3. Jurisdiction Issues

As required by the Public Utilities Code, "[e]very public utility shall furnish and maintain such adequate, efficient, just, and reasonable service, instrumentalities, equipment, and facilities ... as are necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public." (Pub. Util. Code § 451.) In our broad grant of jurisdiction over public utilities in California, we are authorized to "do all things, whether specifically designated in ... [the Public Utilities Act] or in addition thereto, which are necessary and convenient" to our regulation of public utilities, including, though not limited to, adopting necessary rules and requirements in furtherance of our constitutional and statutory duties to regulate and oversee public utilities operating in California. (Pub. Util. Code § 701.)

This Commission has comprehensive jurisdiction over questions of public health and safety arising from utility operations. (San Diego Gas & Electric v. Superior Court, (1996) 13 Cal.4th 893, 923-924.) Our jurisdiction to regulate these entities is set forth in the California Constitution and in the Public Utilities Code. (Cal. Constit., Art. 12, §§ 3, 6; Pub. Util. Code §§ 216, 701, 768, 1001.) While such utilities are required to "obey and comply with every order, decision, direction, or rule made or prescribed by the [C]ommission ...." (Pub. Util. Code § 702; see §§ 761, 762, 767.5, 768, 770), the Commission is also obligated to see that the provisions of the Constitution and state statutes affecting public utilities are enforced and obeyed. (Pub. Util. Code § 2101.)

Under Pub. Util. Code §§ 8002, 8037, and 8056, the Commission's jurisdiction extends to publicly-owned utilities for the limited purpose of adopting and enforcing rules governing electric transmission and distribution facilities to protect the safety of employees and the general public. As stated in the ACR, this proceeding will not litigate the "Commission's determination in the OIR [that it has jurisdiction over municipal utilities]" for this limited purpose. Accordingly, this issue is settled and will not be revisited here.

Our jurisdiction over questions of public health and safety arising from utility operations is not constrained by federal law. In 1978, Congress enacted the Pole Attachments Act (47 U.S.C. § 224) which gave the Federal Communications Commission (FCC) jurisdiction to regulate the rates, terms, and conditions of attachments by cable television operators to the poles, ducts, conduits or rights of way (ROW) owned or controlled by utilities. In the Telecommunications Act of 1996 (the "Telecom Act") Congress expanded the scope of § 224 to include pole attachments by telecommunications carriers.

As set forth in § 224(c)(1), however, the FCC does not have "jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and rights-of-way as provided in subsection (f) for pole attachments in any case where such matters are regulated by a State." We certified to the FCC that we regulate the rates, terms, and conditions of access to poles, conduits, ducts, and ROW in conformance with §§ 224(c)(2) and (3). (Order Instituting Rulemaking on the Commission's Own Motion Into Competition for Local Exchange Service (1998) 82 CPUC2d 510, 531, modified by 6 CPUC3d 1.) The discretion of state and local authorities to regulate in the area of pole attachments is circumscribed by § 253 which invalidates all state or local legal requirements that "prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." However, this restriction does not prohibit a state from imposing "on a competitively neutral basis and consistent with Section 254, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers." (47 U.S.C. § 253 (b); (emphasis added).)

Likewise, the Cable Communications Policy Act of 1984, which clarified the dual system of jurisdiction over cable companies, does not preclude States from asserting direct jurisdiction over cable services and facilities in public safety matters.  Under this system, the FCC regulates company ownership and control, leased access, local commercial television signal carriage and educational signal carriage, basic service rates, competition and diversity in programming, subscriber privacy, and other matters.  State and local franchising authorities regulate, among other things, facilities and equipment, construction, health and safety. The FCC has not preempted the States with regard to issues related to the construction, maintenance, or operations of cable plant and equipment in a safe manner.  The Cable Act specifically states that it must not be construed to restrict a State from exercising jurisdiction over cable services, consistent with the Act.  (47 U.S.C. § 556 (b).)  Furthermore, the Act specifically grants States jurisdiction over cable service in safety matters.  (47 U.S.C. § 556 (a).) 

The California Legislature has asserted such jurisdiction. The California Legislature gave the Commission direct authority to regulate cable companies with regard to the safe construction, maintenance and operation of their plant and equipment in Section 768.5 of the Public Utilities Code.

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