3. Commission Jurisdiction
The Public Utilities Code establishes that safety issues may be subject to Commission regulation. According to Public Utilities Code Section 451, "[e]very public utility shall furnish and maintain such adequate, efficient, just, and reasonable service, instrumentalities, equipment, and facilities ... as are necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public." The Commission is obligated to see that such statutory provisions affecting public utilities are enforced and obeyed. (Pub. Util. Code § 2101.) Public Utilities Code Section 761 instructs this Commission to promulgate rules for utilities when safety so requires.
Some parties to this proceeding contend that federal law and regulations may constrain our authority to address certain safety issues. According to wireless carriers, the Commission was precluded from adopting many of the rules in the prior Proposed Decision, because "regulation of telecommunications facilities based on the potential health effects of RF emissions is subject to federal, rather than state[,] jurisdiction."2 We, however, do not need to address these jurisdictional issues in this decision. The parts of proposed Rule 94 that raised the most significant preemption issues (RF-related signage and methods of de-energizing antennas) now are addressed by the settlement agreement. The settlement agreement, therefore, moots these jurisdictional issues.3
2 Verizon Wireless and Cingular Opening Comments, at 2 (capitalization altered). Specifically, Verizon and Cingular argued that the Commission was precluded from adopting rules in the prior Proposed Decision for the following three reasons: (1) Section 332(c) of the Communications Act expressly preempts RF-based rules; (2) FCC regulation regarding the health effects of RF emissions occupies the field, precluding any additional state regulation; and (3) even if the proposed rules were not expressly preempted by statute and the FCC had not occupied the field, adoption of the proposed rules would conflict with federal policy. Id. at i.
3 Although the wireless carriers focused their preemption arguments on proposed signage and power-down requirements, Verizon Wireless and Cingular briefly noted that proposed clearance requirements also "appear[] to be based on concerns regarding RF exposure." Id. at 6, n.27 (citing exhibits that noted a potential connection between the clearances and RF exposure). The decision we adopt today, however, makes it clear that Rule 94 vertical clearance requirements are based upon concerns regarding electric shock - not RF exposure. Thus, the wireless carriers' preemption arguments do not apply to the vertical clearance requirements adopted in this decision.
