6. Appeal of Presiding Officer's Decision

On February 8, 2001, Pacific filed an appeal of the Presiding Officer's Decision in this matter. Pacific states that the decision contains factual and legal error by concluding that (1) Pacific was responsible for maintaining the utility rail to which Pacific's lines were attached, and (2) Pacific's tariffs did not apply to conversion to buried cable in this case. Pacific misstates the findings of the decision.

The decision does not find that Pacific was responsible for maintaining the utility rail. It finds that Pacific, pursuant to Pub. Util. Code § 451, had the responsibility to "furnish and maintain" its telephone facilities in a safe manner, and that it had not done so here. Pacific does not deny that the sprawl of cable and wires behind mobile units 1 through 11 presented a safety hazard. It argues instead that it has no responsibility to correct the safety hazard because the park owner did not repair a fence. We are aware of no such limitation on a utility's obligation to maintain its facilities in a manner that does not present a safety hazard.

How Pacific was to eliminate the safety hazard is another matter. Pacific suggests that if the park owner fixed the fence, then Pacific would again staple its cable to the fence. That suggestion contradicts Pacific testimony that such juryrigged installations are no longer permitted. Moreover, Pacific does not explain how the park owner could replace the fence without tampering with the cable and lines, which Pacific forbids.

A more sensible solution would have been for Pacific to have placed its facilities underground, and that is what it did (without charge to the park owner) for exposed wires behind units 12 through 16. Pacific could have done the same thing behind units 1 through 11. If Pacific then felt that it had a claim against the park owner for cost of the work, it could have pursued that claim in court.

Instead, Pacific chose to do nothing. That put it in the awkward position in this complaint case of asking the Commission to find, in effect, that Pacific had no responsibility for maintaining its cable and wire arrangement in a safe manner. Such a finding is not sensible, nor does it conform to Pub. Util. Code § 451.

Pacific also argues that while Tariff Rules 16 and 32 may not be applicable here because they deal with "aerial" facilities, other tariff rules without the aerial connotation require an owner to pay the cost of placing telephone facilities underground. The evidence shows, however, that Rules 16 and 32 were the ones upon which Pacific relied for its inaction in its dealings with the park owner. As the presiding officer found, the facts and circumstances of this case do not fit comfortably within any of the tariff rules cited by Pacific, and none of them excuse Pacific's failure to correct a safety hazard involving its equipment and facilities.

Accordingly, we affirm the decision of the Presiding Officer without change, and our order today denies Pacific's appeal.

Findings of Fact

1. Flamingo has spaces for 92 coaches, with 59 of the units created in the mid-1950s and the other 33 spaces added in 1962.

2. All but the first 16 units are served by underground telephone conduit.

3. For the first 16 units, Pacific in the mid-1950s stapled distribution cable and service connection wire to a 3-foot-high wooden utility rail that stretched for 600 feet behind the 16 units.

4. About 50% of the utility rail has deteriorated, and cable has fallen to the ground or dangles between pieces of the rail.

5. Pacific until 1999 refused to place the cable and wire underground behind units 1 through 16 unless Flamingo paid for the cost of doing so.

6. When a service line at unit 15 or 16 failed in 1999, Pacific put in a temporary line and later did permanent undergrounding of lines serving units 12 through 16 at no cost to Flamingo.

7. Cost of the underground work at units 12 through 16 was approximately $2,300; estimated cost of the underground work for units 1 through 11 is $26,000.

8. The evidence shows that the utility rail at issue most likely was installed by Flamingo at the time the park was originally built.

9. The evidence shows that Pacific elected to staple cable and connection lines to the utility rail rather than install telephone poles or underground pipe.

10. Under Pub. Util. Code § 451, Pacific is required to maintain its installations in a safe and reasonable manner.

Conclusions of Law

1. 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.

2. Complainant has established a prima facie violation by Pacific of Pub. Util. Code § 451.

3. Tariff Rules 16 and 32 apply to aerial installations, not to installations on a 3-foot-high utility rail.

4. Pacific should be directed to place cable and lines at units 1 through 11 underground in the same manner that Pacific has done for lines at units 12 through 16, at no charge to Flamingo.

5. This order should be made effective immediately so that telephone line conditions behind units 1 through 11 can be remedied promptly.

6. The scope of this proceeding is set forth in the complaint and answer; ALJ Walker is designated as the presiding officer.

7. Pacific's appeal of the Presiding Officer's Decision should be denied.

ORDER

IT IS ORDERED that:

1. The Commission finds for Flamingo Mobile Lodge (Flamingo) in its complaint against Pacific Bell (Pacific) in Case 00-05-055.

2. Within 90 days of the date of this order, without charge to Flamingo, Pacific is directed to place underground its cable and lines behind Flamingo coach units 1 through 11 in the same manner that Pacific earlier had converted the telephone wires serving coach units 12 through 16.

3. Pacific's appeal of the Presiding Officer's Decision is denied.

4. Case 00-05-055 is closed.

This order is effective today.

Dated March 27, 2001, at San Francisco, California.

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