V. Access to Poles and Rights of Way
D.98-10-058, Appendix A, referred to as the "ROW Order," contains rules governing telecommunications carriers' and cable TV companies' access to public utility rights of way and support structures. In the OIR we supported using these rules so that they also determine the minimum terms which BPL providers will pay for pole attachments. PG&E and SCE agree that BPL companies should not be granted mandatory access rights to utility rights of way. (PG&E Opening Comments, p.8, SCE Reply Comments, p.15.) No party advocated for mandatory access. We agree that mandatory access rights are not appropriate in this situation.
A. Nondiscrimination
The California Cable and Telecommunications Association (CCTA) notes that the ROW Order requires stricter adherence by telephone utilities than by electric utilities. CCTA goes on to state that "with the emergence of BPL into the marketplace, the Commission must now implement rules that ensure that electric utilities cannot favor their BPL affiliates or partners at the expense of other broadband providers." (CCTA Opening Comments, p.12-13.) Accordingly CCTA recommends changes to the Commission's existing rules. (Id.)
We recognize that an electric utility's interest in BPL creates new incentives to discriminate against other broadband providers. However, even without CCTA's proposed changes, the ROW Order protects telecommunications providers against discriminatory behavior, and we believe this protection is adequate.34 We do not adopt CCTA's proposed changes.
CCTA also notes that the ROW Order says "electric utilities' use of its own facilities for internal communications in support of its utility function shall not be considered to establish a comparison for nondiscriminatory access." (ROW Order). CCTA expresses a concern that an electric utility may blend its internal communications equipment with the BPL system, and therefore a utility's granting access to itself for its internal communications network would not be subject to the non-discrimination rules in the ROW Order. Since we do not know how the installation of BPL systems will unfold over time, we will not amend this portion of the ROW Order now, but we acknowledge that there may be the potential for discrimination of the sort described by CCTA. Should such discrimination occur, we expect that it will be brought to our attention,35 and we can at that time impose an appropriate remedy.
B. Underground Attachments
SDG&E proposes that cost-based formulas should apply if installing a BPL system on underground power lines requires attachment of BPL equipment to the inside or outside of underground or surface transformer enclosures. (SDG&E Opening Comments, p. 10-11 and Appendix A; Current Opening Comments, p. 6.) SDG&E proposes a cost-based formula to calculate attachment fees for the attachment of what it describes as a typical BPL electronics box to the exterior of a typical SDG&E transformer enclosure. (SDG&E Opening Comments, p.10-12 and Appendix A.)
The SDG&E methodology reasonably allocates costs to set an attachment fee. Moreover, based on the record before us, it appears that there are far fewer underground attachments to utility infrastructure than there are pole attachments.36 This record suggests that opportunities for an electric utility to engage in anticompetitive cross subsidies with regards to transformer enclosure attachments is more limited than is the case for pole attachments.
Since SDG&E's cost-allocation methodology is reasonable, is the only detailed proposal in the record and will apply in only a small number of situations, we believe that the SDG&E proposal is reasonable to adopt. We therefore adopt a rate of $11.20 per year for SDG&E per underground attachment. Other utilities requiring such a rate should submit an advice letter using the methodology described in SDG&E's opening comments, Appendix A.
34 A complaint may also be filed with the Commission if the electric utilities practice discriminatory behavior with respect to right of way access.
35 Again, a complaint would be an appropriate vehicle for allegations that an electric utility is abusing the internal communications exemption to discriminate against other companies using or seeking access to electric utility rights of way.
36 For example, according to TURN's table summarizing pole attachment data, only one of the three major electric utilities, SCE, collects revenues from underground attachments. (TURN, Opening Comments, p.29.)
