V. Obligations to Respond to Requests Concerning Facility Availability and Requests for Access

A. Parties' Positions

The parties are in dispute over how quickly the incumbent utility should respond (1) to initial inquiries from CLCs concerning the availability of space for attachments and (2) to follow-up requests seeking specific attachments.

The Coalition believes that standard time frames should be imposed for requiring ILECs and electric utilities to provide responses to a CLC inquiring about the availability of conduit or poles. The Coalition proposes that the time frames which were previously incorporated into an agreement between Pacific and AT&T should be applied as a general rule for all parties. Under the terms of this agreement, the ILEC or electric utility would provide information regarding the availability of conduit or poles within 10 business days of receiving a written request. And within 20 business days, if a field-based survey of availability is required.

If the written request sought information about the availability of more than five miles of conduit, or more than 500 poles, the incumbent utility would (1) provide an initial response within 10 business days; (2) use reasonable best efforts to complete its response within 30 business days; and (3) if the parties were unable to agree upon a longer time period for response, the incumbent utility would hire outside contractors, at the expense of the requesting party. Before proceeding with such outside hiring, however, the incumbent utility would notify the requesting party of the contractor's expected charge. If the incumbent utility provided an affirmative response to the request for space, access would essentially be granted immediately. If, however, "make-ready work" ¹² were necessary, the incumbent utility would complete the make-ready work at a reasonable cost, generally within 30 business days. If a longer time period were required, the parties could either agree upon such longer period, or, failing that, the outside contractors would be hired by the requesting party at its expense.

The Coalition believes that the time allotted to an incumbent utility for granting access to a CLC should not exceed 45 calendar days (alternatively, 30 business days). The Coalition proposes that make-ready work be required to commence within no more than 15 days after a utility has determined that additional attachments can be accommodated through rearrangements of existing facilities, and to be completed within 30 days, absent special circumstances. Where unusually extensive make-ready work is required, the Coalition believes that the attaching and utility parties should be able to agree on an appropriate period for completing all make-ready work, not to exceed 60 days unless parties agree otherwise. If the attaching-party and utility-party could not agree on the amount of time or cost required for make-ready work, the attaching-party would be allowed to use a qualified third-party contractor to do the make-ready work, subject to utility supervision, if the attaching-party is satisfied with the contractor's estimates of the time required and the cost of the project.

Pacific is willing to provide information for general planning purposes, but believes the amount of information requested at one time should be limited. In most cases, Pacific believes it would be an inefficient use of resources to require responses within 10 or 20 days for general requests for information. Moreover, in some cases the information is also available from public sources such as the County Assessor's office. Pacific seeks flexibility to negotiate a reasonable response time with each requesting party on a case-by-case basis, and expresses concern about its ability to comply with rigid response time frames in light of the possibility of simultaneous requests by multiple parties.

GTEC believes that no particular time period should be established for responding to a request because the amount of time required to respond to an applicant's inquiry will vary widely based on numerous factors. As an alternative to a set response time for all requests, GTEC proposes to provide the requesting carrier with a status report as to the availability, if certain information cannot be supplied in less than 45 days, with completion of the request or further status update within 15 days thereafter. To facilitate a shortened response time, GTEC states that a CLC's request should be framed to generate information for a specific point-to-point location, rather than general requests.

Depending on the required amount of "make-ready" and rearrangement work, GTEC believes that 30-to-60 additional days may be required after availability is confirmed for releasing the requested space to a CLC so that it may install its facilities. GTEC does not believe that response times should be differentiated based merely on whether a project involves more than five miles or 500 poles, but that other factors, such as the placement of poles on private or inaccessible property, may be much more significant in determining the time required for review. If space is available, no make-ready work is required, and the requesting CLC is next on the first-come-first-served list for the space in question, then GTEC agrees to grant access immediately.

GTEC states that the requesting CLC should also complete a "Pole Attachment Request and/or a Conduit Occupancy Request" in order to establish the CLC on a first-come-first-served list for the facilities in question. CLCs and GTEC would need to negotiate an agreement specifying the terms and conditions of the pole attachment or conduit occupancy. Once an agreement is entered into, its terms and conditions would automatically apply to all future requests, unless otherwise agreed.

PG&E recommends that the Commission not adopt any specific time limit for responding to an applicant's request for information about space availability because of the diversity of requests involved. PG&E proposes that a request for access not be deemed made until the telecommunications carrier has provided a specific request, identifying each support structure it wishes to connect to and providing complete field information for the structure and accurate, complete engineering studies for the telecommunications facilities on the structure, including windloading, vertical loading and bending moment. PG&E argues that the utility not be obligated to respond to the request for access until the telecommunications carrier has made advance payment for the utility's engineering work.

PG&E sees no reason to burden an electric utility with requirements to respond to general requests for information by telecommunications carriers. PG&E believes telecommunication requests should in no case be given priority ahead of other types of essential electric utility work or governmental work such as municipal street widening projects.

Based upon their experience in processing access requests, Edison and SDG&E claim the utility needs at least 45 days to review drawings and specifications and complete a field survey to determine space availability. If the utility must also determine if existing property rights are sufficient to permit third-party access (which sometimes involves locating records a century old), Edison and SDG&E argue that the utility needs additional time for review, with the flexibility to extend the processing time if an emergency condition exists, if the request is unusually large or complex, or if the volume of requests exceeds normal workload levels. Edison and SDG&E also oppose a requirement that all make-ready work be completed within 30 days of an access request, arguing that the amount of work to be done to make facilities ready will vary depending on the type, location, and number of affected facilities.

B. Discussion

We agree that, given the varying degrees of complexity and geographic coverage involved in requests for information, there is no single standard length of time for responses which will fit all situations. The rigid enforcement of response times which bear no relationship to the scope or complexity of a given request could impose unreasonable burdens or inefficient use of resources on the incumbent utility. On the other hand, if no standard for response times is imposed, there will be little incentive for incumbent utilities to provide timely information. The CLC could be faced with unreasonable delays in receiving information if the utility's response time obligations were open-ended, and there were no performance standards against which to hold the utility responsible. Such delay could impede the ability of the CLC to enter the market or expand its operations to compete efficiently.

Given our findings above that the incumbent utilities hold an advantage in negotiations, it is, therefore, appropriate to adopt standards for response times to be used as guidelines in negotiations. While the incumbent utilities objected to setting standard deadlines for responding to requests for information, the adoption of such guidelines will help to promote greater parity in the bargaining power of CLCs relative to incumbents. At this time, we shall prescribe standard response times only for the two large ILECs, Pacific, and GTEC, since the record is insufficient to apply a specified response time to other utilities. We reserve the right to prescribe standardized response times for electric or other utilities at a later time based upon further development of the record. In the interim, we shall direct that all utilities must provide responses on a good faith basis as promptly as the conditions of each request permit. The ILECs' response time shall be considered presumptively reasonable if it falls within our adopted standard.

These guidelines for response times are not intended to preclude the parties from exercising flexibility in negotiations to tailor the time frames for providing requested information and confirming availability of access to the specific demands of each situation. Rather, the purpose of the guidelines is to discipline the negotiation process and promote more equal bargaining strength between incumbent utilities and CLCs. In the event of a dispute brought to us for resolution, we shall consider these guidelines as a starting point for evaluating parties' claims. The response time guidelines are to be used in good faith in the negotiation process. Where it is clear that the response time guidelines are not realistic for a particular situation, we expect the parties to negotiate their own mutually agreeable response times. In particular cases, either a shorter or a longer response time may be appropriate. The guidelines are not to be used as a license to demand unreasonable or unrealistic response times. We shall take a dim view of any such behavior in adjudicating any disputes that come before us. We may consider modifying or refining these adopted response time guidelines at a later date if subsequent experience of negotiations or resolved disputes provide a basis to do so.

As a preliminary step in preparing an initial inquiry regarding the availability of space, the CLC should meet and confer with the incumbent utility to help clarify and focus the scope of the request in order to make the most efficient use of the incumbent's time and resources in responding to the request. In some cases, a CLC may find it more efficient to obtain certain information from public sources instead of relying on the incumbent utility. In the event that parties are unable to agree on the terms for response time for information requested of the utility, they may bring the dispute before the Commission using the dispute resolution procedure outlined below. The incumbent utility shall have the burden of proving in such disputes why it cannot meet the requested response time, and of showing what time frame for a response is appropriate. It shall not be sufficient for the incumbent utility merely to argue for an open-ended period to respond, with no established deadline.

In setting a deadline for Pacific's and GTEC's responding to CLC general requests for information concerning ROW access, we shall adopt as guidelines the time frames proposed by the Coalition and CCTA. The Coalition's and CCTA's proposed time frames reflect the actual time frames which were mutually agreed to by Pacific and AT&T as reasonable and workable between themselves. We find no reason why these time frames should not be applied generally for Pacific and GTEC.

We shall adopt the following guidelines for response time for Pacific and GTEC based on the previously referenced Pacific/AT&T agreement. For initial requests concerning the general availability of space shall not exceed 10 business days if no field survey is required, and shall not exceed 20 business days if a field-based survey of support structures is required. In the event that more than 500 poles or 5 miles of conduit are involved, the response time shall be subject to negotiations between the carriers involved. We recognize that there may be situations involving fewer than 500 poles or 5 miles of conduit which still involve considerable complexity and require more time than provided for in the adopted guidelines. We expect parties to take into account the time and complexity involved in negotiating response times. In the event parties cannot agree, they may submit the matter to the Commission for resolution.

In the event that a telecommunications carrier decides after the initial response concerning availability that it wishes to use the incumbent utility's space, the telecommunications carrier must so notify the incumbent in writing. The telecommunications carrier must provide sufficient detail to identify each support structure to which it wishes to connect. In order to finalize its written request, the telecommunications carrier should contact the incumbent utility to arrange for completion of any necessary preliminary engineering studies for the telecommunications facilities on the structure, including windloading, vertical loading, and bending moment. Pacific and GTEC will be required to respond to the telecommunications carrier within 45 days after receipt of the written request, with a list of the rearrangements or changes required to accommodate the carrier's facilities, and an estimate of the utility's portion of the rearrangements or changes.

We agree that the electric utilities should not compromise their primary obligations to serve their own customers in the process of complying with telecommunications carriers' requests for information or for ROW access. In the event a carriers and an electric utilities cannot agree to a response date and the dispute is submitted to the Commission for resolution, the burden shall be on the electric utility, to identify any alleged essential utility work which it claims as the cause of its delay in responding.