BILL NUMBER: AB 1027	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 25, 2011

INTRODUCED BY   Assembly Member Buchanan

                        FEBRUARY 18, 2011

   An act to add the heading of Part 1 (commencing with Section 9500)
to, and to add Part 2 (commencing with Section 9510) to, Division
4.8 of the Public Utilities Code, relating to local publicly owned
electric utilities.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1027, as amended, Buchanan. Local publicly owned electric
utilities: utility poles and support structures.
   (1) Existing law provides for the creation of local publicly owned
electric utilities, which include municipal corporations, public
utility districts, and irrigation districts, that furnish electric
services.
   This bill would require a local publicly owned electric utility to
make  surplus   appropriate  space and
 excess  capacity on and in their utility poles and
support structures available for use by cable television
corporations, video service providers, and telephone corporations.
The bill would require fees adopted to cover the costs to provide
this use  ,   and terms and conditions of access, 
to meet specified requirements, and would specify the manner in which
these fees  and terms and conditions of access  could be
challenged. By imposing new duties on local utilities, the bill would
impose a state-mandated local program.
   (2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The heading of Part 1 (commencing with Section 9500) is
added to Division 4.8 of the Public Utilities Code, to read:

      PART 1.  Low-Income Weatherization Programs


  SEC. 2.  Part 2 (commencing with Section 9510) is added to Division
4.8 of the Public Utilities Code, to read:

      PART 2.  Utility Poles and Support Structures


   9510.  (a) The Legislature finds and declares that in order to
promote  wireline and wireless  broadband access and
adoption, it is in the interest of the state to ensure that local
publicly owned electric utilities  , including irrigation
districts,  that own or control utility poles and support
structures, including ducts and conduits, make available 
surplus space and excess   appropriate space and 
capacity on and in those structures to cable television corporations,
video service providers, and telephone corporations under reasonable
rates, terms, and conditions.
   (b) The Legislature further finds and declares that the oversight
of fees  and other requirements  imposed by local publicly
owned electric utilities as a condition of providing the space or
capacity described in subdivision (a) is a matter of statewide
interest and concern. Therefore, it is the intent of the Legislature
that this part supersedes all conflicting local laws and this part
shall apply in charter cities.
   9511.  (a) (1) A local publicly owned electric utility shall make
 surplus space and excess   appropriate space
and  capacity on and in a utility pole and support structure
owned or controlled by the local publicly owned electric utility
available for use by a cable television corporation, video service
provider, or telephone corporation  pursuant to reasonable terms
and conditions. Rates, terms, and conditions that are specified in a
contract executed before January 1, 2012, shall   remain
valid until the contract, rate, term, or condition expires or is
terminated according to its terms, or until the parties to the
agreement agree to change the rate, term, or condition. If an annual
fee is included in a contract executed before January 1, 2012, but
the amount of the fee is left unspecified, the requirements of
Section 9512 apply  .
   (2) A local publicly owned electric utility shall respond to a
request for use by a cable television corporation, video service
provider, or telephone corporation of a utility pole or support
structure owned or controlled by the local publicly owned electric
utility within 45 days of the request  , or 60 days if the
request is to attach to over 300 poles  . If the request is
denied, the local publicly owned electric utility shall provide in
the response the reason for the denial and the remedy to gain access
to the utility pole or support structure.  If a response to a
request for use is not provided within 45 days, the request is
deemed accepted.   If a request to attach is accepted,
the local publicly owned electric utility, within 14 days after
acceptance of the request, shall provide a cost estimate, based on
actual cost, for any necessary make-ready work required to
accommodate the attachment. The requesting party shall accept or
reject the make-ready cost estimate within 14 days. Within 60 days of
acceptance of the cost estimate, or within 105 days in the case of a
request to attach to over 300 poles, the local publicly owned
electric utility shall notify any existing attachers that make-ready
work for a new attacher needs to be performed and the attachers shall
move their attachments. Contractors   authorized by the
local publicly owned electric utility may complete make-ready work
without the consent of the existing attachers, if the existing
attachers fail to move their attachments by the end of the make-ready
timeline requirements specified in this paragraph. 
   (b) If a local publicly owned electric utility has the authority
pursuant to other law to impose a fee to provide the use described in
this section, that fee shall be adopted and levied consistent with
the requirements of this part. 
   (c) A local publicly owned electric utility may require an
additional one-time charge equal to three years of the annual fee
described in Section 9512, for attachments reasonably shown to have
been made after January 1, 2012, without authorization. 

   (c) 
    (d)  This part does not grant additional authority to a
local publicly owned electric utility to impose a fee that is not
otherwise authorized by law.
   9512.  (a) (1) An annual fee charged by a local publicly owned
electric utility for the use of a utility pole by a cable television
corporation, video service provider, or telephone corporation shall
not exceed  7.45 percent of the local publicly owned electric
utility's annual costs of ownership of the pole and its supporting
anchor.   an amount determined by multiplying the
percentage of the total usable space that would be occupied by the
attachment by the annual costs of ownership of the pole and its
supporting anchor. As used in this paragraph and paragraph (2),
"usable space" means the   space above the minimum grade
level that can be used for the attachment of wires, cables, and
associated equipment. It shall be presumed, subject to factual
rebuttal, that a single attachment occupies one foot of usable space
and that an average utility pole contains 13.5 feet of usable space.

   (2) An annual fee charged by a local publicly owned electric
utility for use of a support structure by a cable television
corporation, video service provider, or telephone corporation shall
not exceed the local publicly owned electric utility's annual costs
of ownership of the percentage of the volume of the capacity of the
structure rendered unusable by the equipment of the cable television
corporation, video service provider, or telephone corporation.
   (3) As used in this subdivision, the "annual costs of ownership"
is the sum of the annual capital costs and annual operation costs of
the pole or support structure, which shall be the average costs of
all similar utility poles or structures owned or controlled by the
local publicly owned electric utility. The basis for the computation
of annual capital costs shall be historical capital costs less
depreciation. The accounting upon which the historical capital costs
are determined shall include a credit for all reimbursed capital
costs. Depreciation shall be based upon the average service life of
the utility pole or support structure. "Annual cost of ownership"
does not include costs for any property not necessary for  use by
 the cable television corporation, video service provider, or
telephone corporation  use  .
   (b) A local publicly owned electric utility shall not levy a fee
that exceeds the estimated amount required to provide use of the
utility pole or support structure for which the annual recurring fee
is levied. If the fee creates revenues in excess of actual costs,
those revenues shall be used to reduce the fee.
   (c) If the cable television corporation, video service provider,
or telephone corporation requests a rearrangement of the utility pole
or support structure, and the local publicly owned electric utility
has the authority to levy fees as described in Section 9511, the
local publicly owned electric utility may charge a one-time
reimbursement fee for the actual costs incurred for the
rearrangement. 
   (d) A jointly owned pole, including the cost of the pole on the
books of the local publicly owned electric utility, is not included
within the requirements of this part, if a joint owner other than the
local publicly owned electric utility has the sole control of the
space that would be used by the cable television corporation, video
service provider, or telephone corporation. 
   9513.  (a) (1) Before adopting, or increasing, a fee described in
Section 9512,  or adopting or changing the terms and conditions
of access subject to this part,  the local publicly owned
electric utility shall hold at least one open and public meeting as
part of a regularly scheduled meeting, at which time oral or written
presentations relating to the fee  or term or condition of access
 may be made.
   (2) At least 14 days before the meeting described in paragraph
(1), the local publicly owned electric utility shall mail notice of
the time and place of the meeting, including a general explanation of
the matter to be considered, and a statement that the data required
by paragraph (3) is available, to a person or entity who files a
written request with the local publicly owned electric utility for
mailed notice of the meeting.
   (3) At least 10 days before the meeting described in paragraph
(1), the local publicly owned electric utility shall make available
to the public data indicating the cost, or estimated cost, to make
utility poles and support structures available for use by a cable
television corporation, video service provider, or telephone
corporation  , if adopting or increasing a fee, and shall make
available data and rationale for adopting or changing the terms and
conditions of access, if adopting or changing the terms and 
 conditions of access  .
   (b) (1) An action by a local publicly owned electric utility to
adopt, or increase, a fee described in Section 9512  , or adopt
or change the terms and conditions of access subject to this part,
 shall be taken solely by an ordinance or resolution adopted by
the legislative body of the local publicly owned electric utility.
The legislative body of the local publicly owned electric utility
shall not delegate the authority to adopt or increase the fee  or
term or condition of access  to another entity or board.
   (2) The legislative body of the local publicly owned electric
utility shall approve the ordinance or resolution to adopt or
increase the fee  , or adopt or change the terms and conditions
of access subject to this part,  at a subsequent open and public
meeting as part of a regularly scheduled meeting, no earlier than 30
days after the initial public meeting described in subdivision (a).
   (3) An action adopting a fee or increasing a fee  , or a 
 dopting or changing the terms and conditions of access subject
to this part,  pursuant to this section shall be effective no
sooner than 60 days following the final action on the adoption of the
fee or fee increase  or adoption or change in the terms and
conditions of access  .
   9514.  (a) Any person or entity may protest the adoption or
imposition of, or increase of, a fee described in Section 9512  ,
or adoption or change in the terms and conditions of access subject
to this part,  by serving written notice to the governing body
of the local publicly owned electric utility  within 30 days of
the action protested  . The written notice shall contain a
statement informing the governing body of the factual elements of the
dispute and the legal theory forming the basis for the protest.
   (b) The filing of protest pursuant to subdivision (a) shall not be
a basis for the local publicly owned electric utility to withhold
approval of the use of a utility pole or support structure.
   9515.  (a) A judicial action or proceeding to attack, review, set
aside, void, or annul an ordinance, resolution, or motion adopting,
or increasing, a fee described in Section 9512  , or adopting or
changing the terms and conditions of access subject to this part,
 shall be commenced within 120 days of the effective date of the
ordinance, resolution, or motion.
   (b) If an ordinance, resolution, or motion provides for an
automatic adjustment of a fee, and the automatic adjustment results
in an increase in the amount of a fee, a judicial action or
proceeding to attack, review, set aside, void, or annul the increase
shall be commenced within 120 days of the effective date of the
increase.
   (c) An action by a local publicly owned electric utility or
interested person shall be brought pursuant to Chapter 9 (commencing
with Section 860) of Title 10 of Part 2 of the Code of Civil
Procedure.
   (d) A person or entity shall not initiate an action or proceeding
pursuant to subdivision (a) unless both of the following requirements
are met:
   (1) The fee  or requirement  will be directly imposed on
the person or entity as a condition for the use of a utility pole or
support structure.
   (2) At least 30 days before initiating the action or proceeding,
the person or entity requests the local publicly owned electric
utility to provide a copy of documents that purport to establish that
the fee does not exceed the amount reasonably necessary to cover the
cost of the use of the utility pole or support structure, consistent
with Section 9512  , or that the term and conditions of access
or change to the terms and conditions of access are reasonable 
. The local publicly owned electric utility may charge a fee for the
direct costs of copying the documents requested pursuant to this
paragraph.
   9516.  (a) A person or entity may request an audit in order to
determine whether a fee described in Section 9512 exceeds the amount
reasonably necessary to cover the costs to the utility of the use of
a utility pole or support structure, consistent with Section 9512. If
a person or entity makes that request, the local publicly owned
electric utility shall retain an independent auditor to conduct an
audit to determine whether the fee is reasonable, unless an audit has
been performed for the same fee within the previous 12 months. 
The individual or entity requesting the audit shall pay for the
direct costs associated with an audit made pursuant to this
subdivision. 
   (b) To the extent that the audit determines that the amount of the
fee does not meet the requirements of this part, the local publicly
owned electric utility shall adjust the fee accordingly.
   9517.   (a)    This part does not limit the
authority of a local publicly owned electric utility to ensure
compliance with all applicable provisions of law in determining
whether to approve or disapprove use of a utility pole or support
structure. 
   (b) The use of a utility pole or support structure by a cable
television corporation, video service provider, or telephone
corporation shall comply with Public Utilities Commission General
Order 95 and all other applicable provisions of law. 
  SEC. 3.  If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.