VII. Conclusion

SDG&E may not impose upon Daniels a fee for use of transmission ROW as long as the 1986 Pole Attachment Agreement between the parties remains in effect. If the 1986 Agreement is terminated, SDG&E may charge a fee for use of its transmission ROW based on its actual costs. SDG&E may not charge its proposed market-based fee of $6,080 per mile. Instead, SDG&E may calculate a transmission ROW charge as an overhead component of its transmission pole attachment fee according to the methodology proposed by Complainants.

Findings of Fact

1. Complainants request that the Commission prohibit SDG&E from imposing additional charges for access to SDG&E poles and rights-of-way (ROW) beyond the pole attachment fee negotiated between Daniels and SDG&E in their 1986 Pole Attachment License Agreement (1986 Agreement).

2. Pursuant to the 1986 Agreement, Daniels has attached its coaxial and fiber optic cable to transmission poles on private ROW and did not have to pay any fees or sign any additional agreements for the use of SDG&E transmission easements and ROW.

3. SDG&E now requests that Daniels enter into two new agreements, a Transmission Pole Attachment Agreement and a License to Use Rights of Way, in order to gain permission for attachments to transmission poles.

4. Part VI.A of the Commission's ROW rules require a utility to grant access to its ROW and support structures on a nondiscriminatory basis.

5. According to the ROW Order, parties to pre-existing arrangements for access to utility ROW and support structures are bound by the terms of such arrangements.

6. The 1986 Agreement does not directly refer to "distribution poles" and refers to connections "above and below 600 volts."

7. The Commission's ROW Rules are "guidelines" for negotiation of agreements between utilities, telecommunications carriers, and cable companies.

8. According to Rule 1.A of the ROW Rules, SDG&E has the burden of proving a deviation from the guidelines.

9. The ROW Order concluded that electric utilities have a significant bargaining advantage with respect to ROW access and a truly competitive market for alternative means of access does not yet exist.

10. Daniels is seeking a revocable license for access to SDG&E's transmission ROW, rather than any of the rights that traditionally accompany ownership.

11. SDG&E retains ownership of its ROW and may remove Daniels should Daniels' presence interfere with SDG&E's responsibilities as a public utility.

12. The Commission's ROW rules preempt FCC rules and implement Sections 767.5 and 767.7.

13. The costs of SDG&E's transmission easements and ROW are included in SDG&E's regulated revenue requirement and recovered in electric rates.

14. The Commission's ROW rules do not allow a utility to exclude cable corporations from use of a utility's ROW if the property is privately owned by the utility.

15. SDG&E has significant bargaining advantage as the monopoly provider of the ROW and easements at issue in this case, and a competitive market for alternative means of access to ROW does not yet exist.

16. The costs of transmission ROW do not vary directly with output because for each additional kilowatt served, SDG&E does not necessarily have to purchase additional transmission ROW.

17. Transmission ROW costs are closer to shared costs than common costs, and a shared cost should not translate into a direct charge.

18. Transmission ROW charges should be treated as an overhead component of the pole attachment fee.

19. In order to provide immediate guidance to the parties in this long-standing dispute, this order should be effective immediately.

Conclusions of Law

1. This is a complaint case filed pursuant to Section 767.5.

2. CCTA has standing as a party to this action under Section 767.5.

3. SDG&E may not condition attachment to transmission poles on the payment of additional fees for use of easements or ROW while the 1986 Agreement remains in effect.

4. If parties exercise their right to terminate the 1986 Agreement, SDG&E may charge for use of its ROW under the provisions of Section 767.7.

5. This case involves access to ROW by a cable TV company and the Commission should apply the policies set forth in the its ROW Rules.

6. The Commission's conclusions in the ROW order regarding access to ROW and support structures apply to the transmission ROW at issue in this case.

7. The Commission is authorized to ensure just compensation for utility pole attachments and use of ROW and easements for the installation of fiber optic cable under Sections 767.5 and 767.7.

8. The Commission should not deviate from the policies set forth in the ROW Order and should use historical embedded costs to price access to transmission ROW and easements.

9. It is not appropriate to use a market-based formula for pricing access to assets linked to bottleneck facilities when the Commission has crafted explicit rules for access to these facilities and ROW.

10. A market-based formula for pricing SDG&E's transmission ROW is inappropriate given the language of Section 767.5(b) which states that it is in the public interest to make surplus space and excess capacity available to cable corporations.

ORDER

IT IS ORDERED that:

1. The complaint in this proceeding is granted in part. San Diego Gas & Electric Company (SDG&E) may not charge Daniels Cablevision, Inc. (Daniels) a License to Use Rights of Way (ROW) fee of $6,080 per mile as long as the 1986 Pole Attachment License Agreement (1986 Agreement) remains in effect.

2. Should the parties exercise their right to terminate the 1986 Agreement, SDG&E may impose upon Daniels a cost-based fee for use of its transmission ROW. Any fee for use of transmission ROW shall be calculated as an overhead component of the transmission pole attachment fee, as set forth in the formula in Attachment A of this decision.

3. Within 45 days of the effective date of this order, SDG&E and Complainants shall either:

a. File and serve a letter to the assigned Administrative Law Judge that they have reached agreement on a transmission ROW charge; or

b. SDG&E shall file its proposed transmission ROW charge using the formula in Attachment A.

4. The assigned Administrative Law Judge shall set a schedule to consider SDG&E's proposed transmission ROW charge in a second phase of this proceeding, if necessary.

This order is effective today.

Dated , at San Francisco, California.

ATTACHMENT A

POLE ATTACHMENT AND ROW
FEE WORKSHEET

Annual Fee per Pole

(END OF ATTACHMENT A)

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