argued, regulating double poles should be left to the state Department of Telecommunications and Energy under authority from the Legislature.
''Permitting a town to manipulate the prioritization of pole removal to the disadvantage of other municipalities would threaten the provision of uniform and efficient utility services to the public," Marshall wrote. ''Unlike the department, an individual city or town seeking to further its purely local interests does not weigh the often competing interests of pole owners, pole users, utility consumers throughout the State, and other municipalities."
Utility companies praised the ruling. ''In their recent decision, the SJC affirmed the position that the DTE has statewide jurisdiction over utility matters such as double poles, and that town-by-town ordinances are not the best way to manage the issue," said Mike Durand, a spokesman for NStar. ''We do know that the DTE is closely monitoring our coordination of double pole removals with other utilities, as we also work to upgrade equipment and keep the lights on."
Massachusetts Electric, a National Grid company that provides electricity for 168 communities in Massachusetts, including several northwestern communities, submitted a friend-of-the-court brief in the case arguing on behalf of NStar and Verizon.
''We supported the decision, as we feel this is a matter for the DTE to decide," said Debbie Drew, a Massachusetts Electric spokeswoman.
A Verizon spokesman, Jack Hoey, said the company is committed to removing double poles efficiently.
''Our focus remains on working with other utilities and local officials on infrastructure upgrades while continuing to address any backlog of double poles created by these improvements," said Hoey.
Bedford spent about $55,000 fighting the case, said the town administrator, Richard Reed.
Feltman said the town had simply crafted its bylaw from two existing state statutes, and he noted that the office of Attorney General Thomas Reilly had approved it.
Feltman expressed disappointment at the court decision, but he suggested it might help rally support for a bill now before the state Legislature that would make it more practical for communities to form their own lighting plants. ''Now if that law passes, I have to believe that will get the attention of the utilities, and they will give a much better level of service to the communities," Feltman said.
The bill, House 3294, would make it practical for some communities to form their own lighting plants by authorizing the Department of Telecommunications and Energy to set a purchase price for equipment if a town and a utility cannot come to an agreement.
Supporters, including Patrick Mehr, a member of the Lexington Electric Utility Committee, say that municipal lighting plants could provide electricity at significantly lower rates than those offered by utility companies, and that the towns would provide better service, including speedier removal of double poles.
The supporters argue that utility companies currently have what amounts to a monopoly in the communities they serve. State Representative Jay Kaufman, a Lexington Democrat who is the principal sponsor, said some communities might want to join to form regional lighting services. They would probably be expensive, he said, but would be practical.
''I think communities need to be aware that what would be available if this bill were passed is neither a simple proposition nor a free lunch," Kaufman said. ''But having said that, in a competitive marketplace, communities should have some options."
Some 41 communities, including Concord and Wellesley, have their own lighting plants, according to the Massachusetts Alliance for Municipal Electric Choice. But none has formed since the 1920s because, supporters say, state law makes it impractical.
Drew said that she is unfamiliar with the details of Kaufman's bill, but that Massachusetts Electric officials have expressed concerns about municipal plants.
They have expressed doubts about the reliability of service and worries about compensation for company property and revenue loss for the company.
Durand, the NStar spokesman, said communities might think twice before forming plants.
''There are a large number of considerations that must be looked at by any city or town who is thinking of taking over the local electric company," Durand cautioned. ''And many of those are clearly financial."
''Given that no municipal electric company has been established in the state for the last 75 years, it seems like it's an idea whose time has long since passed."
The bill has about 40 sponsors in the Legislature. Kaufman said he expects a hearing on it this fall.