STATE OF CALIFORNIA GRAY DAVIS, Governor

PUBLIC UTILITIES COMMISSION

505 VAN NESS AVENUE

SAN FRANCISCO, CA 94102-3298

October 24, 2001

TO: PARTIES OF RECORD IN CASE 00-09-025

This proceeding was filed on September 18, 2000, and is assigned to Commissioner Carl Wood and Administrative Law Judge (ALJ) Dorothy Duda. This is the decision of the Presiding Officer, ALJ Duda.

Any party to this adjudicatory proceeding may file and serve an Appeal of the Presiding Officer's Decision within 30 days of the date of issuance (i.e., the date of mailing) of this decision. In addition, any Commissioner may request review of the Presiding Officer's Decision by filing and serving a Request for Review within 30 days of the date of issuance.

Appeals and Requests for Review must set forth specifically the grounds on which the appellant or requestor believes the Presiding Officer's Decision to be unlawful or erroneous. The purpose of an Appeal or Request for Review is to alert the Commission to a potential error, so that the error may be corrected expeditiously by the Commission. Vague assertions as to the record or the law, without citation, may be accorded little weight.

Appeals and Requests for Review must be served on all parties and accompanied by a certificate of service. Any party may file and serve a Response to an Appeal or Request for Review no later than 15 days after the date the Appeal or Request for Review was filed. In cases of multiple Appeals or Requests for Review, the Response may be to all such filings and may be filed 15 days after the last such Appeal or Request for Review was filed. Replies to Responses are not permitted. (See, generally, Rule 8.2 of the Commission's Rules of Practice and Procedure.)

If no Appeal or Request for Review is filed within 30 days of the date of issuance of the Presiding Officer's Decision, the decision shall become the decision of the Commission. In this event, the Commission will designate a decision number and advise the parties by letter that the Presiding Officer's Decision has become the Commission's decision.

/s/ LYNN T. CAREW

Lynn T. Carew, Chief

Administrative Law Judge

LTC:hkr

Attachment

ALJ/DOT-POD/tcg

PRESIDING OFFICER'S DECISION (Mailed 10/24/2001)

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Daniels Cablevision, Inc. and the California Cable Television Association, Complainants, vs. San Diego Gas & Electric Company, Defendant.

Case 00-09-025 (Filed September 18, 2000)

OPINION GRANTING COMPLAINT IN PART AND
FINDING THAT SDG&E MAY CHARGE A COST-BASED FEE
FOR USE OF ITS TRANSMISSION RIGHT-OF-WAY

Gardner F. Gillespie and Yaron Don, Attorneys at Law, Hogan & Hartson LLP, for Complainant.

Lesla Lehtonen, Attorney at Law, for California Cable Television Association.

Celeste Easton, Attorney at Law, Sempra Energy, for Defendant.

TABLE OF CONTENTS

Title Page

OPINION GRANTING COMPLAINT IN PART AND FINDING
THAT SDG&E MAY CHARGE A COST-BASED FEE FOR USE
OF ITS TRANSMISSION RIGHT-OF-WAY 2

I. Summary 2

II. Complainants' Allegations 2

III. SDG&E's Answer 5

IV. Procedural History 6

V. Applicable Statutes and Commission Orders 7

A. Section 767.5 7

B. Section 767.7 8

C. The ROW Order 8

D. Decision on Petition to Modify ROW Order 10

VI. Discussion 11

A. SDG&E May Not Charge for Access to its Poles and
Right-of-Way Beyond the Terms of the 1986 Agreement 11

B. SDG&E Must Justify Any ROW fees Under the ROW Rules 16

C. SDG&E May Not Base a ROW Charge on Market Rates 18

D. SDG&E Should Charge Any ROW Fee Through the Overhead Component of the Pole Attachment Fee. 27

VII. Conclusion.. 30

Findings of Fact 30

Conclusions of Law 32

ORDER 33

Attachment A

OPINION GRANTING COMPLAINT IN PART AND
FINDING THAT SDG&E MAY CHARGE A COST-BASED FEE
FOR USE OF ITS TRANSMISSION RIGHT-OF-WAY

I. Summary

This decision resolves a complaint brought by Daniels Cablevision Inc. (Daniels) and the California Cable Television Association against San Diego Gas & Electric Company (SDG&E) regarding a $6,080 per mile fee that SDG&E attempted to charge Daniels for use of SDG&E's transmission rights-of-way (ROW). This decision finds that SDG&E may not impose upon Daniels a fee for use of transmission ROW as long as the 1986 Pole Attachment License Agreement (1986 Agreement) between the parties remains in effect. If either party terminates the 1986 Agreement, as allowed by its provisions, SDG&E may charge a fee for use of its transmission ROW based on its actual costs. SDG&E's proposed market-based fee of $6,080 per mile is rejected. The parties shall calculate a transmission ROW fee as an overhead component of SDG&E's pole attachment rate, using the method proposed by Complainants and set forth in Attachment A to this decision. Within 45 days of the effective date of this order, SDG&E shall file a notice that the parties have agreed on a transmission ROW charge using this methodology. Alternatively, if parties are unable to agree, SDG&E shall file its proposed transmission ROW charge for the Commission to examine in Phase II of this proceeding.