BEFORE THE ARKANSAS PUBLIC SERVICE COMMISSION REQUEST FOR ADMINISTRATIVE NOTICE

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1 BEFORE THE ARKANSAS PUBLIC SERVICE COMMISSION IN THE MATTER ) OF A RULEMAKING PROCEEDING ) TO CONSIDER CHANGES TO THE ) DOCKET NO R ARKANSAS PUBLIC SERVICE COMMISSION S ) POLE ATTACHMENT RULES ) REQUEST FOR ADMINISTRATIVE NOTICE CTIA The Wireless Association ( CTIA ) and PCIA the Wireless Infrastructure Association and HetNet Forum ( PCIA ) respectfully request the Arkansas Public Service Commission ( Commission ) take administrative notice of recent actions taken by the (1) Washington Utility and Transportation Commission, General Order R-582, In the Matter of Adopting Chapter WAC Relating to Attachment to Transmission Facilities, Docket U (Oct. 21, 2015); and (2) California Public Utility Commission, Proposed Decision, Order Instituting Rulemaking Regarding the Applicability of the Commission s Right-of-Way Rules to Commercial Mobile Radio Service Carriers, Rulemaking (Oct. 30, 2015), relevant to issues identical to those pending before the Commission in this proceeding. The full text of these recent administrative actions are attached to this Request as Exhibit 1 and Exhibit 2, respectively. Dated: November 4, 2015 Respectfully submitted, CTIA-The Wireless Association PCIA The Wireless Infrastructure

2 Association Matthew B. Finch D. Van Fleet Bloys Gill Ragon Owen, P.A. Government Affairs Counsel 425 W. Capitol Avenue, Suite 3800 Little Rock, AR (501) D. Zachary Champ Director, Government Affairs Benjamin Aron Director, External & State Regulatory Affairs Sade Oshinubi CTIA The Wireless Association Policy Analyst, Government Affairs th Street NW, Suite 600 Washington, DC (202) PCIA The Wireless Infrastructure Association 500 Montgomery Street, Suite 500 J. D. Thomas Alexandria, VA Carrie A. Ross (703) Sheppard Mullin Richter & Hampton LLP 2099 Pennsylvania Ave NW, Suite 100 Washington, DC (202) Attorneys for CTIA-The Wireless Association

3 BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION In the Matter of Adopting Chapter WAC Relating to Attachment to Transmission Facilities ) ) ) ) ) ) ) ) DOCKET U GENERAL ORDER R-582 ORDER ADOPTING RULES PERMANENTLY 1 STATUTORY OR OTHER AUTHORITY: The Washington Utilities and Transportation Commission (Commission) takes this action under Notice WSR # , filed with the Code Reviser on July 22, The Commission has authority to take this action pursuant to RCW , RCW , RCW , and RCW STATEMENT OF COMPLIANCE: This proceeding complies with the Administrative Procedure Act (RCW 34.05), the State Register Act (RCW 34.08), the State Environmental Policy Act of 1971 (RCW 43.21C), and the Regulatory Fairness Act (RCW 19.85). 3 DATE OF ADOPTION: The Commission adopts this rule to be effective on January 1, CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: RCW (6) requires the Commission to prepare and publish a concise explanatory statement about an adopted rule. The statement must identify the Commission s reasons for adopting the rule, describe the differences between the version of the proposed rules published in the register and the rules adopted (other than editing changes), summarize the comments received regarding the proposed rule changes, and state the Commission s responses to the comments reflecting the Commission s consideration of them. 5 To avoid unnecessary duplication in the record of this docket, the Commission designates the discussion in this Order, including appendices, as its concise explanatory statement. This Order provides a complete but concise explanation of the agency s actions and its reasons for taking those actions.

4 GENERAL ORDER R-582 PAGE 2 6 REFERENCE TO AFFECTED RULES: This Order adopts the following sections of the Washington Administrative Code: Adopt WAC Purpose, interpretation, and application. Adopt WAC Definitions. Adopt WAC Duty to provide access; make-ready work; timelines. Adopt WAC Contractors for survey and make-ready work. Adopt WAC Modification costs; notice; temporary stay. Adopt WAC Rates. Adopt WAC Complaint. 7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The Commission filed a Preproposal Statement of Inquiry (CR-101) on April 22, 2014, at WSR # The statement advised interested persons that the Commission was considering entering a rulemaking to implement RCW ch , relating to attachments to transmission facilities. The Commission also informed persons of this inquiry by providing notice of the subject and the CR-101 to everyone on the Commission's list of persons requesting such information pursuant to RCW (3) and by sending notice to all registered telecommunications companies, all regulated electric companies, the Commission s list of utility attorneys, and the Commission s list of telecommunications attorneys. The Commission posted the relevant rulemaking information on its website at Pursuant to the notice, the Commission received written comments on May 30, 2014, and convened a workshop for interested stakeholders on July 28, On September 8, 2014, the Commission issued a notice soliciting written comments from stakeholders on draft rules by October 8, 2014, and convened a second workshop on October 28, On February 6, 2015, the Commission received a second round of comments from stakeholders regarding revised draft rules, and responses to the second comments on February 27, On March 24, 2015, the Commission issued a notice soliciting written comments from stakeholders on a third revised draft rules with opening comments by April 17, 2015, and reply comments by May 1, 2015.

5 GENERAL ORDER R-582 PAGE 3 10 On May 27, 2015, the Commission issued a Small Business Economic Impact Statement (SBEIS) questionnaire requesting responses concerning the cost impact of the rules on utilities and licensees by June 17, The Commission received comments from the Broadband Communications Association of Washington (BCAW); PCIA The Wireless Infrastructure Association and the HetNet Forum, a membership section of PCIA (collectively PCIA); Pacific Power & Light Company (Pacific Power); Avista Corporation d/b/a Avista Utilities (Avista); and Puget Sound Energy (PSE). 11 NOTICE OF PROPOSED RULEMAKING: The Commission filed a notice of Proposed Rulemaking (CR-102) on July 22, 2015, at WSR # The Commission scheduled this matter for oral comment and adoption under Notice WSR # at 9:30 a.m., Thursday, September 17, 2015, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 S. Evergreen Park Drive S.W., Olympia, Washington. The Notice provided interested persons the opportunity to submit written comments to the Commission by August 24, WRITTEN COMMENTS: The Commission received written comments in response to the WSR # Notice from Frontier Communications Northwest Inc. (Frontier), Integra Telecom of Washington (Integra), Avista, BCAW, Pacific Power, AT&T Corp., New Cingular Wireless PCS, LLC, and Teleport Communications America, Inc. (collectively AT&T), PCIA, and PSE. Summaries of all written comments and the Commission s responses are contained in Appendix A, attached to, and made part of, this Order. 13 RULEMAKING HEARING: The Commission considered the proposed rules for adoption at a rulemaking hearing on Thursday, September 17, 2015, before Chairman David W. Danner and Commissioner Ann E. Rendahl. The Commission heard comments from representatives of Pacific Power, PSE, PCIA, Avista, Frontier, AT&T, and BCAW. Most of those commenting emphasized points they raised in their prior written comments. Pacific Power, however, also advocated that the Commission revise staff s proposed modification of the language in proposed WAC (2) to delete or owner s in the last sentence so that an owner would not be solely responsible for the costs to move all occupants attachments when general safety or operational requirements necessitated a change to the pole. PSE also requested that the Commission make any

6 GENERAL ORDER R-582 PAGE 4 rules it promulgates effective no sooner than January 1, 2016, to enable PSE to modify its processes and otherwise prepare to comply with the new rules SUGGESTIONS FOR CHANGE THAT ARE REJECTED/ACCEPTED: Written and oral comments suggested changes to the proposed rules. The suggested changes and the Commission s reason for rejecting or accepting the suggested changes are included in Appendix A. The Commission expands on its explanation for its actions on four of those suggested changes in the following paragraphs. 15 JURISDICTION: Proposed WAC defines an owner as the utility that owns or controls the facilities to or in which an occupant maintains, or a requester seeks to make, attachments. A utility, in turn, is any electrical company or telecommunications company as defined in RCW That statute defines a telecommunications company as any person or entity owning, operating or managing any facilities used to provide telecommunications for hire, sale, or resale to the general public. Telecommunications is the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means. The definition of owner, consistent with Washington law, includes all telecommunications service providers and investorowned electric companies. 16 PCIA and AT&T request that the Commission exempt commercial mobile radio service (CMRS) companies from the definition of owner in the proposed rules, claiming that the Commission lacks jurisdiction to regulate attachments to wireless company facilities. Washington statutes do not support this claim. The definition of telecommunications in RCW expressly includes transmission of information by radio, which is the service CMRS companies provide. As telecommunications providers, these companies are utilities and owners within the contemplation of RCW The wireless carriers point to RCW (6), which provides that the Commission shall not regulate [r]adio communications services provided by a regulated telecommunications company, except that when those services are the only voice grade, local exchange telecommunications service available to a customer of the company the commission may regulate the radio communication service of that company. (Emphasis added.) PCIA and AT&T overlook that the Commission can regulate wireless carriers under certain circumstances. Although the Commission is not aware that those 1 We address this request in paragraph 31 below.

7 GENERAL ORDER R-582 PAGE 5 circumstances currently exist, we are not willing to foreclose the possibility that they will arise in the future. More fundamentally, we question whether requiring a company to allow attachments to its utility facilities is regulation of that company s service within the contemplation of RCW (6) The Commission, however, does not intend to assert jurisdiction over CMRS providers by promulgating the proposed rules. We recognize that the Federal Communications Commission (FCC) has the primary responsibility to oversee the wireless industry, and we have no desire to challenge that agency s supremacy in this area. We also agree with PCIA and AT&T that the rules we are adopting were not developed with access to CMRS facilities in mind. Accordingly, we leave for another day and specific factual circumstances the issue of whether these rules could or should be construed to require access to wireless carrier facilities. 19 POLE REPLACEMENT: Proposed WAC (1) provides that utility pole owners may not deny a request for attachment to a pole due to lack of space if the requester is willing to pay all costs to replace the existing pole with a taller pole. Avista, Pacific Power, and PSE all object to this requirement. These companies concede that they currently undertake this work but contend that an obligation to do so exceeds the requirements in the FCC rules without sufficient evidentiary support, would unreasonably diminish the ability of electric utility personnel to perform their primary obligation of providing safe and reliable electric service, and would result in communications attachments on electric utility poles taking precedence over electric utility operations. 3 2 Nor are we persuaded that a policy justification exists for categorically relieving CMRS providers from the obligation to allow attachments to their facilities. PCIA suggests that the rationale for that obligation is to provide competitors with access to monopoly service providers infrastructure, but RCW is not so limited. The statutory definition of utility includes all telecommunications companies, incumbents and competitors alike. The legislature s concern thus was more with the exclusivity of a utility s facilities than the service it offers. No municipality wants a plethora of poles along, or a collection of conduit under, its streets. The statute is designed to minimize such infrastructure as well as to facilitate service availability from multiple providers. To the extent that a CMRS carrier has constructed facilities to which requesters seek access, we do not believe that the service the carrier provides, without more, is a reasonable basis for denying such access. 3 Comments of Avista at 2 (Aug. 24, 2015); accord Comments of PSE at 2 (Aug. 24, 2015). Pacific Power states only that it supports these comments and shares the concerns they raise with mandatory capacity expansions. Comments of Pacific Power at 2 (Aug. 24, 2015).

8 GENERAL ORDER R-582 PAGE 6 20 Unlike federal law, RCW ch does not authorize a pole owner to deny access for lack of capacity on the pole. Washington law provides only that [a]ll rates, terms, and conditions made, demanded, or received by any utility for any attachment by a licensee or by a utility must be just, fair, reasonable, and sufficient. 4 It is the current practice of Avista, Pacific Power, and PSE to replace existing poles and thereby create additional capacity for attachment if a requester is willing to pay all costs of that replacement. We are not persuaded that it is unreasonable to require these pole owners to do what they are already doing. 21 Nor have the electric utilities presented any information demonstrating how mandating their current practice would diminish their ability to provide safe and reliable electric service. The Commission takes very seriously any threat to safety and reliability of utility service. Accordingly, proposed WAC (8) provides additional time for pole owners to replace a pole if they cannot do so within the time frames specified due to circumstances beyond the owner s control and in light of other system demands. Owners also may negotiate additional terms and conditions with requesters to be included in the attachment agreement the rules require. We find that this rule properly balances the needs of electric utility pole owners, attaching communications carriers, and the customers of all companies. 22 OVERLASHING: Proposed WAC (11) allows an occupant to attach or overlash an additional wire onto the occupant s existing attachment to a utility pole without filing an application with the pole owner under limited circumstances. Avista, Pacific Power, and PSE all oppose this allowance as an unwarranted departure from the FCC s rules. Avista focuses on safety concerns it alleges would result from overlashing without an application: Overlashing new communication cable to cable already in place creates additional wind and ice load on the poles along with low sag issues, and these are serious safety concerns to pole owners. Moreover, without sufficient oversight and approval, cables that are no longer used are typically left in place rather than removed. Overlashing proposals can be more difficult to analyze for safety concerns than applications for new pole contacts, and while communication companies engineer for their own 4 RCW

9 GENERAL ORDER R-582 PAGE 7 circuitry, they historically fail to account for their own existing code violations and for safety impacts related to the new overlash construction PSE also discusses safety, as well as liability issues, and contends that the proposed rules unreasonably favor pole occupants over owners: The arbitrary timelines in the proposed rules compromise a pole owner s ability to adequately assess the impacts of the overlashing on the safety and reliability of the electric system and adds additional risk to the safety of the communication workers installing the overlashing. In addition, requiring only a notice instead of an application to overlash additional wires or cables prioritizes attachers needs over pole owners and reduces a pole owners ability to maintain a safe and reliable system. Finally, the proposed rules fail to include any language addressing liability for damages caused by attacher overlashing. PSE proposes that the attacher be liable for all damages if the actual overlashing differs from the overlashing proposed in the occupant s notice or fails to meet applicable rules and codes We note as an initial matter than proposed WAC (11) is more restrictive of overlashing than the FCC or current practice. The FCC has determined that an occupant is not required to obtain the owner s consent prior to overlashing, although the owner is entitled to notice. 7 Stakeholder comments in this docket indicate that occupants currently are overlashing without the owner s prior consent and with minimal notice. The proposed rule s limit on the number of poles subject to overlashing in a given time period, the requirements for the content and timing of notice, and the ability of owners to prohibit overlashing in advance are all new safeguards that the electric utilities would not have if we simply adopted the FCC rules, as PSE advocates. This provision thus provides far more benefit than detriment to those utilities. 5 Comments of Avista at 3. 6 Comments of PSE at 3. Again, Pacific Power supports Avista s and PSE s comments and shares their concerns with overlashing. Comments of Pacific Power at 2. 7 In re Implementation of Section 703(e) of the Telecommunications Act of 1996, Consolidated Partial Order on Reconsideration, 16 FCC Rcd. 12,103, 12, (May 25, 2001).

10 GENERAL ORDER R-582 PAGE 8 25 We nevertheless repeat that the Commission considers safety of the electrical system to be critically important. Avista, Pacific Power, and PSE have not demonstrated that proposed WAC (11) imperils that system. That rule requires an occupant to notify the pole owner 15 business days in advance of the size, weight per foot, and number of wires or cables to be overlashed and to provide a map of the proposed overlash route. The occupant may not notice overlashing of more than 100 poles within any 10 business day period. The owner has 10 business days to inspect the proposed route and provide a written response and explanation if the owner prohibits the noticed overlashing. 8 The electric utilities have provided no information to demonstrate that these requirements are insufficient to enable an owner to determine whether the limited overlashing the proposed rule authorizes would pose a significant safety risk. 26 Several of the stated concerns, moreover, arise from how the overlashing is actually done, including failure to remove unused cable, the safety of the communications workers doing the overlashing, and liability for damages caused by the overlashing. Requiring occupants to submit an application, as the electric companies propose, would not remedy any of these issues. Rather, owners can and should negotiate terms and conditions in their attachment agreements to address such concerns. BCAW stated at the adoption hearing that all attachment agreements of which it is aware include provisions that do just that. 27 We find that proposed WAC (11) strikes the appropriate balance between the interests of pole owners and occupants. We encourage all parties to work cooperatively to ensure that their operations do not impact negatively the safety of the electrical system, the other networks whose facilities are attached to utility poles, and the personnel who work on those poles. 28 MODIFICATION COSTS. Consistent with cost causation principles, the proposed rules provide in WAC (2) that occupants with an attachment that conforms to applicable safety and legal requirements do not bear any of the costs to modify the pole or their attachment to remedy another occupant s safety violation. In response to BCAW s written comments, the Commission modifies the proposed language to clarify 8 Although PSE characterizes these limitations as arbitrary, we note that the proposed rule reflects Pacific Power s recommendation limiting the number of poles identified for overlashing in a 10-day period to 100 poles and the number of notices submitted to no more than five. Pacific Power Comments at 1 (April 17, 2015). The Commission addressed PSE s and Avista s continued concerns with the time for review by extending that period in the proposed rule to 10 business (rather than calendar) days and lengthening the notice period to 15 business days.

11 GENERAL ORDER R-582 PAGE 9 that an owner similarly is not responsible for modification costs caused by another attaching entity. 29 At the adoption hearing, Pacific Power requested that the Commission further revise this provision to clarify that occupants should bear the costs to rearrange their attachments if the owner modifies the pole to conform to general safety requirements or as part of the owner s business operations. We agree that our intent was for each party with attachments on the pole to bear its own costs to rearrange those attachments to conform to generally applicable safety requirements, and we clarify the proposed rule accordingly. We do not agree, however, that occupants should pay to modify their attachments to accommodate measures the owner takes for its own benefit. Indeed, WAC (1) expressly provides to the contrary in the context of creating additional capacity on a pole. We thus do not accept this aspect of Pacific Power s proposal. 30 COMMISSION ACTION: After considering all of the information regarding this proposal, the Commission finds and concludes that it should adopt the rules as proposed in the CR-102 at WSR # with the changes below as described more fully above and in Appendix A: WAC WAC (1) WAC (1) WAC (2) Definition of carrying charge delete, including and replace with. These costs are comprised of (Frontier). Second sentence delete pole or otherwise and replace with pole and otherwise (Pacific Power). 9 Third sentence insert within 60 days before after receiving notification (Pacific Power). First sentence add that necessitated the modification at the end of the sentence. Third sentence Insert or owner after An occupant ; Insert or owner s after the occupant s ; 9 The substitution of and for or clarifies the Commission s intent that the requester must pay all make-ready costs associated with making more attachment space available on the pole and should not be construed to condition such payment on the existence of both pole replacement and other make-ready work.

12 GENERAL ORDER R-582 PAGE 10 Delete as a result of creating capacity for a requester s attachment or ; Delete or another occupant s existing attachment made ; Delete bring that attachment and replace with bring another occupant s or owner s attachment ; Add to remedy a safety violation caused by another occupant or owner at the end of the sentence; Add a fourth sentence that states, The owner and each occupant shall bear their own costs to modify their existing attachments if required to comply with applicable safety requirements if an owner or occupant did not create a safety violation that necessitated the modification. (BCAW and Pacific Power). WAC (3) Formulas: Insert a division line between the number 1 and Number of Ducts on the lines below; Insert a division line between 1 Duct and Number of Inner Ducts on the lines below; Insert a division line between Net Conduit Investment and System Duct Length (ft./m.) on the lines below (corrects typographical errors). 31 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: After reviewing the entire record, the Commission determines that WAC , WAC , WAC , WAC , WAC , WAC , and WAC should be adopted to read as set forth in Appendix B, as rules of the Washington Utilities and Transportation Commission. Pursuant to RCW (2), we generally adopt rules to become effective on the thirty-first day after filing with the Code Reviser. PSE, however, states that it and other affected stakeholders would be better able to modify their existing processes and procedures to comply with the rules if they are not effective until the beginning of next year. We agree, and accordingly, we adopt the rules listed in this paragraph to take effect on January 1, 2016.

13 GENERAL ORDER R-582 PAGE THE COMMISSION ORDERS: ORDER 33 The Commission adopts WAC , WAC , WAC , WAC , WAC , WAC , and WAC to read as set forth in Appendix B, as rules of the Washington Utilities and Transportation Commission, to take effect on January 1, This Order and the rule set out below, after being recorded in the order register of the Washington Utilities and Transportation Commission, shall be forwarded to the Code Reviser for filing pursuant to RCW and RCW and WAC DATED at Olympia, Washington, October 21, WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION DAVID W. DANNER, Chairman PHILIP B. JONES, Commissioner ANN E. RENDAHL, Commissioner purposes: Note: The following is added at Code Reviser request for statistical Number of Sections Adopted in Order to Comply with Federal Statute: New 7, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

14 GENERAL ORDER R-582 PAGE 12 Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0. Number of Sections Adopted on the Agency's own Initiative: New 0, amended 0, repealed 0. Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0. Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

15 GENERAL ORDER R-582 PAGE 13 Appendix A (Comment Summary Matrix)

16 U Pole Attachment Rules Summary of Comments on Proposed Rules September 17, WAC Title PSE Avista Pacific Power Cable/ILECs Wireless Staff Recommendation 020(2) Definitions Carrying Charge 020(15) Definitions Owner Frontier: clarify and avoid disputes by substituting which are limited to for including AT&T and PCIA: reinsert express exemption of commercial mobile radio service companies because the Commission lacks jurisdiction to regulate attachments to their facilities Clarify that carrying charges are comprised of the listed items consistent with the FCC s long-standing practice. Do not make the suggested change. The definition mirrors the language in the statute. If an entity requests access to a CMRS provider s facilities, the Commission can address the jurisdictional question at that time. 1

17 WAC Title PSE Avista Pacific Power Cable/ILECs Wireless Staff Recommendation 030(1) Duty to provide access; makeready work; timelines Remove pole replacement requirement as beyond FCC requirements, unsupported by evidence, and improperly prioritizing needs of attachers over other PSE customers; timelines to process applications and conduce makeready work are arbitrary, do not allow sufficient time for owner evaluation, and will result in increased number of complaints to the Commission Delete requirement to replace existing poles with taller poles as inconsistent with FCC and other state rules and diminishing ability of electric utilities to provide safe and reliable electric service Joins Avista and PSE in opposing mandatory capacity expansion; substitute and for or in last sentence to clarify that a requester must pay all costs incurred to increase pole capacity for attachment Adopt Pacific Power proposal to use and rather than or but clarify in the adoption order that the owner need not incur both costs to recover either of them. Do not make other proposed changes. The specific timelines are the same as the timelines in the FCC rules, which PSE proposes the Commission adopt. The pole replacement requirement reflects current industry practice, and the rules provide the pole owners with longer times to complete pole replacements to accommodate issues beyond the owner s control. The electric utilities have provided no evidence to demonstrate that this practice will have any detrimental impact on their ability to provide safe and reliable electric service. Owners can include language in their attachment agreements to address these concerns if necessary, or they may seek a waiver of this requirement if a legitimate and demonstrable issue arises. 2

18 WAC Title PSE Avista Pacific Power Cable/ILECs Wireless Staff Recommendation 030(11) Overlashing Delete this subsection and rely Delete this subsection and Joins Avista and PSE in opposing on FCC rules as require allowing more appropriately overlashing overlashing balancing safety projects be without an with needs of submitted as application attachers; applications to alternatively, adopt revisions PSE previously proposed enable owners to evaluate safety and reliability impacts on poles 050 Modification costs; notice; temporary stay Limit time in which owner or occupant has cost responsibility for benefits from modifications to 60 days; Require occupants to transfer their attachments to a new pole at their cost; clarify subsection (2) that a conforming occupant bears no cost to rearrange its attachment if required solely as a result of creating capacity to comply with safety requirements BCAW: modify language to clarify the intent that an existing compliant attacher (including an owner) is not responsible for modification costs it does not cause or benefit from Do not make proposed changes. Overlashing without an application is available only for adding communications wires on existing attachments to a small number of poles, and the electric utilities provided no evidence that such overlashing poses any legitimate safety or reliability concerns. The notice requirements provide pole owners with adequate time to inspect the proposed route for the overlashing, consistent with, or more lenient than, the time Pacific Power suggested in prior written comments. Make most of the proposed changes to address commenters concerns. Staff removed the limitation on timing for cost responsibility in response to concerns about the lack of owners ability to track such intervals but believes such a limitation is appropriate. Staff agrees that subsection (2) is specific to rearrangements of attachments to address safety issues and that the language concerning space for an additional attachment should be deleted. On the other hand, the requester is responsible for all costs of replacing an existing pole with a taller one, and thus the requester not the owner or occupants should bear the cost to transfer attachments to the new pole. Accordingly, Staff recommends that the Commission not revise the proposed rule as Pacific Power suggests on this issue. With respect to BCAW s proposed changes, Staff s intent is also to ensure that neither the owner nor other occupants on the pole are responsible for costs they do not cause or benefit from, and some minor revisions would clarify that intent. 3

19 WAC Title PSE Avista Pacific Power Cable/ILECs Wireless Staff Recommendation 070 Complaint Keep burden of proof with the complainant or rely on existing rules regarding complaints Authorize owners to apply sanctions comparable to those authorized in Oregon against occupants with unauthorized or noncompliant attachments Do not make proposed change. The proposed rules properly shift the burden of proof only to the entity denying a right or seeking to deviate from the rules. The Commission cannot, and should not, delegate its authority to penalize entities for violating Commission rules. The absence of sanctions in the rules, however, does not preclude parties from negotiating to include such terms in attachment agreements. 4

20 GENERAL ORDER R-582 PAGE 14 Appendix B [Chapter WAC RULES]

21 Chapter WAC ATTACHMENT TO TRANSMISSION FACILITIES NEW SECTION WAC Purpose, interpretation, and application. (1) This chapter implements chapter RCW "Attachment to Transmission Facilities." (2) The commission will consider Federal Communications Commission orders promulgating and interpreting its pole attachment rules and federal court decisions reviewing those rules and interpretations as persuasive authority in construing the provisions in this chapter. (3) The rules in this chapter apply to all owners, occupants, and requesters as defined in this chapter without regard to whether those entities are otherwise subject to commission jurisdiction. NEW SECTION WAC Definitions. "Attachment" means any wire, cable, or antenna for the transmission of intelligence by telecommunications or television, including cable television, light waves, or other phenomena, or for the transmission of electricity for light, heat, or power, and any related device, apparatus, or auxiliary equipment, installed upon any pole or in any telecommunications, electrical, cable television, or communications right of way, duct, conduit, manhole or handhole, or other similar facilities owned or controlled, in whole or in part, by one or more owners, where the installation has been made with the consent of the one or more owners consistent with the rules in this chapter. "Attachment agreement" means an agreement negotiated in good faith between an owner and a utility or licensee establishing the rates, terms, and conditions for attachments to the owner's facilities. "Carrying charge" means the costs the owner incurs to own and maintain poles, ducts, or conduits without regard to attachments. Those costs are comprised of the owner's administrative, maintenance, and depreciation expenses, commission-authorized rate of return on investment, and applicable taxes. When used to calculate an attachment rate, the carrying charge may be expressed as a percentage of the net pole, duct, or conduit investment. "Communications space" means the usable space on a pole below the communications workers safety zone and above the vertical space for meeting ground clearance requirements under the National Electrical Safety Code. "Conduit" means a structure containing one or more ducts, usually placed in the ground, in which cables or wires may be installed. "Duct" means a single enclosed raceway for conductors, cable, or wire. [ 1 ] OTS

22 "Facility" means a pole, duct, conduit, manhole or handhole, right of way, or similar structure on or in which attachments can be made. "Facilities" refers to more than one facility. "Inner duct" means a duct-like raceway smaller than a duct that is inserted into a duct so that the duct may carry multiple wires or cables. "Licensee" means any person, firm, corporation, partnership, company, association, joint stock association, or cooperatively organized association, other than a utility, that is authorized to construct attachments upon, along, under, or across the public ways. "Make-ready work" means engineering or construction activities necessary to make a pole, duct, conduit, right of way, or other support equipment available for a new attachment, attachment modifications, or additional attachments. Such work may include rearrangement of existing attachments, installation of additional support for the utility pole, or creation of additional capacity, up to and including replacement of an existing pole with a taller pole. "Net cost of a bare pole" means (a) the original investment in poles, including purchase price of poles and fixtures and excluding cross-arms and appurtenances, less depreciation reserve and deferred federal income taxes associated with the pole investment, divided by (b) the number of poles represented in the investment amount. When an owner owns poles jointly with another utility, the number of poles for purposes of calculating the net cost of a bare pole is the number of solely owned poles plus the product of the number of the jointly owned poles multiplied by the owner's ownership percentage in those poles. In the unusual situation in which net pole investment is zero or negative, the owner may use gross figures with appropriate net adjustments. "Occupant" means any utility or licensee with an attachment to an owner's facility that the owner has granted the utility or licensee the right to maintain. "Occupied space" means that portion of the facility used for attachment that is rendered unusable for any other attachment, which is presumed to be one foot on a pole and one half of a duct in a duct or conduit. "Overlashing" means the tying of additional communications wires or cables to existing communications wires or cables attached to poles. "Owner" means the utility that owns or controls the facilities to or in which an occupant maintains, or a requester seeks to make, attachments. "Pole" means an above-ground structure on which an owner maintains attachments, which is presumed to be thirty-seven and one-half feet in height. When the owner is an electrical company as defined in RCW , "pole" is limited to structures used to attach electric distribution lines. "Requester" means a licensee or utility that applies to an owner to make attachments to or in the owner's facilities and that has an agreement with the owner establishing the rates, terms, and conditions for attachments to the owner's facilities. "Right of way" is an owner's legal right to construct, install, or maintain facilities or related equipment in or on grounds or property belonging to another person. For purposes of this chapter, "right of way" includes only such legal rights that permit the owner to allow third parties access to those rights. [ 2 ] OTS

23 "Unusable space," with respect to poles, means the space on the pole below the usable space, including the amount required to set the depth of the pole. In the absence of measurements to the contrary, a pole is presumed to have twenty-four feet of unusable space. "Usable space," with respect to poles, means the vertical space on a pole above the minimum grade level that can be used for the attachment of wires, cables, and associated equipment, and that includes space occupied by the owner. In the absence of measurements to the contrary, a pole is presumed to have thirteen and one-half feet of usable space. With respect to conduit, "usable space" means capacity within a conduit that is available or that could, with reasonable effort and expense, be made available, for the purpose of installing wires, cable, and associated equipment for telecommunications or cable services, and that includes capacity occupied by the owner. "Utility" means any electrical company or telecommunications company as defined in RCW , and does not include any entity cooperatively organized or owned by federal, state, or local government, or a subdivision of state or local government. NEW SECTION WAC Duty to provide access; make-ready work; timelines. (1) An owner shall provide requesters with nondiscriminatory access for attachments to or in any facility the owner owns or controls, except that if the owner is an electrical company as defined in RCW , the owner is not obligated to provide access for attachment to its facilities by another electrical company. An owner may deny such access to specific facilities on a nondiscriminatory basis where there is insufficient capacity or for reasons of safety, reliability, and generally applicable engineering principles; provided that the owner may not deny access to a pole based on insufficient capacity if the requester is willing to compensate the owner for the costs to replace the existing pole with a taller pole and otherwise undertake make-ready work to increase the capacity of the pole to accommodate an additional attachment including, but not limited to, using space- and cost-saving attachment techniques, such as boxing (installation of attachments on both sides of the pole at approximately the same height) or bracketing (installation of extension arms), to the extent that the owner uses, or allows occupants to use, such attachment techniques in the communications space of the owner's poles. (2) All rates, terms, and conditions made, demanded, or received by any owner for any attachment by a licensee or by a utility must be fair, just, reasonable, and sufficient and must be included in an attachment agreement with the licensee or utility. Parties may mutually agree on terms for attachment to or in facilities that differ from those in this chapter. In the event of disputes submitted for commission resolution, any party advocating rates, terms, or conditions that vary from the rules in this chapter bears the burden to prove those rates, terms, or conditions are fair, just, reasonable, and sufficient. (3) Except for overlashing requests described in subsection (11) of this section, a requester must submit a written application to an owner to request access to its facilities. The owner may recover from the requester the reasonable costs the owner actually and reasonably [ 3 ] OTS

24 incurs to process the application, including the costs of inspecting the facilities identified in the application and preparing a preliminary estimate for any necessary make-ready work, to the extent these costs are not, and would not ordinarily be, included in the accounts used to calculate the attachment rates in WAC The owner may survey the facilities identified in the application and may recover from the requester the costs the owner actually and reasonably incurs to conduct that survey. The owner must provide the requester with an estimate of those costs prior to conducting a survey. The owner must complete any such survey and respond in writing to requests for access to the facilities identified in the application within fortyfive days from the date the owner receives a complete application, except as otherwise provided in this section. A complete application is an application that provides the information necessary to enable the owner to identify and evaluate the facilities to or in which the requester seeks to attach. (4) If the owner denies the request in an application for access, in whole or in part, the owner's written response to the application must include an explanation of the reasons for the denial for each facility to which the owner is denying access. Such a response must include all relevant information supporting the denial. (5) To the extent that it grants the access requested in an application, the owner's written response must inform the requester of the results of the review of the application. Within fourteen days of providing its written response, the owner must provide an estimate of charges to perform all necessary make-ready work, including the costs of completing the estimate. Make-ready work costs are nonrecurring costs that are not included in carrying charges and must be costs that the owner actually and reasonably incurs to provide the requester with access to the facility. (a) The requester must accept or reject an estimate of charges to perform make-ready work within thirty days of receipt of the estimate. The owner may require the requester to pay all estimated charges to perform make-ready work as part of acceptance of the estimate or before the owner undertakes the make-ready work subject to true-up to the reasonable costs the owner actually incurs to undertake the work. (b) An owner may withdraw an outstanding estimate of charges to perform make-ready work any time after thirty days from the date the owner provides the estimate to the requester if the requester has not accepted or rejected that estimate. An owner also may establish a date no earlier than thirty days from the date the owner provides the estimate to the requester after which the estimate expires without further action by the owner. (6) For requests to attach to poles, the owner must determine the time period for completing the make-ready work and provide that information in a written notice to the requester and all known occupants with existing attachments on the poles that may be affected by the make-ready work. The owner and the requester must coordinate the makeready work with any such occupants, as necessary. (a) For attachments in the communications space, the notice shall: (i) Specify where and what make-ready work will be performed. (ii) Set a date for completion of make-ready work that is no later than sixty days after the notice is sent. For good cause shown, the owner may extend completion of the make-ready work by an additional fifteen days. [ 4 ] OTS

25 (iii) State that any occupant with an existing attachment may modify that attachment consistent with the specified make-ready work before the date set for completion of that work. Any occupant with an existing attachment that does not comply with applicable safety requirements must modify that attachment to bring it into compliance before the date set for completion of the make-ready work. The occupant shall be responsible for all costs incurred to bring its attachment into compliance. (iv) State that the owner may assert its right to fifteen additional days to complete the make-ready work. (v) State that if make-ready work is not completed by the completion date set by the owner (or fifteen days later if the owner has asserted its right to fifteen additional days), the owner and the requester may negotiate an extension of the completion date or the requester, after giving reasonable notice to the owner, may hire a contractor from the list of contractors the owner has authorized to work on its poles to complete the specified make-ready work within the communications space. If the owner does not maintain a list of authorized contractors, the requester may choose a contractor without the owner's authorization. (vi) State the name, telephone number, and address of a person to contact for more information about the make-ready work. (b) For wireless antennas or other attachments on poles in the space above the communications space, the notice shall: (i) Specify where and what make-ready work will be performed. (ii) Set a date for completion of make-ready work that is no later than ninety days after notice is sent. For good cause shown, the owner may extend completion of the make-ready work by an additional fifteen days. (iii) State that any occupant with an existing attachment may modify the attachment consistent with the specified make-ready work before the date set for completion of that work. Any occupant with an existing attachment that does not comply with applicable safety requirements must modify that attachment to bring it into compliance before the date set for completion of the make-ready work. The occupant shall be responsible for all costs incurred to bring its attachment into compliance. (iv) State that the owner may assert its right to fifteen additional days to complete the make-ready work. (v) State the name, telephone number, and address of a person to contact for more information about the make-ready work. (7) For the purpose of compliance with the time periods in this section: (a) The time periods apply to all requests for access to up to three hundred poles or 0.5 percent of the owner's poles in Washington, whichever is less. (b) An owner shall negotiate in good faith the time periods for all requests for access to more than three hundred poles or 0.5 percent of the owner's poles in Washington, whichever is less. (c) An owner may treat multiple requests from a single requester as one request when the requests are filed within the same thirty-day period. The applicable time period for completing the optional survey or required make-ready work begins on the date of the last request the owner receives from the requester within the thirty-day period. (8) An owner may extend the time periods specified in this section under the following circumstances: [ 5 ] OTS

26 (a) For replacing existing poles to the extent that circumstances beyond the owner's control including, but not necessarily limited to, local government permitting, landowner approval, or adverse weather conditions, require additional time to complete the work; or (b) During performance of make-ready work if the owner discovers unanticipated circumstances that reasonably require additional time to complete the work. Upon discovery of the circumstances in (a) or (b) of this subsection, the owner must promptly notify, in writing, the requester and other affected occupants with existing attachments. The notice must include the reason for the extension and date by which the owner will complete the work. The owner may not extend completion of make-ready work for a period any longer than reasonably necessary and shall undertake such work on a nondiscriminatory basis with the other work the owner undertakes on its facilities. (9) If the owner determines that a survey is necessary for responding to a request for attachment to poles and fails to complete a survey of the facilities specified in the application within the time periods established in this section, a requester seeking attachment in the communications space may negotiate an extension of the completion date with the owner or may hire a contractor from the list of contractors the owner has authorized to work on its poles to complete the survey. If the owner does not maintain a list of authorized contractors, the requester may choose a contractor without the owner's authorization. (10) If the owner does not complete any required make-ready work within the time periods established in this section, a requester seeking attachment in the communications space may negotiate an extension of the completion date with the owner or may hire a contractor from the list of contractors the owner has authorized to work on its poles to complete the make-ready work within the communications space: (a) Immediately, if the owner declines to exercise its right to perform any necessary make-ready work by notifying the requester that the owner will not undertake that work; or (b) After the end of the applicable time period authorized in this section if the owner has asserted its right to perform make-ready work and has failed to timely complete that work. If the owner does not maintain a list of authorized contractors, the requester may choose a contractor without the owner's authorization. (11) An occupant need not submit an application to the owner if the occupant intends only to overlash additional communications wires or cables onto communications wires or cables it previously attached to poles with the owner's consent under the following circumstances: (a) The occupant must provide the owner with written notice fifteen business days prior to undertaking the overlashing. The notice must identify no more than one hundred affected poles and describe the additional communications wires or cables to be overlashed so that the owner can determine any impact of the overlashing on the poles or other occupants' attachments. The notice period does not begin until the owner receives a complete written notice that includes the following information: (i) The size, weight per foot, and number of wires or cables to be overlashed; and (ii) Maps of the proposed overlash route, including pole numbers if available. (b) A single occupant may not submit more than five notices or identify more than a total of one hundred poles for overlashing in any [ 6 ] OTS

27 ten business day period. The applicable time period for responding to multiple notices begins on the date of the last notice the owner receives from the occupant within the ten business day period. (c) The occupant may proceed with the overlashing described in the notice unless the owner provides a written response, within ten business days of receiving the occupant's notice, prohibiting the overlashing as proposed. The owner may recover from the requester the costs the owner actually and reasonably incurs to inspect the facilities identified in the notice and to prepare any written response. The occupant must correct any safety violations caused by its existing attachments before overlashing additional wires or cables on those attachments. (d) The owner may refuse to permit the overlashing described in the notice only if, in the owner's reasonable judgment, the overlashing would have a significant adverse impact on the poles or other occupants' attachments. The refusal must describe the nature and extent of that impact, include all relevant information supporting the owner's determination, and identify the make-ready work that the owner has determined would be required prior to allowing the proposed overlashing. The parties must negotiate in good faith to resolve the issues raised in the owner's refusal. (e) A utility's or licensee's wires or cables may not be overlashed on another occupant's attachments without the owner's consent and unless the utility or licensee has an attachment agreement with the owner that includes rates, terms, and conditions for overlashing on the attachments of other occupants. NEW SECTION WAC Contractors for survey and make-ready work. (1) An owner should make available and keep up-to-date a reasonably sufficient list of contractors it authorizes to perform surveys and makeready work in the communications space on its poles in cases where the owner has failed to meet deadlines specified in WAC (2) If a requester hires a contractor for purposes specified in WAC , the requester must choose a contractor included on the owner's list of authorized contractors. If the owner does not maintain such a list, the requester may choose a contractor without the owner's approval of that choice. (3) A requester that hires a contractor for survey or make-ready work must provide the owner with prior written notice identifying and providing the contact information for the contractor and must provide a reasonable opportunity for an owner representative to accompany and consult with the contractor and the requester. (4) Subject to commission review in a complaint proceeding, the consulting representative of an owner may make final determinations, on a nondiscriminatory basis, on the attachment capacity of any pole and on issues of safety, reliability, and generally applicable engineering principles. [ 7 ] OTS

28 NEW SECTION WAC Modification costs; notice; temporary stay. (1) The costs of modifying a facility to create capacity for additional attachment, including but not limited to replacement of a pole, shall be borne by the requester and all existing occupants and owner that directly benefit from the modification. Each such occupant or owner shall share the cost of the modification in proportion to the amount of new or additional usable space the occupant or owner occupies on or in the facility. An occupant or owner with an existing attachment to the modified facility shall be deemed to directly benefit from a modification if, within sixty days after receiving notification of such modification, that occupant or owner adds to its existing attachment or otherwise modifies its attachment. An occupant or owner with an existing attachment shall not be deemed to directly benefit from replacement of a pole if the occupant or owner only transfers its attachment to the new pole. (2) The costs of modifying a facility to bring an existing attachment into compliance with applicable safety requirements shall be borne by the occupant or owner that created the safety violation that necessitated the modification. Such costs include, but are not necessarily limited to, the costs incurred by the owner or other occupants to modify the facility or conforming attachments. An occupant or owner with an existing conforming attachment to a facility shall not be required to bear any of the costs to rearrange or replace the occupant's or owner's attachment if such rearrangement or replacement is necessitated solely to accommodate modifications to the facility to bring another occupant's or owner's attachment into conformance with applicable safety requirements to remedy a safety violation caused by another occupant or owner. The owner and each occupant shall bear their own costs to modify their existing attachments if required to comply with applicable safety requirements if an owner or occupant did not create a safety violation that necessitated the modification. (3) An owner shall provide an occupant with written notice prior to removal of, termination of service to, or modification of (other than routine maintenance or modification in response to emergencies) any facilities on or in which the occupant has attachments affected by such action. The owner must provide such notice as soon as practicable but no less than sixty days prior to taking the action described in the notice; provided that the owner may provide notice less than sixty days in advance if a governmental entity or landowner other than the owner requires the action described in the notice and did not notify the owner of that requirement more than sixty days in advance. (4) A utility or licensee may file with the commission and serve on the owner a "petition for temporary stay" of utility action contained in a notice received pursuant to subsection (3) of this section within twenty days of receipt of such notice. The petition must be supported by declarations or affidavits and legal argument sufficient to demonstrate that the petitioner or its customers will suffer irreparable harm in the absence of the relief requested that outweighs any harm to the owner and its customers and that the petitioner will likely be successful on the merits of its dispute. The owner may file and serve an answer to the petition within seven days after the petition is filed unless the commission establishes a different deadline for an answer. [ 8 ] OTS

29 (5) An owner may file with the commission and serve on the occupant a petition for authority to remove the occupant's abandoned attachments. The petition must identify the attachments and provide sufficient evidence to demonstrate that the occupant has abandoned those attachments. The occupant must file an answer to the petition within twenty days after the petition is filed unless the commission establishes a different deadline for an answer. If the occupant does not file an answer or otherwise respond to the petition, the commission may authorize the owner to remove the attachments without further proceedings. NEW SECTION WAC Rates. (1) A fair, just, reasonable, and sufficient rate for attachments to or in facilities shall assure the owner the recovery of not less than all the additional costs of procuring and maintaining the attachments, nor more than the actual capital and operating expenses, including just compensation, of the owner attributable to that portion of the facility used for the attachments, including a share of the required support and clearance space, in proportion to the space used for the attachment, as compared to all other uses made of the facility, and uses that remain available to the owner. (2) The following formula for determining a fair, just, reasonable, and sufficient rate shall apply to attachments to poles: Maximum Rate = Space Factor Where Space Factor = x Net Cost of a Bare Pole x Carrying Charge Rate Occupied Space Total Usable Space (3) The following formula for determining a fair, just, reasonable, and sufficient rate shall apply to attachments to ducts or conduits: Maximum Rate per Linear ft./m. = [ 1 x 1 Duct ] x [ Number x Net Conduit Investment ] x Carrying Charge Number of Number of of Ducts System Duct Length (ft./m.) Rate Ducts Inner Ducts simplified as: Maximum Rate per Linear ft./m. (Percentage of Conduit Capacity) = (Net Linear Cost of a Conduit) [ 1 Duct ] x [ Net Conduit Investment ] No. of Inner Ducts System Duct Length (ft./m.) x Carrying Charge Rate If no inner duct or only a single inner duct is installed, the fraction "1 Duct divided by the Number of Inner Ducts" is presumed to be 1/2. [ 9 ] OTS

30 NEW SECTION WAC Complaint. (1) Whenever the commission shall find, after hearing had upon complaint by a licensee or by a utility, that the rates, terms, or conditions demanded, exacted, charged, or collected by any owner in connection with attachments to its facilities are not fair, just, and reasonable, or by an owner that the rates or charges are insufficient to yield a reasonable compensation for the attachment, the commission will determine the fair, just, reasonable, and sufficient rates, terms, and conditions thereafter to be observed and in force and fix the same by final order entered within three hundred sixty days after the filing of the complaint. The commission will enter an initial order resolving a complaint filed in conformance with this rule within six months of the date the complaint is filed. The commission may extend this deadline for good cause. In determining and fixing the rates, terms, and conditions, the commission will consider the interest of the customers of the licensee or utility, as well as the interest of the customers of the owner. Except as provided in this rule, the commission's procedural rules, chapter WAC, govern complaints filed pursuant to this rule. (2) A utility or licensee may file a formal complaint pursuant to this rule if: (a) An owner has denied access to its facilities; (b) An owner fails to negotiate in good faith the rates, terms, and conditions of an attachment agreement; or (c) The utility or licensee disputes the rates, terms, or conditions in an attachment agreement, the owner's performance under the agreement, or the owner's obligations under the agreement or other applicable law. (3) An owner may file a formal complaint pursuant to this rule if: (a) Another utility or licensee is unlawfully making or maintaining attachments to or in the owner's facilities; (b) Another utility or licensee fails to negotiate in good faith the rates, terms, and conditions of an attachment agreement; or (c) The owner disputes the rates, terms, or conditions in an attachment agreement, the occupant's performance under the agreement, or the occupant's obligations under the agreement or other applicable law. (4) The execution of an attachment agreement does not preclude any challenge to the lawfulness or reasonableness of the rates, terms, or conditions in that agreement, provided that one of the following circumstances exists: (a) The parties made good faith efforts to negotiate the disputed rates, terms, or conditions prior to executing the agreement but were unable to resolve the dispute despite those efforts, and such challenge is brought within six months from the agreement execution date; or (b) The party challenging the rate, term, or condition was reasonably unaware of the other party's interpretation of that rate, term, or condition when the agreement was executed. (5) A complaint authorized under this section must contain the following: (a) A statement, including specific facts, demonstrating that the complainant engaged or reasonably attempted to engage in good faith, executive-level negotiations to resolve the disputed issues raised in [ 10 ] OTS

31 the complaint and that the parties failed to resolve those issues despite those efforts; such negotiations must include the exchange of reasonably relevant information necessary to resolve the dispute including, but not limited to, the information required to calculate rates in compliance with WAC ; (b) Identification of all actions, rates, terms, and conditions alleged to be unjust, unfair, unreasonable, insufficient, or otherwise contrary to applicable law; (c) Sufficient data or other factual information and legal argument to support the allegations to the extent that the complainant possesses such factual information; and (d) A copy of the attachment agreement, if any, between the parties. (6) The commission will issue a notice of prehearing conference within five business days after the complaint is filed. The party complained against must answer the complaint within ten business days from the date the commission serves the complaint. The answer must respond to each allegation in the complaint with sufficient data or other factual information and legal argument to support that response to the extent the respondent possesses such factual information. (7) A licensee or utility has the burden to prove its right to attach to or in the owner's facilities and that any attachment requirement, term, or condition an owner imposes or seeks to impose that the licensee or utility challenges violates any provision of chapter RCW, this chapter, or other applicable law. An owner bears the burden to prove that the attachment rates it charges or proposes to charge are fair, just, reasonable, and sufficient or that the owner's denial of access to its facilities is lawful and reasonable. (8) If the commission determines that a rate, term, or condition complained of is not fair, just, reasonable, and sufficient, the commission may prescribe a rate, term, or condition that is fair, just, reasonable, and sufficient. The commission may require the inclusion of that rate, term, or condition in an attachment agreement and to the extent authorized by applicable law, may order a refund or payment of the difference between any rate the commission prescribes and the rate that was previously charged during the time the owner was charging the rate after the effective date of this rule. (9) If the commission determines that an owner has unlawfully or unreasonably denied or delayed access to a facility, the commission may order the owner to provide access to that facility within a reasonable time frame and in accordance with fair, just, reasonable, and sufficient rates, terms, and conditions. (10) Nothing in this section precludes an owner or occupant from bringing any other complaint that is otherwise authorized under applicable law. [ 11 ] OTS

32 STATE OF CALIFORNIA PUBLIC UTILITIES COMMISSION 505 VAN NESS AVENUE SAN FRANCISCO, CA APSC FILED Time: 11/4/ :52:01 EDMUND AM: Recvd G. BROWN 11/4/2015 JR., Governor 10:51:05 AM: Docket R-Doc. 58 FILED :47 PM October 30, 2015 Agenda ID #14425 Quasi-legislative TO PARTIES OF RECORD IN RULEMAKING : This is the proposed decision of assigned Commissioner Randolph. Until and unless the Commission hears the item and votes to approve it, the proposed decision has no legal effect. This item may be heard, at the earliest, at the Commission s December 3, 2015 Business Meeting. To confirm when the item will be heard, please see the Business Meeting agenda, which is posted on the Commission s website 10 days before each Business Meeting. Parties of record may file comments on the proposed decision as provided in Rule 14.3 of the Commission s Rules of Practice and Procedure. /s/ MARYAM EBKE for Karen V. Clopton, Chief Administrative Law Judge KVC:lil Attachment

33 COM/LR1/lil Agenda ID #14425 Quasi-legislative Decision OF COMMISSIONER RANDOLPH (Mailed 10/30/2015) BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Order Instituting Rulemaking Regarding the Applicability of the Commission s Right-of-Way Rules to Commercial Mobile Radio Service Carriers. Rulemaking (Filed May 1, 2014) DECISION REGARDING THE APPLICABILITY OF THE COMMISSION S RIGHT-OF-WAY RULES TO COMMERCIAL MOBILE RADIO SERVICE CARRIERS

34 APSC FILED Time: 11/4/ :52:01 AM: Recvd 11/4/ :51:05 AM: Docket R-Doc. 58 TABLE OF CONTENTS Title Page DECISION REGARDING THE APPLICABILITY OF THE COMMISSION S RIGHT-OF-WAY RULES TO COMMERCIAL MOBILE RADIO SERVICE CARRIERS Summary Background Federal Laws and Regulations Decision and the ROW Rules Scope of the Proceeding Procedural Background Issues Extending the ROW Rules to CMRS Carriers Positions of the Parties Discussion Fees and Charges for CMRS Attachments Background Positions of the Parties Discussion Pole Space Subject to the 7.4% Fee Rounding and Minimum Fee Pole-Top Antennas Shared Pole Space Common Space Pole-Attachment Fees in Excess of 100% Conduits, Risers, and Electric Meters No Changes to the Pole-Attachment Fee for CLEC and CATV Attachments Adopted Changes to the Text of the ROW Rules No Tariffs for CMRS Attachments Accounting and Ratemaking for CMRS Attachments Certification of Compliance with 47 U.S.C. 224(c) Implementation of Revised ROW Rules New Safety Regulations for CMRS Pole Attachments Proposed Revisions to Rules 21.0-D and 87.7-B (Guard Arms) Summary of the Proposals Positions of the Parties i -

35 APSC FILED Time: 11/4/ :52:01 AM: Recvd 11/4/ :51:05 AM: Docket R-Doc. 58 Title TABLE OF CONTENTS (cont.) Page Discussion Proposed New Rule 94.3-D (Load Calculation) Summary of the Proposal Positions of the Parties Discussion Proposed Revisions to Rule 94.5-A (Marking) Summary of the Proposal Positions of the Parties Discussion Proposed Revisions to Rule 94.6-C (Climbing Space) Summary of the Proposals Positions of the Parties Electric IOUs Proposal AT&T Mobility-CTIA Proposal SED Proposal Discussion Proposed Revisions to Rule 94.9 (De-Energizing Protocols) Summary of the Proposal Positions of the Parties Discussion Proposed New Rule (Pad Mounting) Summary of the Proposal Positions of the Parties Discussion Proposed New Rule and New Rule 94.3-C(1) (Pole Embedment) Summary of the Proposals Positions of the Parties Proposed Rule Proposed Rule 94.3-C(1) Discussion Proposed Rule Proposed Rule 94.3-C(1) Proposed New Rule (Personnel Access to Pole-Top Antennas) Summary of the Proposal ii -

36 APSC FILED Time: 11/4/ :52:01 AM: Recvd 11/4/ :51:05 AM: Docket R-Doc. 58 Title TABLE OF CONTENTS (cont.) Page Positions of the Parties Discussion Data Base of Pole Attachments Implementation of the New and Revised GO 95 Rules California Environmental Quality Act Comments on the Proposed Decision Assignment of the Proceeding Findings of Fact Conclusions of Law ORDER Appendix A: Adopted Amendments to the ROW Rules... A-1 Appendix B: Proposed Revisions to GO B-1 Revised Rule 21.0-D and Rule 87.7-B (Guard Arms)... B-2 New Rule 94.3-D (Load Calculation)... B-3 Revised Rule 94.5-A (Marking)... B-3 New Rule 94.6-C (Fall-Protection Gear)... B-5 Revised Rule 94.9 (De-Energizing Protocols)... B-6 New Rule (Pad Mounting)... B-6 New Rule (Pole Embedment)... B-6 New Rule 94.3-C(1) (Pole Embedment)... B-7 New Rule (Pole-Top Antenna Access)... B-7 Appendix C: Adopted Amendments to General Order C-1 Rule 21.0-D (Guard Arms)... C-2 Rule 87.7-B (Guard Arms)... C-2 Rule 94.5-A (Marking)... C-3 Rule 94.6-C (Climbing Space and Fall Protection)... C-3 Rule 94.9 (De-Energizing Protocols)... C-4 Rule (Pole Overturning Calculation)... C-4 Rule (Personnel Access Above Supply Lines)... C-4 Appendix D: Examples of Pole Space Subject to the 7.4% Fee... D-1 Appendix E: Example Calculations of Pole Overturning Moment... E-1 - iii -

37 DECISION REGARDING THE APPLICABILITY OF THE COMMISSION S RIGHT-OF-WAY RULES TO COMMERCIAL MOBILE RADIO SERVICE CARRIERS 1. Summary In Decision , the Commission adopted the Right-of-Way Rules (ROW Rules) that provide competitive local exchange carriers (CLECs) and cable television (CATV) corporations with nondiscriminatory access to public utility infrastructure. Today s decision amends the ROW Rules to provide commercial mobile radio service (CMRS) carriers with nondiscriminatory access to public utility infrastructure, too. Such access will facilitate investment in wireless infrastructure, encourage widespread deployment of broadband wireless services, foster the provision of wireless service in previously unserved areas, and improve access to 911. With one exception, the amended ROW Rules provide CMRS carriers with the same access to utility infrastructure as CLECs and CATV corporations. The one exception pertains to pole-attachment fees. Currently, the ROW Rules allow public utilities to charge each CLEC and CATV pole installation an annual attachment fee equal to 7.4% of a utility s cost-of-ownership for the host pole. The 7.4% fee is based on the assumption that a CLEC or CATV pole installation occupies one vertical foot of pole space. CMRS pole installations typically occupy more pole space than CLEC and CATV pole installations. To reflect the greater use of pole space by CMRS installations, today s decision amends the ROW Rules to allow public utilities to charge an annual pole-attachment fee of 7.4% for each vertical foot of pole space occupied by CMRS installations. This amendment will result in CMRS carriers - 2 -

38 paying approximately the same amount as CLECs and CATV corporations for each foot of occupied pole space. To ensure that CMRS pole installations are safe, today s decision adopts the following amendments to General Order (GO) 95: Rules 21.0-D and 87.7-B are revised to prohibit antennas on guard arms except in specified circumstances. Rule 94.5-A is revised to require that signs alerting workers to the presence of radio-frequency radiation must comply with the marking requirements in Appendix H of GO 95. New Rule 94.6-C is added that prohibits antenna installations from obstructing pole climbing space or interfering with workers fall-protection gear, except in specified circumstances. The new rule includes examples of antenna installations that typically do not interfere with fall-protection gear. Rule 94.9 is revised to require that protocols for de-energizing antennas, when necessary to protect the safety of workers, must comply with the protocols in Appendix H of GO 95. New Rule is added that (i) requires a pole-overturning calculation before a pole-top antenna is attached to a pole, and (ii) specifies the safety factors for this calculation. New Rule is added which states that only personnel and contractors who are properly qualified to work in proximity to supply lines shall have access to, and work on, wireless facilities installed above supply lines. The costs to CMRS carriers and pole owners to implement the adopted amendments to the ROW Rules and GO 95 are unknown, but will be insignificant relative to their revenues. This proceeding is closed

39 2. Background 2.1. Federal Laws and Regulations Title 47 of the United States Code, at Section 224(f) ( 47 U.S.C. 224(f) ), requires a utility 1 to provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by the utility except in situations where a utility cannot provide access because of insufficient capacity and for reasons of safety, reliability and generally applicable engineering principles. 2 Section 224(b)(1) requires the Federal Communications Commission ( FCC ) to regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable, and shall adopt procedures to hear and resolve complaints concerning such rates, terms, and conditions. The FCC s regulations for nondiscriminatory pole attachments 3 are set forth in Title 47 of the Code of Federal Regulations, at , ( 47 C.F.R ). Of relevance to today s decision, the FCC has determined that the benefits and protections of 47 U.S.C. 224 apply to wireless carriers and wireless pole attachments U.S.C. 224 (a)(1) defines the term utility as any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. 2 See also 47 U.S.C. 251(b)(4). 3 Section 224(a)(4) defines the term pole attachment as any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility. 4 In the Matter of Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, WC Docket No , GN Docket No , Report and Order and Order on Reconsideration, 26 FCC Rcd. 5240, 52 Communications Reg. (P&F) 1027, FCC (rel. Apr. 7, 2011) (hereafter FCC ) at 12, 77, and

40 A State may preempt the FCC s regulation of pole attachments. Specifically, 47 U.S.C. 224(c)(1) provides that [n]othing in this section shall be construed to apply to, or to give the [FCC] jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and rights-of-way for pole attachments in any case where such matters are regulated by a State." In order for a State to establish its jurisdiction, the State must certify to the FCC that the State has enacted regulations that meet the following conditions set forth in 47 U.S.C. 224(c)(2) and (3): (2) Each State which regulates the rates, terms, and conditions for pole attachment shall certify to the [FCC] that - - (A) it regulates such rates, terms, and conditions; and (B) in so regulating such rates terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of the services offered via such attachment, as well as the interests of the consumers of the utility service. (3) For purposes of this subsection, a State shall not be considered to regulate the rates, terms, and conditions for pole attachments - - (A) unless the State has issued and made effective rules and regulations implementing the State's regulatory authority over pole attachments; and (B) with respect to any individual matter, unless the State takes final action on a complaint regarding such matter - - i. within 180 days after the complaint is filed with the State or ii. within the application period prescribed for such final action in such rules and regulations of the State, if the prescribed period does not extend beyond 360 days after the filing of such complaint. A State s regulation of pole attachments does not have to conform to the FCC s rules. As set forth in 47 U.S.C. 253(b), a state may adopt "on a competitively neutral basis and consistent with Section 254, requirements - 5 -

41 necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers." In addition, 253 recognizes the authority of State and local governments to manage public rights-of-way ( ROW ) and to require just and reasonable compensation for the use of such ROW Decision and the ROW Rules Public Utilities Code Sections (Pub. Util. Code ) 701, 767, and 1702 authorize the California Public Utilities Commission ( Commission ) to regulate public utilities and to establish reasonable rates, terms, and conditions for joint use of utility poles, ducts, conduits, and ROW (together, utility infrastructure ). In Decision (D.) , the Commission adopted rules to provide facilities-based competitive local exchange carriers ( CLECs ) 5 and cable TV ( CATV ) corporations with nondiscriminatory access to utility infrastructure that is owned or controlled by (1) large and midsized incumbent local exchange carriers; and (2) major investor-owned electric utilities consisting of Pacific Gas and Electric Company ( PG&E ), Southern California Edison Company ( SCE ), and San Diego Gas & Electric Company ( SDG&E ). D also provided certification to the FCC that the Commission regulates the rates, terms, and conditions for nondiscriminatory access to utility infrastructure in conformance with 47 U.S.C. 224(c)(2) and (3). As a result of these actions, the Commission has preempted FCC regulation of pole attachments in California. The Commission s rules for nondiscriminatory access to utility infrastructure (referred to as the ROW Rules ) address the following matters: 5 D uses the terms competitive local carrier and CLC to identify a competitive local exchange carrier

42 1. Requests for information by CLECs and CATV corporations regarding the availability of a utility s infrastructure. 2. Requests to access a utility s infrastructure by CLECs and CATV corporations, including the contents of the requests; deadlines for utility responses and the contents of utility responses; timeframe for the utility to complete make-ready work; and the use of qualified personnel to perform make-ready work, rearrangements, attachments, and installations. 3. Protections for proprietary information. 4. Fees and contracts for access to utility infrastructure. 5. Reservations of infrastructure capacity for future use. 6. Access to customer premises. 7. Procedures for expedited resolution of disputes. 8. Safety standards for access to utility infrastructure, including pole attachments. The ROW Rules are set forth in D , Appendix A, and are administered by the Commission in the form of preferred outcomes. Parties negotiating access agreements may depart from these preferred outcomes but, in resolving any access dispute, the Commission will consider how closely each party has conformed to these preferred outcomes. Of importance to today s decision, D excluded commercial mobile radio service ( CMRS ) carriers 6 from the ROW Rules. 7 While the 6 CMRS carriers are telephone corporations and therefore public utilities subject to the Commission s jurisdiction under Pub. Util. Code 216, 233, and 234. In 1993, 47 U.S.C. 332(c)(3)(A) was amended to restrict state jurisdiction over CMRS carriers to other terms and conditions of CMRS service. These other terms and conditions include facility siting and public safety. 7 CMRS includes cellular services, personal communications services, wide-area specialized mobile services, radio telephone services, and many other wireless services. (D , - 7 -

43 Commission recognized that CMRS carriers should not be subjected to unfair discrimination pursuant to 47 U.S.C. 224(f)(1), the focus of D was on wireline local exchange service, not CMRS. The Commission also held that the rationale for the pole-attachment rates and access requirements adopted in D with respect to wireline local exchange service may not apply to CMRS service. For example, the Commission noted that, unlike wireline local exchange carriers, CMRS carriers often seek to install antennas on the top of existing poles, which raises safety issues. The Commission concluded that it needed more information about the safety, reliability, and access needs of CMRS pole attachments in order to make an informed decision about the applicability of the ROW Rules to CMRS carriers. The Commission then deferred this matter to a later phase of the proceeding, but the proceeding was closed before the Commission took up this matter Scope of the Proceeding The Commission issued Order Instituting Rulemaking (OIR) in response to Petition (P.) filed by AT&T Mobility. 8 As set forth in OIR , the overall scope of this rulemaking proceeding is to consider whether and how the ROW Rules adopted by D for nondiscriminatory access to public utility infrastructure should be amended to encompass CMRS carriers, with the goal of fostering affordable, reliable, and ubiquitous 70 CPUC 2d 61, 65.) In the common vernacular, the term CMRS is used interchangeably with the terms wireless and cellular. 8 AT&T Mobility refers to, collectively, AT&T Mobility Wireless Operations Holdings, Inc. (U-3021-C); New Cingular Wireless PCS, LLC (U-3060-C) d/b/a AT&T Mobility; and Santa Barbara Cellular Systems, Ltd. (U-3015-C)

44 mobile radio service. Appendix A of the OIR shows the ROW Rules with AT&T Mobility s proposed amendments. The Commission determined in OIR that any amendments to the ROW Rules adopted in this proceeding must (1) provide just and reasonable fees for CMRS pole attachments 9 ; (2) protect the safety of workers and the public; and (3) preserve the reliability of co-located utility facilities. The Commission further determined that adopted amendments to the ROW Rules, if any, will apply prospectively in accordance with Rule 6.3(a) of the Commission s Rules of Practice and Procedure, and will not apply to the contractual rates, terms, and conditions for existing CMRS installations Procedural Background The Commission approved OIR at its meeting on May 1, A notice of availability of the OIR was served on (1) every CMRS carrier with a utility identification number issued by the Commission, and (2) the official service lists for Petition , Rulemaking , and the consolidated dockets of Rulemaking and Investigation Notice of OIR appeared in the Commission s Daily Calendar on May 9, In accordance with the OIR, three all-party meetings were held in May and June of 2014 to (1) identify areas of consensus regarding matters within the scope of this proceeding, (2) identify disputed issues, and (3) reach an agreement, if possible, on the schedule for this proceeding and appropriate procedures for resolving disputed issues. The parties did not reach a consensus on any issues. 9 Consistent with the OIR, today s decision uses the definition of pole attachment set forth in the ROW Rules adopted by D , Appendix A, Section II

45 Combined prehearing conference statements and opening comments were filed on July 7, 2014, by the following parties: AT&T Mobility. The California Cable and Telecommunications Association (CCTA ). The Consumer Federation of California ( CFC ). CTIA-The Wireless Association ( CTIA ). The International Brotherhood of Electrical Workers Local Union 1245 ( IBEW 1245 ). PCIA - The Wireless Infrastructure Association and the HetNet Forum (together, PCIA ). The Commission s Safety and Enforcement Division ( SED ). A coalition of investor owned electric utilities consisting of PG&E, SCE, and SDG&E (together, the Electric IOUs ). The Utility Reform Network ( TURN ). The Wireless Communications Initiative of Joint Venture: Silicon Valley ( JVSV ) and the California Wireless Association ( CWA ). Reply comments were filed on July 17, 2014, by AT&T Mobility, CCTA, CTIA, the Electric IOUs, and TURN. A prehearing conference was held on August 6, 2014, and the Assigned Commissioner s Scoping Memo and Ruling was issued on August 27, 2014 (hereafter, Scoping Memo ). In accordance with the schedule and directives in the Scoping Memo, AT&T Mobility, CCTA, and the Electric IOUs filed reports on October 21, 2014, containing specified information and diagrams regarding CMRS pole attachments. These reports were the subject of a two-day workshop held on November 4 and 5, Together, these reports and the workshop provided a common base of technical knowledge for evaluating and deciding issues within the scope of this rulemaking proceeding

46 Following the November 2014 workshops, the assigned Administrative Law Judge (ALJ) issued several rulings that directed certain parties to file reports containing engineering calculations, cost data for pole attachments, and other technical information. Reports were filed on December 5, 2014, by AT&T Mobility, PG&E, SCE, SDG&E, 10 and jointly by CCTA and JVSV. In parallel with these activities, SED conducted field inspections of CMRS sites, issued data requests to pole owners and CMRS carriers, and used the information obtained to assess the safety hazards associated with CMRS pole attachments. On December 5, 2014, SED filed a report containing its recommendations for mitigating these safety hazards. Comments regarding SED s recommendations and other matters were filed on December 17-19, 2014, by AT&T Mobility, CCTA, CFC, CTIA, the Electric IOUs, JVSV, PCIA, SED, and TURN. Reply comments were filed on January 7, 2015, by AT&T Mobility, CTIA, the Electric IOUs, JVSV, PCIA, the Commission s Office of Ratepayer Advocates ( ORA ), SED, and TURN. On January 14, 2015, the Electric IOUs filed a motion to convene additional workshops followed by an opportunity to request evidentiary hearings or alternative dispute resolution ( ADR ). The motion was granted by the assigned ALJ in two rulings issued on February 6 and 9, Six days of workshops were held in February and March of On April 17, 2015, AT&T Mobility filed a workshop report on behalf of the workshop participants. A final round of comments was filed on April 17, 2015, by AT&T, CCTA, CTIA, the Electric IOUs, SED, and TURN. Reply comments were filed on April 24, 2015, by the same parties and PCIA. 10 SDG&E submitted a corrected report on December 9,

47 On April 29, 2015, the Electric IOUs filed a motion requesting ADR. The motion was denied in an ALJ ruling issued on May 20, There were no requests for evidentiary hearings, and none were held. 3. Issues Below, we first address the issue of whether the ROW Rules should be amended to encompass CMRS carriers. Next, we consider appropriate fees and charges for CMRS pole attachments. Finally, we consider new safety regulations for CMRS pole attachments Extending the ROW Rules to CMRS Carriers Positions of the Parties Most parties support amending the ROW Rules to encompass CMRS carriers, including AT&T Mobility, CCTA, CFC, CTIA, CWA, JVSV, and PCIA. Conversely, the Electric IOUs submit that the rapid growth of the CMRS industry shows there is no need to extend the ROW Rules to CMRS carriers. The Electric IOUs state that the real issue is not about facilitating further growth of the CMRS market, but about the safety and pricing of CMRS pole attachments. Therefore, if the Commission does extend the ROW Rules to CMRS carriers, the Electric IOUs urge the Commission to adopt the Electric IOUs proposed safety regulations and pricing proposals for CMRS pole attachments. In the same vein, SED states that the ROW Rules should not be extended to CMRS carriers unless SED s proposed safety regulations for CMRS pole attachments are adopted. TURN recommends that to protect ratepayers from subsidizing CMRS carriers, the Commission should set just and reasonable prices for CMRS pole attachments

48 Discussion We conclude that it is in the public interest to amend the ROW Rules adopted by D to encompass CMRS carriers. This will enable CMRS carriers to obtain nondiscriminatory access to public utility poles, ducts, conduits, and rights-of-way. As we noted in OIR , CMRS carriers have a right to nondiscriminatory access under federal law and FCC regulations, except in situations where there is insufficient capacity, adverse effects on safety or reliability, and/or engineering constraints. 11 In D , the Commission asserted jurisdiction under federal law to regulate nondiscriminatory access. 12 By asserting such jurisdiction, the Commission assumed the obligation to promulgate rules for nondiscriminatory access that apply to CMRS carriers. Today s decision fulfills our obligation. In addition to legal considerations, we find that providing CMRS carriers with nondiscriminatory access to public utility infrastructure will help achieve the following policy objectives established by Pub. Util. Code 709: Provide affordable, high quality telecommunications services to all Californians. ( 709(a).) Encourage the deployment of new technologies and the equitable provision of services in a way that efficiently meets consumer needs and encourages the ubiquitous availability of a wide choice of state-of-the art services. ( 709(c).) Bridge the digital divide by encouraging expanded access to state-of-the art technologies for rural, inner-city, low-income, and disabled Californians. ( 709(d).) Promote economic growth, job creation, and the substantial social benefits that result from the rapid implementation of U.S.C. 224(f); 47 C.F.R ; and FCC at 12, 74-77, 136, D , Conclusions of Law

49 information and communications technologies by adequate investment in the necessary infrastructure. ( 709(e).) Remove barriers to open and competitive markets and promote fair product and price competition in a way that encourages greater efficiency, lower prices, and more consumer choice. ( 709(g).) A related and equally important goal of the State of California is the widespread deployment of broadband services. Like electricity a century ago, broadband is a foundation for improved education, new industries, economic growth, job creation, global competitiveness, and a better way of life. The Commission has recognized the critical role of broadband communications in the lives of people and society at large. 13 We disagree with the Electric IOUs position that the rapid growth of the CMRS industry demonstrates there is no need to amend the ROW Rules to encompass CMRS carriers. As stated previously, federal law requires either the FCC or the States to regulate nondiscriminatory access to utility infrastructure by CMRS carriers. 14 We believe that such regulation is best accomplished at the State level in California so that we may tailor the regulatory framework to advance the public interest goals identified previously. Unlike the Electric IOUs, we believe the rapid growth of the CMRS industry demonstrates that it is in the public interest to extend the ROW Rules to CMRS carriers. The record of this proceeding shows that use of wireless services 13 D at 5. ( Advanced video and broadband systems are critical to social and economic development in our state. ) There are several California programs to help close the digital divide. The California Advanced Services Fund increases geographic access to broadband. The California Emerging Technology Fund promotes access to broadband. And the California Lifeline program provides free or reduced cost cell phones to lowincome households to enable access to wireless voice, text, and internet U.S.C. 224(b), (c), and (f)

50 has grown tremendously in recent years with no signs of slowing. At the end of 2012, approximately one-third of Californians lived in wireless-only households, and about 70 percent of all 911 calls were made with a wireless device. Most Californians now use a wireless device as their primary Internet access tool. 15 The growing demand for wireless services requires constant expansion and augmentation of wireless infrastructure. In an urban setting, the wireless infrastructure must be particularly dense in to order to provide the services demanded by the public, from basic voice communications to broadband. Oftentimes, the most efficient way to obtain the required density is to use existing public utility infrastructure, especially utility poles. 16 Providing CMRS carriers with nondiscriminatory access to utility infrastructure will facilitate their ability to meet California s expanding demand for essential wireless services. Facilitating investment in wireless infrastructure also brings significant safety benefits by enhancing the public s ability to notify public-safety agencies of emergencies, and by enabling first responders to communicate with each other during emergencies. Nondiscriminatory access to utility infrastructure will help CMRS carriers to provide and maintain a robust wireless network for communicating life-saving information during emergencies. We agree with the Electric IOUs, SED, and TURN that extending the ROW Rules to encompass CMRS carriers must be done in a way that provides just and reasonable fees for CMRS pole attachments, and protects the safety of workers and the public. We address these matters below. 15 PCIA Comments (July 7, 2014) at 5-7; and CTIA Reply Comments (July 17, 2014) at PCIA Comments (July 7, 2014) at 5-7; and PCIA Reply Comments (Jan. 7, 2015) at

51 3.2. Fees and Charges for CMRS Attachments Background In D , the Commission directed public utilities to negotiate with CLECs and CATV corporations regarding the fees and charges for access to utility infrastructure. If parties cannot agree, D authorized parties to bring their dispute to the Commission where the Commission would apply a default pricing rule consisting of three components. The first component is a make-ready charge that consists of the actual costs incurred by a utility to make its support structures ready for attachments. The make-ready charge may include the utility s costs for responding to requests for space availability; preparing maps, drawings, and engineering studies for proposed attachments; rearranging existing facilities and attachments to make room for new attachments; and installing new poles, ducts, and conduits if needed to accommodate new attachments. The make-ready charge is authorized for CATV attachments pursuant to Pub. Util. Code 767.5(c)(1). In D , the Commission adopted the make-ready charge for CLEC attachments. The second component is an annual fee for use of support structures other than poles (e.g., conduits). This fee is equal to the percentage of the support structure that is used by the attachment multiplied by the utility s annual cost-of-ownership for the support structure. The percentage is determined by dividing the volume or capacity of the support structure that is rendered unusable by the attachment by the total usable volume or capacity of the structure. This fee is authorized for CATV attachments by Pub. Util. Code 767.5(c)(2)(B). In D , the Commission adopted the same fee for CLECs

52 The third component is an annual fee for pole attachments. This fee is equal to the greater of $2.50 or 7.4% of the utility s annual cost-of-ownership for the pole and supporting anchor. As a practical matter, the 7.4% fee is always greater than $2.50. This structure fee is authorized for CATV pole attachments by Pub. Util. Code 767.5(c)(2)(A). In D , the Commission adopted the same fee structure for CLEC pole attachments. The Commission also held in D that a utility may charge a CLEC pole attachment more than the 7.4% annual fee if the utility can demonstrate that the CLEC attachment occupies more pole space, or otherwise encumbers the pole to a greater degree, than typical CATV pole attachments. The annual cost-of-ownership used to calculate the 7.4% pole-attachment fee includes all of the utility s pole-related costs. Such costs include pole-related administrative and general costs; operations and maintenance costs; straight-line depreciation; cost of capital; franchise fees and taxes; and offsetting credits for contributed capital and deferred income taxes. The annual cost-of-ownership is an average cost for poles; it is not pole specific. Also, because the annual cost-of-ownership can change from year to year, the annual 7.4% pole-attachment fee may likewise change from year to year. The 7.4% pole-attachment fee is based on a hypothetical 37.5-foot utility pole, with six feet underground and 31.5 feet above ground. The above-ground portion of the pole is divided into common space and usable space. The common space is the first 18 feet above ground level where cables and wires are not allowed pursuant to General Order 95 (with certain exceptions not relevant here). The usable space is the top 13.5 feet of the pole where communication

53 wires, CATV cables, and electric power lines are attached. 17 The 7.4% annual fee is based on the assumption that a CLEC or CATV pole attachment occupies one foot of the 13.5 feet of total usable space (i.e., 7.4% = ). For joint-use poles, the top portion of the usable space is reserved for electric utility facilities, and the lower portion for communication and CATV facilities. Attachments in the usable space must be separated from each other by the mandatory safety clearances specified in General Order 95 ( GO 95 ) Positions of the Parties With one exception, the parties agree that the fees and charges adopted by D for access to utility support structures should apply to CMRS carriers. The one exception concerns the 7.4% annual pole-attachment fee. The parties positions coalesced around two proposals for applying the 7.4% fee to CMRS pole attachments. One proposal was advanced by AT&T Mobility, and the second by the Electric IOUs and TURN. AT&T Mobility s proposal would apply the 7.4% fee to each foot of usable pole space that is physically occupied by a CMRS attachment. For example, if a CMRS carrier attaches a 4-foot panel antenna to a pole using a 2-foot attachment bracket, the annual fee would be 14.8% (7.4% x 2 feet). Importantly, under AT&T Mobility s proposal the 7.4% annual fee would apply only to CMRS attachments in a pole s usable space. The 7.4% fee would not apply to CMRS attachments in the common space of a utility pole, mandatory safety clearances between CMRS attachments and other pole attachments, or to CMRS risers and conduits attached to a pole. 17 Today s decision uses the terms cable, wire, and wireline synonymously

54 AT&T Mobility believes its proposal is nondiscriminatory because it applies to CMRS pole attachments the same 7.4% annual fee that is mandated by Pub. Util. Code 767.5(c)(2)(A) for CATV pole attachments and adopted by D for CLEC pole attachments. The only new feature of AT&T Mobility s proposal is that if a CMRS attachment occupies more than 1 foot of usable pole space, the 7.4% fee would apply to each additional foot of occupied usable space. AT&T Mobility s proposal is supported by CCTA, CTIA, JVSV, and PCIA. The Electric IOUs and TURN submitted separate proposals for applying the 7.4% fee to CMRS pole attachments. Because their proposals are similar, the two proposals will be treated as a single proposal by today s decision (hereafter, the Electric IOU/TURN proposal ). The major features of the proposal are: For CMRS antennas installed in a pole s usable space below power lines, the 7.4% attachment fee would apply to each vertical foot of the antenna. For example, assuming a 4-foot panel antenna is attached to a pole with a 2-foot bracket, the total fee would be 29.6% (7.4% x 4 feet). In contrast, the total fee under AT&T Mobility s proposal would be 14.8% for the 2-foot attachment bracket. For CMRS antennas installed in a pole s usable space below power lines, the 7.4% attachment fee would apply to the pole space that is rendered usable for other attachments by an antenna s safety clearances. For example, if the safety clearances above and below an antenna render a total of two feet of pole space unusable for other attachments, a fee of 14.8% would apply (7.4% x 2 feet), in addition to the fee that would apply to the antenna itself. In contrast, AT&T Mobility s proposal would apply no fee to an antenna s safety clearances. For multiple CMRS antennas installed below power lines at the same horizontal level, the 7.4% attachment fee would apply to each antenna. For example, assuming two 4-foot panel antennas are attached to a pole at the same horizontal level, the

55 total fee would be 59.2% (7.4% x 8 feet). In contrast, AT&T Mobility s proposal would apply the 7.4% fee only once for each foot of occupied pole space, regardless of the number of antennas. In this example, AT&T s proposal would result in a total fee of 14.8% (assuming 2-foot attachment brackets). For pole-top antennas installed above power lines, the 7.4% fee would apply to the greater of (1) the vertical size of the antenna, or (2) the mandatory safety clearance between the antenna and the power lines. For example, assuming a 4-foot panel antenna is installed above power lines, and the mandatory safety clearance is 6 feet, the total fee would be 44.4% (7.4% x 6 feet). In contrast, AT&T Mobility s proposal would result in a fee of 14.8% (assuming a 2-foot attachment bracket). For CMRS equipment installed in a pole s common space (i.e., the first 18 feet of pole space above ground level), the 7.4% fee would apply to the vertical size of the equipment. For example, for a 3-foot high equipment cabinet, the total fee would be 22.2% (7.4% x 3 feet). In contrast, AT&T Mobility s proposal would charge nothing for equipment in the common space. The 7.4% pole-attachment fee would not apply to electric meters, risers, and conduits associated with CMRS attachments. AT&T Mobility s proposal is the same. There is no per-pole cap on the 7.4% fee. Total attachment fees for a pole could exceed 100% of the pole s cost-of-ownership. AT&T Mobility s proposal does not address this matter. There is no adjustment to the 7.4% fee for poles longer than 37.5 feet (and thus more than 13.5 feet of usable space). AT&T Mobility s proposal does not address this matter. The Electric IOUs and TURN believe their proposal is reasonable because it applies the 7.4% fee based on the pole space that a CMRS installation renders unusable for other attachments. At the same time, their proposal prevents utility ratepayers from subsidizing CMRS pole attachments by setting pole-attachment fees that fully recover the pole owner s costs for such attachments

56 The Electric IOUs and TURN submit that it is reasonable to charge a pole-top antenna for 4 to 10 feet of safety clearances, depending on the voltage of the power lines below the antenna, even though the amount of pole space that is physically occupied by the pole-top antenna is limited to 1 to 2 feet (in most cases) for the attachment bracket. The Electric IOUs and TURN assert that pole-top antennas impose a disproportionate load on the pole and should thus pay more. The Electric IOUs also claim that when a pole-top antenna is installed on pole, the eventual replacement pole will need to be taller and hence more expensive in order to accommodate the pole-top antenna. The Electric IOUs reason that because pole-top antennas will require more expensive poles over the long run, the pole-attachment fee should be correspondingly higher. The Electric IOUs further claim that they must inspect and maintain pole-top attachments pursuant to GO 165. If CMRS carriers do not pay their fair share of inspection and maintenance costs, then electric utility ratepayers will be forced to subsidize CMRS carriers. The Electric IOU/TURN proposal is supported by CFC and ORA. CFC posits that CMRS pole attachments are different than CLEC and CATV attachments because the former use more pole space, add more weight and wind load, and affect safety. Because of these differences, CFC opines that a 7.4% per-foot fee should apply to the entirety of a CMRS pole installation. The Electric IOU/TURN proposal is opposed by AT&T Mobility, CCTA, CTIA, JVSV, and PCIA. The Opponents urge the Commission to reject the Electric IOU/TURN proposal for the following reasons. First, Pub. Util. Code 767.5(c)(2)(A) establishes an annual pole-attachment fee of 7.4% per pole for

57 CATV attachments, 18 and D adopted the same 7.4% per pole fee for CLEC attachments. The Opponents declare that the Electric IOU/TURN proposal is discriminatory because it would apply the 7.4% fee on a per foot basis to CMRS attachments, which would result in a much higher annual fee than the 7.4% per pole fee for CLEC and CATV attachments. Second, the Opponents claim the Electric IOU/TURN proposal to apply the 7.4% fee to CMRS attachments in the common space is contrary to Pub. Util. Code 767.5(c)(2)(A) and D , which limited the 7.4% fee to CLEC and CATV attachments in the usable space. The FCC s rules likewise limit pole-attachment fees to the usable space. 19 Third, the Opponents argue that applying the 7.4% fee to CMRS attachments in a pole s common space is discriminatory because there is no fee for CLEC and CATV attachments in the common space. It is also unnecessary and unreasonable to apply the 7.4% fee to attachments in the common space because the entire cost-of-ownership for a pole is allocated to the pole s usable space and recovered through the 7.4% fee applied to attachments in the usable space. The Opponents claim that pole owners would receive double recovery of their cost-of-ownership if they were allowed to charge the 7.4% fee on attachments in both usable space and the common space. Fourth, the Opponents contend that the Electric IOU/TURN proposal is discriminatory because it would apply the 7.4% fee to the GO 95 safety clearances associated with CMRS pole attachments but not CLEC and CATV 18 Pub. Util. Code 767.5(c)(2)(A) states: For each pole and supporting anchor actually used by the cable television corporation the annual fee shall be [$2.50] or 7.4 percent of the public utility s annual cost of ownership for the pole and supporting anchor. (Emphasis added.) C.F.R (c)

58 pole attachments. The Opponents state that the current 7.4% per pole fee for CLEC and CATV attachments is based on the assumed use of 1 foot of usable space, even though GO 95 mandates a total of 2 feet of safety clearances for CLEC and CATV wireline attachments (i.e., 1 foot of safety clearance above the wireline attachment and 1 foot below). 20 The Opponents claim that applying the 7.4% fee to safety clearances would be especially discriminatory with respect to pole-top antennas, which have safety clearances of 4 to 10 feet from power lines, depending on the voltage of the power lines. The Opponents state that the only pole space occupied by a pole-top antenna is for the attachment bracket, which is usually 1 to 2 feet. Fifth, the Opponents argue that the Electric IOU/TURN proposal would cause CMRS carriers to pay pole-attachment fees that are manifestly unreasonable, as shown in the following table: The Electric IOUs and TURN s Annual Fee for CMRS Pole Attachments One Pole-Top Antenna Chargeable Space One Mid-Pole Antenna Chargeable Space Antenna Sizes 2 4 feet 2 4 feet Safety Clearances 4 10 feet 2 feet Larger of Antenna Size or Safety Clearance 4 10 feet n/a Attachments in Common Space 2 6 feet 2 6 feet Total Chargeable Space 6 16 feet 6 12 feet Annual Fee at 7.4% per Foot 44.4% % 44.4% % 20 The minimum clearance between communication conductors is 12 inches pursuant to GO 95, Rule 38, Table 2, Case

59 The Opponents state that it is unreasonable to charge CMRS pole installations an annual fee in the range of 44.4% to 118.4% of a pole s annual costof-ownership given that the amount of usable pole space physically occupied by CMRS attachments is 1 to 2 feet for the antenna attachment bracket. Further, a pole-attachment fee in the range of 44.4% to 118.4% for CMRS attachments, together with the pole-attachment fees paid by CLEC and CATV attachers, would in many cases exceed 100% of the pole owner s annual cost-of-ownership for the pole and thereby provide an unreasonable subsidy to pole owners. Finally, the Opponents claim the Electric IOU/TURN proposal is contrary to the federal requirement that the fee for wireless attachments be no greater than the maximum reasonable fee for other telecommunications pole attachments. 21 The FCC has determined that federal laws and its own regulations do not allow pole access fees to be levied against wireless carriers in addition to the statutory pole rental rate, which is based on the space occupied by the attachment and the number of attaching entities on the pole, together with reasonable make-ready fees Discussion The issue before us is the charges and fees that CMRS carriers should pay to access public utility infrastructure. The principle of nondiscriminatory access embodied in the ROW Rules requires that CMRS carriers pay the same charges and fees as CLECs and CATV corporations, except in situations where there is a significant difference in CMRS facilities that justifies different charges and fees FCC 11-50, at FCC Public Notice, DA , 19 FCC Rcd (rel. Dec. 23, 2004). 23 D , at

60 In D , the Commission determined that public utilities, CLECs, and CATV corporations should have flexibility to negotiate the terms and conditions for access to public utility infrastructure. If an agreement cannot be reached, D adopted the following default charges and fees 24 : 1. A one-time make-ready charge for the actual costs incurred by the public utility to provide an attacher with access to the utility s infrastructure. 2. An annual fee for the use of support structures other than poles equal to the utility s annual cost-of-ownership for the support structure multiplied by the percentage of the structure s volume or capacity that is rendered unusable by the attacher. 3. An annual fee for the use of a utility pole equal to the greater of $2.50 or 7.4% of the utility s annual cost-of-ownership for the pole. We agree with the parties that the charges and fees in Items 1 and 2, above, should apply to CMRS attachments. As TURN notes, the make-ready charge in Item 1 is reasonable because it consists of the actual costs incurred by the utility to make its infrastructure available to the attacher. The annual recurring fee for use of support structures other than poles in Item 2, above, is reasonable because it allocates the cost-of-ownership for a support structure to attachers based on their proportionate use of the structure. 25 We find that the 7.4% pole-attachment fee in Item 3, above, should apply differently to CMRS pole attachments compared to CLEC and CATV pole attachments. The existing 7.4% fee is a per-pole fee. Each CLEC and CATV pole attachment is charged an annual fee equal to 7.4% of the pole s cost-ofownership. Crucially, this fee structure is based on the Commission s finding in D that CLEC and CATV pole attachments normally occupy 1 foot of 24 D , Appendix A, Section XI.B. 25 TURN Comments (Dec. 19, 2014), at

61 pole space out of 13.5 feet of usable pole space (i.e., 7.4% = ). 26 The record of the instant proceeding shows that the vast majority of CLEC and CATV pole attachments continue to occupy 1 foot of pole space. 27 In contrast, most CMRS installations consist of multiple attachments that together occupy several feet of pole space, as shown in the following diagrams: Figure 1 Pole-Top Antenna Installation Pole-Top Antenna Figure 2 Mid-Pole Antenna Installation Pole-Top Extension for Antenna Power Line Fiber Splice Remote Amplifiers Communication Demarcation, Power Transfer Switch, and Condit Battery Backup Source: AT& &T Mobility Information al Report (October 21, 2014) at 9. Source: Electric IOUs Informational Report (October 21, 2014) at D , at AT&TT Mobility Comments (July 7, 2014), attached Declaration of Dr. Kent A. Currie on Behalf of AT&T Mobility, at page 4, Paragraph