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Underbuilt Attachments & Abandonment

Posted 10/1/2015

I bet you think I am going to write about abandoned cable TV lines on utility poles, but I am not!

By R. Bruce Wright, CPCU

Here’s a reverse twist on that question that one of our insureds brought up during a recent visit. It was the first time anyone mentioned this issue to me. And, in a further twist, your ideas are needed to help address the issue!

A few weeks ago, during an annual consultation visit to a utility in the Midwest, I was asked about a situation that was novel to me, although perhaps not to you. Here’s what I heard.

“We periodically move some lines from overhead to underground” I was told. So far, so routine. The manager continued, “But on many occasions, the poles we are no longer using remain in the ground, because of our underbuilt attachments. So, per the contract with these other users — telephone and television carriers — we leave the poles in place and send them a letter identifying the poles we are no long using, advising them that we are abandoning the poles, they now own them as our contract specifies, they no longer need to pay us their attachment fees, and they are responsible for the poles.” He went on to say that their attachment contract has a clause saying that in the event that the poles covered by the contract should be no longer needed by the power utility, they will be abandoned to the ownership of the underbuilt utility(ies) who will henceforth be responsible for them.  

Based on that, it might appear that the question of ownership is pretty straightforwardly addressed in the contract and that there is little to discuss. But, as Lee Corso might say, “Not so fast, my friend!”

As the conversation continued, my contact said: 

We send these letters out every time this happens. We have sent dozens of letters in the past few years and to date the number of acknowledgements we have gotten back is exactly zero. Why would they answer if it serves to document their acceptance of the poles and the potential liability? So they don't answer us. What worries me is that I doubt that they are doing any maintenance on the poles at all. Eventually one will fall. I am not worried about next year, or even the next five or ten years, since we know that the poles are in good shape. But I am worried about 20+ years from now. I may be retired, but I expect that the company will still be here, and I don’t want to be the one responsible for planting a time bomb that may go off twenty years from now. So, what’s your advice? Have we successfully transferred ownership of these poles? Transferred liability for future events? Or will we still be named in a lawsuit?

How would you like to have those questions put to you? Actually, I hope you might, since I am going to ask for your ideas on that shortly, but first here’s what I said, and what our consulting attorney said when I asked him.

My initial reaction was that if the contract they used spelled this out, and they maintained signed copies in file, and they sent the transfer letters every time, and identified the poles in question, and stated the effective date of transfer, and kept copies of the letters, then I think that yes, they have successfully transferred ownership. Since liability falls to the owner based on the owner’s negligence, if the poles were in fit condition at the time of the transfer, then liability too should be successfully transferred. And finally, yes, of course the power company should expect to be named in any lawsuit arising out of any loss caused by the poles, since after all it costs almost nothing to add a name to the list of defendants!

Our consulting attorney brought up some additional concerns, pointing out that the easements present another layer of complication, in as much as in some states the easement grants only the right to pass over property owned by another, while in other states it grants a power company title to the land in the ROW. Ownership of the easement land may complicate transfer of poles on the easement in the non-title states. In the end, it is likely that you will have to ask your attorney for an opinion based on your situation if you have this type of situation facing you. 

This leaves a variety of questions to be answered. For one, do all utilities use attachment contracts with transfer of ownership clauses? I know that the NRECA provides its members with a Pole Attachment Toolkit, but I haven’t been able to determine if it includes sample language like this, nor do I know for sure if everyone uses it. Of course, some of you reading this aren’t NRECA members either. 

So, what do you think? Is this an issue you face? Do you have an attachment agreement that specifies abandonment ownership transfer? Do you cut off abandoned poles just above the highest attachment point? Do you remove your ID plates and numbers? And most importantly, do you have any ideas or suggestions beyond those I have related? Please send in your answers to these questions and any other ideas you have on the subject by clicking here. 

The author of this article is not an attorney. The information provided in this article does not constitute legal advice and is not tailored to specific facts and circumstances or state laws. Readers are urged to consult with qualified legal counsel regarding specific legal issues or questions. The author, Synebar Solutions, and Hurtado & Associates make no warranty or representation, express or implied, with respect to the accuracy, completeness or usefulness of the information contained in this document, nor assume any liability with respect to the use of, or damages resulting from the use of any information provided in this document.