BILL ANALYSIS 1
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SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
DEBRA BOWEN, CHAIRWOMAN
AB 1874 - Cohn Hearing Date:
June 22, 2004 A
As Amended: May 20, 2004 FISCAL B
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DESCRIPTION
Current law establishes the following as California's
telecommunications policies:
Continuing a universal service commitment by assuring the
affordability and widespread availability of high quality
telecommunications services to all Californians.
Encouraging the development and deployment of new technologies
and the equitable provision of services in a way that
efficiently meets customer needs and encourages the ubiquitous
availability of a wide choice of state-of-the-art services.
Promoting economic growth, job creation, and the substantial
social benefits that come from the rapid implementation of
advanced information and communications technologies by
adequate long-term investment in necessary infrastructure.
Promoting lower prices, broader consumer choice, and avoidance
of anti-competitive conduct.
This bill makes several findings and declarations, including one
that right-of-way and public lands access are two of the most
important considerations for companies investing in
telecommunications infrastructure, and it is important that
right-of-way access not be a barrier or impediment to investment
in broadband networks.
This bill establishes that it is California policy to:
Promote the rapid accelerated deployment of information and
advanced communications services networks.
Increase investment in communication infrastructure.
Improve opportunities for economic development.
Ensure the rules, regulations, and procedures for access to
public rights-of-ways advance these policies.
This bill says nothing in these policies alters the rights
provided to telephone companies pursuant to Section 7901 of the
Public Utilities Code.
Current law authorizes Caltrans to issue permits to locate
structures necessary for telephone or electric service within
the highway right of way, and requires Caltrans to act on those
permits within 60 days of receiving a completed application.
Current law authorizes telephone corporations to build
transmission lines along any public highway, but not in ways
which inconvenience the public use of such highway.
This bill creates a 45-day permitting process at Caltrans solely
for telephone and cable companies.
This bill entitles telephone corporations to an automatic permit
renewal for the operation, repair, maintenance or alteration of
facilities that don't require excavation.
BACKGROUND
This bill stems from a study by TechNet, a lobbying organization
for the high tech industry. According to the study, one of the
most significant ways states can improve broadband deployment is
by opening up access to the public rights-of-way. The study
also concluded the greatest impediment is permitting
municipalities to be solely responsible for setting right-of-way
policies.
While this may be an issue in other states, it's not an issue in
California because state law grants telephone companies the
right to install their facilities on any public road.
Municipalities are limited to controlling the time, place and
manner in which those facilities are installed.
The TechNet study also observed that delays in permitting are a
serious impediment to infrastructure deployment, and recommended
that time limits be established. California already has a
60-day time limit and this bill reduces the time for Caltrans to
act on a permit request by a telephone or cable company to 45
days.
Section 7901 of the Public Utilities Code authorizes telephone
corporations to build transmission lines along any public
highway, but not in ways which inconvenience the public use of
such highway. Courts have found this ability to build is to be
granted without compensation to taxpayers. Caltrans has
contended these court decisions don't apply to controlled-access
freeways and has successfully received $10 million in taxpayer
compensation for the use of those rights-of-ways from certain
telephone companies. However, Caltrans has been challenged in
court by SBC over this compensation and that case is pending.
COMMENTS
1.Limiting Compensation for Taxpayers . The question of whether
the state can compel compensation for use of the state
right-of-way is controversial, the subject of an existing
court case, and isn't the subject of this bill. However, Page
3, Lines 14-15 of the bill states ". . . it is important that
rights-of-way access not be a barrier or impediment to
investment in broadband networks." This implies the state
shouldn't pursue compensation because it may be a barrier to
investment in broadband networks. As such, the author and
committee may wish to consider deleting this finding so as not
to prejudice the compensation question.
Similarly, the policies articulated in Section 14666.9 (Page
3, Lines 29-39) could be construed to bar the imposition of
fees for the use of the right-of-way because those fees could
discourage the entry of new providers or decrease investment.
The author and committee may wish to consider strengthening
the disclaimer in paragraph (c) of that section (see Page 4,
Line 1) to make it clear that "nothing in this section
prevents the imposition of fair and reasonable compensation
for the use of the right-of-way."
2.Automatic Permit Renewal . Under this measure, telephone
companies are entitled to an automatic renewal of their
permits on an annual basis, despite the fact that there are
many instances when an automatic renewal may not be in the
public's best interest. For example, if a highway changes
configuration or is widened, telephone facilities that were
previously in safe areas might now be located in hazardous
areas and would need to be relocated. Under this bill,
Caltrans would have absolutely no discretion to deny the
permit renewal, regardless of whether the road or road
conditions may have changed.
Streets & Highways Code Section 673 permits Caltrans to revoke
a permit under specified conditions. The author and committee
may wish to consider clarifying this bill to make it clear the
entitlement to an annual permit renewal is subordinate to SHC
Section 673. Alternatively, the author and committee may wish
to consider giving Caltrans the ability to require an annual
permit review if it determines road conditions have changed in
a way that necessitate a review of the permit.
PRIOR VOTES
Assembly Floor (79-0)
Assembly Appropriations Committee (21-0)
Assembly Utilities and Commerce Committee
(11-0)
POSITIONS
Sponsor:
TechNet
Support:
American Electronics Association
SBC
Oppose:
None on file
Randy Chinn
AB 1874 Analysis
Hearing Date: June 22, 2004