Tag Archives: pole attachment

FCC says it’s legal to give muni property to mobile companies because it’s illegal for cities to say no

by Steve Blum • , , , ,

Alice tall 625

The Federal Communications Commission says it has the authority to tell cities and counties what they can do with property they own, because otherwise they would be breaking the law. In a decision that should have surprised no one, the FCC refused to put its September wireless preemption ruling on hold.

Instead, in an odd bit of contradictory reasoning, the FCC’s latest order says it’s not taking away cities’ rights to property they own that’s located within the public right of way (ROW), such as street light poles and traffic signals. All the FCC is doing, the order says, is preventing local governments from breaking the law…

The Order does not implicate local governments’ actions in their role as property-owners; rather, it focuses on preventing them from violating federal law when they engage in “managing or controlling access to property within public ROW” for wireless facility deployment.

Except the illegal activities that cities are supposedly engaging in are completely legal. Or at least were until the FCC reversed earlier decisions and said that congress gave it the authority to tell local governments what they can do with property they own, simply because it’s in the ROW and mobile companies think it’s highly valuable.

The order was in response to a request from the National League of Cities and several local governments to delay enforcing the local property preemption until federal courts decide whether it’s cities or the FCC that’s breaking the law. It was a futile, but necessary move. Usually, federal judges won’t consider a request to delay a federal agency’s action until the agency refuses to do so itself.

The next move will be made in Denver, assuming that the federal appeals court headquartered there – the tenth circuit – doesn’t kick the case to San Francisco, as requested by the City of San Jose. San Jose and a couple dozen other local agencies will ask the court to ice the FCC decision until the larger legal challenge is decided. They have a fighting chance of winning the next round, not least because federal judges will want the FCC to give a better explanation than we’re right because we say we’re right.

Plan to allow electric utilities to pass on 2018 wildfire costs to customers is on hold

by Steve Blum • , , , ,

Any help with wildfire liability that major electric companies might be expecting from the California legislature will wait until next month. Assemblyman Chris Holden (D – Los Angeles) didn’t introduce his planned bill when the legislature met briefly to swear in new members and open the new session. Holden had planned to, at a minimum, allow Pacific Gas and Electric and Southern California Edison to add damage costs to customers’ bills for 2018 wildfires. The legislature voted in August to allow them to pass on those costs to consumers for fires in 2017 and 2019 and beyond. But not for this year.

According to a story in the Los Angeles Times by John Myers, there’s significant opposition to offering PG&E, in particular, a helping hand….

“I’m very concerned,” Holden said. “I think there are a very fragile set of circumstances.”

Critics, however, are poised to pounce. Some believe the timing is inappropriate, so soon after the catastrophic Camp fire in Butte County. Others see the effort as tantamount to punishing utility customers — particularly those of Pacific Gas & Electric Co. — through higher bills.

“All of this conversation is premature,” said state Sen. Jerry Hill (D – San Mateo), a frequent PG&E critic. “There is a major cost to ratepayers that I think is outrageous.”

That cost will run into the billions of dollars, assuming that early indications that point to PG&E electric transmission lines as the cause of the disastrous Camp Fire in Butte County turn out to be true. The way California law works, if a utility – electric or telecoms – is even partly to blame for starting a fire, then it’s responsible for the entire cost. Earlier this year, lawmakers rejected utility requests to change that.

The legislature reconvenes in January, which is the next opportunity for Holden and Hill, who has talked about bringing PG&E’s service territory under direct state control, to move ahead with new bills.

Cities ask to move appeals of FCC muni property preemption to San Francisco court

by Steve Blum • , , , ,

The cities, counties and related associations that are challenging the Federal Communications Commission’s decision to preempt local ownership of streetlight poles and similar municipal property in the public right of way are asking to move the case from Denver to San Francisco. A motion to that effect was filed yesterday in the Denver-based tenth circuit court of appeals by the City of San Jose and the other west coast agencies that appealed the FCC decision in the last week of October.

Mobile carriers also challenged the ruling, because they didn’t get everything they wanted. And – likely – because they didn’t want the case heard in San Francisco’s ninth circuit court of appeals, which is not their home turf, to say the least. Under court rules, when multiple appeals of a federal agency’s action are filed in different appellate districts within 10 days of its publication, a lottery is held to determine where they will be consolidated. Denver won the draw.

But San Jose and its cohorts found a wrinkle in the law. They argue that the 10 day clock starts running when the first appeal in a given agency proceeding is filed. The City of Portland appealed an earlier FCC wireline ruling two weeks before the local agencies and mobile carriers went to court to challenge the wireless ruling. The wireline and wireless rulings were part of the same proceeding: as case law cited by San Jose puts it, both “are associated with the same dockets, arise out of the same administrative proceeding, and govern aspects of a single agency undertaking to implement…provisions in the Telecommunications Act of 1996”.

All the cities and counties involved are in the ninth circuit’s vast western territory. In the past, the San Francisco court has interpreted federal telecoms law more narrowly, and more in line with municipal interests, than the Denver appeals court. It makes sense for them to try to get the case moved.

The mobile carriers and the FCC will have a chance to argue against the transfer, and it’s a fair bet they will. A decision on San Jose’s motion will likely come quickly from the Denver court – there’s not a lot of time left before the FCC’s wireless preemption ruling takes effect on 14 January 2019 and, whether it’s in Denver or San Francisco, there’s a lot of legal work to be done.

City of San Jose, et al, motion to transfer cases to ninth circuit, 29 November 2018.
City of Portland’s petition for review of FCC wireline order, 2 October 2018.
FCC report and order and declaratory ruling, In the Matter of Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment and Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 2 August 2018.

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

Fires will drive price hikes for electricity and broadband

by Steve Blum • , , , ,

Pacific Gas and Electric and, to a somewhat lesser extent, Southern California Edison face the potential of billions of dollars of liability for 1. this year’s wildfires, 2. last year’s wildfires and 3. preventing next year’s wildfires. Someone will have to pay the tab that fires have already run up in California. Under state law, if a utility is even partly to blame it has to bear the full burden, generally. But utilities, even highly regulated ones like privately owned electric companies, can pass some or all of those costs on to their customers.

So we all face the possibility of paying for the damage done, and preventing damage yet to be.

In the final hours of its session, the California legislature passed a law – senate bill 901 – that makes it easier for utilities to increase electric rates to pay for fire liability in 2017, and from 2019 on. But not this year. With PG&E potentially on the hook for the deadliest and most destructive fire in California history, the one-year gap in the law puts a huge cloud over its future. Bankruptcy is a possibility.

One solution is to change the law, which assemblyman Chris Holden (D – Los Angeles) is considering. He’s currently the chair of the assembly’s utilities and energy committee (committee and leadership assignments will be changed to one extent or another when the next legislative session begins next month). According to a story on Bloomberg, his chief consultant is working on a new bill…

Kellie Smith, an adviser to assemblyman Chris Holden, said she is drafting legislation that could be introduced as early as Dec. 3. It may serve as a framework for lawmakers to consider relief for PG&E from the billions of dollars it faces in potential liability for death and property damage in Northern California’s Camp Fire, the deadliest in state history.

“He is concerned about the instability of the utility and the adverse effect it could have on ratepayers, and the ability to deliver services at a reasonable cost,” Smith said by telephone Monday.

A utility bailout bill will face opposition, so there is no guarantee it’ll pass. Senator Jerry Hill’s (D – San Mateo) reaction to Holden’s proposal was “what a sad day this is for California”. He might be PG&E’s most vocal critic in Sacramento, but he’s not the only one by far.

Looking ahead, utility rates – for electricity, broadband and anything else that runs on wires attached to poles – will continue to rise with or without more fires. Before these most recent fires, SCE told the California Public Utilities Commission that it expects to spend $670 million on grid safety over the next three years, and wants to add it to electric bills, raising the average bill by 1%. PG&E and San Diego Gas and Electric have to do the same math, and the equations are likely to change as the causes of the Camp and Woolsey fires are assessed and new rules come into effect.

SDG&E might point the way forward for PG&E and SCE. It aggressively shut off power to 24,000 homes during this latest siege, and has not been implicated in any wildfires. It’s also buried more of its lines – 60% of its route miles are underground, compared to 25% of PG&E’s, according to a story on CalMatters by Julie Cart.

But undergrounding is neither cheap or easy. It costs $3 million per mile on the average, according to PG&E, and can go even higher in urban areas. Any large scale wildland underground program is also likely to face opposition – California environmental law allows pretty much anyone to endlessly challenge any construction project. The prospect of sending bulldozers and backhoes through hundreds of miles of California’s backcountry will spark a rush that makes courthouses look like a Walmart on Black Friday.

Broadband companies share the cost of maintaining pole routes and building underground infrastructure. And sometimes even share the liability for fire damage.

FCC preemption of local pole ownership challenged by muni electric utilities

by Steve Blum • , , , ,

Municipal electric utilities joined the challenge the Federal Communications Commission’s decision to preempt local ownership and control of streetlights and other publicly-owned infrastructure in the public right of way. The American Public Power Association, which represents cities, utility districts and other public agencies that provide electric service, filed a petition in the federal appeals court in Washington, D.C. last week, asking that the ruling be overturned.

It argues…

In the Order, the Commission has improperly asserted regulatory authority and jurisdiction over the control and use of public power utility facilities. The Order exceeds the Commission’s statutory authority; poses significant risks to safe, secure, and reliable electric utility operations; and interferes with the proprietary rights of public power utilities to determine the terms and compensation for use of their utility assets by private wireless carriers.

That makes a total of eight challenges to the FCC ruling. Three were filed by western cities with objections that parallel the APPA’s; four by mobile carriers that want federal judges to give them everything they asked for, instead of the virtually everything they got from the FCC.

The City of Huntington Beach filed its obligatory and brief description of its case, stating…

The federal government cannot deprive a state or cities of their proprietary powers as owners of property…Localities, in their capacity as a property owner, have the “right to decline to lease the property except on agreed conditions.”

The group led by the City of Seattle submitted similar comments. The City of San Jose-led challengers filed their’s last week.

More challenges are possible (and might have already been filed – I’m not checking every circuit court every day). The deadline is the middle of next month, 60 days after the FCC’s ruling was published in the federal register. An earlier deadline – 10 days after publication – was for getting into the judicial lottery that determines which court of appeals will hear the case. That honor went to the tenth circuit court of appeals, based in Denver. Presumably, the APPA case will be transferred there, along with AT&T’s appeal, which was also filed in D.C.

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

FCC illegally “asserts federal control over municipal utility structures”, court told

by Steve Blum • , , , ,

The City of San Jose briefly explained its case against the Federal Communications Commission in a filing with the federal appeals court in Denver last week. San Jose, Los Angeles County and eighteen other western cities joined together to challenge the FCC’s decision to preempt local ownership of streetlights, traffic signals and other municipal property that’s located in the public right of way.

Six other challenges were filed – two by local agencies and associations that represent them, and four by mobile operators who think the FCC wasn’t generous enough. The cases were lodged in several different federal appeals courts around the country, and then were consolidated, via a lottery, in the tenth circuit court of appeals in Denver.

AT&T’s appeal was filed in Washington, D.C. but wasn’t included in the first round of consolidation. Last week, the FCC asked that it be moved to Denver, too, and AT&T didn’t oppose the request.

San Jose told the court…

On Sept. 26, the Federal Communications Commission issued a Declaratory Order and Report and Order…that, among other things: reinterprets key statutory terms…and which establishes new deadlines for action on applications for “small wireless facilities.” Many local governments, including Petitioners, objected to the FCC’s proposals on both legal and policy grounds, and submitted substantial legal, economic, and policy evidence into the underlying record never addressed by the agency.

Among other things, the Order abrogates an en banc plain language decision of the Ninth Circuit interpreting [those key statutory terms]; requires states and localities to lease facilities not generally dedicated to public use to certain wireless companies at out of pocket costs…asserts federal control over municipal utility structures; shortens time for action on wireless applications in a way that is designed to prevent public participation; and sets a federal standard for aesthetics without authority. Petitioners dispute the ruling on statutory and constitutional grounds, and also argue that it is, inter alia, arbitrary, capricious, an abuse of discretion and otherwise contrary to law.

The second group of cities and other organisations, which is led by the City of Seattle, hasn’t offered its initial argument yet, nor has the City of Huntington Beach, which launched a solo appeal.

Verizon, Sprint and Puerto Rico Telephone have, though. Verizon’s litigious trolling is typical, claiming that the FCC completely blew it because it didn’t go far enough…

The FCC’s refusal to implement a “deemed granted” remedy is arbitrary and capricious in violation of the Administrative Procedure Act, and is an abuse of the Commission’s discretion. It also violates other federal laws including, but not limited to, the Communications Act of 1934, the Commission’s own regulations, and the United States Constitution; and it is otherwise contrary to law.

AT&T’s initial filing made a similar claim, so it’ll be no surprise if it follows Verizon’s lead. The federal appeals court in Denver hasn’t set a schedule for further proceedings yet.

The FCC’s order is scheduled to take effect on 14 January 2019. The logical next step for the municipal challengers is to ask the court to put it on hold, until the cases are heard.

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

SDG&E shuts off electricity in fire danger areas, possible SCE link to Woolsey blaze ignition

by Steve Blum • , , , , , , ,

Update, 13:48, 12 November 2018: SCE has begun proactive shutoffs, according to its website “due to dangerous high winds in Red Flag fire areas, SCE shut off power to roughly 50 customers in the Moorpark area at about 10:50 a.m. this morning”.

Much of California is under a red flag warning this morning. High winds and dangerously dry conditions could mean yet more wildfires, and more trouble for the three major fires already burning. The death toll from the Camp Fire in Butte County rose to 29 overnight, with hundreds of people still missing. At least two people died in the Woolsey Fire in Ventura and Los Angeles County. Both of those fires are largely uncontained, with high winds expected today and tomorrow.

So far, San Diego Gas and Electric is the only major Californian electric utility to begin large scale, proactive power cuts. It turned off electricity in and around eight communities in San Diego County last night and this morning, affecting ten thousand customers. Southern California Edison put dozens of communities on alert yesterday, but so far hasn’t reported turning off power proactively. PG&E hasn’t updated its proactive electric shut off notices since Friday.

A possible link between SCE and the start of the Woolsey fire surfaced yesterday. SCE filed a report with the California Public Utilities Commission on Thursday night, stating that there was an interruption to a high voltage line near the start of the blaze, two minutes before the first report of a fire came in…

Preliminary information indicates the Woolsey Fire was reported at approximately 2:24 p.m. Our information reflects the Big Rock 16 kV circuit out of Chatsworth Substation relayed at 2:22 p.m. Our personnel have not accessed the area to assess our facilities in the vicinity of where the fire reportedly began. At this point we have no indication from fire agency personnel that SCE utility facilities may have been involved in the start of the fire.

That doesn’t necessarily mean that SCE’s incident caused the fire – it might have been the other way around – but it raises the possibility. Cal Fire lists the causes of the Camp, Woolsey and the (smaller and largely contained) Hill fires as “under investigation”.

Beyond the human tragedy, there’s no reliable damage estimate yet. All that’s certain is that it’ll be in the billions of dollars, if not tens or hundreds of billions, range. Under California law, utilities are on the hook for the full cost of the damage, even if the blame is shared with others. A bill passed in the final days of the California legislature’s session in August – senate bill 901 – allowed some of that cost to be passed on to electric customers, but that’s only a partial solution.

The cost of maintaining utility pole routes will climb, which will drive up costs for the telecommunications companies that share those routes. And if telecoms lines are involved in the start of a fire – a loose cable wrapping around electric lines was blamed in a 2007 San Diego County fire – then telephone, cable and other broadband companies would be similarly liable for the damage done.

Governor Jerry Brown said “this is the new abnormal” in a press conference yesterday. That applies as much to California’s telecoms future as it does to everything else connected to these fires.

Californians must choose between tragedy and inconvenience. It’s not hard

by Steve Blum • , , , , , , ,

Three massive wildfires continue to burn this morning in California; one in Butte County, two in Ventura and Los Angeles counties. The cost in human life is immeasurable, with nine people confirmed dead in northern California and many more missing. There’s no way to gauge the damage to property and the disruption to lives: what is the price of a town burned to the ground?

The town is, or was, Paradise, a community of 26,000 people in the northern Sierra Nevada foothills. The Camp Fire disaster is a horrible shock, but it was no surprise. The fire danger was high in California, and local officials and utilities posted warnings.

Last Tuesday, two days before the Camp Fire began, Pacific Gas and Electric issued an alert in nine counties, including Butte, warning that it “may proactively turn off power for safety starting on Thursday, November 8”. By Wednesday night, eight counties remained on the list, with specific communities, including Paradise, called out.

No power was intentionally shut off that night.

Thursday morning at 6:15 a.m., PG&E “experienced an outage on the Caribou-Palermo 115 kV Transmission line in Butte County”, according to an incident report it filed with the California Public Utilities Commission. Eighteen minutes later, more than a dozen fire units were dispatched to the Poe Dam on the Feather River, where, according to radio transmissions reported by the Mercury News, a fire was quickly spreading…

“We’ve got eyes on the vegetation fire. It’s going to be very difficult to access, Camp Creek Road is nearly inaccessible,” one firefighter told dispatch. “It is on the west side of the river underneath the transmission lines.”

As firefighters rushed to Poe Dam early Thursday morning, each truck acknowledged over the radio, “Copy, power lines down,” as part of safety protocol for firefighters…

The first firefighter to reach the Poe Dam area Thursday morning quickly recognized the seriousness of the situation and called for an additional 15 engines, four bulldozers, two water tenders, four strike teams and hand crews.

“This has got the potential for a major incident,” he told dispatch, alerting them to evacuate Pulga, the town immediately southwest, and to find air support.

About six minutes later, another firefighter estimated the fire at about 10 acres with a “really good wind on it,” warning that once it left the “maintained vegetation under the power lines” the fire would reach a critical rate of spread when it hit the brush and timber.

On Thursday afternoon, PG&E cancelled its alert and said it didn’t cut power anywhere because “weather conditions did not warrant this safety measure”.

Southern California Edison likewise issued warnings on Tuesday and Wednesday, alerting customers to the possibility of proactive electricity shut offs. None were carried out before the two southern California fires began burning on Thursday.

There’s no indication yet of how the Woolsey and Hill fires started. And there’s no official statements at all regarding the cause of any of the blazes – it will be months before investigations are complete.

Beyond fighting the fires and caring for evacuees, the problem now is how to prevent, or at least reduce the possibility of, more wildfires. Weather conditions are in flux this weekend and the chance of severe winds, high temperatures and low humidity persists.

I’m not going to try to second guess PG&E’s and SCE’s decisions not to cut off power this week. This is new territory for everyone. I can only hope that however the decisions are made, the people making them ignore the self-centered objections and ignorant complaints that erupted from residents and businesses in high risk areas when PG&E proactively shut down power lines for the first time last month.

Yes, it’s inconvenient. Tell that to the survivors of Paradise.

Denver court will hear appeals of FCC decision to preempt local control over poles, wireless permits

by Steve Blum • , , , ,

A federal judicial panel decided on Friday to consolidate at least six of the seven appeals filed by local governments and wireless carriers against an FCC ruling that attempts to set sweeping new small cell permit and leasing rules for local and state governments. Yesterday, the court given the job – the tenth circuit of the U.S. court of appeals, based in Denver – issued instructions to the challengers, essentially telling them to get their paperwork in order and stand by for further instructions.

Three of the appeals were launched by west coast cities, counties and their associations. They object to the sharp limitations that the FCC wants to put on their standards, procedures and fees for small wireless facility permit applications, and to the FCC’s declaration that they can’t control property they own in the public right of way, such as street light poles and traffic signals.

According to the FCC, cities have to allow wireless carriers to attach equipment to street light poles more or less at will, and only charge $270 per pole per year for the privilege. The Californian average for municipal pole leases is between $500 and $900 per year, with many Bay Area cities beginning to come to a consensus around the $1,500 per year figure.

The other four appeals were filed by wireless carriers: AT&T, Verizon, Sprint and the Puerto Rico Telephone Company (PRT). They think the FCC’s ruling didn’t go far enough – they want all the marbles, not just most of them. Verizon’s appeal surfaced at the end of last week. I’m not sure exactly what happened, but it appears that there was some kind of paperwork glitch that delayed its release. There’s no substance to it yet; Verizon simply asked the federal appeals court in New York to review the FCC ruling.

Because the seven appeals were spread over five federal appellate districts, a judicial panel held a lottery to decide where they’ll all come together. The Denver court’s name was drawn. It’s where Sprint’s case was filed. As of last night, it’s assigned the appeals filed by the local agencies, Sprint, Verizon and PRT. AT&T’s appeal, which was filed in the District of Columbia, isn’t included yet.

A similar drawing was held earlier this year when several groups appealed the FCC’s decision to repeal network neutrality rules. The initial winner was the San Francisco-based federal appeals court, but the cases were eventually moved back to Washington, D.C. by mutual consent. There’s no indication yet if something like that is in the works for these wireless preemption appeals, or where AT&T’s case will land.

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

Western cities line up against FCC muni property grab

by Steve Blum • , , , ,

There must be something in the salt air coming off the Pacific Ocean. Only local agencies on or (relatively) near the west coast asked a federal appeals court to block the Federal Communication Commission’s decision to preempt local ownership of streetlights and other municipal property that’s planted in the public right of way. Contrary to my prediction, the rest of the U.S. is sitting it out. I checked the websites of the federal appeals courts around the country, and didn’t find any new challenges.

Twenty-two cities, two counties and three state-level League of Cities organisations joined the three lawsuits filed in the San Francisco-based ninth circuit court of appeals last week. The roll of honor is…

  • City of Yuma, Arizona
  • League of Arizona Cities and Towns
  •  
  • City of Arcadia, California
  • City of Burlingame, California
  • City of Culver City, California
  • City of Huntington Beach, California
  • City of Los Angeles, California
  • City of Monterey, California
  • City of Ontario, California
  • City of Piedmont, California
  • City of San Jacinto, California
  • City of San Jose, California
  • City of Shafter, California
  • Los Angeles County, California
  • Town of Fairfax, California
  • League of California Cities
  •  
  • City of Las Vegas, Nevada
  •  
  • City of Portland, Oregon
  • League of Oregon Cities
  •  
  • City of Bellevue, Washington
  • City of Burien, Washington
  • City of Gig Harbor, Washington
  • City of Issaquah, Washington
  • City of Kirkland, Washington
  • City of Seattle, Washington
  • City of Tacoma, Washington
  • King County, Washington

I did find one more telco that jumped on the greedy wagon: the Puerto Rico Telephone Company joined AT&T and Sprint in asking appeals courts to automatically give them the privilege of hanging their equipment on poles – whether they own them or not – if a city takes too long to process a permit application. Those petitions were filed in Boston, the District of Columbia and Denver, respectively.

It’ll take a few days, maybe a week or two, for the federal court system to decide if and where the cases will be heard together. Harold Feld has an excellent explanation of how that works here. It might ultimately be done by a lottery, or by mutual agreement or it’s possible that the telcos’ appeals will be heard separately from the local agency ones.

Links to the all the petitions and background documents are here.