Discussion

The Petition asks the Commission to issue a rulemaking to consider whether revisions should be made to GO 69-C and if so, whether the Commission should defer consideration of sanctions (at issue in other proceedings) until the rulemaking process has concluded. Petitioners allege that several recent Commission decisions - Delta Energy Center and Cal Peak Power -- have created confusion and uncertainty about the application of GO 69-C, but they do not explain what changes should be made to GO 69-C to alleviate the problem alleged.⁴ GO 69-C permits limited, revocable uses of utility property by third parties. As such, GO 69-C provides a narrow exemption from the broader requirement under § 851 that the Commission approve, in advance, any sale, lease, assignment, mortgage or other encumbrance of utility property.

Calpine, Verizon and Roseville all support the Petition but offer no additional insight into what part of GO 69-C is "broken" or how a rulemaking might provide a "fix." Though AT&T Wireless also supports the Petition, it responds that our recent decision, PG&E/AT&T Wireless Lease, clarifies the permissible scope of GO 69-C under the facts at issue in that proceeding (e.g., siting of wireless antennas and associated equipment on utility buildings and other facilities).⁵

In contrast, CCTA and WorldCom characterize the Petition as "self-serving." They argue, among other things, that Petitioners are attempting to mask their own misuse of GO 69-C, in some instances to evade full Commission review of property transfers subject to § 851 and, in other instances, to inhibit and delay facilities-based competition by requiring licenses which should fall under GO 69-C to be treated as leases under § 851. CCTA and WorldCom suggest that any Commission rulemaking should be narrowly focused on the nature of a license under real property law, consistent with Commission precedent, and should consider what arrangements under GO 69-C will promote competitive infrastructure development without adversely affecting other public interest concerns.

The parties' comments all underscore the fact-intensive nature of any consideration of GO 69-C. While those parties who support a rulemaking suggest that they are merely seeking clearer guidelines, they actually appear to be seeking a degree of predictability that only a fact-specific analysis can yield. A rulemaking will not provide the guidance they seek.

Recent Commission decisions apply the following general principles that underlie appropriate use of GO 69-C across utility industries:

· Permanent, irrevocable rights in utility property may not be granted under GO 69-C.

· GO 69-C may not be used, in lieu of § 851, to evade environmental review under the California Environmental Quality Act (CEQA).

· Activities that involve construction, and which would trigger CEQA, are not permissible under GO 69-C.

Thus, for example, both PG&E/Delta Energy Center and PG&E/Cal Peak Power follow the reasoning articulated in a prior decision, Edison/Telecom Licensing⁶, that any proposed physical changes to utility property (e.g., construction) that would require CEQA review if authority were sought under § 851, should be reviewed under § 851. GO 69-C is inapplicable under such circumstances and its use is inappropriate.

Likewise, concerns about misuse of GO 69-C disfavor the use of "license-to-lease" arrangements, where the parties negotiate a revocable license under GO 69-C with the understanding that the same use of utility property will become irrevocable following Commission approval under § 851.

We deny the Petition and decline to open a rulemaking into GO 69-C at this time. However, we will continue to monitor the need for such a rulemaking, particularly as we resolve § 851 applications now pending or those filed in the coming months following issuance of this decision. Our continued review of pending § 851 applications will produce additional, fact-specific guidance regarding the use of leases for irrevocable easements on utility property and conversely, will provide examples of factual situations where GO 69-C is inapplicable.