Comments on Draft Decision
Pursuant to Pub. Util. Code § 311(g)(3), and Rule 77.7(f)(9), we reduce the 30-day period for comments on the draft decision due to public necessity. Here the public necessity provision is implicated by the need to complete the Northeast San Jose (NESJ) Project. The NESJ Project is designed to solve critical transmission deficiencies in the Greater San Jose area. The California Independent System Operator ("ISO") has concluded that the transmission system in the Northeast San Jose area was in violation of the ISO grid planning criteria for reliability in the summers of 2000 and 2001. To support expected load growth and correct violations of the ISO reliability criteria, the ISO found, and the Commission agreed, that the NESJ Project should be operational by Summer 2003.4
Comments shall be filed and served on the e-mail service list for this proceeding no later than April 19, 2002. No reply comments will be accepted. Parties shall ensure that the assigned Commissioner and ALJ shall also receive the comments in hard copy and by electronic mail.
Comments were filed by PG&E and Calpine. Calpine contends that the draft decision is wrong on the facts and wrong on the law. Calpine repeats its prior arguments that PG&E will inevitably install facilities to be utilized for competitive telecommunications services. Those same arguments are already addressed in the Discussion section.
In addition, Calpine argues that PG&E should not escape § 625 simply by posting a Commission calendar notice of a purported change in its intent. Calpine requests that PG&E be ordered to submit an affidavit verifying that its facilities will not be installed for competitive use and are only required for internal communications. Calpine claims that spurious statements in PG&E pleadings misled the Commission. We decline the request. Assuming, arguendo, the pleadings are misleading, sufficient protections are afforded by Rule 1. Rule 1 provides that "[a]ny person who signs a pleading or brief . . . agrees . . . never to mislead the Commission or its staff by artifice or false statement of fact or law."
In its comments, PG&E proposes two revisions to the decision. PG&E requests a citation correction and that Conclusion of Law No. 1 be revised or deleted. Conclusion of Law No. 1 states that "Section 625 of the Public Utilities Code is applicable." PG&E argues that Conclusion of Law No. 1 contradicts the discussion at page 5 wherein "we agree that § 625 would be inapplicable." That discussion is taken out of context. We went on to explain at page 6 that § 625 applies to an electric transmission project that is designed to service an electric demand but could carry a competitive component. We will, therefore clarify Conclusion of Law No. 1 to reflect this discussion.
1. The Commission ordered PG&E to build and upgrade certain facilities to serve the Northeast San Jose area. (D.01-12-017.)
2. The Commission adopted PG&E's proposed substation location at 1515 Alviso-Milpitas Road. (D.01-05-059.)
3. At this time, PG&E has no intention of providing competitive telecommunications services on the condemned property.
1. Section 625(a)(1)(B) of the Public Utilities Code is applicable.
2. Pursuant to § 625(a)(1)(A), a party may not condemn any property for the purpose of competing with another entity in the offering of those competitive services.
3. A party is exempt from § 625(a)(1)(A) if it is condemning property solely to meet its commission-ordered obligation to serve.
4. Pursuant to § 625(a)(1)(B), if property is acquired through condemnation solely to meet a Commission-ordered obligation to serve and the condemning party then decides to install telecommunication equipment on the property for the purpose of providing competitive telecommunications services, said party shall provide notice for the planned installation in the Commission's Daily Calendar.
5. It is reasonable to reduce the comment and review period pursuant to Rule 77.7(f)(9) in order to allow this project to proceed expeditiously.
IT IS ORDERED that:
1. The motion of Calpine c*Power to compel Pacific Gas and Electric Company (PG&E) to comply with Pub. Util. Code § 625 (a)(1)(B) is denied.
2. PG&E must provide notice pursuant to § 625 (a)(1)(B) if and when it pursues installation of facilities for the purposes of providing competitive services.
This order is effective today.
Dated May 2, 2002, at San Francisco, California.
LORETTA M. LYNCH
President
HENRY M. DUQUE
CARL W. WOOD
GEOFFREY F. BROWN
MICHAEL R. PEEVEY
Commissioners
