IV. Use of General Order 69-C
The parties have structured the current contractual arrangement under which AT&T Wireless is making use of PG&E's property as a revocable license. As stated in Section 4.1 of the Master Agreement, "This License is given pursuant to and subject to the conditions prescribed by CPUC General Order No. 69-C,...."2
Only if and when PG&E's application is granted does the revocability clause of the agreement become inoperative. At that point, AT&T would have a more secure interest in the property covered by the agreement such that PG&E could not revoke the right to use the property whenever PG&E deems it "necessary or desirable to do so" under the terms of GO 69-C.
Not only does the agreement state that the use of PG&E's property is revocable, but based on our review of the application, we find that the use of PG&E's property by AT&T Wireless is neither permanent or so significant that it cannot be terminated quickly if PG&E invokes its right under GO 69-C to revoke the agreement. The equipment that AT&T Wireless is attaching to PG&E's property--namely communications antennas, small microwave dishes, antenna hardware and supports, monopoles, and coaxial cabling--consists of minor installations that can be easily removed if necessary. For this reason, AT&T Wireless' use of the PG&E property is consistent with the "limited uses" for which GO 69-C is reserved.
The use of property at issue in this application contrasts sharply with the use of PG&E property discussed in D.01-08-069 ("Calpine Delta") and D.01-08-070 ("CalPeak"). In the Calpine Delta and CalPeak decisions, the Commission ordered PG&E to show cause why it should not be sanctioned for installing "equipment sufficient to serve two relatively large power plants" prior to obtaining Commission approval. (D.01-08-069, mimeo at 21. See also D.01-08-070, mimeo at 10.)3 In this case, there is no indication that the Applicants have made use of the license arrangement to circumvent environmental review that would otherwise be required in a §851 application.
In light of the fact that, for the reasons stated above, the current use of PG&E's property is both fully revocable and a limited use, it is permissible under GO 69-C.
2 GO 69-C states in relevant part:- It is hereby ordered, that all public utilities covered by the provisions of Section 851 of the Public Utilities Code of this State be, and they are hereby authorized to grant easements, licenses or permits for use or occupancy on, over or under any portion of the operative property of said utilities for rights of way, private roads, agricultural purposes, or other limited uses of their several properties without further special authorization by this Commission whenever it shall appear that the exercise of such easement, license or permit will not interfere with the operations, practices and service of such public utilities to and for their several patrons or consumers;
Provided, however, that each such grant, ...shall be made conditional upon the right of the grantor, either upon order of this Commission or upon its own motion to commence or resume the use of the property in question whenever, in the interest of its service to its patrons or consumers, it shall appear necessary or desirable to do so.
3 The construction in both cases involved preliminary work on electric transmission facilities and gas pipeline facilities to connect electric generation plants to PG&E's system. In Calpine Delta, the Commission stated that:
- These significant and permanent structures were constructed under PG&E's claimed G0 69-C authority. This is in direct contradiction of our clear statement in D.01-03-064 that permanent changes to utility property fall outside the scope of the "limited uses" permitted by GO 69-C. (D.01-08-069, mimeo at 21.)
