IX. Stop Work Notice

After the execution of the Agreement but before the execution of the First Amendment, by letter dated June 28, 2000, the Commission staff issued a Stop Work Notice (Notice) that required Broadwing to cease further construction of the Project until it received a CPCN authorizing such construction. Broadwing continued construction in violation of the Notice, and completed construction by March 3, 2001.

PG&E states that it became aware of the Notice at about the same time Broadwing received it. PG&E further states that it did not believe the notice applied to work completed pursuant to the Agreement. PG&E represents that the facilities would be used to provide electric service, and result in improved internal communications and system reliability. Therefore, PG&E argues that the facilities are for a utility purpose relating to PG&E's existing facilities and their use to provide utility service and, therefore, not within the scope of the Notice.

PG&E is wrong. Broadwing's telecommunications facilities, regardless of their location on PG&E property, are part of Broadwing's Project, and will be used by Broadwing to provide telecommunications services. A portion of the facilities will be used by PG&E in connection with the provision of services to its customers. The Project is not physically separable into a portion belonging to PG&E and a portion belonging to Broadwing, and Broadwing's use of the facilities is not incidental to PG&E's use. Therefore, since the portion belonging to Broadwing is subject to the Notice, the whole Project is.

PG&E improperly allowed Broadwing to continue working on the Project after receipt of the Notice. The Commission did not fine Broadwing in D.02-02-023 for constructing facilities without a CPCN or for violating the Notice. Broadwing's error in violating the Notice was greater than PG&E's error in not stopping Broadwing from doing so. Since we did not fine Broadwing, it would be inequitable to fine PG&E, and we will not do so. However, we expect PG&E's full compliance with Notices. We also expect PG&E to ensure that other entities performing construction located on PG&E's facilities or property comply with such Notices.