Discussion
Calpine c*Power moves for an order compelling PG&E to comply with the requirements of Public Utilities Code section 6252. Section 625 requires prior Commission approval for a public utility to initiate a superior court action to condemn property "for the purpose of competing with another entity in the offering of those competitive services." Pub. Util. Code § 625(a)(1)(A). Alternatively, Calpine c*Power requests that the Commission order a hearing to determine whether the proposed condemnation is subject to Section 625.
Calpine c*Power contends that there is a "high likelihood" that the property will be used, in part, for competitive telecommunications services. (Motion, p. 2) Calpine c*Power explains that the transmission lines leading to and facilities to be located on the substation "could" carry and "likely" will include telecommunications facilities which PG&E itself will offer to be used on a competitive basis. (Motion, p. 12.) In support, Calpine c*Power cites PG&E's increased project cost estimates for fiber optic facilities. Calpine c*Power adds that PG&E has engaged in other fiber optic leases using similar facilities. (Motion Attachment 4.)
In its opposition to the motion, PG&E maintains that Section 625 is inapplicable because the property is not being acquired to provide competitive service. PG&E argues that Section 625 does not apply unless and until it seeks to install facilities for competitive purposes. PG&E also argues that Calpine c*Power waived any right to raise a Section 625 claim by not earlier making the claim. Calpine c*Power replies3 that its actions cannot deprive the Commission of subject matter jurisdiction to determine the applicability of Section 625.
Section 625 is inapplicable here for two reasons. First, Section 625 only applies when a public utility seeks to condemn property "for the purpose of competing with another entity in the offering of those competitive services. " Pub. Util. Code § 625(a)(1)(A). Calpine c*Power has not established that PG&E's "purpose" in condemning the property is, in whole or in part, to compete with another entity in offering competitive services. The record instead reflects that PG&E has no current plans to lease the fiber optic lines to be installed on the project. (RT 1476).
The Tri Valley Decision cited by Calpine c*Power, D.01-10-029, does not support its motion. In conclusion of law 15, the Commission stated that "Pub. Util. Code § 625(a)(1)(A) does not apply to this project. However, PG&E must provide notice pursuant to Section 625(a)(1)(B) if and when it pursues installation of the facilities for the purposes of providing competitive services." (D.01-10-029 at p. 148.) (emphasis added) Similarly, if and when PG&E decides to install telecommunications facilities for competitive purposes at the Los Esteros Substation site, it must then comply with Section 625(a)(1)(B).
Second, Section 625 does not apply to "the condemnation of any property that is necessary for an electric company . . . to meet its Commission ordered obligation to service." Pub. Util. Code § 625(a)(1)(B). The Commission agreed with the California Independent System Operator that the project is necessary to ensure safe and reliable
service to customers in the greater San Jose area. (D.01-12-017) The Commission ordered PG&E to construct the project, which includes construction of the Los Esteros Substation on the property.
Under the circumstances, Section 625 is inapplicable to PG&E's condemnation of the property. Evidentiary hearings are not warranted.
Therefore IT IS RULED that the motion of Calpine c*Power to compel Pacific Gas & Electric Company to comply with Public Utilities Code section 625 is denied.
Dated April 5, 2002, at San Francisco, California
_/s/ HENRY M. DUQUE
Henry M. Duque
Assigned Commissioner
2 Unless otherwise indicated, all statutory references are to the California Public Utilities Code.
3 Administrative Law Judge Thomas granted Calpine c*Power leave to file a reply.
