III. SDG&E's Answer

SDG&E says the 1986 Pole Attachment Agreement covers only distribution poles and does not grant Daniels access to transmission poles or to any rights-of-way other than the distribution pole attachment itself.⁵ SDG&E cites the 1996 agreement negotiated between CCTA and SDG&E, which sets a specific transmission pole attachment rate as proof that the earlier agreement did not extend to transmission poles. SDG&E contends it has not violated any statute or Commission order and that the only issue in this case is whether SDG&E's fees for use of its transmission ROW are fair and reasonable.

SDG&E denies that it knowingly permitted Daniels to attach coaxial cables to transmission poles in 1991 and 1992, and that any attachments Daniels previously made to transmission poles may have involved "transmission overbuilds" in franchise areas.⁶ SDG&E states that prior to 1994, it limited pole attachments by cable companies to its distribution facilities because of the potential danger conductive copper lines could pose if attached to higher voltage transmission lines. SDG&E maintains that the 1986 Agreement is an example of the company's pre-1994 policy. Once Section 767.7 was enacted in 1994, SDG&E implemented a new policy to allow attachments to transmission poles as long as parties also signed a ROW License.

Finally, SDG&E claims that Section 767.7(b) clearly authorizes it to obtain fair and adequate compensation for use of rights-of-way and transmission easements for the installation of fiber optic cable, and that the only question before the Commission is what constitutes fair and adequate compensation for SDG&E's investment in transmission ROW. SDG&E alleges that its proposed fee for use of its exclusive transmission ROW compensates it for investments to acquire these property interests and it is entitled to a return on its investment separate and apart from the pole attachment rate. SDG&E claims that the ROW Order only provides for non-discriminatory access to transmission and distribution poles, and does not address access to private transmission easements.