VIII. Capacity Expansion, and Modification, and Reclammation

A. Parties' Positions

An issue which is closely related to reservation of capacity is that of expansion or modification of existing capacity to accommodate third party carriers' requests for access or to accommodate the incumbent utility's needs for existing space which is being used by an attaching carrier. If there is no available space on a given utility facility for which access is requested, it may become necessary to expand or rearrange the existing facility to make room for a new attachment. The principle of nondiscrimination set forth in § 224(f)(1) requires that a utility cannot simply deny requests for access on the basis that no space is available without first seeking to accommodate the request through modification of existing facilities or expansion of existing capacity for telecommunications carriers just as it would to meet its own needs for growth.

Pacific and PG&E believe that the party or parties for whose benefit special modifications to facilities are made should assume the cost of the modifications including the cost of rearranging the facilities of parties not participating in the modification. GTEC believes the carriers which require the capacity should incur the expense of new construction once capacity is exhausted. Because of the many variables associated with expanding capacity, GTEC believes no minimum time frames should be set for completion of the expansion. Alternatively, if minimum time frames are to be established, GTEC proposes that a CLC which desired to further expedite the process should be required to pay any extra charges associated with the escalation.

The Coalition proposes that the costs of support structure capacity expansion and other modifications, including joint trenching, be shared by parties attaching to utility support structures according to the principles set forth in the FCC Rules (First Report Secs. 1161-1164; 1193-1216). Under the FCC rules, parties must bear their proportionate share of the cost of a modification to the extent that the modification is made for the specific benefit of the participating parties.

As a general principle, the Coalition believes that the proportionate share of cost assigned to each carrier should correspond to the proportion of total usable capacity used by that carrier. In the case of joint trenching costs, however, the Coalition argues this approach may not always be appropriate in the case of electric utilities. Due to safety considerations, trenching and installation of conduit for the placement of underground gas pipelines and electric conductors is more elaborate than for direct burial or placement of conduit wire for communications facilities. A deeper and wider trench is required for power utilities' conduits or pipelines. The different requirements for underground placement of power utilities' facilities result in higher costs being incurred than would be the case if only communications facilities were involved. The Coalition argues that telecommunications carriers should not have to pay more than the costs they would have incurred, based on an independent bid, had they done their own trenching for their own facilities.

Under the FCC rules, written notification of a modification is required at least 60 days prior to the commencement of the physical modification itself, absent a private agreement to the contrary. The Coalition proposes this Commission adopt the FCC notification requirement. Notice is to be specific enough to apprise the recipient of the nature and scope of the planned modification. The notice requirement would not apply if the modification involved an emergency situation.

GTEC would support a type of simple voluntary notification plan, much like a docket service list, to notify companies of joint trench work, with most carriers agreeing to participate in view of the cost savings. GTEC does not believe ILECs should be placed in the position of being the sole coordinators of such functions for the industry.

B. Discussion

In the interest of promoting a competitive market, our preferred approach to meeting needs for new capacity is through expansion or rearrangement of existing capacity rather than through reclamation and eviction of a CLC currently occupying space on an attachment or in conduit. We shall require that the costs of capacity expansion and other modifications, including joint trenching, be shared among only those parties specifically benefiting from the modifications on a proportionate basis corresponding to the share of new usable space taken up by each benefiting carrier. In the event an energy utility incurs additional costs for trenching and installation of conduit due to safety or reliability requirements which are more elaborate than a telecommunications-only trench, the telecommunications carriers should not pay more than they would have incurred for their own independent trench. Likewise, electric utilities should not bear the cost of modifications which benefit only telecommunications carriers.

In the case where an incumbent utility (either ILEC or electric) has need of existing space which is being occupied by the equipment of attaching CLCs, we shall require that the incumbent utility first give the option to the attaching CLCs to pay for the costs of rearrangements or expansions necessary to maintain their attachment. In order to justify a reclamation of existing space, the incumbent utility must justify that the space is reasonably and specifically needed to serve its customers. Electric utilities must show the space is needed to serve core electric utility service. The incumbent utility must also show that there are no other cost effective feasible solutions to meet its needs, or there are no technological means of increasing capacity of the support structure for additional attachments. The incumbent utility must also show that it has attempted to negotiate a cooperative solution to the capacity problem in good faith with the party being evicted from the incumbent's pole or conduit.

We shall permit incumbent utilities to reclaim space in cases where they have met the above conditions, and in addition where some or all of the attaching parties have refused to pay the costs of rearrangements necessary to maintain their pole attachment or use of conduit. In the latter case, the attaching parties shall be required to promptly remove their telecommunications equipment from the attachment at their own expense subject to the restrictions described below. This approach is consistent with prescriptions of PU Code § 767.5 (d) with respect to the treatment of cable television attachments.

We remind CLCs, however, that all carriers have an obligation to complete the calls of their customers, even if they disagree with the underlying interconnection arrangements, as prescribed in D.97-11-024. Therefore, even in the event a CLC is notified by the incumbent utility of its intention to reclaim space currently occupied by the CLC's equipment, the CLC still has a primary obligation to ensure the service continuity of its customers. If continuation of the use of the incumbent's space is no longer feasible, the CLC is obliged to find other means to provide uninterrupted service to its customers before removing its equipment from the incumbent's space.

In the event of disputes over reclamation of space and displacement of a CLC, we shall require that the incumbent shall not displace the CLC without first notifying the Commission and obtaining authorization to do so. We shall permit parties to use our dispute resolution procedure to resolve disputes over CLC displacements due to reclamation of space. In resolving any dispute, we shall place the burden of proof on the ILEC or electric utility to show whether the incumbent has adequately satisfied the prerequisites for reclamation, as described above. Nonetheless, irrespective of the disposition of any disputes concerning forced displacement of CLC equipment due to reclamation, the primary service obligation remains with the CLC whose customers are potentially affected by a displacement. Any order of this Commission granting the incumbent utility the right to reclaim space must contain a plan for continued telecommunications service to affected end-users of the CLC.

We shall adopt an advance notice requirement of at least 60 days prior to the commencement of a physical modification, except in the case of emergencies where shorter notice may be necessary.