BILL ANALYSIS �
AB 1027
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1027 (Buchanan)
As Amended July 13, 2011
Majority vote
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|ASSEMBLY: |70-4 |(June 3, 2011) |SENATE: |36-0 |(August 29, |
| | | | | |2011) |
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Original Committee Reference: U. & C.
SUMMARY : Requires local publicly owned electric utilities
(POUs), including irrigation districts (IDs), 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. Specifically, this bill :
1)Requires a POU to make appropriate space and capacity on and
in its utility poles and support structures available for use
by a communication provider.
2)Specifies that its provisions do not apply to pole attachment
contracts entered into prior to January 1, 2012, unless a
contract does not specify a fee.
3)Specifies that its provisions do not apply to a jointly owned
pole if the joint owner other than the POU has sole control of
the space requested.
4)Requires a POU to respond to a request for a use of a pole or
support structure within 45 days of receipt of the request or
60 days if the request is for more than 300 poles, and, if it
denies a request, to provide a reason for the denial and
remedy to gain access.
5)Specifies a timeline for a POU to provide a cost estimate to a
requester, for a requester's response to that estimate, for
notice to existing attachers, and for completion of make-ready
work prior to the attachment, and provides that the timeline
dates may be extended under special circumstances upon
agreement of the parties.
6)Authorizes a POU to deny a request because of insufficient
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capacity or safety, reliability, or engineering concerns,
which may take into account the impact of granting the request
on an approved project for future use by the POU of its
utility poles or support structures for delivery of its core
utility services.
7)Provides that, if it becomes necessary for the POU to use
space or capacity on or in a support structure occupied by the
cable company, the cable company shall either pay all costs
for rearrangements necessary to maintain the pole attachment
or remove its equipment at its own expense.
8)Requires the governing body of a POU to determine the annual
pole attachment fee pursuant to the formula specified in this
bill.
9)Specifies that a POU's annual pole attachment fee 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, with a rebuttable presumption that a
single attachment occupies one foot of usable space and an
average pole contains 13.5 feet of usable space.
10)Specifies that a POU's annual fee for use of a support
structure not exceed the POU'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 company.
11)Defines "annual costs of ownership" as 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
POU.
12)Prohibits a POU from charging a fee that exceeds actual costs
and requires the governing body of a POU to ensure that
neither customers of the POU or cable company are subsidized
by that fee.
13)Authorizes a POU to charge a one-time fee to process a
request for attachment based on actual costs and a one-time
fee for a rearrangement requested by a cable company and to
impose a penalty for unlawful attachment.
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14)Requires the governing body of a POU, before adopting or
increasing a fee, or changing terms and conditions of access,
to hold at least one open and public meeting, provide notice
of the meeting least 14 days prior to the meeting, make
available at least 10 days prior to the meeting data
indicating its cost to grant a request and rationale for any
changes in terms and conditions of access.
15)Requires that action to adopt or increase a fee or adopt or
change terms and conditions of access be taken solely by an
ordinance or resolution or contract approved by the governing
body and prohibits the governing body of the POU to delegate
the authority to another entity or board.
16)Requires that an action adopting or increasing a fee be at a
regularly scheduled public meeting no earlier than 30 days
after the initial public meeting and that the action be
effective no sooner than 60 days after the action.
17)Specifies that any person or entity may protest the adoption
of a fee or terms and conditions of access with written notice
within 30 days of the action that specifies the facts and
legal theory of the protest.
18)Provides that a person or entity subject to a fee, term or
condition of access, or a trade association representing them,
may bring legal action challenging the fee, term, or condition
and that this action be commenced within 120 days of the
effective date of the action adopting it.
19)Authorizes a person or entity subject to a pole attachment
fee, or trade association representing them, to request an
audit in order to determine whether a fee exceeds the amount
reasonably necessary to cover the costs of use of the pole or
support structure, requires the requester to pay for the
audit, and authorizes the person or entity to retain an
independent auditor for this purpose, and requires the POU to
adjust the fee if the audit determines it does not meet the
requirements of this bill.
�Existing law and General Orders of PUC establish standards
for overhead and underground utility structures.
20)Requires any use of a utility pole or support structure by a
cable company to comply with PUC General Orders 95 and 128 and
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all other applicable provisions of law.
The Senate amendments:
1)Clarify that a jointly owned pole is exempt from the
fee-setting section of the bill and not the obligation to
provide access and other provisions.
2)Clarify that the prohibition on delegation does not preclude
action by a utility board appointed by a city council and does
not interfere with a city council's existing authority over
its appointed utility board.
3)Specify that a POU may require a one-time charge equal to
three-years of the annual fee for attachments made without
authorization on or after January 1, 2012.
4)State that if it becomes necessary for the POU to use space or
capacity on or in a support structure occupied by the cable
company, the cable company shall pay all costs for
rearrangements necessary to maintain the pole attachment or
remove its equipment at its own expense.
5)Provide that if the cable company requests a rearrangement of
the utility pole or support structure, and POU has the
authority to levy fees, POU may charge a one-time
reimbursement fee for the actual costs incurred for the
rearrangement.
6)Specify that POU can determine who performs work for POU on
its facilities.
7)Make technical and non-substantive changes.
AS PASSED BY THE ASSEMBLY, this bill was substantially similar
to the version passed by the Senate.
FISCAL EFFECT : According to Assembly Appropriations Committee,
negligible state fiscal impact. Any costs of this bill would be
borne by POUs and telecommunications provider customers. POUs
are able to recover their costs through rates charged to their
utility customers.
COMMENTS :
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Background . In 1978, to ensure that telephone companies and
electric utilities would not stifle the growth of the
then-fledgling cable television industry by charging excessive
rates for essential pole attachments, Congress enacted the Pole
Attachment Act 1978 (Act). The Act did not require utilities to
give cable operators access to their facilities but merely
limited the rates they could charge if they chose to give such
access. Municipal utilities' and co-ops' pole attachments are
not subject to Federal Communication Commission's (FCC's)
jurisdiction because they are exempt from the federal Act. On
April 7, 2011, FCC reformed its pole attachment rules for
regulated utilities to "streamline access and reduce costs for
attaching broadband lines and wireless antennas to utility
poles.
Issue . POUs currently have the sole discretion over the rates
they charge communications providers for pole attachments. This
bill creates a process for POUs to determine pole attachment
rates by multiplying the percentage of the total usable space
which is occupied by the pole attachment by the annual costs of
ownership of the pole and its supporting anchor.
Analysis Prepared by : DaVina Flemings / U. & C. / (916)
319-2083
FN: 0002049