Tag Archives: pole attachment

AT&T, Verizon, Sprint, PRTC plead their pain of not getting everything they want from Santa the FCC

by Steve Blum • , , , ,

The opening arguments submitted by AT&T, Verizon, Sprint and the Puerto Rico Telephone Company in their appeal of last year’s Federal Communications Commission’s pole ownership preemption decision do little more than lend credence to the allegation that their challenges were launched in collusion with their friends at the FCC in a vain judge shopping attempt.

The 2018 FCC wireless order was a gigabuck early Christmas present to mobile carriers. It gave them the right to use city-owned property in the public right of way, such as street light poles, at below market rates, sharply restricted fees that local government could charge for permits to do so, and limited local discretion over street management and aesthetic standards. And it tightened shot clocks for processing permit applications for (not so) small wireless facilities.

About the only gift the FCC didn’t give mobile carriers was “deemed granted” privileges. Those would have allowed companies to start construction without permission, after shot clocks run out. California has a similar rule, enacted by the legislature, but with more generous time limits.

The FCC has declined to create deemed granted remedies for big, macro cell sites in the past, and the U.S. congress never told them to do it. In a special case created by congress, the FCC did impose a deemed granted remedy, but there’s never been any question that must do so in all cases. If there’s any question, it’s whether the FCC has the general authority to overrule state legislatures in that regard. Nonetheless, the four mobile companies filed an appeal claiming the FCC’s failure to do so was “arbitrary and capricious”.

In their first attempt to justify that claim, the mobile carriers offer page after page of boilerplate 5G hype, and then argued that the FCC’s decision to not give them everything they want had “no rational connection” to the glorious future promised by their eloquent marketing materials.

What the carrier’s intervention did earn them is four tickets in the judicial lottery that determined which appeals court would hear all the challenges, particularly those filed by cities and counties that objected to the substance of the FCC’s preemption order. It worked at first. Sprint’s ticket was pulled and a Denver-based court with a more friendly reputation caught the case. But a legal maneuver by the City of San Jose got it transferred to the ninth circuit federal appeals court in San Francisco, exactly the place AT&T, Verizon and Sprint – and the FCC – were trying to avoid.

FCC’s local pole preemption order based on speculation, ignores substantial evidence, cities tell appeals court

by Steve Blum • , , , ,

The Federal Communications Commission’s preemptions of local property rights – particularly city-owned street light poles – and local rules regulating the use of public right of ways are contrary to federal law and violate the federal constitution, according to arguments submitted to a San Francisco appeals court by dozens of cities, counties and local government associations. In their opening brief submitted on Monday, they made their case for overturning last year’s FCC rulings that swept away state and local land use, road maintenance, property leasing practices and other policies that mobile carriers find bothersome.

The two FCC rulings affect wireless and, to a more limited extent, wireline telecoms providers. All the challenges that resulted were consolidated into a single case that’s now in front of the ninth circuit federal court of appeals.

The local governments’ argument that the FCC’s wireless and wireline rulings are “arbitrary, capricious and counter to the evidence in the record” boil down to two key points:

  • Federal law says state and local governments can’t “prohibit or effectively prohibit” deployment of telecommunications services. Courts – including the ninth circuit – have previously ruled that “an ‘effective prohibition’ may not be based upon the mere possibility of prohibition – an actual prohibition is required”. Local regulations and fees that might make a particular small cell site less convenient or less profitable for a carrier are not a prohibition.
  • “Nothing in the Communications Act gives the Commission authority over non-carrier government property merely because it is convenient to communications providers, or requires a locality to take affirmative action to assist in deployment, either through making its property available, or making it available cheaply”.

The FCC’s claim that it is helping rural communities by preempting urban property rights is equally bogus, according to the local governments’ brief

If a provider obtains reaps greater profits in San Francisco, Eugene or New York City as a result of preemption of those cities’ current right-of-way or infrastructure attachment fees, those increased profits do not make it more attractive or profitable for the provider to invest in deploying infrastructure in rural Mississippi. The Commission’s order does not require any amount of additional profits resulting from the preemption of San Francisco’s or Eugene’s fees to go towards providing service in other areas. Providers are free to use such additional profits to engage in corporate acquisitions, increase shareholder dividends, or repurchase stocks, which the record shows they have done rather than invest in deployment.

The joint arguments filed by local governments, as well as opening briefs filed by mobile carriers and municipal electric utilities, are just the first round in what will what will be months of litigation.

Petitioner Local Governments’ joint opening brief, 10 June 2019
Brief of petitioner the American Public Power Association, 10 June 2019
Petitioner Montgomery County, Maryland’s opening brief, 10 June 2019
Joint opening brief for Petitioners Sprint Corporation; Verizon Communications Inc.; Puerto Rico Telephone Company, Inc.; and At&T Services, Inc., 10 June 2019

Links to petitions, court documents and background material 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.

Opening briefs challenging FCC pole and right of way preemptions filed in ninth circuit

by Steve Blum • , , , ,

Tmobile small cell riverside

Dozens of local governments from across the U.S. filed joint arguments yesterday with the ninth circuit federal appeals court in San Francisco, as challenges to two 2018 Federal Communications Commission decisions move ahead. Mobile carriers and municipal electric utilities also filed opening briefs. I’ll dive deeper into the arguments in the next few days, but you can read them here now:

Petitioner Local Governments’ joint opening brief, 10 June 2019
Brief of petitioner the American Public Power Association, 10 June 2019
Petitioner Montgomery County, Maryland’s opening brief, 10 June 2019
Joint opening brief for Petitioners Sprint Corporation; Verizon Communications Inc.; Puerto Rico Telephone Company, Inc.; and At&T Services, Inc., 10 June 2019

Links to petitions, court documents and background material 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.

Wildfires burn in northern California, but proactive power cuts might have limited the damage

by Steve Blum • , , ,

Thomas fire 2018 utility lines 300

Pacific Gas and Electric did two rounds of proactive cuts over the weekend, in response to warnings of high fire danger due to weather conditions. It was no false alarm. Cal Fire’s online map shows more than a dozen wildfires in PG&E’s territory, including the Sand Fire in Yolo County that’s grown to at least 2,200 acres. There’s no basis to speculate why any of those fires began – that’s a question for later.

However, there is reason to suspect that it might have been worse if PG&E hadn’t cut off electricity to approximately 23,000 customers in Butte, Napa, Solano, Yolo (but not where the Sand Fire began) and Yuba counties. Before power could be turned back on, PG&E crews had to inspect 800 miles of lines and, according to a PG&E press release, they “found instances of damage to de-energized equipment caused by the extreme weather event”.

Another bipartisan bill preempting local ownership of streetlight poles lands in U.S. senate

by Steve Blum • , , , ,

Despite promises to work with local government representatives to develop less onerous language, a bill to preempt local ownership of streetlight poles and other municipal property that is 1. located in the public right of way and 2. coveted by wireless broadband providers was re-introduced in the U.S. senate with no significant changes. S.1699 is sponsored by the same bipartisan team of John Thune (R – South Dakota) and Brian Schatz (D – Hawaii) that pushed it last year.

It’s still called the Streamline small cell deployment act. It would use the same formulas to calculate rental rates for poles owned by cities and counties that are used to allocate costs between telecoms and electric companies that share utility poles. In California, that rate is generally in the range of $25 – plus or minus several bucks – per foot of occupied pole space per year. It would apply to “a facility in a right-of-way owned or managed by the State or local government for the placement, construction, or modification of a small personal wireless facility”.

The bill also sets shot clocks ranging from 60 days to 150 days for small cell permit processing, whether or not a proposed facility is in the public right of way. The shot clocks would have “deemed granted” teeth…

If a State or local government or instrumentality thereof has neither granted nor denied a request within the applicable timeframe…including any temporary waiver granted under [the terms of this bill], the request shall be deemed granted on the date that is 31 days after the date on which the government instrumentality receives a written of the failure from the applicant.

Along with federal courts, the Federal Communications Commission would get the job of enforcing shot clocks and arbitrating rental rate and fee disputes. In many ways, the bill tracks with last year’s FCC order that similarly seeks to override local ownership of streetlight poles and such, with two major differences: by comparison with S.1699 (but not with the market) the FCC was more generous with rental rates, setting a “safe harbor” figure of $270 per pole per year, and the U.S. congress has the unambiguous power to preempt ownership of municipal assets within certain limits, while the FCC does not.

The first stop for S.1699 is the U.S. senate’s commerce, science and transportation committee. Thune chairs that committee and Schatz is ranking democrat. That was the case with last year’s bill too.

California lawmakers bury bills to bury electric lines

by Steve Blum • , , , ,

In the wake of last year’s deadly wildfires, California lawmakers proposed legislation to reduce future risk by reducing electric line exposure. Those ambitions didn’t amount to much, though. Two bills to encourage utilities to move lines off of poles and place them underground, particularly in high fire risk areas were scrapped. A third one was neutered, but is still moving forward.

Senate bill 70 was passed unanimously by the senate and is awaiting its fate in the assembly. Authored by Jim Nielsen (R – Tehama), it’s less ambitious than first drafted. It establishes a “working group” to “promote the undergrounding of electrical infrastructure and the implementation of a statewide joint trenching policy”. Any money to pay for it, though, would have be found later. Originally, it included stronger language that would have required utilities to put lines underground when rebuilding or cleaning up after a wildfire.

That said, it could be useful. Anything that encourages cooperation between electric and telecoms companies, and local and state agencies, when trenching projects are planned, is a good thing.

SB 584, authored by John Moorlach (R – Orange) was killed behind closed doors by the senate appropriations committee. It began the most ambitious undergrounding bill, earmarking $400 million a year to pay for utility line relocation. It was subsequently watered down to “an unspecified amount”, and finally left behind when legislative leaders cleared the appropriation committee’s suspense file.

Assembly bill 281, by Jim Frazier (D – Contra Costa) didn’t go anywhere either. It died without a hearing in the assembly utilities and energy committee. New rules this year allow committee chairs to simply ignore legislation they, or the lobbyists that stuff cash in their pockets provide them with sage advice, don’t like. In its various forms it would have loosened environmental reviews of undergrounding projects and/or given the California Public Utilities Commission the job of requiring utilities to move lines underground in high fire risk areas.

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.