V. Pole Attachment Fees and Access to Rights of Way
A. Pole Attachment Fees
While we do not mandate access to a utility's network, we must address how much a BPL company should be required to pay if and when it attaches an electric utility's pole. D.98-10-058, Appendix A, referred to as the "ROW Order," contains rules governing telecommunications carriers' and cable TV companies' access to public utility rights of way and support structures. In the OIR, we supported using these rules so that they also determine the minimum terms which BPL providers will pay for pole attachments. In this section, we discuss mandatory pole attachment fees. The possibility of additional access or lease fees is discussed in a subsequent section.
Current, PG&E, and SDG&E argue that applying existing pole attachment fees to BPL pole attachments is appropriate to compensate utilities for the cost of BPL attachments. (Current Opening Comments, pp. 18-19; PG&E Reply Comments, pp. 7-8; SDG&E Opening Comments, pp. 9-10.) DRA and TURN are not opposed to requiring a utility to charge pole attachment fees to a BPL company, but argue that a BPL company should also pay the utility for use of the electric wires (DRA Reply Comments, p. 10; TURN Opening Comments, pp 26-27.) TURN and UCAN contend that the existing pole attachment fees are out-of-date. (TURN Opening Comments, pp. 28-30; UCAN Opening Comments, p. 29.)
Extending existing pole attachment fees to BPL attachments will ensure that ratepayers are compensated for an appropriate share of the pole costs. Applying existing pole attachment fees also ensures that BPL attachments and other attachments are treated in a nondiscriminatory manner. We therefore find that a BPL company attaching equipment to an electric utility's pole should pay the established pole attachment fee. We do not in this proceeding require that the established pole attachment fees be reviewed or changed since changing those fees has implications well beyond BPL attachments. The appropriateness of additional fees is discussed in a subsequent section.
B. Underground Attachments
SDG&E proposes that a cost-based formula should apply if installing a BPL system on underground power lines requires attachment of BPL equipment to the inside or outside of underground or surface transformer enclosures. SDG&E proposes a specific cost-based formula to calculate attachment fees for the attachment of what it describes as a typical BPL electronics box to the exterior of a typical SDG&E transformer enclosure. (SDG&E Opening Comments, pp. 10-12 and Appendix A.)
SCE argues that the ROW Rules should not be extended to calculate attachment fees for underground transformers. Instead the use of any facilities other than poles should be addressed through negotiations between a utility and BPL company. (SCE Reply Comments, p. 15.) TURN argues that SDG&E's methodology is inconsistent and uses outdated data. (TURN Reply Comments, pp. 7-8.)
The SDG&E methodology reasonably allocates costs to set an attachment fee. Since SDG&E's cost-allocation methodology is reasonable and is the only detailed proposal in the record, for SDG&E, we adopt a rate of $11.20 per year per underground attachment. Other utilities requiring such a rate should submit an advice letter using a cost-based methodology consistent with the ROW Order and similar to that described in SDG&E's opening comments, Appendix A.
C. Access to Rights-of-Way
CCTA notes that several specific rules in the ROW Order apply differently to telephone utilities and electric utilities.28 CCTA goes on to state that "with the emergence of BPL into the marketplace, the Commission must now implement rules that ensure that electric utilities cannot favor their BPL affiliates or partners at the expense of other broadband providers." (CCTA Opening Comments, pp. 12-13.) Accordingly CCTA recommends changes to the Commission's existing rules. (Id.)
We recognize that CCTA provides good reasons for changing the ROW Order rules. We also recognize that disputes related to rights-of-way can be very time consuming and expensive for businesses as in the Daniels Cablevision case (C.00-09-025). Upon review of the comments, however, we decline to modify the ROW Order in this proceeding. The changes proposed by CCTA are outside of the scope of this proceeding. Instead CCTA could file a Petition to Modify D.98-10-058 or a Petition for a Rulemaking under Pub. Util. Code § 1708.5 if it wishes the Commission to review the ROW provisions in a more generic sense. We also invite parties to use the Commission's new Alternative Dispute Resolution process to address specific conflicts; the Commission has recognized that even those disputes that have not yet resulted in formal proceedings may benefit from ADR and that successful ADR will avoid the filing of formal matters (Resolution ALJ-185, date August 25, 2005).
Additionally, we note that the ROW Order, in its current form, already provides significant protection against discriminatory behavior. Rule VI.A.1. requires a utility to "grant access to its rights-of-way and support structures to telecommunications carriers or cable TV company and cable TV companies on a nondiscriminatory basis."29 Thus, pursuant to this provision, the Commission is always available to investigate any specific instances in which an electric utility abuses the ROW Order for anticompetitive reasons.
28 The rules identified by CCTA are Rule III.A. (p. *216), Rule IV.B.1. (p. *219), Rule IV.B.1. (pp. *219-220), Rule V.A.(pp. *222-223), and Rule VI.A.1. (p.*224), D.98-10-058, 1998 Cal. PUC LEXIS 879 (Cal. PUC 1998).
29 Ibid. p. *224.
