BEFORE THE NEW YORK STATE PUBLIC SERVICE COMMISSION x In the Matter of Greenlight Networks’ Pole Attachments In the Service Territory of Rochester Gas and Electric Case 20-M-0360 Corporation and Frontier Communications x Greenlight Networks LLC’s Comments to Rochester Gas and Electric Corporation’s and Frontier Communications’ Joint Pole Audit Proposal Pursuant to Ordering Clause #4 to the New York State Public Service Commission’s Order Instituting Proceeding and to Show Cause (“Show Cause Order”) dated November 20, 2020 On November 20, 2020, the New York State Public Service Commission (the “Commission”) issued an Order Instituting Proceeding and to Show Cause (“Show Cause Order”) in the above-referenced proceeding. Ordering Clause #4 of the Show Cause Order directed Rochester Gas and Electric Corporation (“RG&E”) and Frontier Telephone of Rochester, Inc. (“Frontier”) (collectively, the “Pole Owners”), to conduct an audit of poles associated with any application submitted by Greenlight Networks (“Greenlight”) to the Pole Owners from 2016 through the present no later than July 1, 2022. Ordering Clause #4 also required RG&E and Frontier to submit a pole audit proposal to the Secretary for approval by the Department of Public Service’s (“DPS”) Office of Telecommunications no later than January 1, 2021. On January 1, 2021, the Pole Owners’ filed with the Commission a joint proposal for the joint pole audit (the “Pole Audit”) required by Ordering Clause #4 (the “Pole Audit Proposal”). The Pole Owners did not solicit input or comments from Greenlight regarding the Pole Audit {8346916:2 } 1 Proposal prior to being filed with the Commission. Below are Greenlight’s comments to the Pole Audit Proposal.1 GREENLIGHT COMMENTS TO POLE AUDIT PROPOSAL 1. Greenlight objects to all references in the Pole Audit Proposal to unauthorized or unlicensed pole attachments by Greenlight, or that Greenlight’s attachments to the Pole Owner’s poles are in violation of the NESC or exacerbated pre-existing NESC violations. Notwithstanding this objection, Greenlight is prepared to engage, and has engaged, in efforts to address issues identified in the OTSC by way of settlement as a way to achieve certainty in resolution of issues and avoid the cost, expense and distraction of ongoing litigation which during 2020 resulted in significant delay in Greenlight’s expansion of its ultra-high speed fiber network and continues to delay its ability to advance the New York State policy of rapidly expanding fiber broadband access throughout the state. With respect to the Pole Audit, Greenlight is prepared to pay its fair share of the Pole Audit costs and expenses if allocated in accordance with fair and agreed upon principles, and is further prepared to accept the results of the Pole Audit and recognize responsibility imposed by law in accordance therewith if is conducted and documented in a fair and even-handed manner consistent applicable law, with the participation of all affected parties. 2. The Pole Audit Proposal refers to both unauthorized attachments and unlicensed attachments. The Pole Audit Proposal should provide definitions for these phrases in accordance with applicable law so that all affected parties have clear guidance in carrying out the Pole Audit and addressing its results and future disputes are avoided. 3. As required by Section 119 of the New York Public Service Law, all pole attachers should be treated in an equal and non-discriminatory manner in the system-wide audit of all poles owned by the 1 . In their Pole Audit Proposal, the Pole Owners stated the proposed terms are subject to change based on, among other things, the comments from DPS Staff, negotiations with the vendor(s) the Pole Owners ultimately engage to perform the Pole Audit, and the operational and business considerations of the Pole Owners. Greenlight reserves the right to make further comments to any revisions that are proposed by the Pole Owners to the Pole Audit Proposal. {8346916:2 } 2 Pole Owners in their franchise service areas, including without limitation providing for the same terms and conditions in any agreements entered into with, or which impose obligations on, the attachers (including Greenlight) with respect to the Pole Audit. 4. Based on the foregoing and the information filed by RG&E with the Commission on January 21, 2020, it appears that almost half of the poles owned by the Pole Owners surveyed at that time had pre-existing NESC violations caused by attachers other than Greenlight, including a number of violations by Frontier. Accordingly, the Pole Audit should identify all unlicensed or unauthorized pole attachments and NESC violations, regardless of who caused or exacerbated them, including those poles that are out of compliance by the Pole Owners themselves. 5. Given the significant cost and expense that will be associated with the Pole Audit, the Pole Audit Proposal should provide that the Pole Owners will provide Greenlight and all other attachers, prior to commencing the Pole Audit, with an estimate of these costs expense and how they will be allocated among the parties. The Pole Owners should be required to allocate these costs and expenses among the Pole Owners and all attachers in a fair and equitable manner, taking into account the fact that the Pole Owners will themselves greatly benefit from the Pole Audit, including updating their respective pole asset management data bases, identification of poles on which the Pole Owners themselves are out of compliance, and otherwise furthering their respective duties to maintain their utility pole infrastructure. To the extent that costs or expenses are allocated to attachers (including Greenlight) they should be shared on a pro rata basis according to the number of poles on which each attacher has pole attachments. The Pole Audit Proposal should require the Pole Owners to document and validate all costs and expenses that are incurred, and reasonably required to be incurred, solely for the Pole Audit. 6. The Pole Audit Proposal provides that the Pole Owners and their Vendor will review and reconcile survey and inspection data obtained through the Pole Audit. The Pole Audit Proposal should also {8346916:2 } 3 provide that all data collected from the Pole Audit will be made available to all attachers upon their request so that it can be reviewed, analyzed and evaluated with respect to any allegations of unauthorized or unlicensed attachments or NESC violations. 7. The Pole Audit Proposal should specify the data and evidence that needs to be collected to support allegations of NESC violations with respect to any attachments (including GPS pole location, Pole Owner, pole type, pole treatment, pole height and class, manufacture date, attachment information and location (including a photo showing the physical measurement of the location and distance between each of the attachments on every pole as is common on pole attachment surveys), and pole identification numbers). Greenlight and other attachers should be provided with the opportunity to participate in the Pole Audit, especially in light of historic inaccurate findings on poles identified by the Pole Owners to DPS Staff where Greenlight was not even attached 8. Prior to data collected from the Pole Audit being made available to the Commission or DPS Staff, it should be made available to all attachers to review and analyze so that they can evaluate Pole Owner unauthorized/unlicensed attachment and NESC violation allegations based on, among other items, filed applications, existing surveys, applicable standards and codes and field conditions. This is extremely important because the records of the Pole Owners are in many cases not complete, up to date or accurate. 9. The Audit Proposal is submitted as a stand-alone document and contains a timeline that is, on its face, independent of the construction process that the Pole Owners are planning to undertake to clear the alleged NESC violations involving Greenlight temporary attachments and converting those into permanent attachments. The Pole Audit Proposal does not specify if the Pole Audit will be conducted separate from construction resources that will be devoted to the Pole Owners ongoing construction effort to remediate NESC violations alleged to be caused or exacerbated by Greenlight, the terms of which are currently being negotiated by the Pole Owners and Greenlight. These efforts will involve post-inspections {8346916:2 } 4 to confirm that the remediation work has been properly performed in accordance with NESC guidelines. In light of this, those poles which the Pole Owner’s Vendor will be remediating with alleged NESC violations caused or exacerbated by Greenlight should be excluded from the Pole Audit and the post-construction inspection information should be used to validate that the pole and all attachments thereon are in compliance with the NESC. If the Pole Audit is conducted prior to post inspections taking place as part of the remediation construction process, it will result in significant duplicative and inaccurate work as well as field issues that will interfere with Greenlight’s ability deploy its high speed fiber network. 10. Greenlight recognizes the importance of safety issues involving pole attachments. This public interest consideration needs to be balanced with the public interest of the residents of the State of New York having ultra-high-speed fiber broadband access. Accordingly, the Pole Audit Proposal should specify that it will not be interpreted or used in a manner to delay or otherwise impact the duties imposed on the Pole Owners to process Greenlight applications for attachments or otherwise fulfill their other obligations in connection with Greenlight’s on-going efforts to deploy its ultra-high-speed fiber network in accordance with New York State’s broadband policy. Respectively submitted on behalf of Greenlight Networks, LLC Gordon E. Forth, Esq. Woods Oviatt Gilman, Esq., 1900 Bausch & Lomb Place Rochester, NY 14604 January 6, 2021 {8346916:2 } 5 .