BILL NUMBER: AB 1027 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 1, 2011
AMENDED IN ASSEMBLY MAY 11, 2011
AMENDED IN ASSEMBLY APRIL 28, 2011
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 appropriate space and 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 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.
(c) The Legislature further finds and declares that local publicly
owned electric utilities should provide access to utility poles and
support structures with a recovery of actual costs without
subsidizing for-profit cable television corporations, video service
providers, and telephone corporations.
9510.5. As used in this part, "utility pole" means an electricity
or telephone pole, but does not include a street light pole or an
electricity pole used solely for the transmission of electricity at
50 kilovolts or higher and not intended for distribution of
communications signals or electricity at lower voltages. "Street
light pole" means a pole, arm, or fixture used primarily for street,
pedestrian, or security lighting.
9511. (a) (1) A local publicly owned electric utility shall make
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
by one of the parties . 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 date of receipt 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
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 third-party attachers that
make-ready work for a new attacher needs to be performed and
the attachers shall move their attachments performed.
The requesting party shall have the responsibility to
coordinate with third-party existing attachers for make-ready work to
be completed. All parties shall complete all make-ready work within
60 days of the notice, or within 105 days in the case of a request to
attach to over 300 poles . 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.
(3) The timelines described in paragraph (2) may be extended under
special circumstances upon agreement of the local publicly owned
electric utility and the cable television corporation, video service
provider, or telephone corporation.
(4) A local publicly owned electric utility may deny an
application for use of a utility pole or support structure because of
insufficient capacity or safety, reliability, or engineering
concerns. In denying an application, a local publicly owned
electric utility may also take into account the manner in which a
request from a cable television corporation, video service provider,
or telephone corporation under this part could impact an approved
project for future use by the local publicly owned electric utility
of its utility poles or support structures for delivery of its core
utility service.
(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) (1) 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 without authorization that are discovered on or
after January 1, 2012.
(2) A local publicly owned electric utility may remove an
attachment made without authorization, if all of the following
conditions are met:
(A) The owner of the attachment fails to pay the charge described
in paragraph (1), if that charge is applicable.
(B) The owner of the attachment does not seek approval to attach
pursuant to this part within a reasonable period of time.
(C) The owner of the attachment does not contest that the
attachment was made without authorization.
(3) An attachment of a service drop wire is not made without
authorization for the purposes of this subdivision, if the owner of
the attachment seeks approval to attach pursuant to this part within
45 days of the attachment.
(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. Nothing in this part shall be construed to
prohibit a local publicly owned electric utility from requiring a
one-time fee to process a request for attachment, if the one-time fee
does not exceed the actual cost of processing the request.
(e) In the event that it becomes necessary for the local publicly
owned electric utility to use space or capacity on or in a support
structure occupied by the cable television corporation, video service
provider, or telephone corporation's equipment, the cable television
corporation, video service provider, or telephone corporation shall
either pay all costs for rearrangements necessary to maintain the
pole attachment or remove its equipment at its own expense.
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 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.
(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, or by a
contract approved, 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. The legislative body of the local publicly owned electric
utility shall ensure that the customers of the local publicly owned
electric utility and the customers of the cable television
corporation, video service provider, or telephone corporation are not
subsidized by the rates, terms, and conditions proposed for access
pursuant to this part.
(2) The legislative body of the local publicly owned electric
utility shall approve the ordinance or resolution or contract 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 adopting 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.
(c) This section does not apply to a contract extension
agreed to by all of the parties to the contract , if the terms,
conditions, or rates described in the contract are not changed.
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 taken . 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
motion, or contract adopting, or increasing, a
fee described in Section 9512, or adopting or changing the terms and
conditions of access subject to this part, or an automatic
adjustment that results in an increase in the amount of a fee
described in Section 9512, shall be commenced within 120 days
of the effective date of the ordinance, resolution, or
motion motion, contract, or automatic adjustment
.
(b) If an ordinance, resolution, motion, or contract 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)
(b) 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)
(c) 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 , or the entity is a trade association that represents
that person or entity .
(2) At least 30 days before initiating the action or proceeding,
the person or entity , or trade association representing that
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.
(d) An action to enforce this part shall be brought in a court of
competent jurisdiction.
9516. (a) A person or entity , or trade association
representing that 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 A person or
entity making that request 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) A person or entity, or trade association representing a person
or entity, shall not request an audit unless the fee is directly
imposed on the person or entity, or on a member of the trade
association, as a condition for the use of the utility pole or
support structure.
(b)
(c) 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 Orders 95 and 128 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.