VI. Comments

The draft alternate decision of Commissioner Duque was mailed on August 15, 2002, pursuant to Rule 77.6. Comments in support of the draft alternate decision were filed by CCTA on August 26, 2002 and are incorporate herein.

Findings of Fact

1. In each of the Master Agreements addressed by this decision, PG&E grants a license pursuant to G.O. 69-C to install telecommunications equipment on PG&E's electric distribution facilities.

2. The Master Agreements, Section 2.5, provide that the use of the facilities whether under a license, the "lease" or combination thereof, continues for five years with an option to renew for one additional five year term.

3. The Master Agreements, Section 1.2, state that no interest in real property is conveyed by PG&E.

4. The Master Agreements state that PG&E will determine if the equipment can be installed safely and without adversely affecting its electric distribution system. The Agreements limit the equipment to those PG&E facilities that (i) have unused space, and (ii) are located within utility rights-of-way. The Master Agreements allow PG&E to reclaim space if PG&E needs the space to provide utility service.

5. The Master Agreements require that PG&E be reimbursed for any costs it incurs in connection with the installations.

6. The Master Agreements require that the equipment be installed and maintained in conformity with all applicable laws, rules, and regulations.

7. The Master Agreements are structured to prevent the use of facilities from interfering with PG&E's operations or adversely affecting service to PG&E's customers.

8. The Master Agreements allow PG&E to revoke the privileges granted therein under the same conditions contained in G.O. 69-C.

9. Section 7.1 of the Master Agreements states that a carrier must remove its equipment from a PG&E facility whenever PG&E terminates its use of the facility.

10. Section 7.3 of the Master Agreements allows PG&E to reclaim space from a carrier after providing 90 days' notice.

11. The Master Agreements, Section 10.1(b)(4), also allow for termination if PG&E or the CPUC invoke the provisions of G.O. 69-C.

12. Today's decision does not implement regulatory changes; it addresses a routine application for approval of lease agreements pursuant to Section 851.

13. Today's decision does not hinder the deployment of advanced services and technologies.

14. Advice Letter 2063-E filed by PG&E on December 20, 2000, contains three G.O. 69-C license agreements. Each of the agreements allows a carrier to attach its equipment to PG&E's facilities; none of these agreements requires the licensee to pay any fees associated with Section 851. The agreements provide for the exact same notice requirements as the Master Agreements herein.

15. There is no apparent benefit to telephone carriers in the Master Agreements that warrants or necessitates an additional one time $10,000 fee and a $5,000 fee for each additional application.

16. The Commission has expressed concern in recent decisions that utilities might use G.O. 69-C to circumvent the advance review and approval requirements of Section 851 and CEQA.

Conclusions of Law

1. A license is generally defined as an agreement that confers a privilege to occupy, while a lease is an agreement that confers exclusive possession.

2. G.O. 69-C provides utilities with authority to grant licenses for the certain uses of their facilities. A utility may terminate a license granted pursuant to G.O. 69-C whenever it appears necessary or desirable to do so.

3. A license would not convey an interest in land.

4. Pursuant to Section 1.2, the Master Agreements do no convey an interest in the real property of PG&E.

5. The Master Agreements can be revoked by PG&E at will consistent with the terms of G.O. 69-C, the telecommunications equipment can be easily removed from PG&E's facilities, and the telecommunications equipment will not interfere with PG&E's utility operations and service. The Agreements merely provide the permission to act on the property of another and convey no interest in the property itself.

6. The Agreements in question do not create a "lease" interest and instead are property characterized as licenses.

7. Because the Agreements are not leases, an application for authority under Section 851 is not required.

8. Today's decision does not harm competition by forcing competitors that seek to install equipment on PG&E's facilities to incur the costs and delays associated with Section 851.

9. The Master Agreements do not circumvent Section 851 or CEQA.

ORDER

IT IS ORDERED that:

1. Application 00-12-26 is denied.

2. The protest of A.00-12-026 is granted.

This order is effective today.

Dated December 5, 2002, at San Francisco, California.

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