An administrative law judge gave Crown Castle a victory of sorts in a dispute over terms for attaching fiber optic cable to utility poles that Pacific Gas and Electric owns. Assuming the California Public Utilities Commission signs off on the finding, the arbitrated decision by ALJ Patricia Miles leaves PG&E’s leasing model and most of its standard terms in place. But, in effect, it also establishes a 45 day shot clock for responding to attachment requests and allows Crown Castle to do some work on poles without notifying PG&E and to be notified, in some circumstances, if work affecting its cables is planned.
Originally, Crown Castle wanted the CPUC to force PG&E to sell space on utility poles by the foot. Typically, PG&E either sells all the space available for telecoms cable attachments – the communications zone – to one company, such as AT&T, and then relies on that company to manage attachment requests by other carriers. Or it will lease out space by the foot to telecoms attachers, such as Crown Castle, and manage the communications zone itself.
The rent versus buy financial analysis aside, the main operational difference between owning and leasing space is that pole space owners can add cables and maintain them with less administrative overhead, and can expect a greater degree of coordination from PG&E. Crown Castle wanted those privileges, but didn’t want to – perhaps legally couldn’t – take on the responsibility of owning and managing the entire communications zone.
Using an expedited arbitration process established by the CPUC, Crown Castle challenged PG&E’s standard procedure, but Miles rejected its argument that state law and CPUC rules require by-the-foot sales of attachment space. She then told the two companies to negotiate an agreement on that basis.
That didn’t happen. In her draft decision, Miles said “the parties inexplicably failed to submit such an agreement”. Instead of coming back to her with a settlement, the companies each offered their preferred contract language: PG&E filed its standard contract; Crown Castle proposed changes to that contract giving it many of the privileges of ownership.
In a baseball-style arbitration decision, Miles chose Crown Castle’s version, saying “PG&E has not objected to Crown Castle’s revisions to its license agreement”.
Key elements of the changes to PG&E’s standard attachment contract include:
- Crown Castle needs written permission to attach cables to PG&E owned pole space, “unless 45 days have run from the time of request of access and Company has provided no response”. Neither the ruling or the contract define what, exactly, constitutes a response, but silence certainly doesn’t qualify.
- Crown Castle does not have to give PG&E 48 hour notice if it’s doing routine repair or maintenance that doesn’t require electricity to be shut off.
- PG&E has to notify Crown Castle when another telecoms company wants to attach to a pole that Crown Castle is already occupying.
- When that happens, PG&E needs Crown Castle’s permission to rearrange cable attachments or replace poles if needed.
Since this was a one-off arbitration of a particular dispute between two companies, the decision won’t affect any existing pole attachment contracts or necessarily serve as a template for future ones. But it might.
The CPUC is scheduled to vote on the draft decision at its 14 March 2019 meeting.