VIII. Assignment of Proceeding

Geoffrey F. Brown is the Assigned Commissioner. The Administrative Law Judge (ALJ) originally assigned to this proceeding was Myra J. Prestidge. The proceeding was subsequently reassigned to ALJ Karl J. Bemesderfer and now is assigned to ALJ Jean Vieth.

Findings of Fact

2. Cingular's use of Edison's property pursuant to the 23 licenses is neither permanent nor significant because it involves cellular antennas and antenna equipment that can be removed easily.

3. The 23 licenses entered into between Edison and Cingular under the First Master Attachment Agreement and the Second Master Attachment Agreement are structured to convert from a revocable license to a lease if Commission approval is granted.

4. The master attachment agreements incorporate the environmental review and notification requirements of GO 159-A.

5. The master attachment agreements make productive utility use of available space, allow improved service to Cingular's customers, and do not interfere with utility service to Edison's customers.

6. A 90%/10% shareholder/ratepayer revenue sharing allocation of the rents received under the master attachment agreements complies with Commission precedent for Edison's NTP&S category.

7. Edison has made appropriate, narrow redactions to the versions of Exhibits 1 and 2 filed publicly as part of A.02-07-031.

8. Public disclosure of the pricing and other specific terms in Exhibits 1 and 2 of A.02-07-031 would disadvantage Cingular and Edison in the marketplace.

Conclusions of Law

1. No public hearing is necessary.

2. The use of Edison property by Cingular under the master attachment agreements is a permissible "limited use" under GO 69-C.

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

4. The 23 proposed leases are in the public interest and should be approved, subject to the notifications that Edison proposes and upon the condition that Edison file under Section 851 for Commission approval of any substantive amendments to the master attachment agreements and the standard agreements associated with them.

5. Edison's request for authority to enter into additional future leases with Cingular under the Second Master Attachment Agreement is in the public interest and should be approved, subject to the notifications that Edison proposes and upon the condition that Edison file under Section 851 for Commission approval of any substantive amendments to the Second Master Attachment Agreement and its associated Standard agreement.

6. Edison's request to file under seal certain information in Exhibits 1 and 2 to the applications should be granted for two years.

7. To promote certainty in the parties' business dealings, today's decision should be effective immediately.

ORDER

IT IS ORDERED that:

1. Application (A.) 02-07-031 is approved to:

a. Convert to leases the 23 separate antenna equipment location licenses enumerated in the body of this decision;

b. Authorize Southern California Edison Company (Edison) to enter into additional leases for antenna equipment locations with Pacific Bell Wireless, LLC, dba Cingular Wireless, pursuant to the Second Master Attachment Agreement and associated Standard Agreement (Exhibit 2 to A.02-07-031).

2. The authority granted in Ordering Paragraph 1 is conditioned upon the following notifications by Edison:

a. To the Office of Ratepayer Advocates (ORA) and the Commission's Energy Division of all new leases and all extensions or terminations of leases executed pursuant to the First Master Attachment Agreement and associated Standard Agreement (Exhibit 1 to A.02-07-031), or the Second Master Attachment Agreement and associated Standard Agreement.

b. To ORA and the Energy Division assistant directors for energy, in writing, of any substantive changes to plant in service resulting from implementation of the leases, within 60 days of the change.

c. To ORA and the Energy Division assistant directors for energy, in writing, if any right-of-way, which is the subject of these leases, 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, which are the subject of these licenses, within 30 days of any such event.

3. Edison shall file an application under § 851 for approval of any substantive amendment of the First Master Attachment Agreement and associated Standard Agreement or the Second Master Attachment Agreement and associated Standard Agreement.

4. Edison's July 12, 2002, motion for leave to file under seal certain information in Exhibits 1 and 2 to A.02-07-031, a copy of which was submitted under seal with the motion, is granted, in part, and denied in part, as further provided in Ordering Paragraph 5. The following terms, which are disclosed in the application at pages 8, 9 and 13, have been publicly disclosed:

a. Pursuant to the Standard Agreement, executed under the First Master Attachment Agreement, each license/lease will run for five years with options to renew for three additional terms of five years; rent is due annually for the first five years and the annual rent is adjusted every five years thereafter, and

b. Pursuant to the Standard Agreement, executed under the Second Master Attachment Agreement, the annual rent for each license/lease will be adjusted every five years throughout the term of the lease.

5. The following provisions shall apply to the protective order granted by Ordering Paragraph 4:

a. The information shall be filed under seal 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.

b. If Edison believes that additional protection is needed beyond that ordered in Ordering Paragraph 4(a), it may file a motion stating the justification for further withholding of the information from public inspection, or for such other belief as the Commission rules may then provide. This motion shall be filed no later than one month before the expiration date.

6. This proceeding is closed.

This order is effective today.

Dated February 26, 2004, at San Francisco, California.

MICHAEL R. PEEVEY

President

GEOFFREY F. BROWN

SUSAN P. KENNEDY

Commissioners

I dissent.

/s/ CARL W. WOOD

Commissioner

I reserve the right to join Commissioner Wood's dissent.

/s/ LORETTA M. LYNCH

Commissioner

Dissenting Opinion of Commissioners Carl Wood and Loretta Lynch

(Southern Edison Company Agenda Item #1, February 26, 2004)

We dissent because we believe that, in part, this decision is unlawful. The leases at issue, here, involve cellular towers. The proposed decision concludes that the Commission will not consider any potential environmental impacts before approving the leases, as is required by CEQA. The order compounds this problem by approving Master Lease Agreements for future cellular facilities in yet-unspecified locations. The justification provided for all of this is that pursuant to General Order 159-A, the Commission elects not to consider the environmental implications of siting cellular towers.

We disagree with this interpretation. First, the General Order does not address the current situation. The General Order and the implementing decision address the issue of the Commission exercising its jurisdiction over cellular providers to control the siting of towers. That is not what we are doing here - we are considering an electric utility's request to lease right-of-way space to cellular providers pursuant to Section 851. Nowhere in the General Order or the implementing decision will you find a reference to electric utilities, the implications of building in utility rights-of-way, or Section 851. These issues are not considered.

Regardless, we think it is entirely consistent with the General Order for the Commission to comply with its legal obligations under CEQA. The Commission can defer to a local agency as Lead Agency, and then rely on any resulting environmental analysis as a Responsible Agency. This is what the law envisions. This is our obligation.

CEQA places an obligation on public agencies. An agency cannot decline to comply simply because it feels like it, no matter how sound its policy rationale might seem.

We have raised this issue before. No one has ever suggested that this interpretation of our legal obligation under CEQA is wrong, yet the Commission continues to compound the violation. If our understanding is incorrect, and if CEQA empowers the Commission to decline to consider the environmental impacts of these decisions, then our attorneys ought to be able to make the case.

Our obligation is clear. The California Supreme Court has declared that the purpose of CEQA is to compel government at all levels to make decisions with environmental consequences in mind (Bozung v. LAFCO (1975) 13 Cal.3d 263). When the Commission issues an order such as this that declines to consider environmental consequences, it is defying that obligation. We invite our colleagues to show us where the law allows us to sidestep that responsibility.

/s/ CARL WOOD
Carl Wood Commissioner
/s/ LORETTA LYNCH
Loretta Lynch Commissioner
San Francisco, California February 26, 2004