ALJ/DOT/MOD-POD/tcg Mailed 3/25/2002

Decision 02-03-048 March 21, 2002

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Daniels Cablevision, Inc. and the California Cable Television Association, Complainants, vs. San Diego Gas & Electric Company, Defendant.

Case 00-09-025 (Filed September 18, 2000)

OPINION GRANTING COMPLAINT IN PART AND
FINDING THAT SDG&E MAY CHARGE A COST-BASED FEE
FOR USE OF ITS TRANSMISSION RIGHT-OF-WAY

Gardner F. Gillespie and Yaron Dori, Attorneys at Law, Hogan & Hartson LLP, for Complainant.

Lesla Lehtonen, Attorney at Law, for California Cable Television Association.

Celeste Easton, Attorney at Law, Sempra Energy, for Defendant.

TABLE OF CONTENTS

Title Page

OPINION GRANTING COMPLAINT IN PART AND FINDING
THAT SDG&E MAY CHARGE A COST-BASED FEE FOR USE
OF ITS TRANSMISSION RIGHT-OF-WAY 2

I. Summary 2

II. Complainants' Allegations 2

III. SDG&E's Answer 5

IV. Procedural History 7

V. Applicable Statutes and Commission Orders 7

A. Section 767.5 7

B. Section 767.7 8

C. The ROW Order 8

D. Decision on Petition to Modify ROW Order 10

VI. Discussion 11

A. SDG&E May Not Charge for Access to its Poles and
Right-of-Way Beyond the Terms of the 1986 Agreement 12

B. SDG&E Must Justify Any ROW Fees Under the ROW Rules 17

C. SDG&E May Not Base a ROW Charge on Market Rates 19

D. SDG&E Should Charge Any ROW Fee Through the Overhead Component of the Pole Attachment Fee. 28

VII. Conclusion 31

VIII. Appeal of the Presiding Officer's Decision 31

Findings of Fact 33

Conclusions of Law 35

ORDER 36

Attachment A

OPINION GRANTING COMPLAINT IN PART AND
FINDING THAT SDG&E MAY CHARGE A COST-BASED FEE
FOR USE OF ITS TRANSMISSION RIGHT-OF-WAY

I. Summary

This decision resolves a complaint brought by Daniels Cablevision Inc. (Daniels) and the California Cable Television Association against San Diego Gas & Electric Company (SDG&E) regarding a $6,080 per mile fee that SDG&E attempted to charge Daniels for use of SDG&E's transmission rights-of-way (ROW). This decision finds that SDG&E may not impose upon Daniels a fee for use of transmission ROW as long as the 1986 Pole Attachment License Agreement (1986 Agreement) between the parties remains in effect. If either party terminates the 1986 Agreement, as allowed by its provisions, SDG&E may charge a fee for use of its transmission ROW based on its actual costs. SDG&E's proposed market-based fee of $6,080 per mile is rejected. The parties shall calculate a transmission ROW fee as an overhead component of SDG&E's pole attachment rate, using the formula proposed by Complainants and set forth in Attachment A to this decision. Within 45 days of the effective date of this order, SDG&E shall file a notice that the parties have agreed on a transmission ROW charge using this formula. Alternatively, if parties are unable to agree, SDG&E shall file its proposed transmission ROW charge for the Commission to examine in Phase II of this proceeding.