II. Background

A. Competition and the Telecommunications Industry

Competition in the telecommunications industry means that many different providers may provide the same or different services to different tenants within a single industrial or commercial development. In order to do so, each provider generally needs space within the buildings and grounds of the development to accommodate its individual equipment. Implementing such competition raises various issues. For instance, what duties does an incumbent provider have to share its space with competitors? Do the incumbent's duties to compete fairly affect the incumbent's relationship with developers and building owners and managers? How are these duties affected where the developers, owners, and managers are themselves wrangling over who controls what?

The Commission has confronted similar issues before and has adopted various policies. (See e.g., Decision (D.) 98-10-058, the Commission's Rights-of-Way Decision.)² It is now required to interpret the application of various statutes and Commission orders to the complex dispute that underlies this case, as well as in the companion case (C.00-05-022), where one of the complainants seeks to acquire access to the development by condemnation.³ In the case we address in this decision, the complainants (including a tenant of the development) proceed on the theory that, even short of condemnation, current law requires that the incumbent (here, Pacific) and owner (here, Crow Development), give the competitor (here, complainants Cox and CoxCom) access for its equipment.

We grant both Crow Development and Pacific's motion to dismiss. Our principal holding as to Crow Development is that Crow is not a public utility over which the Commission has jurisdiction because it has not, as a matter of law, "dedicated" its property to public use. As to Pacific, our principal holding is that, as a matter of law, Pacific has not violated the Rights-of-Way Decisions or § 626⁴ because Crow Development, unilaterally, is treating both Pacific and Cox in a similar fashion by denying them access to the conduits at Park Place, and Pacific is not benefiting from an exclusive or preferential access agreement or arrangement of its own making. We do not interpret the Rights-of-Way Decision or § 626 so broadly as to require Pacific to affirmatively file an action against Crow Development in order to enforce the access rights of Cox or any other carrier under the facts of this case.

B. Other Court and Administrative Actions

The parties to this proceeding, and others, are involved in multiple actions both at this Commission and in the Superior Court. These actions concern the same underlying problem, that is, access to the existing utility easements. It is unnecessary to describe the various proceedings here, but Appendix A contains a brief overview of them. The importance of these proceedings is that some of the issues raised in this complaint can more appropriately be addressed in the other proceedings.

C. The Instant Case

In the instant case, complainants allege that Crow Development has denied Cox and CoxCom access to the existing facilities and easements on Crow Development's property because of a private dispute between Crow Development and Jamboree L.L.C. (Jamboree) over further construction and use of an office development called Park Place. Jamboree is the current owner of the facility parcel, that is, the building (and underlying land) to which Cox seeks to provide telephone service.⁵ Crow Development owns a majority of the surrounding 90 acres (development parcel.)

Complainants allege that Jamboree has requested that Crow Development grant Cox an easement (to the extent an easement does not already exist) to allow Cox to provide local exchange service to the tenants located on the facility parcel. Complainants also allege that Crow Development owns the facilities and easements at issue, and manages and controls all "telephone lines" (conduits and ducts, as enumerated in § 233) for compensation, and consequently is operating as a public utility without Commission authorization. Complainants also allege that Crow Development is discriminating against Cox, while permitting Pacific access to the utility easements to offer telephone service, and that Crow Development has violated § 2111, which provides that every person (other than a public utility) who knowingly violates the Commission's decisions or rules is subject to penalty.

Complainants allege that Pacific has violated Commission orders, specifically the Rights-of-Way Decision, in that Pacific has an arrangement with Crow Development that has the effect of restricting Cox's access to the property, and California statutes, specifically § 626, because Pacific has failed to prevent property owners from limiting other carriers' access to their properties.

Complainants have filed a motion for temporary restraining order (TRO) and preliminary injunction with their complaint. They request that the Commission require Crow Development to cease (1) operating as a public utility without Commission authorization, and (2) denying Cox access to existing utility easements at Park Place. Complainants allege that they have suffered harm in that Crow Development is interfering both with Cox and CoxCom's ability to provide cable and telephone service, and with Caltrans' fully deploying its transportation management system located on the facility parcel. They request that the Commission (1) determine the terms and condition for CoxCom's use of Crow Development's support structures to provide cable television service; and (2) assess penalties immediately against Crow Development, and within 60 days against Pacific if Pacific fails during that time to renegotiate its arrangement with Crow Development to provide telephone service to the facility parcel.

D. Posture of the Instant Case

On June 20, 2000, prior to the prehearing conference (PHC), Crow Development filed a motion to dismiss the complaint as to itself. Complainants filed a timely opposition, to which Crow Development replied.

On July 3, 2000, prior to complainants' responding to this motion, the assigned Administrative Law Judge (ALJ) held a PHC where, among other things, she asked the parties to draft a joint statement of undisputed material facts, as to the jurisdiction issue for Crow Development, and as to all issues for Pacific. To the extent the parties were unable to agree as to all undisputed material facts, the parties were directed to file separate statements of disputed material fact and to state why they are integral to the jurisdiction issue. The purpose of these factual statements was to assist the Commission in determining whether hearings on the jurisdiction issue would be necessary and in scoping the case in the event the motion to dismiss was denied.

On July 21, the parties tendered their joint and separate statements of material fact. No party requested further briefing. Additionally, on July 25, 2000, Pacific filed a motion to dismiss. Complainants filed timely opposition.

E. Need for a Hearing

No hearing is necessary to resolve the issues raised in this complaint because we grant both motions to dismiss as more fully stated in this decision. Accordingly, pursuant to Rule 6.1 of the Commission's Rules of Practice and Procedure, Article 2.5 of those Rules ceases to apply to this proceeding, with the exception of Rule 7(b), which shall continue to apply.