Utility pole associations, which manage joint use of poles by electric utilities – privately and municipally owned – and telecoms companies of all sorts, should be regulated by the California Public Utilities Commission, according to a ruling by an administrative law judge (ALJ). The ruling focuses on a narrow dispute between two companies: big picture, it’s little more than advice to CPUC commissioners. But it’s bad advice.
The ruling concerns a dispute between Pacific Gas and Electric, which owns poles throughout northern California, and Crown Castle, which is an independent, competitive telecoms company that owns and leases fiber routes, and builds and operates cell sites. PG&E offered to lease space to Crown Castle on its poles, as it’s required to do by the CPUC. Crown Castle said it would prefer to buy outright a foot’s worth of space on PG&E’s poles, so it can get about its business of building fiber networks without worrying about keeping a landlord happy. AT&T, and other incumbent telephone companies, buy space on PG&E’s poles, but they buy the whole communications zone, which can be several feet of pole space. They are then responsible for leasing out attachment space by the foot to independent companies like Crown Castle, also as required by the CPUC.
Crown Castle didn’t want to pay for and be responsible for the entire communications zone on PG&E poles, and if they did, it’s not entirely clear that they would have the same obligation as AT&T and other incumbents to lease space to other telecoms companies. So Crown Castle and PG&E ended up in a stalemate. To resolve it, Crown Castle asked the CPUC to step in and arbitrate the dispute. The ruling issued yesterday by ALJ Patricia Miles says that PG&E is meeting its obligations by offering to lease attachment space on poles and Crown Castle has no particular right to buy it by the foot.
But the ruling goes one step further and says that procedures and contracts developed by joint pole associations – the Northern California Joint Pole Association (NCJPA) and the Southern California Joint Pole Committee – need to be approved in advance by the CPUC…
There can be no doubt that disputes such as the present one will arise again. For this reason, if NCJPA is going to continue to facilitate sale and purchase transactions pertaining to public utility poles among its member entities, the Commission should require NCJPA to submit (before implementation) for Commission review and approval…its agreements, forms, procedures and handbooks which concern the transfer, sale, lease, assignment, mortgage, or encumbrance of public utility poles. Such transactions, which are being handled by NCJPA on behalf of its members, are clearly within the Commission’s jurisdiction.
The ALJ’s report amounts to a suggestion for commissioners, who would have to issue a formal decision requiring joint pole associations to get advance approval for pole attachment deal terms. If commissioners go down that road, it will be a lengthy and contentious process. Not all utilities that own and/or attach to poles are under CPUC jurisdiction. An association of municipal electric utilities objected to a draft version of the ALJ’s ruling, pointing out that the CPUC has no authority over them and shouldn’t try to tell them how to manage their own poles.
In the meantime, the ALJ’s ruling will be widely read and could influence similar one-on-one disputes between independent telecoms companies and electric utilities.
Yesterday’s ruling affirmed PG&E’s current practice, and in that regard offered a bit of clarity to the already horribly complex problem of how utility pole routes are shared and managed in California. But by threatening to extend CPUC oversight to joint pole associations, the ruling adds an unneeded and unwelcome layer of uncertainty.
The CPUC has ongoing proceedings that involve a number of issues related to pole access and, because of PG&E’s bankruptcy filing and past criminal conviction, federal judges will have a lot to say about it. The California legislature and civil courts are also involved because of the dozens of deaths and billions of dollars worth of damaged caused by fires started by electric lines. Now is not the time to drag even more players into this mess.