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 makesurplusappropriate space andexcesscapacity 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 availablesurplus space and excessappropriate 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 makesurplus space and excessappropriate 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 exceed7.45 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 corporationuse. (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.