IV. Interplay of GO 69-C and Public Utilities Code Section 851

In addition to being concerned that CEQA requirements associated with section 851 are met, we are concerned that the statute's advance approval requirement itself is met. GO 69-C provides in pertinent part that " ...public utilities covered by the provisions of section 851...are hereby authorized to grant easements, licenses or permits for use or occupancy on, over or under any portion of the operative property of said utilities for rights of way, private roads, agricultural purposes, or other limited uses of their several properties without further special authorization by this Commission whenever it shall appear that the exercise of such easement, license or permit will not interfere with the operations, practices and services of such public utilities to and for their several patrons or customers."

Public Utilities Code section 851 generally requires advance Commission approval of the sale, lease, assignment, mortgage, disposal or encumbrance of utility property necessary or useful in the performance of its duties to the public. The use of GO 69-C to cement a deal in advance, then seek subsequent § 851 review is troublesome. We do not believe that undertaking a commitment with long term implications is a "limited use" that qualifies for GO 69-C treatment.

However, the two agreements here are different in nature. The GO 69-C agreement can be terminated by SCE and confers no indefeasible right of use. We are in a position where we can review, approve-and condition if necessary-the long term agreement between SEC and Telecom Licensing. We are not faced with having to retroactively endorse a "done deal," especially since we are not called upon to approve construction that has taken place outside the CEQA process. In addition, the structure of this transaction is transparent. We are not presented with a situation where GO 69-C is being invoked to justify failure to submit an agreement for advance approval under section 851. Moreover, it appears that this transaction is in the public interest, as discussed below. Therefore we will approve the application for lease submitted to us rather than rejecting it and requiring SCE to live with the short term agreement.

However, we note this result is based on the, quite literally, peculiar facts of this case. We specifically note that we will deny applications to convert GO 69-C agreements to lease agreements in the future, where the structure of those transactions was designed to circumvent the advance approval requirements of § 851, and the associated CEQA review requirement. We may also seek further remedy through a proceeding to ensure the terms of the general order are abundantly clear.