Decision 98-10-058 October 22, 1998

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Order Instituting Rulemaking on the Commission's Own Motion Into Competition for Local Exchange Service.	R.95-04-043 (Filed April 26, 1995)
Order Instituting Investigation on the Commission's Own Motion Into Competition for Local Exchange Service.	I.95-04-044 (Filed April 26, 1995)

O P I N I O N

By this decision, we take a further significant step in our program to open the local exchange market within California to competition. We adopt rules herein governing the nondiscriminatory access to the poles, ducts, conduits, and rights-of-way (ROW) applicable to all competitive local carriers (CLCs) competing in the local exchange market within the service territories of the large and midsized incumbent local exchange carriers (ILECs): Pacific Bell (Pacific) and GTE California Incorporated (GTEC), Roseville Telephone Company (RTC) and Citizens Telecommunications Company of California (CTC). In order for broadly available facilities-based competition to succeed, CLCs need access to the poles, ducts, conduits, and ROW, owned not only by the ILECs, but those owned by other entities controlling essential ROW including electric utilities and by local governments. The rules adopted herein shall apply to the major investor-owned electric utilities¹ as well as to the above-referenced ILECs. The obligations of the ILECs and electric utilities to provide nondiscriminatory access to CLCs shall also extend to cable companies. Thus, our rules shall apply uniformly, without the need to distinguish whether a given attachment is used to provide cable television, as opposed to telecommunications services. We also address herein ROW access issues relating to municipal utilities and local governments. At this time, we shall not apply these rules to other categories of investor-owned public utilities such as gas, water, or steam utilities. We will consider expanding the scope of the rules at a later time to cover additional classes of utilities.

I. Procedural Background

We establish rules herein regarding ROW access as a crucial part of our continuing program to facilitate the emergence of robust competition for local exchange service within California. We solicited initial comments on proposed rules for access to ROW among telecommunications carriers in conjunction with the initiation of local exchange competition in the incumbent territories of Pacific and GTEC in Phase II of this proceeding. In Decision (D.) 96-02-072, in response to Phase II comments, we concluded that parties had raised a number of complex issues relating to ROW access which were important but which could not readily be resolved at that time. We directed carriers to negotiate any necessary ROW access requirements through contract on a case-by-case basis as an interim measure and stated our intention to further consider the need to define carriers' ROW access rights through a combination of workshops and written pleadings. In the event parties could not reach agreement, we directed them to file complaints for prompt resolution. By Rule 12 in Appendix E of D.96-02-072, we directed that "LECs and CLCs may mutually negotiate access to and charge for right-of-way, conduits, pole attachments, and building entrance facilities on a nondiscriminatory basis."

By ruling dated March 28, 1996, the need for further rules governing access to ROW was designated among the matters to be addressed in Phase III of this proceeding. The record on this issue was developed through written comments and technical workshops. No evidentiary hearings have been held. An initial workshop was held on April 8, 1996, addressing provisions for ROW access among telecommunications carriers. Workshop participants agreed that telecommunications ROW issues also impact municipal and investor-owned electric utilities, and that notice of subsequent proceedings on this issue should be provided to such utilities. A ruling subsequently was prepared on May 30, 1996, setting forth the issues identified by the workshop participants, and was served on the major investor-owned and municipal electric utilities in California with an invitation to participate in a further workshop.

A second ROW workshop on June 17, 1996, which included representatives of municipal and investor-owned electric utilities, provided participants an opportunity to discuss and to further define the relevant ROW issues to be addressed through subsequent written comments. Based on the input from the workshops, a list of issues was prepared by the assigned Administrative Law Judge (ALJ) and submitted for comments by ruling dated September 10, 1996. Opening comments were received on October 22, 1996, with reply comments on November 13, 1996. Comments were filed by the large and mid-sized ILECs, a group of small ILECs,² by the major California electric utilities,³ by a group of CLCs known as the California Rights-of-Way Coalition (Coalition),⁴ by the California Cable Television Association (CCTA) and by AT&T Wireless Services, Inc. (AWS).

Although various municipal electric utility and certain local government entities were provided notice of the workshops held in this proceeding and were provided the opportunity to file comments, none chose to comment.

An initial draft decision of the assigned Administrative Law Judge was mailed to parties of record on March 30, 1998 for comment. Although evidentiary hearings were not held in this matter requiring that a proposed decision be served on parties for comment, the assigned Commissioner determined that an opportunity for comments was appropriate. Opening comments were filed on May 7 and reply comments were filed on May 18, 1998. In addition to the parties previously filing comments, certain new parties filed comments. A revised version of the draft decision was served on parties of record on July 7, 1998, soliciting additional comments from parties. The revised draft decision was also served on The League of California Cities and various other local governments throughout California, providing them with the opportunity to comment on the Commission's jurisdiction with respect to telecommunications carriers' access to the ROW of local governments. Opening comments on the revised draft decision were filed on July 24, 1998, with replies filed on July 31, 1998. We have reviewed parties' comments and taken them into account, as appropriate, in finalizing this order.