7. Settlement Agreement
On August 23, 2006, 16 parties filed a settlement agreement in which the parties agreed to support a new Rule 94 that would be identical to Proposal 1, with the exception of two provisions (additional signage for antennas and methods of de-energizing antennas). The settlement agreement resolves all disputed issues related to the two provisions in the proposed Rule 94, and requires signing parties to meet similar requirements via the settlement. The proposed settlement is endorsed by virtually all parties, and no party opposes it. This settlement agreement is attached to this decision as part of Appendix 1.
7.1 New Rule 94
The new Rule 94 endorsed by the settling parties is set forth in its entirety and attached to this decision as Appendix 1. We note that the new Rule clearly defines antennas at issue; treats antennas as Class C equipment, thereby establishing many construction requirements; provides additional vertical clearances from other conductors and equipment; maintains vertical clearances from the ground; and requires a sign for each antenna installation marked with the contact information of the antenna operator.
7.1.1 Marking of an Antenna Operator's Contact
Information
The settlement agreement endorses marking requirements found in Proposal 1. The marking requirements include the identity of the antenna operator, a 24-hour contact number for emergencies and information, and a unique identifier for the antenna installation. George Lindsey, a PG&E lineman testifying on behalf of IBEW, explained that such contact information would be helpful to him as lineman, because he would be able to get more information about the antenna. (Exhibit 9, at 3.)
Proposal 2, supported by SCE and the Wireless Group, did not contain this marking requirement. However, at the evidentiary hearing on February 7, 2006, Nick Selby, appearing for Sprint Nextel, clarified that SCE and the Wireless Group do not oppose Rule 94.5 of Proposal 1.10 Thereafter, no party opposed the Rule 94.5 marking requirement.
We find that this marking requirement will help ensure that linemen will be able to coordinate operations effectively with antenna operators. We, therefore, conclude that it is appropriate to follow the recommendation of the settlement agreement and include a marking requirement in Rule 94.
7.1.2 Vertical Clearance Levels
The settlement agreement endorses clearance requirements found in Proposal 1. Proposal 1 specifies a 6-foot vertical clearance requirement between antennas and supply conductors, including supporting elements of the equipment.11
During evidentiary hearings, CPSD witness Fugere and three experienced linemen - Greg Walters of SDG&E, George Lindsey of IBEW, and PG&E witness Marc Brock - argued that a uniform 6-foot vertical clearance is needed. Fugere testified that a wireless antenna with a vertical clearance of 4 feet or less from supply conductors would create a physical obstruction for one working on a pole and would expose the worker to potential electrical shock. Walters cited a number of examples of when a 6-foot clearance would be necessary: (1) when maneuvering with an 8-foot "hot stick" to apply temporary grounds on energized conductors from a safe distance; (2) when climbing on a pole with a complicated configuration of supply conductors; (3) when installing permanent primary jumpers to tie related electric circuits, and (4) when working with other linemen, each about 6 feet tall, on energized primary conductors. In each case, Walters said, the pole worker "needs the 6 feet to be able to actually and comfortably and safely do his work." (Transcript, at 134.) Lindsey and Brock similarly recommended a 6-foot vertical clearance, and maintained that anything substantially less would make it more likely that a lineman could come into contact with a supply conductor, causing an electric shock that could be fatal.
We conclude that the record evidence supports the settlement agreement's endorsement of Proposal 1 clearance requirements. Worker safety is our paramount concern. The clearance requirements endorsed by the settlement agreement safeguard utility employees and provide clear guidance to antenna installers. The new GO 95 rules, therefore, require these clearance levels.
The settlement agreement endorses antenna exceptions found in Proposal 1. Proposal 1 stated that antennas utilized solely for the operation and maintenance of utility supply systems, along with strand-mounted antennas, would not be subject to the provisions of new Rule 94.
Significant record evidence supports these antenna exceptions. Witnesses testified that supply antennas, such as SCADA antennas,12 are typically installed within the electric supply space of a distribution pole and, therefore, cannot meet the clearance requirements of Class C equipment. Moreover, according to PG&E witness Brock, supply antennas do not raise the same RF exposure concerns of wireless antennas, since the RF exposure level from supply and cable-mounted antennas is usually less than the FCC's general population/uncontrolled levels. Electrical workers also have the ability to turn off the supply antenna's power. For these reasons, we conclude that it is appropriate follow the recommendation of the settlement agreement and exclude supply and strand-mounted antennas from the requirements of proposed Rule 94.
7.2 Marking and De-energizing Measures
The Rule 94 agreed to in the proposed settlement does not include Rule 94.6 (Identifying Exposure) and Rule 94.7 (Controlling Exposure) from Proposal 1. However, the settlement provides that issues related to these proposed rules instead are addressed by private, voluntary agreement. First, the settlement requires signatory antenna owners to provide further pole-mounted signage on joint use poles. This signage describes compliance with the FCC exposure limits for each antenna installation and identifies the FCC's recommended minimum approach distance. Second, the settlement requires protocols for de-energizing antennas that emit RF energy in excess of the FCC's General Population/Uncontrolled maximum exposure limits. In the protocols for de-energizing antennas in non-emergency or routine situations, the antenna owner would be responsible for de-energizing an antenna upon request of any other utility or company with facilities attached to the affected pole. In the protocols for de-energizing antennas in emergency situations, utility line crews would be authorized to de-energize the antenna if the antenna owner cannot be reached in time to deal with the emergency.
Parties assessed the impact of these settlement provisions at the evidentiary hearing on September 12, 2006. In response to questions posed by the ALJ and assigned Commissioner, representatives of two union parties - IBEW and Communications Workers - stated that in their judgment the settlement provisions regarding additional signage and de-energizing antennas will provide the same level of protection for the line crews covered by the agreement as would Sections 94.6 and 94.7 of the original Proposal 1. The advantage of the settlement, they said, was that these provisions could be put into place soon without the likelihood of jurisdictional challenge over state enforcement of these requirements. The Commission's CPSD, which was a principal author of the Proposal 1, stated that it supported the proposed settlement for much the same reasons as the unions, and it emphasized the importance of putting procedures in place to better protect line crews.
Questioned about enforceability of the settlement terms, counsel for the Wireless Group stated that any signatory party alleging breach of the settlement agreement can seek redress in civil courts or before this Commission, as appropriate. Wireless Group counsel added that nothing in the agreement is intended to restrict the jurisdiction of the Commission.
Elements of the settlement agreement that are not contained in Rule 94 only apply to antennas installed on joint use utility poles. Poles owned exclusively by PG&E and SCE are covered by licensing agreements that, according to those utilities, incorporate signage and de-energizing requirements consistent with the terms of the settlement agreement.
At the evidentiary hearing, SDG&E, which is not a signatory to the settlement agreement, explained that it has no jointly owned poles and antennas on its poles are governed by a licensing agreement. SDG&E asserted that its licensing agreement imposes even more rigid restrictions than those provided for in the settlement. The SDG&E license agreement requires a power shut-off device on site accessible to SDG&E line crews, and line crews are directed to work no less than 3 feet away from any RF-emitting antenna. Counsel for SDG&E stated that the utility prefers to continue its licensing restrictions, but it nevertheless supports the settlement agreement in this proceeding.
7.3 Commission Review of the Settlement
We review this settlement under the Commission's rules (Rule 12.1(d) of the Rules of Practice and Procedure). Our inquiry examines whether the settlement is consistent with both the record and the law.
First, we find that the settlement is completely consistent with the record. The settlement addresses the range of concerns and outcomes previously vetted by the parties and developed in the record. Indeed, one of the primary concerns has been worker safety, and all union representatives expressed support for the settlement. The settlement is comprehensive in addressing all the disputed issues to the satisfaction of the parties (even those who do not share poles).
Second, the settlement is consistent with the law. By addressing the most contested features of these proposed regulations in private agreements among the affected parties, this decision removes the uncertainty of legal challenges to these rules, and allows these rules to become effective-and save lives-as soon as this decision is implemented.
In conclusion, our review of the settlement agreement convinces us that it should be approved. We have examined the agreement pursuant to the Commission's settlement rules, and we find that the settlement is reasonable in light of the whole record, consistent with law, and in the public interest.
10 Transcript, at 3.
11 A supply conductor is one that carries electricity for the purpose of electric consumption, while a communication conductor carries electricity for the purpose of sending a communications signal.
12 SCADA antennas are Supervisory Control and Data Acquisition antennas that monitor the performance of electrical circuits.
