XI. Categorization and Comments

In Resolution ALJ 176-3053 dated December 21, 2000, the Commission preliminarily categorized this proceeding as ratesetting, and preliminarily determined that hearings were not necessary. ORA filed a protest to the application, but stated its view that hearings were not necessary. Based on the record in this matter, public hearing is not necessary, and we affirm the preliminary determinations made in Resolution ALJ 176-3053.

The draft decision of the ALJ in this matter was mailed to the parties in accordance with Section 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Parties agreed to a shortened comment period of five days. Comments were filed by PG&E, AT&T Wireless, and ORA. AT&T Wireless and ORA supported the outcome in the draft decision. PG&E suggested revisions to four areas in the draft.

First, PG&E suggests a more complete description of wireless installations and a statement that wireless antenna installations in general are "limited uses" within GO 69-C. Second, PG&E asks for removal of language that frowns on the use of single license/lease agreements. PG&E is concerned that this discussion prejudges the issue in a recently filed Petition for Rulemaking on GO 69-C (P.02-02-003). On the first point, the draft has not been changed because we will not make generalized statements concerning all potential wireless installations beyond those involved in this matter. On the second point, we have made minor language changes, although we do not agree with PG&E that our dissatisfaction with the single agreement containing both a license and a lease prejudges the recently filed petition on GO 69-C. Third, PG&E suggests a clarification that ratepayers shall only receive revenues generated from the lease of property subject to the Commission's ratemaking jurisdiction. We have modified the ordering paragraph accordingly to be clear on this point. Finally, PG&E objects to language describing the Calpine Delta and CalPeak cases as conclusory and inappropriate given that hearings on these orders to show cause have not yet been held. The language that concerns PG&E is, in part, a direct quote from the Calpine Delta order and we will not change it, but one other minor textual change has been incorporated.

Findings of Fact

1. PG&E is a public utility corporation subject to the jurisdiction of this Commission.

2. AT&T Wireless provides wireless communication services under licenses granted by the FCC.

3. PG&E and AT&T Wireless have entered into a Master Agreement that initially gives AT&T Wireless a revocable license, consistent with General Order 69-C, to install its antennas and related equipment on PG&E's facilities and property.

4. The Master Agreement is structured to convert from a revocable license to a lease if Commission approval is granted.

5. The license is fully revocable, as required by GO 69-C.

6. AT&T Wireless' use of PG&E's property is neither permanent nor significant because it involves cellular equipment that can be removed easily.

7. In GO 159-A, the Commission delegated its authority to regulate the location and design of cellular facilities to local agencies while retaining oversight jurisdiction in cases of conflict with statewide interests.

8. AT&T Wireless' installation activities under the Master Agreement must comply with GO 159-A by notifying the Commission if local permits or approvals are granted or if no local permits or approvals are necessary.

9. The Master Agreement makes productive use of available space, allows improved service to AT&T Wireless customers, and does not interfere with utility service to PG&E customers.

10. Revenues from the license or lease of PG&E's transmission system are subject to FERC accounting and ratemaking, and revenues from the license or lease of distribution facilities are subject to Commission jurisdiction.

11. The service provided under the Master Agreement qualifies as an "existing" non-tariffed product or service rather than a "new" one.

12. D.99-04-021 excluded revenues from existing categories of non-tariffed products and services from the 50/50 net revenue sharing mechanism adopted in that order.

13. Applicants requested that certain terms and conditions of the Master Agreement contained in Appendix A be kept under seal.

14. Public disclosure of the pricing and other terms of the Master Agreement contained in Appendix A would disadvantage PG&E and AT&T Wireless in the marketplace.

Conclusions of Law

1. No public hearing is necessary.

2. The use of PG&E's property by AT&T Wireless under the license agreement is a permissible "limited use" under GO 69-C.

3. Joint use of utility property should be encouraged in appropriate cases because of the obvious economic and environmental benefits.

4. No further environmental review of this application is required by the Commission.

5. The Master Agreement, as amended, is in the public interest and should be approved with the following conditions:

a. Work performed by AT&T Wireless under the Master Agreement shall not go beyond that authorized in its FCC licenses.

b. PG&E shall file under Section 851 for advance Commission review of any amendments to the Master Agreement.

c. PG&E shall notify the Energy Division and the Office of Ratepayer Advocates, through their respective directors, in writing, within 30 days of the execution, extension or termination of this Master Agreement.

d. PG&E shall notify the ED and ORA directors, in writing, of any substantive changes to plant in service resulting from implementation of the Master Agreement, within 60 days of any such change.

e. PG&E shall notify the ORA and ED directors, in writing, if any right-of-way which is the subject of the Master Agreement ceases to be used and useful for the provision of electric service or if there are any substantive changes in the right-of-way segments, within 30 days of any such event.

6. All Revenues generated by the license or lease of Commission jurisdictional property under this Master Agreement should be credited to ratepayers.

7. Applicants' request to file under seal certain information in Appendix A should be granted for two years.

ORDER

IT IS ORDERED that:

1. Application 00-12-017 by Pacific Gas and Electric Company (PG&E) and AT&T Wireless Services of California Inc. (AT&T Wireless) for approval of a Master License/Lease Agreement for Antenna Attachments (Master Agreement) and the amendment to the Master Agreement is approved subject to the conditions set forth in this order.

2. PG&E shall credit to its ratepayers all revenues generated under the Master Agreement from the license or lease of property subject to the Commission's ratemaking jurisdiction.

3. AT&T Wireless shall notify the Commission as required by Section IV.A of General Order 159-A as to whether permits and approvals for installations under the Master Agreement have been granted by local authorities.

4. The protest of the Office of Ratepayer Advocates is denied in part and granted in part.

5. Applicants' request to have certain information, filed in Appendix A and in the amendment filed in January 2002, kept under seal is granted for two years from the effective date of this decision. During that period, the information shall not be made accessible or disclosed to anyone other than the Commission staff except on the further order or ruling of the Commission, the Assigned Commissioner, the Assigned Administrative Law Judge (ALJ), or the ALJ then designated as Law and Motion Judge. A redacted version of Appendix A shall be made available to the public upon request.

6. If the applicants believe that further protection of the information kept under seal is needed, they may file a motion stating the justification for further withholding of the information from public inspection, or for such other relief as the Commission rules may then provide. This motion shall be filed no later than one month before the expiration date.

7. This proceeding is closed.

This order is effective today.

Dated March 21, 2002, at San Francisco, California.

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