BILL NUMBER: AB 1027	ENROLLED
	BILL TEXT

	PASSED THE SENATE  AUGUST 29, 2011
	PASSED THE ASSEMBLY  AUGUST 31, 2011
	AMENDED IN SENATE  JULY 13, 2011
	AMENDED IN SENATE  JUNE 28, 2011
	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, 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, municipal
utility districts, 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 no reimbursement is required by this
act for a specified reason.


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, the following terms have the
following meanings:
    (a) "Communications service provider" means a cable television
corporation, video service provider, or telephone corporation.
   (b) "Governing body" means the governing body of a local publicly
owned electric utility, including, where applicable, a board
appointed by a city council.
   (c) "Street light pole" means a pole, arm, or fixture used
primarily for street, pedestrian, or security lighting.
   (d) "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.
   9511.  (a) 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 communications service provider
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 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.
   (b) (1) A local publicly owned electric utility shall respond to a
request for use by a communications service provider 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,
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. 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. 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.
   (2) The timelines described in paragraph (1) may be extended under
special circumstances upon agreement of the local publicly owned
electric utility and the communications service provider.
   (c) 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 communications service provider 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.
   (d) 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.
   9511.5.  (a) If a local publicly owned electric utility has the
authority pursuant to other law to impose a fee to provide the use
described in Section 9511, that fee shall be adopted and levied
consistent with the requirements of this part.
   (b) The governing body of the local publicly owned electric
utility shall determine the fee pursuant to Section 9512.
   (c) 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 communications
service provider 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 communications service
provider 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
communications service provider.
   (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
communications service provider.
   (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) A jointly owned pole is not included within the requirements
of this section, if a joint owner other than the local publicly owned
electric utility has control of access to the space that would be
used by the communications service provider.
   9513.  (a) 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.
   (b) A local publicly owned electric utility may remove an
attachment made without authorization, if all of the following
conditions are met:
   (1) The owner of the attachment fails to pay the charge described
in subdivision (a), if that charge is applicable.
   (2) The owner of the attachment does not seek approval to attach
pursuant to this part within a reasonable period of time.
   (3) The owner of the attachment does not contest that the
attachment was made without authorization.
   (c) An attachment of a service drop wire is not made without
authorization for the purposes of this section, if the owner of the
attachment seeks approval to attach pursuant to this part within 45
days of the attachment.
   9514.  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.
   9515.  (a) 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 communications service provider's
equipment, the communications service provider shall either pay all
costs for rearrangements necessary to maintain the pole attachment or
remove its equipment at its own expense.
   (b) If the communications service provider 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 9511.5, the local publicly owned electric
utility may charge a one-time reimbursement fee for the actual costs
incurred for the rearrangement.
   9516.  (a) (1) Before adopting, or increasing, a fee described in
this part, 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
communications service provider, 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 this part, 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 governing body of the local publicly owned electric
utility. The governing 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 or an
official or employee of the board. This subdivision does not restrict
a city council's existing authority over a governing body appointed
by the city council. The governing 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
communications service provider are not subsidized by the rates,
terms, and conditions proposed for access pursuant to this part.
   (2) The governing 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.
   9517.  (a) Any person or entity may protest the adoption or
imposition of, or increase of, a fee described in this part, 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
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.
   9518.  (a) A judicial action or proceeding to attack, review, set
aside, void, or annul an ordinance, resolution, motion, or contract
adopting, or increasing, a fee described in this part, 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 this part, shall be commenced within 120 days of
the effective date of the ordinance, resolution, motion, contract, or
automatic adjustment.
   (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.
   (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
this part, 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.
   9519.  (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 this part exceeds the amount reasonably
necessary to cover the costs to the utility of the use of a utility
pole or support structure, consistent with this part. 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.
   (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.
   9520.  (a) Nothing in this part alters the ability of a local
publicly owned electric utility to determine who performs work for
the local publicly owned electric utility on its facilities.
   (b) The use of a utility pole or support structure by a
communications service provider shall comply with Public Utilities
Commission General Orders 95 and 128 and all other applicable
provisions of law.
  SEC. 3.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because a
local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.