BOSTON EDISON COMPANY [Note 1] & another [Note 2] vs. TOWN OF BEDFORD.

MARSHALL, C.J. We consider in this case whether a town may adopt a bylaw that imposes fines on the owner of an existing

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utility pole for failing to remove the pole within the time provided by G. L. c. 164, § 34B, following installation of a replacement pole. A judge in the Superior Court concluded that the bylaw is preempted by G. L. c. 164, § 34B, and granted summary judgment in favor of the pole owners. He declared the bylaw invalid because its adoption exceeded the town's legislative authority pursuant to § 6 of art. 89 of the Amendments to the Massachusetts Constitution (home rule amendment). [Note 3] The town appealed, and we granted the parties' joint application for direct appellate review. Because the bylaw "has the practical effect of frustrating the fundamental State policy of ensuring uniform and efficient utility services to the public," Boston Gas Co. v. Somerville, 420 Mass. 702, 706 (1995), we affirm. [Note 4]

1. Background. Before turning to the procedural history and merits of the case, we first discuss the genesis of "double pole sets" and the approaches taken by the Legislature, the Department of Telecommunications and Energy (department), the plaintiffs, and the town of Bedford (town) to minimize their occurrence. [Note 5]

Approximately ninety per cent of the utility poles in Massachusetts are owned jointly by electric and telephone companies, such as the plaintiffs. Other enterprises, however, have statutory rights to use the poles, [Note 6] a situation that complicates matters when an owner needs to replace an existing

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pole. [Note 7] When a pole needs replacement, the owner places a new pole adjacent to it so that owners of the attached facilities (users) may transfer their attachments from the existing pole to the new pole. Users complete the transfers sequentially, relying on their specialized expertise and training to prevent interruption of services. The transfer of pole facilities must take place in a predetermined sequence to ensure the safety of workers performing the transfers and to avoid the disruption of services. [Note 8] Only after all the attachments are transferred to the new pole can the owner remove the old pole. The presence of double pole sets for prolonged periods while attachments are transferred from the old to the new pole present aesthetic and safety concerns. See, e.g., note 17, infra. The Legislature enacted G. L. c. 164, § 34B, placing a ninety-day limit on the utility pole replacement process just described, but made no express provision for its enforcement. [Note 9]

On January 9, 2002, more than four years after the enactment of G. L. c. 164, § 34B, the department began an investigation into the status of double poles, acting pursuant to G. L. c. 164, § 76. [Note 10] The department directed pole owners to provide an inventory of double pole sets in each municipality

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and a report describing their practices for notifying users of pending facility transfers and ensuring the removal of old poles pursuant to § 34B. Following a meeting with the department, the utility companies collectively worked to implement the pole lifecycle management (PLM) system, a Statewide system for coordinated double pole management. [Note 11]

On July 31, 2003, the Legislature directed the department to study the issue of the number of double poles in the Commonwealth and issue a report. [Note 12] All parties to this case participated in a public hearing held by the department on September 30, 2003. [Note 13] On November 28, 2003, the department issued its report and recommendations to the Legislature. See Report of the Department of Telecommunications and Energy Relative to Reducing the Number of Double Utility Poles Within the Commonwealth, D.T.E. 03-87 (2003) (Report). In the Report, the department recommended "continued [S]tatewide enforcement of [§ 34B], in order to ensure uniform and efficient services to the public." Id. at 7. The department reasoned that individual "by-laws enforcing the removal of poles and the transfer of wires, while designed to further legitimate local interests, would frustrate this fundamental policy." Id. at 9. The

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department declined the Legislature's invitation to propose enforcement legislation, such as "a penalty mechanism." Id. at 15. The department expressed its hope that "additional experience with the operation of the PLM" system, "in operation for less than one year," would help it "identify the root causes of the double pole problem in Massachusetts so that any penalties can be properly targeted." [Note 14] Id. Because "pole owners also must demonstrate that they are complying with [§ 34B]," the department reported that it "will require pole owners to file semi-annual reports on the status of double poles" and "submit within 60 days of this Report detailed plans for eliminating the backlog of double poles as soon as reasonably practicable." Id. at 15-16.

On October 27, 2003, before the department had issued the Report, the town voted to add § 46.23 (bylaw) to its General Bylaws, imposing a penalty on pole owners of $100 per day for each double pole set existing in Bedford for more than ninety days. [Note 15] The bylaw was reviewed and approved by the Attorney General, pursuant to G. L. c. 40, § 32, and became effective on

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November 14, 2003. [Note 16] The ninety-day grace period after which the town could impose fines against pole owners pursuant to the bylaw expired on February 14, 2004. As of February 23, 2004, 334 double pole sets existed in Bedford, all jointly owned by the plaintiffs. According to the town, several of the double pole sets create specific safety and aesthetic concerns. [Note 17] The plaintiffs contend that the old poles in question have since been removed, or that any delay in removing them is due to the town's delays in moving its fire alarm facilities to the new poles. See note 14, supra.

On February 10, 2004, the plaintiffs filed a complaint in the Superior Court seeking a preliminary injunction, temporary restraining order, and permanent injunction enjoining the town from enforcing the bylaw against them. [Note 18] The plaintiffs also sought declaratory judgment invalidating the bylaw. After a hearing, the judge denied the plaintiffs' motion for injunctive relief, but stayed the order until the town "certifies that all of its facilities have been removed from the old poles."

Following a hearing on the parties' cross motions for summary judgment, a judge in the Superior Court allowed the plaintiffs' motion and denied the town's motion on August 12, 2004. [Note 19]

2. Discussion. "Municipalities may not adopt by-laws or ordinances that are inconsistent with State law." Boston Gas Co. v. Newton, 425 Mass. 697, 699 (1997). Accord Boston Gas

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Co. v. Somerville, 420 Mass. 702, 703 (1995), and cases cited. See note 3, supra. "To determine whether a local ordinance is inconsistent with a statute, this court has looked to see whether there was either an express legislative intent to forbid local activity on the same subject or whether the local regulation would somehow frustrate the purpose of the statute so as to warrant an inference that the Legislature intended to preempt the subject." Boston Gas Co. v. Newton, supra, quoting Boston Gas Co. v. Somerville, supra at 704. Accord Bloom v. Worcester, 363 Mass. 136, 155-156 (1973). "Moreover, in some circumstances we can infer that the Legislature intended to preempt the field because legislation on the subject is so comprehensive that any local enactment would frustrate the statute's purpose." Boston Gas Co. v. Somerville, supra. See Wendell v. Attorney Gen., 394 Mass. 518, 527-528 (1985). See also New England Tel. & Tel. Co. v. Lowell, 369 Mass. 831, 834-835 (1976) (inferring intent to preempt from comprehensive legislative scheme).

"We have stated that the purpose of G. L. c. 164," which governs manufacture and sale of gas and electricity, "is to ensure uniform and efficient utility services to the public." Boston Gas Co. v. Newton, supra at 699. Accord Boston Gas Co. v. Somerville, supra at 706. See New England Tel. & Tel. Co. v. Lowell, supra at 834 (emphasizing "desirability of uniformity of standards applicable to utilities" regulated by department). We have also concluded that, given the "comprehensive nature" of G. L. c. 164, "the Legislature intended to preempt local entities from enacting legislation in this area." Boston Gas Co. v. Somerville, supra at 704. See Fafard v. Conservation Comm'n of Barnstable, 432 Mass. 194, 204 (2000), citing Boston Gas Co. v. Newton, supra at 699 (thorough State regulation of public utilities industry preempts local ordinance), and Boston Edison Co. v. Boston, 390 Mass. 772, 774 (1984) (recognizing comprehensiveness of G. L. c. 164).

The town makes no argument that persuades us that the rule announced in our earlier cases should not apply to the bylaw. Although there is no express legislative intent to forbid local activity regarding double pole removal, the "comprehensive nature" of G. L. c. 164 implies that the Legislature intended to preempt municipalities from enacting legislation on the subject.

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We reject the town's assertion that the Legislature's enactment of statutes authorizing municipalities to exert limited control over utilities and utility poles evinces an intent to allow bylaws such as the one at issue here. [Note 20] Cf. note 3, supra. These express grants of authority are instead strong evidence that the Legislature intended to preempt local activity on the subject absent an affirmative grant. See, e.g., Boston Gas Co. v. Newton, supra at 703 (G. L. c. 164, § 75, "provides limited authority to a municipality and must yield at times to the broader grant of authority given to the department"); Boston Gas Co. v. Somerville, supra at 706 (municipality "cannot use its limited authority [pursuant to G. L. c. 164, § 75,] to enact an ordinance which has the practical effect of frustrating the fundamental State policy of ensuring uniform and efficient utility services to the public").

No statute grants authority to the town to enforce G. L. c. 164, § 34B, by imposing a fine on pole owners or otherwise. To the contrary, the Legislature's comprehensive delegation of regulatory authority to the department [Note 21] and its directive that the department study and report on the double pole issue and

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propose legislation to penalize noncompliance with § 34B, see note 12, supra, demonstrate the Legislature's intent that the department enforce § 34B on a Statewide basis in the absence of specific contrary legislation. We agree with the motion judge that "[t]he Legislature's request . . . is powerful evidence of legislative intent to delay the imposition of penalties until [the Legislature] had considered the findings of the [department]. It is also evidence that the Legislature intended to take the findings of the [department] into account, or to at least consider [its] recommendations, before allowing local regulation over the double pole problem."

The Report, in which the department recommended "leaving the Department authority intact" and "continued [S]tatewide enforcement of [§ 34B] in order to ensure uniform and efficient services to the public," confirms the department's recognition of its Statewide authority to ensure that regulated utilities comply with § 34B. See Report, supra at 7, 9. "We afford substantial deference to an agency's interpretation of a statute that it is charged with administering." Franklin W. Olin College of Eng'g v. Department of Telecomm. & Energy, 439 Mass. 857, 861 (2003). See Iodice v. Architectural Access Bd., 424 Mass. 370, 373 (1997) ("In examining the extent of the board's powers, we accord deference to the board's own construction thereof and construe such powers so as to facilitate the agency's function as designated by the Legislature"). See also MCI Telecomm. Corp. v. Department of Telecomm. & Energy, 435 Mass. 144, 150-151 (2001), quoting Stow Mun. Elec. Dep't v. Department of Pub. Utils., 426 Mass. 341, 344 (1997) ("Where, as here, the case involves interpretation of a complex statutory and regulatory framework, '[w]e give great deference to the department's expertise and experience in areas where the Legislature has delegated to it decision making authority' ").

The Report describes how local regulations such as the bylaw at issue here would frustrate the goal of G. L. c. 164 to ensure uniform and efficient utility services to the public. The department concluded that a "statutory grant to authorize municipal regulation of double poles is likely to see substantial variation

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in implementation and enforcement by the 351 cities and towns . . . a risk that is easily avoided by leaving the Department authority intact." Report, supra at 9. Comments made by officials from several towns as part of the public hearing, who proposed different ways to penalize noncompliance, amply support this conclusion. [Note 22] The department explained that "pole owner compliance with differing municipal requirements could increase costs to pole owners" and ultimately to consumers, because "[c]osts associated with poles, the replacement and removal of poles, and the related transfer of wires, are normally included in the utility's rates, and are subject to Department review and approval pursuant to the Department's ratemaking authority." Report, supra at 7-8, 9, citing G. L. c. 159, §§ 14, 17, 19, 20; and G. L. c. 164, § 94. See Boston Gas Co. v. Newton, supra at 703 n.13 ("Clearly, the differences between the municipalities in assessing costs impedes . . . uniformity . . . moreover, where the system becomes less uniform, such balkanization is likely to lead to less efficient services"). In short, local enforcement of § 34B would force pole owners to divert resources from the primary task of double pole removal to the ancillary task of conforming the removal process to varying local ordinances and bylaws, increasing the cost of utility services to consumers without providing concomitant benefits over Statewide enforcement.

Other considerations persuade us that local enforcement of § 34B would frustrate the intent of G. L. c. 164 to ensure uniform and efficient utility services. Local enforcement could lead to a system dominated by inappropriate economic incentives

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that compel pole owners to devote resources to those cities and towns where the penalties are the most onerous. One town may increase its fines above those imposed by other municipalities to persuade pole owners to shift their focus to removing the poles within its borders. 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. 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, a task necessary to craft a uniform and efficient approach to double pole removal. See Pereira v. New England LNG Co., 364 Mass. 109, 119 (1973), quoting New York Cent. R.R. v. Department of Pub. Utils., 347 Mass. 586, 592 (1964) ("Legislature intended a broad and balanced consideration of all aspects of the general public interest and welfare and not merely examination of the local and individual interests").

Judgment affirmed.