VII. Use It Or Lose It

PG&E and SCE respond to the OIR's question regarding the possible idling of BPL facilities for anti-competitive purposes by recommending a "use it or lose it approach." As PG&E puts it, "The Commission should adopt rules that require entities that acquire rights to a utility's system for the express purpose of BPL provision to begin implementation and service of BPL within a certain period of time, or forego their rights to do so." (PG&E Opening Comments, p. 6.) In support of their proposal, PG&E and SCE cite a similar rule that requires a Competitive Local Carrier (CLC) to use space within nine months of the date when a request for access is granted, or be subject to reversion of access to the electric utility. (Id.; SCE Opening Comments, p. 7.) Ambient agrees with the recommendation of PG&E and SCE (Ambient Reply Comments, pp. 25-26).

Current and SDG&E, however, criticize the proposal made by PG&E and SCE. Current argues that such fears are unfounded (Current Opening Comments, pp. 22-23). SDG&E contends that imposition of an "artificial deadline" would provide the wrong basis for making decisions regarding BPL deployment. (SDG&E Reply Comments, p. 25.)

While we are not in favor of a competitor's acquiring access to utility infrastructure, only to idle it to gain a competitive benefit, we decline to adopt a rule that would explicitly prohibit this behavior at this time. The technology is changing and developing rapidly, and we do not want to preclude the choice of a slightly more moderate deployment of a significantly better BPL network. Further, communications networks are often deployed in stages depending on capital considerations and local issues; this kind of rule may give rise to unwarranted complaints about staged deployment plans.

Furthermore, the utilities are aware of the possibility of anti-competitive behavior, and can take it into consideration in their contract negotiations with any potential third party BPL providers. We prefer to allow this issue to be addressed in contract negotiations rather than through imposition of a new regulation. However, if it is clear that a utility has entered into a contract with a BPL provider with the intent to prevent BPL deployment we will take appropriate action. Furthermore, if a utility has entered into a contract with a BPL company to deploy a BPL system and no deployment has commenced within seven years, we will entertain a proceeding to examine the underlying circumstances of the deployment failure and take corrective action, if necessary.