Tag Archives: pole attachment

Contrasts of competence as California assesses power cuts and utility pole route management

by Steve Blum • , , , ,

Pge outages 9oct2019

California’s privately-owned electric utilities and their regulators have a long and difficult job ahead as they try to figure out what was good and what was bad about last week’s massive wildfire prevention power cuts. Their eventual conclusions will have a significant impact on how utility pole routes are managed in California, including possible new, and more costly, design standards, and budgets for maintenance and wildfire prevention. Those costs will ultimately be shared with telecommunications companies that also use those poles.

The only major private electric utility that appears to be squarely in the good column is San Diego Gas and Electric. They shut off power to 395 customers, had them restored by Friday afternoon and did not start any fires. An excellent article in the Los Angeles Times by James Rainey and Joseph Serna details the operational, grid design and maintenance decisions SDG&E has made, and successfully implement, over the past decade.

The contrast with Pacific Gas and Electric is stark…

San Francisco-based PG&E is struggling to catch up with San Diego Gas & Electric Co., which has become California’s recognized leader in forecasting fire danger, tailoring narrow outages for the most endangered neighborhoods and communicating the emergencies with the public, a top state regulator said.

“Those have been three pillars of success for SDG&E, and they are currently sources of failure for PG&E,” said Elizaveta Malashenko, deputy executive director for safety policy at the California Public Utilities Commission.

PG&E took a much blunter approach, cutting power to 738,000 customers in 34 counties across northern and central California. A customer is reckoned as a home or business – at least two million people were affected. Two dozen or more transmission lines – major, high voltage lines that feed regional and local distribution grids – were shut down. Full service wasn’t restored until late Saturday.

Whether or not it was necessary to cut off so many customers is a question that will be debated for months, if not years. What’s not in doubt is that PG&E completely fumbled public communications and poisoned relationships with the public, as well as state regulators and elected officials. Both CPUC president Marybel Batjer and California governor Gavin Newsom excoriated PG&E’s management and performance, even while conceding the necessity of “public safety power shutoff events”. The PG&E website was largely useless, and in some cases completely unavailable, and much of the information that did get out was inaccurate.

On the other hand, PG&E has not been implicated in any of the (relatively) small wildfires that broke out during the days of high winds and low humidity. To that extent, PG&E’s wildfire prevention efforts were successful.

Southern California Edison might not be as lucky. Although SCE won qualified praise for planning and executing its wildfire prevention program last week, its equipment might have been the cause of a major fire that began on the northern edge of the City of Los Angeles, and had spread through nearly 8,000 acres as of last night. Eyewitnesses said the Saddleridge fire began at the base of an SCE transmission tower, on a line that was still electrified. The LA fire department is treating those reports as credible, but its arson investigators have not reached any conclusions about the cause.

SCE shut off power to 24,000 customers, and restored power to all but four last night.

Broadband deployment will be more rigorous and costly in California, following U.S. supreme court ruling

by Steve Blum • , , , ,

Southern California Gas and Electric can’t pass on wildfire costs to ratepayers. The federal supreme court declined to hear SDG&E’s appeal of a California Public Utilities Commission decision that put some of the burden of a 2007 series of wildfires on company shareholders. California’s strict “inverse condemnation” law requires utilities to bear the full cost of any damage when their pole routes, or other equipment in the right of way, is even partially to blame. Monday’s decision lets that principle stand. As a result, electric utilities will spend more on pole route maintenance and be tougher on inspections and standards enforcement.

Some of those additional costs, and all of the added rigour, will land on telephone, cable and other broadband companies that occupy space on utility poles.

According to a Los Angeles Times article by Rob Nikolewski,

Investigations into the causes of the Witch, Guejito and Rice fires — three of the worst wildfires in a devastating firestorm that befell San Diego County in October 2007 — found they were sparked by SDG&E equipment that had not been properly maintained.

The three fires combined to kill two people, injure 40 firefighters and destroy 1,300 homes…

SDG&E spent $2.4 billion to resolve more than 2,000 lawsuits related to the 2007 wildfires, but it insisted the blazes were ignited by factors it could not control — including extreme Santa Ana winds, a lashing wire owned by Cox Communications that hit an SDG&E power line and a tree limb that fell onto an SDG&E line due to high winds.

Properly maintained or not, SDG&E’s equipment was in the chain of events that led to the Guejito fire. So was Cox’s line, but even though it was the trigger, the California Public Utilities Commission tagged SDG&E with responsibility: it should have known that the cable company’s line was too close to its electrical line. According to investigator’s measurements, the two lines were separated by a bit more than three feet, instead of the six feet required by CPUC rules.

Cox ended up reimbursing SDG&E for a relatively small fraction of the $2.4 billion in liability claims that were paid out as a result of the three fires. But that was between the two companies; as applied by the CPUC and courts, California’s law put the liability burden on SDG&E.

The same legal principles apply to Southern California Edison and Pacific Gas and Electric, California’s other two major investor owned electric utilities. They’ve lagged behind SDG&E’s wildfire prevention efforts, and are now playing catch up. The result will be higher levels of maintenance work and more rigorous inspections of pole routes, among other things. The cost of all of that – time, effort and money – will eventually be shared with telecoms companies. Deploying and maintaining broadband infrastructure in California will only become more expensive.

Federal court fast not-so-slow tracks appeals of FCC’s preemption of local pole ownership

by Steve Blum • , , , ,

The good news is that the appeal of the Federal Communications Commission’s preemption of local ownership of streetlight poles will be fast tracked. The not so good news – which isn’t exactly news to people who follow such things – is that fast is a relative term.

An order issued yesterday by the ninth circuit federal appellate court in San Francisco granted a request “to expedite oral argument” in the case, made by dozens of local governments. What that means is that the court is looking at “dates for February 2020 and the two subsequent…months” for those arguments to happen.

The judges hearing the case will also have to decide whether to handle everything at once, or break it up into more manageable bits. The primary case involves two decisions made by the FCC last year, both dealing with the way state and local governments manage access to roads and anything else considered to be the public right of way, and the degree of ownership control they can exercise over structures, such as light poles or traffic signals, they install there. One decision dealt mostly with deployment of wireline telecoms infrastructure, the other with wireless facilities.

One issue that’s particular to municipal electric utilities – whether federal law allows the FCC to regulate their utility poles – was separated out earlier. The cities and counties litigating the main case asked for arguments for and against one touch make ready rules for privately-owned utilities to be heard separately. Yesterday’s order said the three judge panel will sort that out later.

Assuming that oral arguments happen sometime between February and April, and the judges issue a decision in a three to six month time frame (typical, but it could be longer or shorter), then we won’t know if the FCC’s decisions will stand until this time next year. That’ll add to the uncertainty faced by cities as they try to manage the expected avalanche of permit applications for small cell facilities and associated fiber optic installations.

Cities ask federal court to speed up review of pole ownership preemption, FCC says keep it slow

by Steve Blum • , , , ,

La small cell

Local governments from around the U.S. asked the federal appeals court in San Francisco to speed up consideration of their challenge to the Federal Communications Commission preemption of local ownership and control of the public right of way and assets located in it, such as street light poles and traffic signals.

In a motion filed last month, they told judges that on the one hand, disputes are piling up, and on the other, the FCC is aggressively pushing ahead…

First, there are several other cases progressing through the lower courts that will be affected by the outcome of this appeal…Delay in resolution will simply complicate the work of district courts and Circuit Courts of Appeal throughout the country, as more applications are filed and more disputes arise.

Second, this appeal is a matter of great importance to virtually every locality in the nation. While this appeal is pending, Local Government Petitioners and Supporting Intervenors and similarly situated parties are confronted with uncertainty as to how to develop and apply local standards for small cell deployment, which is rapidly occurring…

Third, the Commission is not waiting for this Court to decide the validity of the Orders challenged on appeal. In fact, the Commission is currently building on those Orders, which makes possibly unwinding them all the more difficult.

The FCC opposes anything that would speed up what increasingly looks like a case it will lose. Its response says, in effect, there’s no reason to hurry, because any problems that are created can be fixed later. That was the gist of a ruling earlier this year by federal appellate judges in Denver, just before they handed everything off to their colleagues in San Francisco.

That’s a line of argument that might apply equally well to the FCC’s preemption orders, which also set tight deadlines for action on permit applications filed with local government by telecoms companies.

PG&E pole attachment shot clock ready for another CPUC vote

by Steve Blum • , , ,

Fiber attachments 625

The do-over of a settlement resolving a utility pole attachment dispute between Pacific Gas and Electric and Crown Castle is queued up at the California Public Utilities Commission. The original settlement was drafted by administrative law judge Patricia Miles and approved in March. But commissioners reversed the decision due to procedural mistakes, and told Miles to fix those errors try again. She did, and the new draft is the same as the old one.

If approved, the imposed settlement gives PG&E forty five days to “provide a response” to a pole attachment request from Crown Castle. If there’s no response, Crown Castle can go ahead with its proposed work. “Response” is not defined, but typically it means a yes or no answer, including any specs for work that’s needed to make the pole ready for a new line to be attached. Whether PG&E’s lawyers go with the typical meaning or try to craft one of their own remains to be seen.

The draft also bakes in the rejection of Crown Castle’s original request to be allowed to buy attachment space on PG&E’s poles, rather than just lease it. PG&E’s practice is to either sell ownership of the entire communications zone – the segment of the pole that’s high enough off the ground and sufficiently beneath electric lines – or lease it by the foot. Typically (there’s that word again) AT&T or another incumbent telco buy the entire zone and manage it under private joint pole rules that are, in theory, friendlier to telecoms companies. Crown Castle wanted those privileges for its one-foot of pole space, but didn’t want the responsibility of managing the entire zone.

PG&E opposes the changes proposed by Miles. It doesn’t like the way it was handled – the dispute between the companies was fast tracked as an arbitration, rather than a typical, and lengthy, litigation – and it objects to what it characterises as special treatment given to Crown Castle.

Crown Castle generally endorsed Miles’ decision, albeit after making clear that they think they should have been given the right to buy space by the foot on poles, and after asking for one change – removal of a requirement that they provide two days notice to PG&E before doing work on poles.

The commission is scheduled to vote on the proposed settlement at its meeting next week, but don’t be surprised if it gets bumped. PG&E and Crown Castle have one more round of comments to file, and if any of their arguments gain traction with Miles or commissioners, then new language would have to be drafted.

Net neutrality ruling sinks FCC local pole ownership preemption theory

by Steve Blum • , , , ,

Although a federal appeals court in Washington, D.C. blessed the Federal Communication Commission’s “2018 Order” repealing network neutrality rules, the judges hearing the case overturned one section that tried to preempt any effort by state or local governments to step into the gap. If the plain language of Tuesday’s opinion is also applied to the FCC’s attempt to preempt local ownership and control of street light poles and other publicly owned assets located in the public right of way, then it’s a slam dunk bet that it’ll be overturned too.

Last year, the FCC issued two far reaching decisions preempting nearly all state and local authority over construction of broadband infrastructure, one dealing with small cell sites and the other dealing primarily with wireline projects. It claimed the authority to do so based on an expansive interpretation of federal communications law that boiled down to we’re in charge of national broadband policy, so what we say goes for everyone.

“No dice”, said the D.C. appeals court. Its opinion made two particular points: 1. congress never gave the FCC the necessary authority to occupy policy territory that legally belongs to states, and 2. if the FCC wants to exercise the authority it does have, it has to do so case by case, by the evidence…

Not only is the Commission lacking in its own statutory authority to preempt, but its effort to kick the States out of intrastate broadband regulation also overlooks the Communications Act’s vision of dual federal-state authority and cooperation in this area specifically. Even the 2018 Order itself acknowledges the States’ central role in “policing such matters as fraud, taxation, and general commercial dealings…remedying violations of a wide variety of general state laws,” and “enforcing fair business practices” — categories to which broadband regulation is inextricably connected…

We have long recognized that “whether a state regulation unavoidably conflicts with national interests is an issue incapable of resolution in the abstract,” let alone in gross…

Because a conflict-preemption analysis “involves fact-intensive inquiries,” it “mandates deferral of review until an actual preemption of a specific state regulation occurs.” Without the facts of any alleged conflict before us, we cannot begin to make a conflict-preemption assessment in this case, let alone a categorical determination that any and all forms of state regulation of intrastate broadband would inevitably conflict with the 2018 Order.

The ninth circuit federal appellate court in San Francisco is hearing the challenges to the FCC’s blanket preemption of local and state authority over right of ways and public property. It’s not obligated to follow the D.C. circuit’s opinion, but given that it has a history of being even more skeptical of federal agency supremacy than its Washington colleagues, it’s heavy odds that it will.

Hope for California’s net neutrality law, as court upholds repeal of federal rules

by Steve Blum • , , , ,

Open internet dont tread on me 2

The Federal Communications Commission’s republican majority acted properly and within the limits of its authority in 2018 when it cancelled network neutrality rules approved in 2015 by the then-democratic controlled FCC. Mostly. A three judge panel on the federal appellate court based in Washington, D.C. – aka the DC circuit – issued its opinion yesterday, providing support for California’s enactment of its own net neutrality rules, but otherwise rejecting most of the arguments made by net neutrality advocates.

But not all. The judges overturned “the portion of the 2018 [FCC] order that expressly preempts ‘any state or local requirements that are inconsistent with its deregulatory approach’”. That action could open the door to state-level net neutrality regulations, similar to what the California legislature enacted last year when it approved Senate Bill 822.

The ink on governor Jerry Brown’s signature was barely dry, when a plague of lobbyists and lawyers descended on Sacramento and challenged the new law in federal court. Yesterday’s ruling removes a major pillar of their case – the FCC’s attempt to specifically preempt state-level action – but they still have a general argument to make, based on federal authority over interstate commerce. Winning that argument will be harder though, because the D.C. circuit opinion resolves a regulatory paradox in California’s favor.

Following the decision, the bill’s author, state senator Scott Wiener, tweeted “SB 822 remains intact & isn’t preempted”.

Even so, SB 822 is in limbo. California attorney general Xavier Becerra agreed not to enforce it while the case against the FCC’s net neutrality repeal was underway. Yesterday’s decision is a major milestone, but not necessarily the last word. Becerra issued a press release claiming victory, but it didn’t mention what he plans to do about reviving and defending SB 822.

The appeals court judges also said the FCC has to flesh out some aspects of its net neutrality decision in light of public safety, pole attachment and lifeline program considerations, ruling in some specific respects the agency’s actions were “arbitrary and capricious”. That’ll be a paper-pushing exercise; any changes that result will almost certainly be minor.

But other than that, the D.C. circuit panel said that the FCC’s rollback of net neutrality rules will stand.

The judges cited more than 20 years of precedent – and back-and-forth FCC decisions – regarding how broadband service is or isn’t regulated. The central question was whether congress gave the FCC the authority to make such decisions, and the judges’ answer is yes. They pointed out that they “do not inquire as to whether the agency’s decision is wise as a policy matter; indeed, we are forbidden from substituting our judgment for that of the agency”. The FCC’s decision has to be “reasonable”, though, and the judges determined that it was. Much of the nearly 200 pages of the opinion was devoted to explaining why. One recurring theme was that, in many respects, the republican-majority FCC simply restored previous, widely accepted rules overturned by the democratic-majority in 2015. The judges also rejected arguments that, as a whole, the FCC’s decision was arbitrary and capricious, although they said in some respects the commission’s work “is no model of agency decision making”.

Yesterday’s decision can be appealed, either directly to the federal supreme court, or by asking all the judges assigned to the D.C. circuit to review en banc the ruling made the opinion of the three judge panel. It could yet be a long time before we get a final answer.

Salinas, AT&T sign master pole license agreement with small cell design standards and $750 annual rent, sorta

by Steve Blum • , , , ,

Downtown salinas

AT&T and the City of Salinas hedged their bets and signed a master license agreement for attaching small cell sites to city-owned poles that complies with current Federal Communications Commission guidelines, but snaps back to market-based fees if those rules are changed, or overruled by a federal court.

Last year, the FCC declared that municipal assets installed along roads or otherwise in the public right of way, like street light poles or traffic aren’t really city (or county) property, but instead are part of the right of way itself. In California, that would mean that mobile broadband companies could hang wireless antennas and other equipment on street lights at will, simply by filing for an encroachment permit. The FCC said any fees have to based on cost, not market prices, and it decided that $270 per year is what a city’s costs should be. It has since backed away from some of the restrictions it wants to impose, as it defends its ruling against lawsuits filed by dozens of cities.

Under the terms of the deal, if the FCC’s preemption of local street light pole ownership survives the federal appellate court challenge underway in San Francisco, then AT&T will pay the City of Salinas a “monitoring fee” of $270 per pole per year to install “small wireless facilities”. If it’s overturned, then a license fee will kick in, raising the yearly total AT&T has to pay Salinas for each pole to $750 for the first year, with a 2.5% annual increase in the license fee portion after that.

$750 per year falls in the middle of the average range for city pole rental fees in California, although it’s less than typical rates in the San Francisco Bay Area, which tend to be in the $1,500 per year ballpark. Unless the ballpark is in San Francisco proper – $4,000 is common there.

AT&T also agreed to follow particular construction standards for small cell installation on city-owned poles. It will…

  • Follow the City of Salinas’ small cell design standards, which limit antenna enclosures to twice the width of and no more than 20% higher than an existing pole, require equipment to be located underground or mounted on poles, and set standards, including anti-graffiti measures, for screening everything.
  • Cooperate with the City on pre-approval of standard small cell designs that can then be deployed quickly and widely.
  • Not install small cell facilities on traffic lights, or any pole “supporting signs or devices used to control or direct…traffic”.
  • Abide by the City of Salinas’ Dig Once policy, which could require AT&T to use existing conduit or fiber routes in some circumstances, and allows notices to go out to other companies that might be interested in participating in projects that involve excavating city streets.

It’s City policy to support 4G mobile network upgrades and 5G deployments so “Salinas businesses can remain economically competitive” and “residents have the ability to access resources (including educational resources) that are available through the Internet”. Its efforts aren’t limited to promoting better mobile service. As part of its Dig Once program, the City installs conduit in its own road projects and made broadband infrastructure upgrades a top priority for its economic development initiatives, particularly in Salina’s Ag Tech Corridor and downtown area.

I’m a consultant to the City of Salinas and assisted with the development of its broadband policy and agreements. I’m not a disinterested commentator. Take it for what it’s worth.

Master License Agreement for Wireless Installations on Public Structures, by and between the City of Salinas and AT&T, 13 August 2019
City of Salinas, City Council Resolution, Authorising Mayor to Sign AT&T Master License Agreement, 13 August 2019
City of Salinas, Staff Report, License of City Facilities for Small Cell Sites, 13 August 2019

City of Salinas, City Council Resolution, Small Wireless Facility Regulations, 2 April 2019
City of Salinas, City Council Resolution, Small Wireless Facility Fees, 2 April 2019
City of Salinas, Staff Report, Small Wireless Facility Regulations and Fees, 2 April 2019

City of Salinas, City Council Resolution, Wireless Telecommunications Facility Lease Policy, 17 April 2018
City of Salinas, City Council Staff Report, Wireless Telecom Leasing Policy, 17 April 2018

City of Salinas, City Council Resolution, Policy Reducing Underground Excavation for Communications Infrastructure within the City Right Of Way, 15 November 2016
City of Salinas, Staff Report, Reducing Underground Excavation for Communications Infrastructure within the City Right Of Way, 15 November 2016

Fewer complaints, so far, as California utilities cut power to reduce wildfire risk

by Steve Blum • , , , ,

Update: PG&E shut off power this morning, as previously announced. As of this evening, it had restored power in north Bay Area counties, and some of the affected Sierra foothill communities. SCE turned power back on for the Riverside County homes affected by Tuesday’s cuts. Public reaction to PG&E de-energisation moves remained as relatively muted as it did on Tuesday. The San Francisco Chronicle spoke to one upset Sonoma County supervisor, but on the whole there was very little NIMBY outrage.

Forecasts of high winds and hot temperatures this week led two of California’s major privately owned electric utilities to implement de-energisation plans that were drafted earlier this year. Californians’ acceptance of “public safety power shutoffs” as a necessary fire prevention tool appears to be growing, although we’ll find out today if residents of the more affluent communities of the north San Francisco Bay Area are as tolerant as people in the Sierra foothills.

PG&E announced that it is turning off power this morning to 48,000 customers in Butte, Napa, Nevada, Placer, Plumas, Sonoma and Yuba. That follows cut offs in Butte, Nevada and Yuba counties for 24,000 customers that began Monday evening. Restoration of service to the first group was supposed to be completed yesterday evening. As of last night, Southern California Edison had turned off power for a few dozen customers in Riverside County, and put a 140,000 more across the Southland on notice.

San Diego Gas and Electric customers are not affected, so far.

People who live in Sierra foothill communities have more directly personal memories of the horrific fire that killed 86 people and largely destroyed the town of Paradise in Butte County last year. So they might not be happy about losing power, but they did not seem to erupt in outrage as some Wine Country residents did last October. That’s progress.

The Sacramento Bee found one Butte County resident who was annoyed. She was interviewed at one of the “community resource centers” that PG&E set up, basically a big tent with air conditioning and plenty of outlets to charge phones. Judging by the video shot by Bee reporter Daniel Kim, few people were inconvenienced enough to make use of it.

That was the only kvetching that turned up in a Google news search as power was being restored yesterday afternoon, and only a relative handful of people took to Twitter to complain. PG&E is a particular punching bag on Twitter: the proactive power cuts didn’t add much to the vitriol that’s regularly directed at the company. But there’s a somewhat different group of people affected today. Stay tuned.

FCC’s weed whacker work fails another court test

by Steve Blum • , , , ,

The Federal Communications Commission’s republican majority is now 0 for 2 in federal appeals court challenges to its weed whacker campaign to prune back telecommunications and media regulations. In an opinion released yesterday, the third circuit federal appeals court, based in Philadelphia, voted 2 to 1 to overturn an FCC ruling that loosened restrictions on media ownership, because republican commissioners blew off concerns about the effect it would have on women and minorities. In August, Washington, D.C.-based federal appellate judges overturned an FCC decision that scrapped environmental reviews for small cell site, saying it was “not logical and rational”.

The Philadelphia judges were likewise scathing in their criticism of the process, or lack thereof, that the FCC used in reaching its decision. It’s the second time in two months that federal appellate judges have rejected a controversial, party line FCC ruling because the republican majority did not do its homework…

Problems abound with the FCC’s analysis. Most glaring is that, although we instructed it to consider the effect of any rule changes on female as well as minority ownership, the Commission cited no evidence whatsoever regarding gender diversity…

Even just focusing on the evidence with regard to ownership by racial minorities, however, the FCC’s analysis is so insubstantial that it would receive a failing grade in any introductory statistics class.

The case has to do with how many TV stations a single company can own, and whether a company can own a TV station and a newspaper in the same media market. It’s not an issue I follow closely, so if you want more background on it, take a look at this story on CNET by Marguerite Reardon.

The court’s opinion has broader significance, because it shows an increasing lack of deference to the FCC’s supposed policy expertise and decreasing tolerance for sloppy decision making that begins with an idealogical conclusion and then supports it with sophomoric legal arguments rather than basing it on the evidence in the record. Appellate court challenges to two more FCC rulings – one rolling back Obama-era network neutrality rules and the other preempting local ownership of street light poles and similar infrastructure in the public right of way – are based on similar grounds. A ruling on the net neutrality case could come at any time. The appeals of the right of way decisions still have several months, at least, to run.