II. Complainants' Allegations
Daniels and the California Cable Television Association (CCTA) (jointly "Complainants") filed this complaint against SDG&E pursuant to Pub. Util. Code § 767.5(c).1 That statute authorizes the Commission to determine pole attachment rates, terms, and conditions when cable operators are unable to reach agreement with investor-owned utilities.
Daniels is a mid-sized cable company providing cable services to approximately 64,800 customers in Northern San Diego County. In providing these services, Daniels attaches coaxial cable and fiber optic cable to poles owned by SDG&E.
CCTA is a trade association representing cable television operators (including Daniels) with over 400 cable television systems in California. Consistent with Section 767.5, CCTA negotiates on behalf of cable television companies for pole attachment rates, terms, and conditions for all investor-owned utility poles in California.
Generally, Complainants request that the Commission prohibit SDG&E from imposing additional charges for access to SDG&E poles and rights-of-way beyond (1) the pole attachment fee negotiated between Daniels and SDG&E in their 1986 Pole Attachment License Agreement (1986 Agreement); and (2) the actual engineering and make ready expenses reasonably incurred by SDG&E. In the event the Commission allows SDG&E to impose additional charges for access to SDG&E poles and rights-of-way, Complainants request specific rulings from the Commission on the calculation of those charges. In addition, Complainants request immediate access to the poles in dispute and a finding that SDG&E violated Commission Decision (D.) 98-10-058 (the "ROW Order") by failing to grant Daniels access to SDG&E rights-of-way in a timely fashion and otherwise according to the ROW Order.
Complainants state that in 1991 and 1992, Daniels attached its coaxial and fiber optic cable to both transmission and distribution poles owned by SDG&E pursuant to the 1986 Agreement.2 According to Complainants, SDG&E did not previously require a separate agreement for Daniels' use of SDG&E easements and ROW3 between transmission poles, and SDG&E billed for distribution and transmission pole attachments at the same rate. Complainants claim the 1986 Agreement gives Daniels the right to use SDG&E's rights-of-way to the extent required to attach to the poles.
According to Complainants, Daniels filed two applications in 1997 with SDG&E requesting permission to attach fiber optic cables to 65 transmission poles. SDG&E responded that it would permit these attachments only if Daniels entered into two new agreements -- a Transmission Pole Attachment Agreement and a License to Use Rights of Way (ROW License). The latter would obligate Daniels to pay a per mile fee in order to access transmission and distribution rights-of-way. 4 Complainants claim that the ROW License would have required Daniels to enter into a 20-year agreement to pay $6,080 per mile annually for transmission ROW and $580 per mile annually for distribution ROW, in addition to the regular pole attachment fee set forth in the 1986 and 1996 agreements. According to Complainants' witness Don Williams, this would result in payments to SDG&E of at least $24,320 per year to attach to poles along a four-mile transmission run. (See Exhibit 15, p. 9.) SDG&E would adjust the annual per mile fee by the CPI.
Faced with the new ROW License, Complainants state that Daniels constructed underground facilities in lieu of attaching to 29 of the 65 poles. For the remaining 36 poles, Daniels wrote to SDG&E demanding access under the Commission's ROW rules. On August 7, 2000, the parties entered into interim agreements under which SDG&E agreed to process Daniels' application to attach to the remaining 36 poles, with the reasonableness of the terms and conditions of attachment subject to this complaint proceeding. After filing the complaint, Daniels attached to the 36 transmission poles at issue.
1 All statutory references are the Public Utilities Code unless otherwise noted. 2 In 1996, CCTA, on behalf of Daniels and other cable operators, negotiated a new rate of $16 for the use of SDG&E transmission poles. 3 This case involves access and use of ROW that SDG&E has acquired either in fee simple or in easement. For simplicity, we will refer to both easements and ROW owned in fee simple as simply, "ROW." 4 SDG&E distinguishes poles on private land from poles on public land. According to SDG&E, poles on private land are in "right of way position" and are situated on private ROW obtained by SDG&E through easement or in fee simple. Poles on public land are in a "franchise position" because they are on land owned by a municipality, city or county. (Hearing Transcript (Tr.) at 412.) During the hearing, SDG&E clarified that it only intends to charge for use of transmission ROWs on private land. It will not charge for use of distribution ROW on private land or for use of any ROW, either transmission or distribution, on public land. (Tr. at 414-415.)
