III. General Definitions and Applicability of Rules

A. Utility Categories Covered Under ROW Rules

1. Parties' Positions

Parties express differing views concerning what categories of utilities should be subject to Commission ROW access rules. In the draft decision previously circulated to parties for comment, the rules were defined broadly to apply to gas, water, and steam utilities, in addition to electric and telecommunications utilities. Comments were filed by certain gas, water, and smaller electric utilities, raising concerns that these rules should not be extended to include them since there had been no previous consideration on the implications of extending the rules to additional categories of utilities. SDG&E argues that the Commission should consider extending the rules to apply to railroad facilities, noting that PU Code § 767 calls for access to subways and tracks in addition to poles and wires.

2. Discussion

For purposes of the rules we adopt in this decision, we shall limit the public utilities covered to the large and midsized ILECs, to the CLCs, and to the major electric utilities, PG&E, Edison, and SDG&E. In D. 97-09-115 in which we adopted initial local competition rules for the service territories of the midsized ILECs, RTC and CTC, we concluded that the basic rules we had previously adopted for the major ILECs should also be applied to the midsized ILECs. We find no reason here to deviate from our previously adopted policy, and conclude that the ROW access rules we adopt herein should generally apply to the midsized ILECs. We acknowledge, however, that the midsized ILECs lack the resources of their larger counterparts to respond as quickly to inquiries regarding access. We shall therefore leave it to the parties to negotiate individual response times in the case of the midsized ILECs. In all other respects, we shall apply the same rules to them as to the larger ILECs.

In the workshops conducted for the instant proceeding and in written comments that were produced relating to ROW access, we did not address the implications of extending the rules adopted herein to other utility industries such as gas, water, or steam. We also did not consider the implications of extending the rules to smaller electric utilities or to other utility industries. We recognize the usefulness of, and will later explore, expanding the coverage of our rules to include other utility industries. We shall provide all potentially affected entities with due notice and opportunity to be heard concerning any further proceedings of this nature.

B. Definition of Rights of Way

1. Parties' Positions

The Coalition argues that the term "rights of way" should be understood as analytically distinct from , and larger than, the physical support structures to which wires may be attached for wire communication but should also include the underlying ROW that the utility controls.

The Coalition and CCTA propose that the term "right-of-way" should be defined broadly to encompass:

"all the real property, physical facilities and legal rights for use of such property and facilities which provide for access on, over, along, under, through or across public and private property for placement and use of poles, pole attachments, anchors, ducts, innerducts, conduits, guy and support wires, remote terminals, vaults, telephone closets, telephone risers, and other support structures to reach customers for communications purposes." (Proposed Rule II.K.)

GTEC objects to this proposed Coalition definition as being overly broad, arguing that the term "right-of-way" has long held particular legal significance, as a right to pass or cross over the real property of another, but that it does not encompass the right to use the personal property of another, such as telephone closets, vaults owned by a telecommunications carrier. Pacific and GTEC argue that the Commission's rules regulating access to ROW should not be interpreted to include all possible pathways to the customer, as sought by the Coalition and CCTA. GTEC believes this Commission should delineate the scope of access by competing carriers to "poles, ducts, conduits, and right-of-ways," as defined in § 251 (b)(4) permitting carriers to "piggyback" along utilities distribution networks.

Edison proposes that transmission support structures or rights-of-way be excluded from the scope of these rules because of the heightened safety and system reliability concerns raised by such access. Since electric utilities' distribution systems are concentrated in urban areas where telecommunication providers most desire access, Edison argues there should be little need to provide mandatory access to transmission facilities.

If the Commission contemplates including transmission support structures and rights-of-ways with these rules, Edison urges the Commission to seek the input of the Independent System Operator (ISO) which now operates and controls utility transmission facilities throughout California. Edison argues that the electric utilities' ability to comply with certain mandatory time limits in the rules (e.g. completion of requests for information, requests for access, and make ready work) may have to be substantially lengthened to account for the complexities of dealing with the transmission system. For example, installing fiber optic on transmission towers may require ISO coordination and approval (the timing of which the electric utility cannot control) and even planned outages along certain segments of the transmission system. Moreover, Edison claims that the utilities' ability to reserve or take back space for capacity additions may also have to be expanded to ensure the smooth, uninterrupted operation of the transmission system.

2. Discussion

We conclude that the Coalition's proposed definition of ROW is overly broad, and decline to adopt it. As stated in the FCC Order, the intent of Congress in § 224(f) was to permit cable television operators and telecommunications providers to "piggyback" along distribution networks owned or controlled by utilities as opposed to granting access to every piece of equipment or real property owned or controlled by the utility.⁽ We shall delineate the scope of access to refer to the poles, ducts, conduits, and ROW as defined by § 251(b)(4). An overly broad interpretation of ROW would be unduly burdensome on the owners of facilities and is unnecessary to provide for the reasonable access needs of third parties.

In view of the potential problems in terms of logistics, system reliability and safety associated with mandatory access to electric transmission facilities, we shall include only electric utilities' distribution poles, support structures, and rights-of-way within the scope of these rules at this time.

C. Definition of Nondiscriminatory Access

1. Parties' Positions

The Coalition defines "nondiscriminatory access" as access that is uniformly equal in fact, for all rates, terms, and conditions, to the access provided to cable television companies, and equal to the access that ILECs provide to themselves. The Coalition believes that the Act, PU Code § 767, and cable television companies' existing rights to attach to utility support structures in California at just and reasonable rates pursuant to PU Code § 767.5 create a solid foundation for telecommunications carrier to gain access to utility ROW.

Pacific objects to the Coalition's proposed definition of nondiscriminatory access as being "uniformly equal in fact" with respect to the access which the ILEC provides itself, and to every other telecommunications carrier or cable television provider. Pacific argues that such a definition would effectively eliminate any type of creatively negotiated agreements between individual parties and would require an owner to treat itself as a third party. Pacific argues that the Act only requires a utility to provide "access" to its facilities, but not to divest itself of all the benefits (and burdens) of ownership. This provision would also require disbandment of the joint pole associations, in Pacific's opinion.

In order to achieve the Commission's goal of opening the local telecommunications market to active competition, CCTA argues that the Commission's resolution of ROW issues must incorporate the broadest possible definitions to ensure competitive access to all real property pathways to the customer, including poles, conduits, ROW, easements, and licenses. CCTA seeks, however, to exclude cable television inside wire and drops from the facilities subject to ROW access. CCTA makes this assertion on the grounds that cable television inside-wiring is a federal matter under the purview of the FCC, and has different characteristics than does telephony inside-wiring. Unlike telephone service, CCTA argues that the cable network is not an essential service, and cable and telephone technologies have different power requirements, signal leakage concerns, and tolerances of interference.

GTEC argues that the Coalition's proposed rules and definitions would turn the ILECs into construction managers and financiers for the CLCs, making every possible piece of equipment and support structure that the ILEC owns subject to access by CLCs at the below-cost rate set for cable television providers.

PG&E states that the Commission must distinguish between the underlying ROW and the support structures which may be located in an easement that grants ROW. (PG&E Comments, p. 7.)

The Coalition objects to PG&E's proposed definition of a utility pole which would apply only to wood utility distribution poles with electric supply cables of no greater than 50 kV. The Coalition argues that there is no basis to prohibit telecommunications facilities from being attached to electric support structures with supply cables greater than 50 kV.

2. Discussion

We shall consider nondiscriminatory access to mean that similarly situated carriers must be provided the opportunity to gain access to the ROW and support structures of the incumbent utilities under impartially applied terms and conditions on a first-come, first-served basis. Nondiscriminatory access does not mean that the incumbent utility is divested of all of the benefits or relieved of the obligations of ownership. The utility must maintain the ability to manage its assets. No party may attach to the ROW or support structures of another utility without the express written authorization from the utility.

Nondiscriminatory access does mean, however, that the incumbent utility cannot deny access simply to impede the development of a competitive market and to retain its competitive advantage over new entrants. The incumbent utility may only restrict access to a particular facility or may place conditions on access for specified reasons relating to safety or engineering reliability. We discuss these conditions below in Section VII. We also discuss below in Section VII the restrictions on third parties' access to space which the incumbent utility seeks to reserve for its own future growth needs. In situations where there is no available space for an additional attachment, the incumbent utility is obliged to negotiate with the carrier seeking access to attempt to find some alternative solution such as rearrangement or modification of the existing space to accommodate the latter carrier's needs. In the event that the Commission must resolve disputes over access rights, the burden shall be on the incumbent to justify any claims asserted in defense of its refusal to permit access.

D. Renegotiation of Existing Agreements to Conform to Commission Rules

1. Parties' Positions

The Coalition proposes that existing contracts between utilities and CLCs be subject to renegotiation, with Commission review pursuant to General Order (GO) 96-A, if the results of such negotiations yielded anticompetitive terms and conditions based on the rules adopted by this decision.

GTEC believes that any rules which the Commission may adopt relative to ROW and access be applicable to all users of those facilities, regardless of whether a party has an existing agreement entered into during the era of noncompetitive telecommunications providers. Existing agreements for pole attachments and access are subject to the Commission's continuing jurisdiction, and typically include clauses that make them subject to renegotiation or modification in view of an applicable Commission ruling.

Edison and SDG&E disagree with any attempt to require renegotiation or to unilaterally change the terms of existing access agreements with electric utilities that were negotiated between the parties to these agreements. Edison questions how an existing contract would be found "anticompetitive" under the Coalition's proposal. Edison argues that GO 96-A does not provide a basis for non-consensual modification of existing access agreements, but only relates to contracts "for the furnishing of any public utility service." Edison contends that the access to electric utility facilities provided by existing access contracts is not public utility service and therefore is not governed by GO 96-A. Edison argues that the Commission has a long history of respecting freely-negotiated contracts, even when one of the parties to an agreement later expresses dissatisfaction with some of the terms.

2. Discussion

We shall not require parties to renegotiate preexisting contracts to conform with the rules adopted in this decision in the cases where the contract does not prescribe that it is subject to renegotiation to conform to any subsequent Commission rules. Parties mutually negotiated such contracts based upon information available to each side at the time. We respect the mutual obligations and rights of parties to enter into, and to bind each other to, such contracts.

In cases where contracts contain provisions requiring renegotiation in the event that subsequently adopted Commission rules come into conflict with the preexisting contract, however, parties to such contracts may seek renegotiation consistent with their prior agreement. If parties to such renegotiation efforts are unable to agree on revised contract terms, they may seek a remedy through the dispute resolution procedures we adopt elsewhere in this order.

On a prospective basis, our adopted rules shall serve as "preferred outcomes" to guide parties in negotiating new ROW agreements subsequent to the effective date of this order.

E. Applicability of Rules to Cable Companies

In its comments on the revised draft decision filed July 24, 1998, CCTA noted that the draft rules make reference only to "telecommunications carriers." Yet, CCTA believes that the draft rules were intended to incorporate the Commission's jurisdiction over both cable and telecommunications providers, in accordance with Section 224 of the Act. CCTA argues that Section 224 of the Act provides for State preemption of both cable and telecommunications services vis a vis rights of way, but require a State to issue effective rules and regulations implementing the State's authority. To remove any ambiguity as to the intent or scope of the rules, CCTA proposes that the decision be amended to explicitly state that the rules shall apply to cable corporations, as well as to CLCs. Otherwise, CCTA is concerned that cable corporations will be faced with separately litigating each and every rule before the Commission to ensure their applicability to cable video, internet, and data services.

The incumbent utilities object to including cable corporations within the scope of the adopted rules. GTEC argues that the stated purpose of the proceeding is to adopt rules to open to competition the local exchange market-not the well-established cable market. GTEC argues that because the proceeding has not pertained to providers of solely cable service, the Commission cannot simply apply these rules to that very different industry without any evidence or analysis. GTEC proposes that if the CCTA wants the Commission to consider adopting ROW rules designed to address issues relating to the cable television market, CCTA should ask the Commission to open a proceeding to do so. GTEC objects to any "last-minute clarification" to a proceeding intended to address rules for local exchange competition.

1. Discussion

The question of the applicability of our rules to cable corporations shall be addressed in three components: first, the rights of cable corporations to come under the protections offered by the rules; second, the obligations of cable corporations to offer nondiscriminatory access to telecommunications carriers under the rules; and third, the reach of our jurisdiction into the dealings between municipalities that grant franchises to providers of cable TV services and those providers' plans to extend facilities to provide cable TV. We conclude that it is appropriate to require the ILECs and electric utilities to extend the same rates and terms of access offered to CLCs under the rules to cover cable corporations, as well. While we agree with GTEC that the focus of this proceeding is on promoting competition in the local exchange telecommunications market, we must simultaneously consider the interrelationship between the local exchange and cable industries in seeking to promote a competitive infrastructure. As we explain below in our discussion of pole attachment rates, various cable corporations have in recent years have become certificated as CLCs, and now offer telecommunications services over the same connections previously used only for cable services. For the same reasons that we have determined to apply uniform pole attachment rates for both cable and telecommunications services, we conclude that the rules governing other terms and conditions of access should likewise apply uniformly. By applying our rules uniformly both to cable corporations and telecommunications carriers, we will avoid potential disputes over whether our adopted rules apply to a particular service offered over an attachment used to provide multiple services. By applying our rules in this manner, we seek to minimize potential litigation which may threaten to impede the growth of the local exchange competitive infrastructure. In the succeeding sections of this decision addressing the applicability of our rules, references to CLCs shall therefore be understood to include cable companies, unless explicitly stated otherwise.

We shall not at this time, however, require cable companies to offer reciprocal terms and conditions of access to telecommunications carriers, as we have done for CLCs. Cable companies are not public utilities as defined in Section 216 (a) of the PU Code, but are separately defined in Section 215.5 of the PU Code. This Commission's jurisdiction is limited to the regulation of public utilities. Since cable companies are not public utilities, they are not subject to this Commission's jurisdiction with respect to the rates or terms of service which they offer. Therefore, we shall not impose upon cable companies the obligations to provide access to telecommunications carriers. Similarly, we shall not require CLCs to provide access to cable companies. We shall thus limit the obligations to provide access to cable companies to the ILECs and electric utilities until we obtain additional evidence in this proceeding.

Further, we will not at this time intervene in the relationship between municipalities that grant cable franchises and those same franchisees inasmuch as those franchisees are not telecommunications carriers certified by this Commission. If a cable franchisee is looking to expand its facilities for the provision of cable TV only, then the procedural avenues described below to address disputes between carriers and cities will not be available. We will seek further comment on whether we have jurisdiction in this area and how this jurisdiction, if it exists, should be exercised.

F. Applicability of Rules to Commercial Mobile Radio Service (CMRS)

1. Parties' Positions

AWS argues that under the nondiscrimination principles of the Act, incumbent utilities must provide all telecommunications carriers, including commercial mobile radio service (CMRS) providers, the same type of access they would afford themselves, regardless of the technology the telecommunications carrier employs. AWS states that CMRS providers will be using poles and other utility facilities in ways perhaps not contemplated by traditional land-line providers, and that any rules adopted by the Commission must be able to accommodate innovative pole uses required by new technologies.

Among other things, in implementing its own new technology plans, AWS will seek to: (1) place micro-cell devices on top of existing poles; (2) replace some existing poles with taller poles in order to improve signal reception; and (3) use poles similar to those of a traditional land-line telecommunications carrier, transporting and carrying the call through telephone lines attached to existing poles, to AWS's switch.

Traditionally, CLCs have not sought access to the tops of poles, nor have they sought pole "change outs," or replacements, purely to improve signal reception. AWS argues that any rules adopted by the Commission should accommodate CMRS providers' need for taller poles and access to the top of poles.

Teligent is a CLC which utilizes radio spectrum and point-to-multipoint microwave technology to provide local service. Teligent is thus a "fixed-wireless CLC" in contrast to CMRS providers which provide ubiquitous mobile wireless service and which are not certificated by this Commission to provide local exchange service. Teligent argues that while fixed wireless CLCs rely heavily upon the innovative use of radio spectrum for their infrastructure, they also use conventional wireline facilities. Unlike CMRS providers, fixed wireless CLCs such as Teligent do not seek to place any attachments on top of utility poles, nor to place large towers in the public ROW.

The ILECs and electric utilities oppose the inclusion of CMRS providers within the scope of rules adopted in this proceeding. Pacific argues that the proposed rules have been developed with traditional facilities in mind, and that there is not a sufficient record to apply the rules to incorporate the unique safety, reliability, and space allocation issues for wireless attachments. PG&E also highlights safety concerns regarding CMRS providers' attempts to access taller poles or the tops of utility poles.

2. Discussion

We agree that under the Section 224(f)(1) provisions of the Act, CMRS providers should not be subjected to unfair discrimination. Yet, the primary focus of this proceeding has been on wireline local exchange service, not CMRS. The technological and market dynamics of the CMRS industry are distinct from those of the local exchange market. The rationale underlying the pole attachment rates and access requirements we adopt with respect to local exchange service may not necessarily apply in the case of CMRS service. The regulation of CMRS providers has been addressed in a separate docket (I.93-12-007) based upon specific characteristics peculiar to the CMRS industry. Likewise, CMRS carriers have different space requirements than do CLCs with respect to ROW access. For example, CMRS providers request access to the tops of existing utility poles to install communications devices. The work involved in pole-top access raises special safety concerns. While we do not minimize the importance of ROW access rights for CMRS carriers, we believe that a further record needs to be developed regarding safety, reliability and special access needs before we determine the applicability of our adopted ROW access rules to the CMRS industry. Accordingly, we shall defer consideration of the applicability of our rules to CMRS carriers to a later phase of the proceeding.

In contrast to CMRS providers are "fixed wireless" CLCs such as Teligent. Unlike CMRS systems, fixed wireless providers, such as Teligent, are certificated to provide local service as a CLC. Teligent and other fixed wireless providers use a different technology from CMRS carriers by providing customers with point-to-multipoint transmission service at fixed locations, rather than ubiquitous mobile service. As a result, fixed wireless providers require fewer antennas to be deployed in order to provide the necessary service coverage than do CMRS providers.

For the sake of consistency in the treatment among CLCs, we shall apply the adopted rules to include those CLCs which utilize fixed wireless technology. Nonetheless, we remain concerned that the radio spectrum and microwave technologies used by fixed wireless carriers entail different safety and health issues than do the technologies of conventional wireline CLCs. Therefore, with respect to negotiations for access involving fixed wireless CLCs, we shall permit the incumbent utility the discretion to prescribe restrictions it deems necessary to safeguard public or employee health and safety.

G. Applicability of Rules to Municipalities and Governmental Agencies

1. Parties' Positions

The Coalition argues that the Commission's rules for mandating access to utility ROW and support structures should apply equally to municipally owned utilities and investor owned utilities in order to promote a competitive market. The Coalition argues that local governmental agencies and municipally owned utilities must be required to make their ROW and support structures accessible to CLCs on a nondiscriminatory basis if all California residents are to benefit from a competitive telecommunications market.

PU Code § 767.5(a)(1) excludes "publicly owned public utilities" from the definition of "public utility," such that the Commission does not have jurisdiction to set the pole attachment rates paid by cable television corporations to municipal utilities. In contrast, PU Code § 767 does not specify any such exclusion for "publicly owned public utilities." The Coalition infers therefore that the Commission has jurisdiction under § 767 to order "publicly owned" (i.e., municipal) public utilities to provide access to their ROW to telecommunications carriers, and to regulate the rates paid for such attachments, where public convenience and necessity so require.

The Coalition states that CLCs have encountered particular difficulty in attempting to gain access to ROW controlled by the California Department of Transportation (CalTrans), a state governmental agency which controls many of the most important ROW corridors (including major highways and "bottleneck" facilities like the San Francisco-Oakland Bay Bridge). The Coalition claims that CalTrans seems to have little or no awareness of the public utility status, rights, and needs of CLCs, or of the adverse impacts of delays in responding to CLC requests for information and access which can cause CLCs to lose potential customers. Streets and Highways Code § 671.5 requires CalTrans to either approve or deny an application for an encroachment permit within 60 days of receiving a completed application. Yet, the Coalition claims that CalTrans frequently fails to meet this time limit.

The Coalition asks the Commission to coordinate with the Governor's Office to urge CalTrans to respond, whenever possible, both sooner and more favorably within no more than 60 days to CLC requests for access to ROW, and to urge CalTrans to adopt a basic "working rule" or presumption that CLC requests for access to its ROW will be granted unless there is, in fact, inadequate space or unless public safety concerns require the request for access to be denied.

CCTA argues that the Commission is required by the California Constitution to exercise its jurisdiction consistent with federal law as provided in the Communications Act of 1934, as amended by the 1996 Act. (Cal. Const., art. III, § 1.) CCTA contends that § 253 of the Act requires a municipal government to manage the use of its public ROW by telecommunications providers on a competitively neutral and nondiscriminatory basis.

CCTA asks the Commission to render conclusions of law in this proceeding concerning limitations on fees that municipal or other governmental entities may charge for the access to their ROW and facilities by CLCs. CCTA asks the Commission to prohibit governments from attempting to circumvent the limitations on fees which a state or local governmental agency may charge under Article XIII A of the California Constitution. Enacted through Proposition 13, this provision restricts the ability of state and local governmental agencies to enact taxes without a two-thirds vote of the state legislature. CCTA asks the Commission not to permit local governments to attempt to "masquerade" a tax by labeling it a "fee." The Coalition argues that state law limits governmental fees to cost for access to the government's own ROW. If the fee charged exceeds actual cost, CCTA argues, the fee is considered to be a tax as a matter of law, and is subject to the cost limits of Article XIII A.

Regulatory fees cover the cost attributable to the government activity regulating the payor. Charges "levied for unrelated revenue purposes" or which exceed the cost of the regulatory activity are not fees but revenue-raising devices and hence taxes, according to CCTA (Beaumont 165 Cal. App. 3d at 234; United Business Comm. 91 Cal. App. 3d at 165).

Also excluded from special taxes are "user fees" which are charged for a service provided by the government to the fee payor. Typical examples include "developers' fees" charged as a condition of issuance of a building permit to cover costs of providing government benefits to the developed property.⁷ (Garrick Development Co. v. Hayward Unified School District (1992) 3 Cal. App. 4th 320 ("Garrick") [school facilities fee]; Bixel 216 Cal. App. 3d at 1216 [fire hydrant fee]; Beaumont 165 Cal. App. 3d at 231 [water system facility "hook-up" fee].)

CCTA argues that for exemption from Proposition 13, a user or development fee, like a regulatory fee,

"must not exceed the reasonable cost of providing the service for which the fee is charged, and the basis for determining the amount of fee allocated to the developer must bear a fair and reasonable relationship to the developer's benefit from the fee."

Pacific argues that while investor-owned utilities must provide access to any telecommunications carrier or cable television operator under § 224(f), municipal electric utilities are not included within the definition of "utilities" and therefore have no federal statutory duty to provide access at reasonable rates, terms, and conditions. Likewise, Pacific does not believe that municipal electric utilities are subject to the state statute governing attachments by cable television operators (PU Code § 767.5), or the statute requiring access to the facilities of one public utility by another public utility (PU Code § 767). Under the current legal and regulatory framework, therefore, Pacific claims that municipal electric utilities are free to deny access, or to impose onerous terms and conditions.

GTEC believes that both municipal and investor-owned electric utilities have the immediate potential to be formidable competitors in the telecommunications market. In addition, municipal utilities may enjoy other benefits not available to non-governmental providers such as the ability to raise capital tax-free in the public sector and the potential in some instances to regulate advantages for themselves over private utility competitors. Thus, GTEC argues that the rules that are established for the LEC/CLC relationship should be consistently applied to municipal and investor-owned electric utilities as well.

Comments were filed jointly by the League of California Cities, the Cities of Los Angeles, Sacramento, San Carlos, San Jose, Santa Monica, the City and County of San Francisco, and the San Mateo County Telecommunications Authority ("the Cities").⁸

The Cities argue that the Commission does not have jurisdiction over the management of public ROW owned or controlled by local governmental bodies. As owners of fee title to many of their streets and highways, the Cities argue that they have an interest in any development that increases the costs of maintaining their property or the intensity of its use by investor-owned utilities. The Cities claim that attempts of this Commission to assert ROW jurisdiction over them would interfere with their power to adopt and enforce regulations that balance the legitimate interests of utilities, consumers, property owners, and the traveling public.

The Cities deny that any PU Code Section can be cited to show that the Commission has any jurisdiction over local governments with respect to access to public ROW. The Cities argue, for example, that while certain limited authority is granted to telephone corporations under Section 7901 to construct facilities along public ROW subject to regulation by the cities, this authority does not confer any jurisdiction on the Commission. Likewise the Cities note that the siting authority granted to the Commission in Section 762 is in reference to public utilities, not local governmental bodies.

The Cities argue that the California Constitution expressly excludes from Commission jurisdiction, and expressly reserves to charter cities jurisdiction over municipal affairs relating to public utilities. Article XII, Section 8 states that a city "may not regulate matters over which the Legislature grants regulatory power to the Commission." However, this section "does not affect power over public utilities relating to the making and enforcement of police, sanitary and other regulations concerning municipal affairs pursuant to a city charter existing on October 10, 1911...." (Cal. Const. Art. XII, Sec. 8.) The Cities argue that power to regulate the manner of the use of city streets, such as access to public ROW, has traditionally fallen within the scope of cities' power over municipal affairs. (See, e.g., City of Walnut Creek v. Silveira (1957) 47 Cal.2d 804, 812; City of San Jose v. Lynch (1935) 4 Cal.2d 760, 764; Byrne v. Drain (1900) 127 Cal. 663, 667.)

The Cities further argue that the Legislature has specified that a city may not surrender to the Commission.

"[I]ts powers of control to supervise and regulate the relationship between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets, and the speed of common carriers operating within the limits of the municipal corporation." (PU Code § 2902 (emphasis added); see also PU Code § 2906.)

Thus, the Cities argue that they exclusively retain regulatory power over access to public ROW.

2. Discussion

We shall address separately the ROW access issues related to municipal utilities and to other local governmental bodies. We conclude that it is beyond the authority of this Commission to regulate municipally-owned utilities with respect to nondiscriminatory access to their poles, ducts, conduits, and ROW. In County of Inyo v. Pub. Util. Comm'n, 26 Cal.3d 154, 166 (1980), the California Supreme Court stated that under established doctrine, "[i]n the absence of legislation otherwise providing, the Commission's jurisdiction to regulate public utilities extends only to the regulation of privately-owned utilities." (citation omitted) "The commission has no jurisdiction over municipally-owned utilities unless expressly provided by statute." Id. Among other things, the court construed § 216, defining a "public utility" and § 241, defining a "water corporation" as not encompassing a municipally-owned utility.

In light of County of Inyo, § 767 of the PU Code - - which provides that, subject to certain conditions, the commission may require that a public utility provide access to its conduits, poles, and other facilities that are on, over, or under any street or highway, to another public utility - - pertains only to a privately-owned utility.

In § 767.5(a)(1), a "public utility" is specifically defined to "include [] any person, firm, or corporation, except a publicly owned public utility, which owns or controls, or in combination jointly owns or controls, support structures or rights-of-way used or useful, in whole or in part, for wire communications." The purpose of § 767.5 was to codify existing practice and to require investor-owned utilities to make available, as a public utility service to cable television corporations, the excess capacity or surplus space on their facilities for pole attachment. The Commission, in turn, was authorized to regulate the terms and conditions of such public utility service. The Legislature was careful not to broaden the scope of the Commission's then existing jurisdiction over public utilities, and so explicitly exempted publicly-owned public utilities from the scope of § 767.5.

In 1994, the Legislature enacted § 767.7 recognizing that the requirement that public utilities make available the excess capacity and surplus space on their facilities should apply not just to cable television corporations but to all telecommunications corporations. In explaining the purpose and intent of § 767.7, the Legislature distinguishes in § 767.7 (a)(2), between privately and publicly-owned utilities in discussing the practices of each, and recognizes that some utilities that have dedicated space on their support structures are "not under the jurisdiction of the commission."

In § 767.7 (a)(3), the Legislature continues to distinguish between "public utility" and "publicly owned utility" support structures, and to note that the use of the latter facilities by those seeking to install fiber optic cable is with the "voluntary permission of the publicly owned utility." Similarly, in § 767.7 (a)(4), the Legislature distinguishes "electric public utilities" and "publicly owned utilities" and finds that both types of utilities may access the fiber optic cables installed by telecommunications corporations to better serve their electric customers.

In § 767.7(b), the Legislature states its intent that "public utilities and publicly owned utilities be fairly and adequately compensated for the use of their rights of way and easements for the installation of fiber optic cable" and that electric utilities and publicly owned utilities have access to fiber optic cables for their own use. While some parties may read §§ 767.5 and 767.7 as an intent by the Legislature to narrow the commission's jurisdiction as if it previously extended to both publicly-owned and privately-owned utilities, in fact the opposite is true. In these sections, the Legislature has simply clarified that the Commission's previously-recognized jurisdiction with respect to only privately-owned facilities continues to apply.

Hence, the Commission lacks authority over a publicly-owned public utility's provision of access to its support structures or ROW to a telecommunications carrier. The publicly-owned public utility, however, must set just and reasonable terms for such access. A party that believes that the terms are not just and reasonable may pursue whatever remedies are available under laws directly governing publicly-owned public utilities. No remedy, however, appears to be available under federal law, which expressly exempts publicly-owned public utilities from the FCC's jurisdiction. ⁹

The Coalition argues that we can exert jurisdiction over publicly-owned municipal utilities by regulating the joint pole associations to which some municipal utilities belong. We believe that the relationships between joint pole association members and their access agreements for pole attachments warrant further scrutiny within the framework of our jurisdiction over the various members of such associations. We shall direct the ALJ to solicit further comments concerning the implications of joint pole associations attachment agreements as they relate to nondiscriminatory access.

The obligations of a city, county or other political subdivision's to provide access to ROW under its control is addressed under Part 3 of the PU Code. The Legislature has expressly recognized the duties and responsibilities of a "municipal corporation", and the ability of a municipal corporation to retain or surrender control of some of its powers to the Commission. Municipal corporations are expressly authorized not to surrender the power to supervise and regulate the relationship between such public utilities and the general public "in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets...." (Section 2902.)

In § 7901.1(a), the Legislature has further stated its intent, however, for local governmental bodies not to abuse their discretion or to arbitrarily or unfairly deny requests for access, but that "municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed." Under § 7901.1(b), the "control, to be reasonable, shall, at a minimum, be applied to all entities in an equivalent manner." Under § 7901.1(c), "[n]othing in this section shall add to or subtract from any existing authority with respect to the imposition of fees by municipalities." Article XI, § 9 of the California Constitution expressly recognizes the authority of a city to prescribe regulations governing persons or corporations that provide public utility service.

While local governments thus may regulate the time, location, and manner of installation of telephone facilities in public streets, they may not arbitrarily deny requests for access by public utilities in public roads or highways that are located within the rights of way. The PU Code recognizes the rights of telecommunications carriers to obtain reasonable access to public lands and ROW to engage in necessary construction. PU Code § 7901 states:

"Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters."

In addressing the Commission's role in relation to that of local governments with respect to ROW access, we believe it is appropriate to consider the general approach adopted in General Order ("GO") 159-A, (D.96-05-035), revising rules relating to the construction of cellular radiotelephone facilities in California. Recognizing local government's interest in cell siting locations and land use policies as well as the Commission's interest in promoting development of wireless technologies and its duty to protect ratepayers, the Commission ceded regulatory jurisdiction in circumstances where the local agency has a specific interest, yet recognized this Commission's obligation to protect the overriding state interests. GO 159-A, acknowledges that primary authority regarding cell siting issues belongs to local authorities. Local authorities continue to issue permits, oversee the California Environmental Quality Act ("CEQA") compliance, and adopt and implement noticing and public comment requirements, if any. In like manner, local agencies have an interest in managing local ROW and requiring compensation for the use of public ROW. The Commission, on the other hand, has an interest in removing barriers to open and competitive markets and in ensuring that there is recourse for actions which may violate state and federal laws regarding nondiscriminatory access and fair and reasonable compensation. Moreover, PU Code § 762 also authorizes this Commission to order the erection and to fix the site of facilities of a public utility where found necessary "to promote the security or convenience of its employees or the public...to secure adequate service or facilities...."

The statewide interest in promoting competition and the removal of barriers to entry and nondiscrimination are equally important with respect to both investor-owned utilities and municipally-owned ROW access rights. This is particularly true to the extent that many municipalities are themselves offering, or intending to offer, communications and cable television services, and thus, are or will become competitors to other providers of those services. Accordingly, the Commission shall intervene in disputes over municipal ROW access only when a party seeking ROW access contends that local action impedes statewide goals, or when local agencies contend that a carrier's actions are frustrating local interests. In this manner, the Commission reserves jurisdiction in those matters which are inconsistent with the overall statewide procompetitive objectives, and ensure that individual local government decisions do not adversely impact such statewide interests.

The Commission's authority shall be exercised in the following manner. In the event that a telecommunications carrier is unable to satisfactorily resolve a dispute with a local governmental body over the terms and conditions of access to a public ROW, we shall direct the carrier to file an application with this Commission seeking a certificate of public convenience and necessity for specific siting authority to gain access to the public ROW pursuant to Chapter 5 of the PU Code, "Certificates of Public Convenience and Necessity." We shall require that, prior to making such filing, the telecommunications carrier first make a good-faith effort to obtain all necessary local permits and to negotiate mutually acceptable terms of access with the local governmental body. In order to be processed, the application must provide a demonstration showing that this requirement has been met. We intend to limit our inquiry in such applications only to a consideration of whether the actions of the local governmental body impedes a statewide interest in the development of a competitive market. We shall require a showing as to what specific terms or conditions of access the CLC claims constitutes such an impediment, and what alternative the CLC proposes to remedy the matter.

We shall rule upon the requested authority sought in the application following an opportunity for interested parties, including the local governmental body, to respond or protest. In ruling upon such an application, any orders issued will be directed toward the telecommunications carrier pursuant to our jurisdiction over public utilities. We recognize that the Commission lacks the jurisdiction to directly order a local governmental body to grant access. In the event that we grant the siting authority sought in the application, it will be the responsibility of the telecommunications carrier to notify the local governmental body of the Commission's order. In the event that we grant such an application, and the local governmental body still refuses to grant access in accordance with the Commission order, the telecommunications carrier's recourse shall be to file a lawsuit in the appropriate court of civil jurisdiction seeking resolution of the dispute over access. The telecommunications carrier may use the Commission's order authorizing access in support of its case in civil court. We conclude that this procedure appropriately reconciles the respective roles of the Commission in relation to the cities in terms of resolving disputes with telecommunications carriers over access to public ROW.

We, here also acknowledge parties' concerns over ROW access difficulties with state agencies such as CalTrans. We shall seek to promote greater awareness by CalTrans of the importance of CLCs' accessibility to essential state-controlled ROW in the interests of California's legislative mandate to promote the development of a competitive telecommunications market and shall inform CalTrans that CLCs are telephone corporations with all the rights of the incumbent LECs. To that end, we shall serve a copy of this order on CalTrans.

H. Reciprocity of Rights-of-Way Access Between Incumbents and CLCs

1. Parties' Positions

As amended by the Act, 47 U.S.C. § 224(f)(1), requires a utility to grant telecommunications carriers and cable operators nondiscriminatory access to all poles, ducts, conduits, and ROW owned or controlled by the utility. A utility's rights under § 224(f)(1), however, do not extend to ILECs. ILECs are excluded from the definition of "telecommunications carriers" under 47 U.S.C. § 224(a)(5) which "operates to preclude the incumbent LEC from obtaining access to the facilities of other LECs." FCC Interconnection Order 1, ¶ 1157. The Coalition argues that therefore, under the Act, ILECs do not have a reciprocal right of access to the ROW and support structures of the CLCs, and that the Commission should adopt the same policy in interpreting California PU Code § 767. The Coalition claims that an ILEC's requests for reciprocal access rights could be the product of anticompetitive motives, made solely to disrupt the operations of a new market entrant that may not have the same range of alternative facilities as an incumbent utility has. Until the date when CLCs have extensive ROW and support structures of their own, the Coalition argues that the Commission should not require a reciprocal access policy.

Pacific contends that this exclusion could lead to irrational and unfair results, and that the Commission should continue to require reciprocal access in California. Under both federal and state law, investor-owned electric utilities are required to provide access to their facilities. Section 224, however, excludes the ILEC from the definition of "telecommunications carrier," and therefore permits an electric utility to unilaterally deny access to the ILEC, or charge unreasonable rates. Pacific views this policy as illogical and inequitable, and asks the Commission to continue to require all utilities to provide access under reasonable terms and conditions.

Pacific argues that reciprocal access among all utilities has long been required in California under PU Code § 767. Section 767 provides that, if public convenience and necessity requires the use of the conduits and other facilities of one public utility by another public utility, the Commission may order it and establish reasonable compensation.

GTEC disagrees with the Coalition's interpretation of Section 224(a)(5) of the Act. While Section 224(a)(5) excludes ILECs from the definition of a telecommunications carrier for purposes of this Section, GTEC argues, this simply means that the nondiscrimination provision does not apply to ILECs. GTEC does not interpret it to mean that ILECs can completely be denied access to CLC facilities and ROW, for this would be at odds with the requirements of Section 251(b)(4).

GTEC notes that Section 251(b)(4) states that all LECs, not merely incumbent LECs, have the duty to afford access to the poles, ducts, conduits, and ROW of such carriers to competing providers of telecommunications service on rates, terms, and conditions that are consistent with Section 224.

2. Discussion

As a practical matter, we expect that CLCs will need access to the support structures and ROW of incumbent utilities on a much greater scale than incumbents will need access to CLC facilities. Nonetheless, the general provisions of PU Code § 767 relating to reciprocal access of utility support structures and ROW apply to all public utilities, independently of any reciprocal requirements under the Act. Consistent with the requirements of PU Code § 767, a CLC or an electric utility may not arbitrarily deny an ILEC's request for access to its facilities or engage in discrimination among carriers. We believe that the rules for access which we adopt herein should be applied evenhandedly among the ILECs and CLCs, and shall make our ROW access rules reciprocal. Nonetheless, we expect any requests for access by an incumbent utility to be made in good faith, and to take into account the limited resources of new CLCs to accommodate requests for access to their own facilities.