Tag Archives: pole attachment

Cal Fire pins Camp Fire blame on PG&E, but won’t release investigation details yet

by Steve Blum • , , , ,

Camp fire landsat

PG&E equipment started the deadly Camp Fire in Butte County last year, but the details of how and, perhaps, why are still under wraps. On Wednesday, Cal Fire announced that its investigation found that PG&E started two fires near the town of Paradise on 8 November 2018…

CAL FIRE has determined that the Camp Fire was caused by electrical transmission lines owned and operated by Pacific Gas and Electricity (PG&E) located in the Pulga area.

The fire started in the early morning hours near the community of Pulga in Butte County. The tinder dry vegetation and Red Flag conditions consisting of strong winds, low humidity and warm temperatures promoted this fire and caused extreme rates of spread, rapidly burning into Pulga to the east and west into Concow, Paradise, Magalia and the outskirts of east Chico.

The investigation identified a second ignition sight near the intersection of Concow Rd. and Rim Rd. The cause of the second fire was determined to be vegetation into electrical distribution lines owned and operated by PG&E.

That conclusion is backed by a full report, but consistent with past practice it’s been forwarded to the Butte County district attorney’s office for use in the ongoing criminal investigation into the blaze.

That doesn’t necessarily mean that Cal Fire thinks PG&E broke the law. Butte County DA Michael Ramsey started his own criminal investigation last November, and the full report was sent to him. According to a Bay City News Service story, he won’t release it “until a final decision is made on whether to file criminal charges”.

Cal Fire’s conclusion comes as no surprise to PG&E, which has been working under the assumption that it will be held responsible for the Camp Fire, given the way California utility liability laws work. Even if PG&E (or any other electric or telecoms company that uses utility pole routes) did everything it was supposed to do, if its equipment started the fire, it has to pay the full damages.

San Francisco considers taking over PG&E’s electric business

Sfpuc pge report graphic 13may2019

The City and County of San Francisco is a small step closer to taking over the electric half of Pacific Gas and Electric’s utility operations. A report produced by the City’s local public utilities commission, at the request of mayor London Breed, airs many grievances with PG&E, extolls the benefits of a municipally owned electric utility and glosses over the hard questions of how and how much.

San Francisco’s options, according to the report, range from continuing to arm wrestle with PG&E, to building some limited extensions of existing city-owned electric distribution lines, to simply taking over PG&E assets and operations…

The City can completely remove its reliance on PG&E for local electricity services through purchasing PG&E’s electric delivery assets and maintenance inventories in and near San Francisco, and operating them as a public, not for profit service. The City will pay PG&E a fair price for the assets that reflects asset condition. In this option, the City will also offer jobs to PG&E’s union and other employees who currently operate the grid.

This option would also involve bundling in the City’s limited municipal electric system and customers from the City’s community choice aggregator, one of many such county and regional-level agencies created in California to serve as a middle man between investor-owned utilities, such as PG&E, and electric customers.

The three biggest questions – how to convince PG&E to sell, how much would it cost and how would it be paid for – are left hanging. Presumably, the federal bankruptcy judge in charge of PG&E’s restructuring will have something to say about it all. The price of a buyout is described as “dependent on fair market value analysis; could be a few billion dollars initially”. The report is even more opaque about what happens after “initially”.

The money “would be revenue bond‐funded by the SFPUC using its borrowing authority”. That means that the City would repay bond obligations with the revenue collected from electric customers, after it pays its own expenses. The report estimates that gross revenue would be in the $500 million to $750 million range, but doesn’t try to figure out how much of that would be available to pay back the “few billion dollars” it would have to borrow.

Broadly speaking, there are two kinds of revenue bonds: those that are backed by taxpayer money and those that aren’t. If the former, any shortfall in revenue (or cost overruns) would come out of the City’s budget. If the latter, the bondholders could, ultimately, be stiffed. Which might seem like a fine thing to some, except that the greater risk is offset by higher interest rates on the money that’s borrowed, which in turn will be paid by electric customers through higher rates. Although it would technically be a not-for-profit business, it would have to generate a sufficient surplus – a profit in everything but name – to make those payments.

This is the second time in as many years that the City and County of San Francisco has looked at operating a major utility. Last year, the City floated a proposal to build and operate a citywide fiber to the premise broadband system, that would have cost a couple of billion dollars. That project was shelved shortly after Breed won the mayor’s job in a special election.

Electric utilities will decide when to cut power in the face of fire threats

by Steve Blum • , , , ,

Californian electric utilities will have clearer guidance on how, if not when, to shut down – de-energise – local power lines when the danger of sparking a wildfire is at its peak. That’s assuming a decision drafted by California Public Utilities Commission president Michael Picker is approved later this month. It’s not the full and final instruction manual, but it’s a start. The new procedures will be in place for this year’s wildfire season and can be improved as time goes on.

As currently written, the CPUC wouldn’t give public safety agencies veto power over de-energisation decisions. They can ask for a delay, but “the electric…utilities retain ultimate authority to grant a delay and responsibility to determine how a delay in de-energisation impacts public safety”.

One question left for later is how, exactly, electric utilities will decide whether to cut off power to “transmission lines”. Those are the high voltage lines that are typically strung on tall, steel towers that march across the landscape. Shutting off a transmission line – as opposed to, say, a neighborhood “distribution line” – could impact hundreds of thousands, perhaps millions, of people. For now, electric utilities have the authority to shut down transmission lines as they see fit. That’s a good thing – last year’s deadly Camp Fire in Butte County, which killed 86 people, was apparently sparked by a transmission line.

That aside, most of the draft decision focuses on communication, with the public and with public safety agencies. Electric companies would have to create clear, 24/7 lines of communications with public safety agencies and anyone who operates “critical facilities and infrastructure”, which includes broadband and phone systems.

Electric customers “should understand the purpose of proactive de-energisation, the electric..utilities’ process for initiating it, and the impacts if deployed”. The burden of making sure that happens would be placed on electric utilities, who would have to “reach customers no matter where the customer is located and deliver messaging in an understandable manner”.

Particular attention would be paid to “vulnerable populations”, which includes disabled people, children, the elderly, low income people and pregnant women. Whether reckoned vulnerable or not, everyone “within the boundaries of a de-energised area (and potentially adjacent jurisdictions)” would have to notified in advance. Responsibility for that would be split between the utilities and local governments. Public safety agencies – state and local – would get “priority notification” ahead of a proactive power cut.

Notification would, if possible, begin 72 hours before de-energisation happens. That would be a heads up warning, based on current and forecasted conditions.

Pacific Gas and Electric and Southern California Edison put out those kinds of alerts last fall, but didn’t actually shut off electric lines until the fires began and people started to die. San Diego Gas and Electric, though, followed through on its warnings and turned off power to tens of thousands of customers: no fires, no deaths.

Court says appeal of FCC local pole ownership preemption will continue

by Steve Blum • , , , ,

Tmobile small cell riverside

The ninth circuit federal appeals court ruled that challenges to last year’s Federal Communications Commission’s wireless and wireline preemption orders will move forward. The FCC will have to deliver its administrative record to the court next month, and the initial exchange of arguments from both sides will begin in June and run through September, according to an earlier ruling that two appellate justices confirmed yesterday.

Local challenges to FCC streetlight preemption order move ahead

by Steve Blum • , , , ,

Charlottesville streetlights

A federal appeals court commissioner has, for now, set a schedule that sorts out the various challenges to last year’s Federal Communications Commission decisions that preempted local ownership of streetlights and similar infrastructure, and put tight restrictions on how local governments manage public right of ways. Last week Peter Shaw, a commissioner for the ninth circuit federal appeals court in San Francisco, met with attorneys for local agencies and associations that are challenging various aspects of the order, and with lawyers for mobile carriers that are pretending to be upset with the FCC’s decisions, but are actually jumping in on its side.

The result is a schedule that has the final round of written arguments completed in September, which could lead to a decision in 2020.

If.

If the San Francisco appeals court judges allow the cases to move ahead at all. They still have to decide if they’re going to grant the FCC’s request to put everything on hold until the commission gets around to closing out its proceeding.

It’s still a messy set of cases. A consensus statement filed before the case management conference by all the litigants tends to confirm the allegation that the FCC colluded with mobile carriers in a judge shopping play. The “industry petitioners” – AT&T, Verizon, Sprint and Puerto Rico Telephone Company – are lined up on the FCC’s side…

Some of the Small Cell Appeals were filed by local governments and publicly-owned utilities (the public petitioners), and separate appeals were filed by various providers of wireless services (industry petitioners). Their positions are in opposition, and industry petitioners, as well as certain intervenors, will support the FCC in opposing the public petitioners, and vice versa.

However, optimism about the case appears to be dying at the FCC. “It seems increasingly likely that the courts will return some part of our small cell infrastructure decisions back to this agency with a remand”, commissioner Jessica Rosenworcel wrote in a comment endorsing the FCC’s latest preemption attempt. Translation: it’s not looking good for our team.

A schedule that gets the initial legal skirmishing out of the way by September is a positive step. The next question to answer is whether the FCC’s stalling tactics will succeed in derailing it.

Utilities shouldn’t bear damage costs alone, California wildfire report recommends

by Steve Blum • , , , ,

California governor Gavin Newsom’s wildfire “strike force” published its findings on Friday. The report offers suggestions for preventing, or at least reducing, catastrophic wildfires, and for paying for the damage when they do happen. The short answer is spread the costs around.

One of the central concepts floated by the report is to change California’s strict liability standard, which requires electric and telecoms utilities to pay for all wildfire damages if their equipment is involved in starting a fire, whether or not they did something wrong. Instead, the report suggests moving to a “fault-based standard”, where “utilities pay for damage if caused by their misconduct”. If there was no bad behavior on the part of a utility, though, the cost would shift to “insurance companies and uninsured or underinsured property owners”.

Another idea is to have all investor owned electric utilities, and possibly municipal ones, to pay into a fund that would act as an insurance policy of sorts by covering catastrophic wildfire costs. One issue is that the shareholders and ratepayers of lower risk utilities, such as San Diego Gas and Electric, would, in effect, subsidise those served by utilities with higher wildfire risks, such as Pacific Gas and Electric – assuming that a post-bankruptcy PG&E can even afford to participate.

Part of the solution, the report says, is to take advantage of the “opportunity to build a new, responsible, and accountable utility for northern California” created by the bankruptcy proceeding. Although the report mentions breaking up PG&E into smaller regional companies or municipal utilities, it doesn’t say how that can be accomplished, given that federal judges – bankruptcy and criminal – will be making those decisions for the time being. The only suggestion is for the state to “actively monitor and appear in the bankruptcy proceeding” and “be heard”. So far, that seems to be having little effect.

There’s more. Besides the obligatory nod toward cutting greenhouse gas emissions, the report also outlines some obvious measures: reduce wildland fuel loads, improve emergency planning and education, and upgrade firefighting technology and manpower. And it takes a welcome swipe at the predatory bar, listing “attorneys representing victims” as stakeholders who need to bear some of the burden of wildfire damages, presumably by reducing the “substantial” cost of legal fees and expenses.

Crown Castle won’t have to wait for new PG&E pole attachment terms, CPUC says

by Steve Blum • , , ,

PG&E wants a do-over on a utility pole access decision by the California Public Utilities Commission, but it’ll have to comply with it in the meantime. Wednesday, the CPUC’s executive director refused to delay execution of an arbitrated contract between PG&E and Crown Castle while commissioners decide what they’re going to do with the appeal filed by PG&E last month.

The CPUC’s decision gives PG&E 45 days to approve or deny Crown Castle’s pole attachment requests. If the shot clock expires, Crown Castle can move ahead without permission and install fiber lines on PG&E poles. It also requires PG&E to keep Crown Castle informed of other attachment requests, but allows Crown Castle to work on its own lines without giving PG&E advance notice, so long as no electrical shutoffs are needed. A few days after the commission unanimously approved those new contract terms, PG&E asked for a rehearing, citing safety concerns.

The decision gave PG&E two weeks to sign the deal, which are long gone. Crown Castle wants the commission to forget about any rehearings and “take all enforcement measures possible, including penalties and other measures” to force PG&E to get on with it. Which is what, it seems, PG&E will have to do. Wednesday’s letter from CPUC executive director Alice Stebbins said there will be no delay because “merely making a general statement of irreparable harm and referencing the filing of an application for rehearing are insufficient grounds for me to grant the requested extension”.

All this is happening while the CPUC slowly considers whether pole attachment and route management rules need to be changed – it began an inquiry more than two years ago – and while federal are moving more quickly to resolve PG&E’s bankruptcy filing and potential violations of criminal probation terms. It could get more complicated.

Cities have broad authority over wireless facilities, California Supreme Court rules

by Steve Blum • , , , ,

In a landmark decision, the California Supreme Court gave cities a major victory today, ruling that the way San Francisco regulates the appearance of wireless facilities is legal, and isn’t preempted by state law or California Public Utilities Commission regulations. Its interpretation goes beyond lower court decisions and adopts a narrower view of state-level restrictions on municipal control of telecommunications infrastructure. The unanimous opinion also opened the door to further regulation of cell sites and other telecoms facilities – wired or wireless – by drawing a line between specific limits the legislature put on local oversight of construction activities, and the general ability of cities to set standards for the appearance, placement and, potentially, other aspects of wireless equipment after it’s built.

An earlier appellate court decision ruled that cities can set aesthetic standards for wireless facilities because 1. section 7901 of the California public utilities code says telecoms infrastructure can’t “incommode the public use of the road or highway”, and 2. the visual impact of ugly equipment falls within the dictionary definition of incommoding.

Today’s California Supreme Court decision endorsed that finding…

Neither the plain language of [public utilities code] section 7901 nor the manner in which it has been interpreted by courts and the PUC supports plaintiffs’ argument that the Legislature intended to preempt local regulation based on aesthetic considerations. The statute and the ordinance can operate in harmony. Section 7901 ensures that telephone companies are not required to obtain a local franchise, while the [San Francisco] Ordinance ensures that lines and equipment will not unreasonably incommode public road use.

But municipal authority goes beyond that, according to the Supreme Court. The ruling said that state law only restricts some of the broad discretion and power that cities have under the California constitution. Cities can’t effectively prohibit telecoms companies from building infrastructure or regulate their operations, but…

The Legislature has not adopted a comprehensive regulatory scheme. Instead, it has taken the limited step of guaranteeing that telephone corporations need not secure a local franchise to operate in the state or to construct local lines and equipment. Moreover, the statute leaves room for additional local action and there are significant local interests relating to road use that may vary by jurisdiction.

Nor does the authority given to the CPUC override local control or responsibilities. The commission regulates “a utility’s relations with its customers”, the decision says, but municipalities “are forbidden from yielding to the PUC their police powers to protect the public from the adverse impacts of utilities operations”…

Consistent with these statutes, the PUC’s default policy is one of deference to municipalities in matters concerning the design and location of wireless facilities. In a 1996 opinion adopting the general order governing wireless facility construction, the PUC states the general order “recognize[s] that primary authority regarding cell siting issues should continue to be deferred to local authorities… . The [PUC’s] role continues to be that of the agency of last resort, intervening only when a utility contends that local actions impede statewide goals … .” The order itself “acknowledges that local citizens and local government are often in a better position than the [PUC] to measure local impact and to identify alternative sites. Accordingly, the [PUC] will generally defer to local governments to regulate the location and design of cell sites … .”

Finally, the Supreme Court said that public utilities code section 7901.1, which puts specific limits on local control of the public right of way, only applies while construction work is going on…

It is eminently reasonable that a local government may: (1) control the time, place, and manner of temporary access to public roads during construction of equipment facilities; and (2) regulate other, longer term impacts that might incommode public road use under section 7901. Thus, we hold that section 7901.1 only applies to temporary access during construction and installation of telephone lines and equipment. Because the City treats all entities similarly in that regard, there is no section 7901.1 violation.

In other words, the requirement that all telecoms companies be treated that same only applies while facilities are being installed. Cities are free to adopt wireless-specific ordinances that apply after construction work is completed.

Bottom line: California cities can set aesthetic standards for cell sites, and have more authority over wireless and wireline infrastructure than they or telecoms companies thought. It’s a comprehensive defeat for T-Mobile, Crown Castle and Extenet, who sued the City and County of San Francisco. They’ll even have to pay San Francisco legal costs.

Although the ruling opens the door to further local regulation of wireless facilities, including stricter aesthetic standards, the extent of that discretion wasn’t defined, and there are still federal preemptions of state and local authority that could apply. But today’s decision gives California cities a green light to test those limits.

My clients are mostly California cities, all of whom are directly affected by this case. I’m not a disinterested commentator. Take it for what it’s worth.

California Supreme Court majority opinion, T-Mobile West v. City and County of San Francisco, 4 April 2019.

First District, California Court of Appeal, T-Mobile West v. City and County of San Francisco, 15 September 2016.

California Supreme Court expands local control of wireless facilities, allows cities to set aesthetic standards for cell sites

by Steve Blum • , , , ,

Tmobile small cell riverside

UPDATE here.

San Franciso’s aesthetic standards for cell sites are legal under California law. The California Supreme Court rejected an appeal by T-Mobile, Crown Castle and Extenet of lower court rulings that allowed the City and County of San Francisco to regulate the appearance of cell sites. The ruling, posted minutes ago, is here. The ruling is broader than the lower courts’ opinions, though, and appears to expand the scope for local governments to control the use of public right of ways and issue permits for wireless facilities. More to come…

Major ruling on cell site aesthetics due from California Supreme Court tomorrow

by Steve Blum • , , , ,

Tmobile small cell burlingame

UPDATE here.

The California Supreme Court is about to rule on whether California law allows cities to regulate the appearance of cell sites. It posted a notice earlier today that a decision will be published at 10am tomorrow (Thursday, 4 April 2019). Background on the case is here. The key question: does mobile infrastructure that offends local aesthetic sensibilities “incommode the public use” of the public right of way? A California appeals court said yes, it does. T-Mobile, Crown Castle and Extenet beg to differ. We’ll get the final California word tomorrow. Stay tuned.