3. Commission Jurisdiction
The purpose of this rulemaking proceeding is to consider and adopt regulations to reduce the fire hazards associated with (1) overhead power-line facilities, and (2) aerial communication facilities located in close proximity to overhead power lines. The California Constitution and the Public Utilities Code provide the Commission with broad jurisdiction to adopt regulations regarding the safety of utility facilities and operations.8 Utilities are required by Pub. Util. Code § 702 to "obey and comply" with such requirements.9
The Commission has enacted an extensive set of safety regulations governing utility facilities and operations, including General Orders 95 and 165. A major goal of these General Orders is to minimize fire hazards.
In addition to the Commission's broad jurisdiction to regulate investor-owned utilities, Pub. Util. Code §§ 8002, 8037, and 8056 provide the Commission with authority to adopt and enforce rules governing electric transmission and distribution facilities of publicly owned utilities (POUs) for the limited purpose of protecting the safety of employees and the general public. Today's decision does not re-litigate the Commission's determination in the OIR and the Phase 1 Decision that it may adopt and enforce safety-related regulations for POU electric transmission and distribution facilities.10
Today's decision adopts several safety-related regulations that apply to electric transmission facilities. These rules do not conflict with (1) reliability standards issued by an Electric Reliability Organization that is certified by the Federal Energy Regulatory Commission (FERC), or (2) performance standards issued by CAISO for transmission facilities under its control pursuant to Pub. Util. Code § 348 or FERC-approved Transmission Control Agreements.11
The Commission's comprehensive jurisdiction over matters of public safety associated with utility facilities extends to attachments to utility poles by CIPs. Specifically, 47 U.S.C. § 224 provides that the Federal Communications Commission (FCC) does not have "jurisdiction [under 47 U.S.C. § 224] 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." The Commission has certified to the FCC that the Commission regulates the rates, terms, and conditions of access to poles, conduits, ducts, and rights-of-way in conformance with 47 U.S.C. §§ 224(c)(2) and (3).12 Further, under 47 U.S.C. § 253(b) the Commission may adopt regulations to protect public safety and welfare.
Likewise, the Cable Communications Policy Act of 1984 specifically grants states jurisdiction over cable service in safety matters. (47 U.S.C. § 556 (a).) The California Legislature asserted such jurisdiction in Pub. Util. Code § 768.5, which gave the Commission authority to regulate cable companies with respect to the safe operation, maintenance, and construction of their facilities.
8 Cal. Constitution, Article XII, §§ 3 and 6, and Pub. Util. Code §§ 216, 701, 761, 768, 770, 1001, 8037 and 8056. See also San Diego Gas & Electric Company v. Superior Court, (1996) 13 Cal.4th 893, 923-924.
9 See also Pub. Util. Code §§ 761, 762, 767.5, 768, 770.
10 OIR at 6, and D.09-08-029 at 8 - 9 and Conclusion of Law 3. See also the Phase 2 Scoping Memo at 4, Item 8.
11 See CAISO's comments filed June 30, 2011, regarding the proposed decision.
12 D.98-10-058, 82 CPUC2d 510, 531, as modified by D.00-04-061, 6 CPUC3d 1, 5.
