X. Other Issues

A. Disabled Access

Disability Rights Advocates argues that public rights-of-way need to remain accessible, and the Commission should ensure that BPL deployment does not result in obstruction of rights-of-way. (Disability Rights Advocates Opening Comments, pp. 2-3.) As an example, Disability Rights Advocates cites the digging up of sidewalks. However, the record in this proceeding contains does not support the need for the BPL provider to dig up sidewalks or anywhere else, and as described above, no such digging is authorized by this Decision. Consistent with pre-existing California law and this Commission's decisions, to the extent that the utility or the BPL provider needs to access existing facilities, whether underground (e.g. vaults) or above ground (e.g. poles), the responsible companies must maintain rights of way or alternative paths of travel.

B. Berkshire Hathaway

Greenlining notes the repeal of PUHCA, and speculates that MidAmerican Energy Holding Company, largely owned by Berkshire Hathaway, Inc., may be interested in acquiring California energy utilities. (Greenlining Opening Comments, pp.5-6.) According to Greenlining, in order to allow this possibility, with its potential benefits for BPL resulting from technological convergence and significant investment, the Commission should retain section 851 authority, as leases with BPL providers discourage companies like Berkshire Hathaway from entering the market. (Id., p. 5.)

Even if Greenlining is correct, based on the record before us, the possibility of Berkshire Hathaway becoming a major player in BPL in California is too speculative to provide the basis for our policy on BPL. If Berkshire Hathaway or another major player does prove to be interested in participating in BPL in California, we can address that eventuality when it happens.

C. Health Effects

CARE's comments focused on the biological effects of radio frequency radiation, and the possible health impacts of BPL. (CARE Opening Comments, pp. 1-8.) CARE claims that there may be adverse health effects from BPL. (Id., pp. 4-8.) CTIA responded, arguing that the issues identified by CARE are subject to exclusive federal regulation by the FCC, and accordingly this Commission's ability to consider such issues is preempted by federal law. (CTIA Reply Comments, pp. 1-2.) In addition, CTIA argued that CARE's claims of adverse health effects are unfounded. (Id., pp. 2-4.)

CTIA appears to be correct that the health effects of radio frequency radiation is an issue generally subject to federal, rather than state jurisdiction.⁴⁹ Accordingly, we do not address it here, and we do not reach the substantive issue of whether there are potential health effects from the deployment and use of BPL.

⁴⁹ CARE was provided an opportunity to respond to CTIA's jurisdictional arguments, but was largely unable to do so. (PHC Transcript, p. 25.)