5. Discussion
5.1. Adoption of the Technical Conference Report's Proposed Revisions to GO 95
The central issue in this proceeding is whether to adopt the proposed revisions to GO 95 contained in the TCR. There is no opposition to the proposed revisions. The technical purpose of the revisions is to establish basic construction standards for pole-top antennas. The larger public-policy purpose is to facilitate the expansion of the State's wireless infrastructure in a manner that protects workers and the public.
The TCR is a joint recommendation by the active parties for resolving all issues in the Scoping Memo. Therefore, we will treat the TCR as a settlement agreement that is subject to Rule 12.1 of the Commission's Rules of Practice and Procedure. Rule 12.1 requires every adopted settlement to be reasonable in light of the whole record, consistent with the law, and in the public interest. For the reasons set forth below, we conclude that the TCR satisfies these criteria and should be adopted.
5.1.1. The Proposed Revisions Are Reasonable in Light of the Record
The record of this proceeding shows that the proposed rules contained in the TCR for constructing pole-top antennas are supported by parties representing the affected interests; will advance the Commission's goal of expanding the State's wireless infrastructure; will protect the safety of workers and the public; and allow pole-top antennas to be installed in a manner that is compatible with facilities attached to joint-use poles by electric utilities, telecommunications providers, and cable service providers. These factors together demonstrate the TCR is reasonable in light of the record.
5.1.1.1. The Proposed Revisions Are Supported by Affected Interests
In deciding whether a settlement agreement is reasonable in light of the record, the Commission considers the extent to which the settlement is supported by parties representing the affected interests. The TCR meets this objective because it is the result of a collaborative process involving the GO 95/128 Rules Committee, electric utilities, telecommunications providers, cable service providers, wireless carriers, distributed antenna systems (DAS) providers, electrical workers, and CPSD. All the affected interests who filed comments on the TCR support the proposed revisions to GO 95 contained therein.9
5.1.1.2. The Proposed Revisions Will Facilitate the Expansion of the State's Wireless Infrastructure
One of the primary goals of this proceeding is to adopt standards for constructing pole-top antennas that facilitate the expansion of the State's wireless infrastructure. The TCR achieves this goal in several ways. First, the TCR enables the installation of wireless antennas on joint-use poles that would otherwise be inaccessible due to congestion from electric, telephone, and cable facilities.
Second, it is usually much cheaper to install wireless antennas on existing joint-use poles than to erect new poles devoted exclusively to antenna installations, particularly in dense urban areas. The use of existing utility poles also has fewer potential environmental impacts compared to erecting new poles.
Third, placing wireless antennas at the top of joint-use poles enables the antennas to take full advantage of the pole's height. The increased height improves the range and coverage of the wireless signal, which reduces the number of antennas needed to serve a given area. Reducing the number of antennas lowers the cost of expanding the wireless infrastructure and lessens the potential environmental impacts.
Finally, the TCR does not mandate any particular antenna technology or design, and does not limit who can install antennas. Thus, the TCR can accommodate future developments in wireless technology and market structure. Such an approach is conducive to investment in the wireless infrastructure by current and future wireless carriers and DAS providers.
5.1.1.3. The Proposed Revisions Will Protect the Safety of Workers and the Public
The safety of workers and the public is of paramount importance. We will not adopt any construction standards for pole-top antennas unless we are confident the standards are safe.
To achieve this overriding objective, the proposed revisions to GO 95 were carefully reviewed by the GO 95/128 Rules Committee and the participants at the technical conferences. The reviewers included utility engineers, Commission staff, electrical workers, and other professionals knowledgeable about the structural characteristics of utility poles and the installation, maintenance, and repair of equipment attached to joint-use utility poles. These professionals agree that the proposed revisions to GO 95 are safe.10
SDG&E conducted an independent safety analysis by installing a mock pole-top antenna and found the proposed revisions to GO 95 provide a safe working environment. In addition, the Wireless Parties and others provided extensive information during the technical conferences that shows the proposed revisions to GO 95 will protect the safety of workers and the public. No one provided any information that the proposed revisions are unsafe.
Finally, placing pole-top antennas at least 6 feet above supply lines energized between 750 and 35,000 volts and 10 feet above supply lines energized between 35,000 and 50,000 volts protects worker safety by moving antennas outside the space where utility workers operate.
5.1.1.4. The Proposed Revisions Are Compatible with Other Equipment and Facilities
The TCR's proposed construction standards are designed to allow pole-top antennas to be installed in way that is compatible with other equipment and facilities attached to joint-use poles, including supply lines, telephone wires, and cable wires. The proposed vertical clearances between pole-top antennas and supply lines are one manifestation of this effort. The fact that the TCR is supported by electric utilities, telephone companies, and cable service providers demonstrates that pole-top antennas will be compatible with other equipment and facilities.
As the Commission stated in D.07-02-030, the Public Utilities Code establishes that safety issues may be subject to Commission regulation. According to Pub. Util. Code § 451, "[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." The Commission is obligated by § 2101 to see that such statutory provisions affecting public utilities are enforced and obeyed. § 761 directs the Commission to promulgate rules for utilities when safety so requires.
No party alleges that the TCR is contrary to any state or federal statute, or inconsistent with any Commission decision, general order, rule, or regulation. To the contrary, the technical-conference participants endeavored to ensure the proposed revisions to GO 95 in the TCR are consistent with the rest of GO 95 and comply with all applicable laws and regulations. For these reasons, and based on our own review of the TCR, we conclude that the TCR is consistent with the law.
Wireless communications are an increasingly essential service to consumers. A growing number of households have dropped landline service altogether and rely exclusively on cell phones because of their convenience, flexibility, and mobility. A recent survey of the levels of subscription to wireless services indicates that 15.8% of American homes relied only on wireless service (and have cut the cord to their wireline service) during the second half of 2007.11 As the Commission recognized in D.07-12-054, the number of California "landline telephones decreased by 2.39 million from end-of-year 2001 to June 2006, while the number of wireless subscribers in California increased by 13.34 million to 27.52 million."12
Moreover, wireless service offers a valuable and alternative means for individuals to access emergency services, particularly when outside the home. National statistics show significant use of the wireless network for emergency calls. According to the Federal Communications Commission's website, the number of 911 calls from wireless users nationally "has more than doubled since 1995, to over 50 million a year," and "[p]ublic safety personnel estimate that about 30 percent of the millions of 911 calls they receive daily are placed from wireless phones, and that percentage is growing."13 The percentage of 911 calls that are made over the wireless network is even larger in California; last year, wireless users made 11.6 million calls to 911-or 50% of the total 911 calls made in California.14 Therefore, a robust and expanded wireless network strengthens our public safety network.
Because Californians increasingly rely exclusively on their wireless phones, local agencies and municipalities are developing emergency alert systems that provide alerts to individuals' wireless phones. Moreover, a strong wireless network further enhances the ability of public-safety agencies to receive the public's calls during emergencies; to coordinate the delivery of emergency services; and to communicate critical safety information among first responders.
Finally, a robust wireless network will further aid in the development and growth of California's economy. The TCR will facilitate the expansion of the State's wireless infrastructure by opening up new locations for wireless antennas. The new locations can be used to fill gaps in coverage, meet growing demand, and extend service to regions that presently lack service. The expanded wireless infrastructure may also be used to provide increasingly important broadband services. As we recognized in our decision establishing the California Advanced Services Fund, "[b]roadband deployment will be a key measure of success in our information economy and is crucial to future productivity growth of the State."15 In that decision, the Commission recognized that wireless networks should be considered as one of the means for ensuring deployment of broadband throughout the state, particularly in unserved and underserved areas.16
The Commission has long supported the expansion of California's wireless infrastructure because of these significant public benefits. For the reasons described previously, the TCR will facilitate the expansion of the State's wireless infrastructure-and the vital public benefits it provides-which makes it in the public interest to adopt the TCR.
For the preceding reasons, we conclude that the proposed revisions to GO 95 contained in the TCR are reasonable in light of the whole record, consistent with the law, and in the public interest. Therefore, we hereby adopt the revisions.
5.2. SCE's Additional Proposed Revisions to GO 95
SCE proposed two revisions to GO 95 that were not included in the OIR, the Scoping Memo, or the TCR. We address SCE's proposals below.
SCE recommends one correction to Rule 92.1-F(2). The correction consists of adding "Rule 38" in the fourth line of the first paragraph:
92.1 Vertical Clearances
F. Between Conductors, Cables, Messengers and Miscellaneous Equipment)
(2) Cable Terminals or Metal Boxes: On jointly used poles, all parts of metal communication cable terminals, metal boxes or similar equipment shall maintain vertical clearances from conductors not less than those specified in Rule 38, Table 2, Col. C, Cases 8 to 13 inclusive.
There is no opposition to the proposed correction. We will adopt the correction because it adds the cross-reference "Rule 38" that was clearly intended by the parties but inadvertently omitted. Failure to make the correction would cause Rule 92.1-F(2) to be incomplete and confusing.
Rule 94.5, Appendix H (Marking) contains the entire Settlement Agreement adopted by the Commission in D.07-02-030. SCE recommends that the Commission amend Rule 94.5 to exclude the seemingly extraneous parts of the Settlement Agreement, such as the recitals and the signature page.
PacifiCorp, PG&E, and SDG&E support SCE's recommendation. The Wireless Parties oppose it.
We decline to adopt SCE's proposal at this time. We agree with the Wireless Parties that SCE's proposal is outside the scope of this proceeding because it was not mentioned in the OIR or the Scoping Memo. Moreover, because the entire Settlement Agreement was appended to GO 95 pursuant to Ordering Paragraph 3 of D.07-02-030, SCE's proposal to delete parts of the Settlement Agreement from GO 95 would, in effect, modify D.07-02-030. The Commission is required by Pub. Util. Code § 1708 to provide notice prior to modifying its decisions. The first time SCE raised this issue was in its comments on the TCR, which was too late to satisfy the notice requirements of § 1708.
If SCE wishes to pursue this matter further, SCE should have its proposed revisions to Rule 94.5 reviewed by the GO 95/128 Rules Committee and then file a petition to modify D.07-02-030 and GO 95.
5.3. Implementation of the Adopted Revisions to GO 95
PG&E, SCE, and SDG&E assert they will need to develop supplemental standards and procedures to (1) process and evaluate requests for pole-top antenna installations, (2) maintain and repair supply lines that share utility poles with pole-top antennas, and (3) perform emergency repairs and replacements of utility poles with antenna installations. SDG&E requests nine months (270 days) to implement supplemental standards and procedures. In their comments on the proposed decision, PacifiCorp, PG&E, and SCE support a 270-day implementation period. There is no opposition.
In D.07-02-030, the Commission provided 180 days to implement new construction standards for antennas installed below supply lines. The Commission noted that the new standards "will require utilities to change their company standards, communicate the changes to field personnel, and conduct varying degrees of training prior to full implementation of the rule."17 The utilities identify similar needs with respect to the standards adopted by today's Decision, except that more time will be needed because, unlike the case of D.07-02-030, the utilities have little or no experience with pole-top antennas. We conclude that the utilities' unopposed request for 270 days to implement the adopted revisions to GO 95 is reasonable, and we herby grant it.
After the adopted revisions to GO 95 are implemented, utilities shall process requests to install pole-top antennas in a timely manner and in good faith. It is expected that the amount of time and effort needed to process requests may vary depending on the complexity of a request, the number of poles involved, and other relevant factors.
5.3.2. Internal Standards for Specific Antenna Installations
We recognize that actual utility poles and individual antenna installations may have unique characteristics, as pointed out by PG&E, SCE, and SDG&E. Therefore, an electric utility may want to establish internal standards in addition to the rules contained in GO 95. Such internal standards would go beyond the scope of this proceeding. However, we emphasize that pole owners and antenna owners should work cooperatively in the case of specific antenna installations, as stressed by PG&E and the Wireless Parties. We are encouraged by the manner in which parties worked together in this proceeding and urge parties to continue this working relationship into the future.
CPSD is directed to revise GO 95 to conform to today's Decision and to post the revised general order on the Commission's website within 45 days from the effective date of today's Decision.
9 The Joint Municipal Parties take no position.
10 See, CCTA Comments, p. 3; SCE Comments, p. 10; and SDG&E Comments, p. 12.
11 Wireless Substitution, Early Estimates from National Health Interview Survey July - December 2007, Center for Disease Control (June 2008). Further, that same survey found that 13.1% of American homes communicated mostly on their wireless phones despite having a wireline phone.
12 D.07-12-054, at 3, citing Local Telephone Competition: Status as of June 30, 2006, Federal Communications Commission, Industry Analysis and Technology Division, Wireline Competition Bureau, January 2007, downloaded from http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-270133A1.pdf, Tables 9 (CLEC Lines), 10 (ILEC lines), and 14 (wireless). This reflects a national trend in which the number of wired telephone lines have been dropping by 3% to 5%. See Federal Communications Commission Trends in Telephone Service at Table 7.4, rel. Feb. 9, 2007. Further, as of the end of 2006, approximately 77% of Americans are wireless subscribers. CTIA's Wireless Industry Indices: 1985 - 2006.
13 See http://www.fcc.gov/cgb/consumerfacts/wireless911srvc.html.
14 See http://www.documents.dgs.ca.gov/td/911/CALNENA%202008%20WirelessE911Deployments.ppt#286,5,Wireless Caller Background.
15 D.07-12-054, at 4.
16 D.07-12-054, at 34-35. The PEW/Internet Home Broadband Adoption Report 2008 states that one-third of all Americans have accessed broadband services over WiFi connections, away from home and work.
17 D.07-02-030, at 23.
