BILL NUMBER: AB 1027 AMENDED
BILL TEXT
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, 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, 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.
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.
(d) 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.
9510.5. As used in this part, "utility
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. "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 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.
(2)
(b) (1) A local publicly owned
electric utility shall respond to a request for use by a
cable television corporation, video service provider, or telephone
corporation 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.
(3)
(2) The timelines described in paragraph (2)
(1) 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 communications service provider
.
(4)
(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 cable television corporation, video service provider, or
telephone corporation 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.
(b)
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 this section
Section 9511 , that fee shall be adopted and
levied consistent with the requirements of this part.
(c)
(b) The governing body of the local publicly owned
electric utility shall determine the fee pursuant to Section 9512.
(d) (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.
(e) 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.
(f) 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.
(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 cable
television corporation, video service provider, or telephone
corporation 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 cable television
corporation, video service provider, or telephone corporation
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 cable
television corporation, video service provider, or telephone
corporation. 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
cable television corporation, video service provider, or
telephone corporation 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) 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)
(c) 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 section , if a joint owner other
than the local publicly owned electric utility has the sole
control of control of access to the space that
would be used by the cable television corporation, video
service provider, or telephone corporation
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.
9513. 9516. (a) (1) Before
adopting, or increasing, a fee described in Section 9512
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
cable television corporation, video service provider, or telephone
corporation 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 Section 9512
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
legislative governing body of the
local publicly owned electric utility. The legislative
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. The legislative 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
cable television corporation, video service provider, or
telephone corporation communications service provider
are not subsidized by the rates, terms, and conditions proposed
for access pursuant to this part.
(2) The legislative 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.
9514. 9517. (a) Any person or
entity may protest the adoption or imposition of, or increase of, a
fee described in Section 9512 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.
9515. 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 Section 9512 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 Section 9512
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
Section 9512 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.
9516. 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
Section 9512 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 Section
9512 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.
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.
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
cable television corporation, video service provider, or telephone
corporation 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.