On Friday, October 30, 2015, the Assigned Commissioner to a rulemaking at the California Public Utility Commission (“CPUC”) issued a Proposed Decision to extend the state’s pole, conduit and right of way access rights to wireless installations of commercial mobile radio service (“CMRS”) providers. The Proposed Decision will not be effective until the Commission votes to approve the item, which could be as early as December 3, 2015 (after the comment cycle).

Specifically, the Proposed Decision, issued in response to a rulemaking petition filed by AT&T Mobility last year, would amend the rules adopted by the CPUC in 1998 (D.98-10-058) to provide CMRS carriers substantially the same rights of non-discriminatory access to utility infrastructure currently mandated for cable operators and competitive local exchange carriers (“CLECs”). The primary exception is that the Proposed Decision amends the ROW Rules to allow public utilities to charge an annual pole-attachment fee of 7.4% of the annual pole cost for each vertical foot of pole space occupied by CMRS installations. For example, a CMRS installation occupying 6 feet of pole space could be charged up to 44.4% of the annual pole cost. Today, CLECs and CATV corporations typically lease one foot of space and, under the rules, may be charged up to 7.4% of the annual pole cost. While the Proposed Decision did not address whether the state’s access rights extend to wireless installations of cable companies and CLECs, it states that there is “no obvious reason why the revised ROW Rules... should not apply to [such] wireless facilities” once certain issues are resolved, and encouraged cable operators and CLECs “at their earliest convenience” to file a petition for rulemaking to extend the rules to their wireless facilities.

In addition, the Proposed Decision would amend the state’s General Order 95 governing overhead line construction primarily to address certain antenna specific issues. For example, the Proposed Decision, if adopted by the CPUC, would:

• Revise Rules 21.0-D and 87.7-B to prohibit antennas on guard arms except in specified circumstances.

• Revise Rule 94.5-A to require that signs alerting workers to the presence of radio-frequency radiation comply with the marking requirements in Appendix H of GO 95.

• Add a new Rule 94.6-C to prohibit antenna installations from obstructing pole climbing space or interfering with workers’ fall-protection gear, except in specified circumstances. The proposed new rule includes examples of antenna installations that typically do not interfere with fall-protection gear.

• Revise Rule 94.9 to require that protocols for de-energizing antennas, when necessary to protect the safety of workers, comply with the protocols in Appendix H of GO 95.

• Add a new Rule 94.11 to (i) require a pole-overturning calculation to determine whether additional setting depth is required before a pole-top antenna is attached to a pole, and (ii) specifying the safety factors for this calculation.

• Add a new Rule 94.12 providing that only personnel and contractors who are properly qualified to work in proximity to supply lines shall have access to, and work on, wireless facilities installed above supply lines.

Comments in response to the Proposed Decision are due November 19, 2015 and reply comments are due November 24, 2015. Please contact us if you have any questions or would like our assistance in preparing responsive comments.