5. Discussion

As Pacific correctly points out, Pub. Util. Code § 1702 places the burden on complainant to prove by a preponderance of evidence that the utility violated a law, rule, Commission order, or tariff in order to prevail on a complaint. Pacific argues that Flamingo has identified no law, rule, Commission order or tariff that has been violated.

However, there is no question that Flamingo has shown that the dropped and hanging lines behind units 1 through 11 present a safety hazard. The evidence shows that a resident tripped over wires behind unit 5 and has brought legal action against both Flamingo and Pacific. Exhibits 1 and 2 show spaghetti-like wires streaming from the ground in an exposed access point behind unit 11. Pacific admits that it installed the access point without encasing it in a metal pedestal, which is the standard practice. Pacific's witness explained that the access point has been left exposed for more than a year because the utility did not want to spend the money to encase it pending a decision in this case or in the request for conversion.

Flamingo further has shown that many of the exposed lines and cable are present in open walkway areas or in areas where residents and their guests are likely to stroll or garden.

The evidence presented by Flamingo at a minimum states a cause of action under Pub. Util. Code § 451. Section 451 provides, in pertinent part:

"Every public utility shall furnish and maintain such adequate, efficient, just, and reasonable service, instrumentalities, equipment, and facilities, including telephone facilities, as defined in Section 54.1 of the Civil Code, as are necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public." (Emphasis added.)

Pacific claims that its tariffs preclude the requested underground installation unless Flamingo pays the cost. As has been shown, however, despite the tariffs, Pacific felt free to exercise its discretion in performing similar work behind units 12 through 16 without charge to the property owner.

Moreover, the tariffs upon which Pacific relies are not dispositive in the situation here. Tariff Rule 16 obviously applies to an aerial connection of a service wire from a telephone pole to the roof or other point of a building, not from a 3-foot-high utility rail. To the extent that Pacific claims that it would reattach its lines to a repaired fence, that assertion contradicts Pacific's testimony that the utility no longer sanctions such an installation.

Tariff Rule 32 applies to replacement of "aerial" with underground facilities. Yet Pacific's witness acknowledged that the accepted meaning of "aerial" is overhead cable and lines, not cable and lines on a 3-foot-high utility rail. The latter, he said, is best described as "above-ground" rather than "aerial." He added that in 22 years of work in this area, he had never before encountered a situation where telephone lines stretched from a utility rail to a residence in the manner found here.

It is clear from the testimony of Pacific's own witnesses that the utility rail installation at issue here is one that does not fit comfortably in any of the tariffs cited by Pacific as authority for its inaction.

Finally, the evidence establishes that Pacific knew or should have known that telephone cable and lines lying on the ground or stretched at knee level between deteriorating posts constituted an unsafe and unreasonable facility. While it seems likely on this record that Flamingo, not Pacific, installed the utility rail, it nevertheless was Pacific that elected to staple cable and lines to the rail, in a practice long since discontinued. It was Pacific that was statutorily charged then and now with the responsibility of ensuring that its installation was safe and reasonable. Pacific crews and engineers have visited the site many times, observing the deteriorated facility behind units 1 through 16. Yet, Pacific did nothing to correct the situation until 1999, when it placed some of the lines underground at units 12 through 16.

In summary, Pacific has not fulfilled its duty to ensure the safe and adequate installation of telephone lines at units 1 through 11 on Flamingo's property. Accordingly, this decision finds for complainant. Pursuant to Pub. Util. Code §§ 761 and 768, we direct Pacific without charge to the property owner to convert telephone cable and wires behind units 1 through 11 to an underground status in the same manner that Pacific earlier had converted the telephone wires serving units 12 through 16.

The scope of this proceeding is set forth in the complaint and answer. Our order today confirms that ALJ Walker is the presiding officer.