CPUC Rulemaking Opens Door to Revisit Impacts of Wireless in Public Rights of Way - Local Governments Should Respond by May 3

by Best Best & Krieger LLP

Best Best & Krieger LLP

The California Public Utilities Commission just opened a proceeding that may redefine the rights of wireless providers and wireless infrastructure providers to use utility poles and public rights of way. In addition, the CPUC took the unusual step of reaching out to local governments to participate — directing that notice of the Order be served on all California counties and incorporated cities and towns, as well as requiring outreach efforts to local government associations. This proceeding could dramatically affect the ability of local governments and municipally owned utilities to control the public rights of way and other public infrastructure.
In California, rates, terms and conditions for attachments to investor-owned utility poles are regulated by the CPUC. A main purpose of the rulemaking is to consider a wireless industry petition asking that rates for attachments to utility poles be harmonized (wireless providers currently pay a per-foot fee, CPUC-authorized telephone companies pay a per-pole fee). But the CPUC asks broader questions too (even bringing in wireless attachments installed by cable operators). These questions will shape the rules on which types of companies can deploy small cells, for what purpose, and in what circumstances. Importantly, they also open up for reconsideration the fundamental industry premise that the public rights of way are the appropriate locations for massive deployment of small cells, as well as large-scale facilities used for “radiofrequency transport services,” like Mobilitie’s 120-foot poles with microwave antennas.
Specifically, the CPUC invites comment on: whether urban streetscapes can accommodate more pole attachments, the replacement of existing poles with larger poles, and possibly an increase in the number of poles.
Opening comments and prehearing conference statements are due May 3, and reply comments are due May 13. Sometime later, the CPUC will schedule a prehearing conference, and if appropriate, that will be followed by workshops, additional written comments, briefs and possibly hearings. Thus, it is important to register as a party and submit comments early to ensure that local government voices are heard.

To be sure, this latest proceeding is only one of several fronts on which the wireless industry is trying to re-write current rules. The big four wireless service providers and their wireless infrastructure partners plan to deploy millions of small cells in the public rights of way and on utility poles, street light poles and traffic lights in coming years. But first they want rule changes that ensure cheaper, faster and more widespread access to public rights of way and government-owned vertical infrastructure. The industry is pushing reforms — principally preemption of local regulatory and proprietary authority — in state legislatures including in California (see “California Small Cell Bill Curtails Local Discretionary Review and Rates”), at the Federal Communications Commission and at state public utilities commissions. The CPUC proceeding, however, may provide an important forum where local governments can make the case for local oversight of wireless pole attachments, particularly in light of safety and other issues that they may present.
Below is a sampling of other issues raised by this CPUC proceeding, including important questions about safety, reliability, authorizations and services:
Safety and Reliability

  • Whether there is sufficient space and load-bearing capacity on the stock of existing utility poles to support additional telecommunications attachments, including wireless pole attachments, that may be necessary to provide ubiquitous, competitive, and affordable telecommunications services. 
  • What additional regulations that may be necessary, if any, to ensure that telephone companies’ wireless pole attachments are designed, constructed, operated, inspected, and maintained to protect worker and public safety and preserve the reliability of co-located utility facilities (e.g., power lines and telephone lines).  
  • Describe all types of pole attachments installed by telephone companies for “radiofrequency transport services,” and explain how those attachments differ — if at all — from small cell attachments and a best estimate of the number of California poles that currently have such attachments. Explain whether pole attachments installed by telephone companies for “radiofrequency transport services” present any additional or unique issues pertaining to safety or reliability
  • Whether the CPUC have authority to apply and enforce its pole attachment rules and safety regulations with respect to wireless facilities installed by cable operators in light of its conclusion that the term “cable” in Public Utilities Code § 216.4 does not include satellites and other forms of wireless transmission.

Authorizations and Services

  • What CPUC authorizations should be required of telephone companies seeking to install wireless pole attachments:
    • A certificate of public convenience and necessity to provide full facilities-based service or limited facilities-based service? Must a CPCN include explicit authority to install wireless pole attachments?
    • An up-to-date wireless identification registration to provide facilities-based wireless services on file at the CPUC?
    • Are there circumstances where a WIR is required in addition to a CPCN?
    • A final environmental impact report, negative declaration, or other document(s) required by CEQA?
  • What services can CPUC-authorized telephone companies offer to the public (including other communications carriers) using wireless pole attachments. Such services might include, but are not limited to, the following:
    • Fixed wireless, point-to-multipoint service
    • CMRS
    • Wi-Fi service
    • Broadband wireless Internet access service
    • Providing other carriers with access to, or interconnection with, wireless facilities and infrastructure
    • Providing backhaul service for other wireless carriers
    • Other wireless and wireline services 
  • For telephone company and cable operator pole installations that include both wireline components and wireless components, how to distinguish the components that are subject to the “per-pole” fee and the components that are subject to the “per-foot” fee.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Best Best & Krieger LLP | Attorney Advertising

Written by:

Best Best & Krieger LLP

Best Best & Krieger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.