Tag Archives: pole attachment

Federal appeals court slows but doesn’t stop muni challenges to FCC wireless preemptions

by Steve Blum • , , , ,

Samsung small cell

The federal appellate court review of two Federal Communications Commission rulings that preempt local authority over wireless attachment and wireline excavation permits, and take away local ownership of streetlight poles and similar property will continue, albeit slowly. Yesterday, the ninth circuit court of appeals in San Francisco refused to ice the case completely, as requested by the FCC and as dutifully echoed by wireless carriers.

Instead, the court consolidated the twelve separate appeals of the September wireless attachment order into a single case, and assigned it to the same set of judges who will consider two appeals of the August wireline excavation order. A “special master” was given the job of sorting out the nuts and bolts of consolidating the twelve challenges to the wireless attachment ruling, and combining them with the two wireline excavation appeals.

The special master was directed to

Conduct a case management conference with the parties. The special master shall consider any issues he deems appropriate to manage the petitions effectively, including but not limited to the development of a briefing plan for the above-listed twelve petitions. The case management conference will be scheduled by separate order of the special master…

Proceedings in these consolidated petitions other than the case management conference are stayed pending the case management conference.

That means that the FCC won’t have to submit the records that its rulings were based on for now, giving it time to go through the motions of reconsidering those decisions. The ninth circuit will decide next steps after the case management conference is held and a plan for moving forward is proposed. The previously set 5 April 2019 date for (written) opening arguments was cancelled.

There are what amount to three interlocking cases in play. The cities, counties and associations challenging the September wireless order say that the FCC overstepped its authority in many regards, especially when it declared that municipal poles and other structures in the public right of way don’t belong to the agencies that installed them. The ones challenging the August wireline order make similar arguments about a blanket preemption of local rules regarding when telecoms companies can dig in the street, including seasonal restrictions – working on ice covered streets during spring freeze/thaw cycles, for example, can turn a nice stretch of asphalt into a dirt road.

The third case is a sham argument made by four wireless carriers – AT&T, Verizon, Sprint and the Puerto Rico Telephone Company – apparently in collusion with the FCC. The four corporate appeals were filed in different and friendlier appellate court districts, and initially succeeded in landing the case with presumably more sympathetic judges in Denver. They were not sympathetic enough though, accepting the argument made by the City of San Jose that eventually landed everything in San Francisco.

My clients are mostly California cities, including some that are directly involved in this case. I’m not a disinterested commentator. Take it for what it’s worth.

Links to petitions, court documents and background material are here.

Wireless permit shot clocks aren’t really shot clocks, fee limits aren’t really limits, FCC tells appeals court

by Steve Blum • , , , ,

Riverside pole mount

The FCC wants to stall a federal appellate court review of its order preempting local ownership of street light poles and similar municipal assets located in the public right of way. Dozens of cities, counties and associations pushed back against the move, telling the court they would face “significant hardships” if their appeal was iced for months while the FCC pretends to reconsider its original ruling at its leisure.

There’s no hardship, the FCC told the San Francisco-based ninth circuit federal appeals court in its reply. Reiterating arguments it made when it successfully beat back the cities’ request for a judicial stay of the new rules, the FCC said its shot clocks and fee limits are just guidelines, and it’s not actually ordering local governments to do anything…

The Order thus does not compel a locality to take any action unless “a court of competent jurisdiction” independently orders the locality to do so after affording it full legal process and taking into account all relevant facts and circumstances.

Nor is there any reason to assume that, should any disputes arise, localities would necessarily lose such cases. Fees exceeding the Order’s safe harbors “may be permissible if the fees are based on a reasonable approximation of costs and the costs themselves are objectively reasonable.” Similarly, if particular localities are unable to act within the new shot clocks, they may “rebut the presumptive reasonableness of the shot clocks based upon the actual circumstances they face.” Localities thus may continue to charge any fees necessary to cover the full amount of their reasonable and actual costs, and may continue to take as long as reasonably necessary to review new siting applications, simply by explaining why these practices are necessary or appropriate under the particular circumstances they face.

California law also offers local agencies safe harbors, of a sort. The California legislature set 90 and 150 day shot clocks for wireless permit reviews when it passed AB 57 in 2015. Unlike the FCC’s, those shot clocks have teeth – if time expires, permits are “deemed approved”. In theory (it hasn’t been tested yet) it offers a faster path to a wireless permit than a lawsuit.

Two Californian ballot initiatives – propositions 218 and 26 – already limit local government fees to actual expenses, and cities and counties have established procedures for figuring it all out. Even AT&T has acknowledged that Prop 26, particularly, is as good a safe harbor as the FCC figures.

The big problem with the FCC’s September ruling is the way it treats municipal property. The FCC brushed aside common sense and its own previous rulings (do not confuse the two) when it said cities and counties don’t own assets they’ve built in the public right of way – things like traffic signals or street light poles. Instead, the FCC believes that locally owner property is actually part of the public right of way, and can’t be rented out at market rates. Unlike, say, an identical structure two feet away on publicly (or privately) owned land.

Wireless carriers are using the FCC’s ruling as a blunt instrument in negotiations with cities and counties. Even so, the FCC is correct up to a point: there will be no irreparable harm so long as local agencies refuse to be bullied.

Links to petitions, court documents and background material are here.

Four California counties say “no criminal charges” for PG&E

by Steve Blum • , , , ,

Pacific Gas and Electric won’t face criminal charges for its role in starting several northern California fires in 2018. District attorneys in Sonoma, Napa, Humboldt and Lake counties announced that they can’t prove a case. According to a press release from Sonoma County district attorney Jill Ravitch, the necessary evidence burned up along with everything else…

The cases that were referred for prosecution all required proof that PG&E acted with criminal negligence in failing to remove dead and dying trees. Under California law, criminal negligence requires proof of actions that are reckless and incompatible with a proper regard for human life, and any charges must be proven unanimously to a jury beyond a reasonable doubt. Proving PG&E failed in their duty to remove trees was made particularly difficult in this context as the locations where the fires occurred, and where physical evidence could have been located, were decimated by the fires.

Last year, Cal Fire determined that some of the many fires that roared through California’s wine country began when trees or other vegetation came into contact with PG&E electric lines. The deadliest fire – the Tubbs fire – which killed 22 people and spread as far as city neighborhoods in Santa Rosa, was not linked to PG&E’s equipment according to Cal Fire. That one was apparently started by electric lines strung across private property by the landowners.

So far, prosecutors in other counties affected by fires linked to PG&E infrastructure have declined to charge PG&E with crimes. But that’s cold comfort. Ravitch was careful to point out that “PG&E remains on federal criminal probation and is a defendant in many private civil cases arising out of the wildfires”, including one that the County of Sonoma is pursuing. The combined liability PG&E faces from those fires as well as last year’s even deadlier Camp Fire is expected to top $30 billion. Who gets paid and how much is now in the hands of a federal bankruptcy court.

“Significant hardships” will fall on cities if appeals of FCC pole ownership preemption stall, court told

by Steve Blum • , , , ,

The cities and counties that are challenging the Federal Communication Commission’s preemption of local ownership of streetlight poles and other assets located in the public right of way don’t want any delays in their cases. In filings yesterday with the ninth circuit federal appeals court in San Francisco, local agencies objected to the FCC’s request to put everything on hold while it thinks about whether it’s going to reconsider its decision. Which could take months, or longer.

The primary objections came from a large group of agencies led by the City of San Jose. Pointing out that the FCC’s “September order” is already in effect and commissioners are bragging about, the group said it’s now in the court’s hands

There is no evidence suggesting the September Order is anything other than the final result of its decision-making process. The FCC continues to publicly stand by the September Order as adopted. Commissioner Brendan Carr, who has been leading the FCC’s infrastructure efforts, recently highlighted the September Order in a February 5, 2019 speech, asserting that the agency was “not going to slow down” in its infrastructure efforts, and that the September Order (which had at the time been effective for only 22 days, and then only in part) was already impacting local government practices and wireless deployment. There is no reason, therefore, to suppose that further delay will somehow actually resolve the issues raised in these appeals, or that the September Order on appeal here is anything other than the “final administrative work.”

Flanking objections were entered by the City of Huntington Beach and a smaller group led by the City and County of San Francisco. Accusing the FCC of being “at worst disingenuous”, San Francisco said that the September order imposes “real, concrete hardships” on local governments…

Some Municipal Parties, consistent with state law and with prior court precedent, charge rent-based fees for commercial use of municipal property. San Francisco, for example, has licensed access to hundreds of its streetlight poles and transit poles for small cell facilities at an agreed-upon rate in excess of $4,000 per year. Demand for access to those poles has continued unabated since the FCC issued the Order. Further, many of those licenses have reached the end of their first year and must be renewed for the agreed-upon license fee. Again, while the Order is in effect, a local government must either comply (e.g., charge only cost-based fees at or below the Order’s presumptive thresholds) or risk litigation over its actions on every wireless siting application it receives, or at renewal of any existing license agreement.

The FCC order took direct aim at agencies like San Francisco that charge what it, and its mobile carrier friends, consider to be exorbitant. As far as the FCC is concerned, $270 per year is sufficient.

For now, the ninth circuit hasn’t ruled on the FCC’s request and the cases are still moving forward.

Links to motions, petitions, court documents and background material, Californian and federal, are here.

My clients are mostly California cities, including some that are directly involved in this case. I’m not a disinterested commentator. Take it for what it’s worth.

PG&E faces pole attachment shot clock, as CPUC arbitrator hands Crown Castle a win

by Steve Blum • , , ,

White road attachment

An administrative law judge gave Crown Castle a victory of sorts in a dispute over terms for attaching fiber optic cable to utility poles that Pacific Gas and Electric owns. Assuming the California Public Utilities Commission signs off on the finding, the arbitrated decision by ALJ Patricia Miles leaves PG&E’s leasing model and most of its standard terms in place. But, in effect, it also establishes a 45 day shot clock for responding to attachment requests and allows Crown Castle to do some work on poles without notifying PG&E and to be notified, in some circumstances, if work affecting its cables is planned.

Originally, Crown Castle wanted the CPUC to force PG&E to sell space on utility poles by the foot. Typically, PG&E either sells all the space available for telecoms cable attachments – the communications zone – to one company, such as AT&T, and then relies on that company to manage attachment requests by other carriers. Or it will lease out space by the foot to telecoms attachers, such as Crown Castle, and manage the communications zone itself.

The rent versus buy financial analysis aside, the main operational difference between owning and leasing space is that pole space owners can add cables and maintain them with less administrative overhead, and can expect a greater degree of coordination from PG&E. Crown Castle wanted those privileges, but didn’t want to – perhaps legally couldn’t – take on the responsibility of owning and managing the entire communications zone.

Using an expedited arbitration process established by the CPUC, Crown Castle challenged PG&E’s standard procedure, but Miles rejected its argument that state law and CPUC rules require by-the-foot sales of attachment space. She then told the two companies to negotiate an agreement on that basis.

That didn’t happen. In her draft decision, Miles said “the parties inexplicably failed to submit such an agreement”. Instead of coming back to her with a settlement, the companies each offered their preferred contract language: PG&E filed its standard contract; Crown Castle proposed changes to that contract giving it many of the privileges of ownership.

In a baseball-style arbitration decision, Miles chose Crown Castle’s version, saying “PG&E has not objected to Crown Castle’s revisions to its license agreement”.

Key elements of the changes to PG&E’s standard attachment contract include:

  • Crown Castle needs written permission to attach cables to PG&E owned pole space, “unless 45 days have run from the time of request of access and Company has provided no response”. Neither the ruling or the contract define what, exactly, constitutes a response, but silence certainly doesn’t qualify.
  • Crown Castle does not have to give PG&E 48 hour notice if it’s doing routine repair or maintenance that doesn’t require electricity to be shut off.
  • PG&E has to notify Crown Castle when another telecoms company wants to attach to a pole that Crown Castle is already occupying.
  • When that happens, PG&E needs Crown Castle’s permission to rearrange cable attachments or replace poles if needed.

Since this was a one-off arbitration of a particular dispute between two companies, the decision won’t affect any existing pole attachment contracts or necessarily serve as a template for future ones. But it might.

The CPUC is scheduled to vote on the draft decision at its 14 March 2019 meeting.

Collected documents from the Crown Castle/PG&E pole attachment arbitration at the CPUC are here.

PG&E admits responsibility for deadly Camp Fire, pegs liability at $10.5 billion and climbing

by Steve Blum • , , , ,

Carr fire 2018

Cal Fire’s official investigation isn’t over, but Pacific Gas and Electric has concluded that it was at least partly to blame for the Camp Fire in Butte County in November, which killed 86 people. In a financial filing yesterday, PG&E laid out the evidence from the transmission tower where the fire began, and the financial consequences…

The company believes it is probable that its equipment will be determined to be an ignition point of the 2018 Camp Fire…

On November 14, 2018, the company observed a broken C-hook attached to the separated suspension insulator that had connected the suspension insulator to a tower arm, along with wear at the connection point. In addition, a flash mark was observed on Tower :27/222 near where the transposition jumper was suspended and damage to the transposition jumper and suspension insulator was identified…

Based on these facts, the company is including a $10.5 billion pre-tax charge related to third-party claims in connection with the 2018 Camp Fire in its full-year and fourth-quarter 2018 financial results…

The company has taken a total of $14.0 billion in pre-tax charges related to the 2018 Camp Fire and the 2017 Northern California wildfires to date, which reflects the lower end of the range of estimated losses the company faces from such wildfires. The charges represent a portion of the previously announced estimate of potential wildfire liabilities, which could exceed more than $30 billion.

The bottom line: PG&E’s management and auditors believe there is “substantial doubt” about its and its parent corporation’s “ability to continue as going concerns”.

The disclosures come a day after a story appeared in the Wall Street Journal that reported PG&E knew about problems on that particular transmission line, but delayed fixing them for several years.

If indeed there is evidence that PG&E was negligent, or even simply made poor choices, the company faces a triple whammy. It’ll be blood in the water for the predatory bar, which no doubt expects to get the shark’s share of $30 billion plus, and it’s sure to test, if not break completely, the patience of the federal judge who is supervising PG&E probation, which stems from an earlier criminal conviction for deadly safety lapses.

And then there’s the ongoing bankruptcy proceeding, which PG&E hopes will keep it in the electric and gas business in northern California. The more money that goes toward civil damages and criminal penalties though, the less there will be to keep the lights and heat on. That’s not just a problem for PG&E – increasingly, it’s looking like a problem that the California legislature will have to solve.

FCC tries to stall court challenges to its local pole ownership preemption order

by Steve Blum • , , , ,

Wjl thruway

The Federal Communications Commission asked the federal appeals court in San Francisco to put cases filed against it by local governments on hold.

Dozens of cities, counties and associations sued the FCC, challenging its preemption of local ownership of street light poles and other assets in the public right of way. Several have also asked the FCC to reconsider its September decision, which is a routine administrative request that is routinely denied. But the FCC hasn’t done anything with it yet, and is using its own inaction as an excuse to stall the court case.

The FCC told the ninth circuit federal appeals court in San Francisco that waiting until it’s figured out what to do will make the judges job simpler or more complicated or something…

The FCC’s proceedings on reconsideration may simplify judicial review—either by resolving issues that the Court would otherwise need to address, or by providing additional analysis on issues that ultimately remain in dispute. Equally important, because the agency’s disposition of a petition for reconsideration may give parties a new opportunity to challenge the Order, either in this Court or in another court of appeals where venue lies, allowing the agency to address the petition for reconsideration before these cases proceed would mitigate the possibility of piecemeal (and possibly inconsistent) judicial review.

There’s no indication of how long the FCC wants keep the case on ice. It only promised to check in with the court every couple of months. According to the FCC, local agencies don’t want the case stalled, while the mobile companies who are accused of colluding with the FCC to game the system are happy to let it gather dust for as long as it takes. Forever would probably suit them.

The FCC also asked the ninth circuit to bundle all of the dozen or so separate challenges into a single case. That seems to be less controversial – it’s standard operating procedure in these circumstances – but it’s possible objections could be raised.

Links to motions, petitions, court documents and background material, Californian and federal, are here.

My clients are mostly California cities, including some that are directly involved in this case. I’m not a disinterested commentator. Take it for what it’s worth.

Telecoms takes a backseat in Sacramento, but PG&E could end up a hood ornament

by Steve Blum • , , , ,

Skull hood ornament

Telecommunications in general, and broadband in particular, aren’t getting much attention at the California capitol this year. Friday was the deadline for introducing new bills for this year and, aside from privacy issues, nothing regarding telecoms that’s particularly substantive landed in the hopper.

Pacific Gas and Electric company and the California Public Utilities Commission, on the other hand, are in the gunsights of senator Jerry Hill (D- San Mateo). He floated a bill on Friday that would take much of the job of regulating PG&E away from the CPUC, and give it to the California legislature (h/t to Fred Pilot at the Eldo Telecom blog for the pointer). Senate bill 549 simply says…

The commission shall not approve any capital structure change or increase in rates for the Pacific Gas and Electric Company unless the Legislature, by statute, authorizes the capital structure change or increase in rates.

It’s a placeholder bill, introduced to meet the deadline, with details to be worked out later. That’s my read anyway. Micromanaging the rates and capital structure of privately owned utilities, as the CPUC does, is a detailed and time consuming job. Giving it to legislative committees guarantees chaos.

His objective, judging from his press release, is to give the legislature, or at least Hill, a seat at the table as a federal judge disposes with PG&E’s request for bankruptcy protection. The gambit might work. A credible threat to subject PG&E to direct and overt political control could create enough financial uncertainty to kill any reasonable bankruptcy settlement.

Hill introduced two other utility related bills on Friday. SB 548 would increase requirements for private electric companies to inspect high voltage transmission lines – such as those suspected as the cause of the deadly Camp Fire – and SB 550 would require that a merger involving a gas or electric company “improves the safety of the utility service provided”.

Crown Castle, PG&E punt fiber attachment dispute back to CPUC

by Steve Blum • , , ,

Crown Castle and PG&E failed to reach agreement on pole attachment terms, as directed by the California Public Utilities Commission administrative law judge (ALJ) arbitrating their ongoing dispute. Instead, PG&E submitted its standard pole space leasing agreement, and Crown Castle submitted the same, with several modifications that make it more to its liking.

The heart of their dispute is that Crown Castle wants to buy attachment space on poles, and PG&E just wants to lease it to them. Incumbent telecoms companies, like AT&T, can buy space, but they have to buy all of the communications zone, which is section of the pole, typically three or four vertical feet, that’s suitable for attaching telecoms cables. Once they buy the whole zone, they’re then responsible for leasing out attachment space by the foot to competitive telecoms companies like Crown Castle.

Crown Castle isn’t interested becoming the telecoms landlord on PG&E poles, and there’s some doubt as to whether CPUC rules allow them to do it in the first place. The ALJ heard both sides’ arguments, as well as comments from other interested parties, and decided that there’s nothing in the CPUC rules that says PG&E has to sell pole attachment space by the foot.

So now Crown Castle is telling the ALJ that 1. commissioners should disregard her ruling and give it what it wants anyway, and 2. if they don’t do that, they should change PG&E’s standard pole space leasing agreement to, among things, create a 45 day shot clock for PG&E to approve or reject a request to attach to a particular pole. If PG&E has “provided no response” within that time, Crown Castle could attach its fiber at will. It also wants to know when other companies ask to lease any remaining space, wants to be able to work on poles without notifying PG&E and doesn’t want PG&E to rearrange any of its cables without its permission. Which add up to many of the privileges that come with pole space ownership, without the responsibility of managing leases with other telecoms companies.

Collected documents from the Crown Castle/PG&E pole attachment arbitration at the CPUC are here.

PG&E plans faster, wider power cuts during high fire threats in 2019

by Steve Blum • , , , ,

Pacific Gas and Electric will cut off electricity more automatically, more thoroughly and over a wider area when “extreme fire risk conditions” are present. That’s one of the wildfire risk mitigation measures it promises to implement this year.

Along with five other privately owned Californian electric utilities, PG&E submitted its wildfire prevention plan to the California Public Utilities Commission yesterday. It says it will inspect more lines, cut down more trees and harden more equipment in the coming months and years, as well as aggressively turning off power when the threat of wildfires is high. The proactive power cuts will be greatly expanded, to include…

  • 25,200 miles of low voltage distribution lines, up from 7,100 miles.
  • 5,500 miles of transmission lines, up from 370 miles. Instead of limiting it to lines carrying 70 kilovolts or less, lines of up to 500 kilovolts will be cut off if necessary.
  • Potentially 5.4 million customer premises, up from 570,000 customers.
  • Areas that face an “elevated” fire threat, in addition to those that face an “extreme” one.

PG&E also says it will streamline “decision criteria to reduce the level of judgment in the criteria to the extent feasible”. In other words, reduce the opportunity for managers to dither over whether or not to cut power.

One result is predictable and entirely acceptable: more PG&E customers will complain because their power is off. That happened last year, when PG&E proactively cut power in some northern California communities in October. It’s not a huge leap of logic to suppose that the backlash made managers more reluctant to turn off the juice in November. High winds and dry conditions were present once again, and led to the Camp Fire in Butte County, which killed 86 people and destroyed the town of Paradise.

A PG&E transmission line is suspected of sparking that fire. Under the new plan, it could have been turned off – it was in a high risk area, conditions were extreme, and it was 110 kilovolts (within the new limit but over the old one) – and probably would have been if the decision had been based on automatic criteria rather than a subjective judgement call.

The plan will be reviewed by the CPUC and by the federal judge that’s supervising PG&E criminal probation. Judge William Alsup has been sharply critical of PG&E and suggested it should do many of the things proposed in the plan, although not all his suggestions were included in it.

The wildfire prevention plan notwithstanding, yesterday was not a good day for PG&E. A natural gas line exploded in San Francisco and set several buildings on fire. There were no reports of injuries. It was apparently caused when a fiber optic construction crew hit a gas line. Whenever underground construction work is done, the contractor is supposed to notify PG&E and other utilities, which are then responsible for coming out and marking where their lines are. That’s a job that PG&E is accused of shirking in the past by the CPUC. Responsibility for yesterday’s blast is yet to be determined.

Wildfire mitigation plans
Bear Valley Electric Service
Liberty Utilities
Pacific Gas and Electric
Pacificorp
San Diego Gas and Electric
Southern California Edison