10. Comments on Alternate Proposed
Decision
The alternate proposed decision of Commissioner Rachelle B. Chong was mailed to the parties on November 8, 2006 in accordance with Pub. Util. Code § 311(e) and Rule 14.1 of the Commission's Rules of Practice and Procedure. Opening comments on Commissioner Chong's Alternate Proposed Decision were filed on November 28, 2006 by PG&E and SCE, jointly; SDG&E; and Cingular Wireless, Crown Castle USA, Inc., NextG Networks, Omnipoint Communications, Inc. dba T-Mobile, Sprint Nextel, and Verizon Wireless (Wireless Parties). Reply comments were filed on December 5, 2006 by CCTA and ExteNet Systems, Inc. (ExteNet) (formerly ClearLinx Network Corporation).
In response to the comments, we have made several clarifications, corrections and changes to the alternate proposed decision.
PG&E and SCE filed comments in support of Commissioner Chong's Alternate Proposed Decision. SDG&E also expressed support for the approach taken in the decision.
The Wireless Parties support the core components of the alternate proposed decision. However, the Wireless Parties do not support the annual reporting requirement in the decision, arguing that the reporting requirement infringes on the due process interests of parties because the parties were not provided notice that the Commission might impose reporting requirements. The Wireless Parties also assert that the reporting requirement is inconsistent with the settlement agreement, which does not include reporting requirements.16
We do not need to address the substance of the Wireless Parties' arguments regarding the reporting requirement. Our adoption of new GO 95 Rules moots the need for any reporting requirement. The Rules ensure that all antenna installations will be subject to marking and de-energizing protocols that are substantially similar to and achieve at least the same safety standards as those set forth in the settlement agreement. It no longer is the case that some antennas may fail to be covered by the settlement agreement or terms at least as strict as those set forth in the settlement agreement. Thus, we delete the previously proposed reporting requirement.
In Comments on the Alternate Proposed Decision of Commissioner Brown, the Wireless Parties committed to abide by the terms of the settlement agreement with respect to any antenna placed on any jointly owned or used pole, whether or not the pole owner or other pole users are parties to the settlement.17 We have added a reference to that commitment in the discussion above.
The Wireless Parties also request clarifying language related to pole-top attachments, noting that the Wireless Parties previously asked the Commission to monitor the Rules Committee's efforts.18 ExteNet echoed the same concern.19
We have modified the discussion to more accurately characterize the positions of parties.
The Wireless Parties also state that the decision need not find that the provisions of the settlement are supported by "substantial record evidence." They specifically cite the antenna exceptions contained in the agreement as an issue the Wireless Parties disputed during the proceeding, but consented to in the context of the settlement.20 CCTA disagrees with the Wireless Parties on this point. CCTA points out that in approving the settlement, the Commission is adopting a Rule 94 which stands independent of the settlement and applies to parties that did not participate in the settlement. Therefore, making findings specific to the new Rule 94 is appropriate.21
We agree with CCTA. Since the Rule 94 endorsed by the settling parties will apply to non-settling parties, it is appropriate for the Commission to make findings relative to each element of the Rule 94 that we adopt.
In addition to revisions made in response to comments, we have made other minor corrections and clarifications to the proposed decision.
16 Wireless Parties Comments on Alternate Proposed Decision of Commissioner Chong, at 2-3.
17 Wireless Parties Comments on Alternate Proposed Decision of Commissioner Brown, at 3.
18 Id., at 4.
19 ExteNet Reply Comments on Alternate Proposed Decision of Commissioner Chong.
20 Wireless Parties Comments on Alternate Proposed Decision of Commissioner Chong, at 4.
21 CCTA Reply Comments on Alternate Proposed Decision of Commissioner Chong.
