By Cynthia Hanson, Land Use and Government Affairs Counsel

On Thursday, January 28th, the California Public Utilities Commission (“CPUC”) voted unanimously to extend its ROW regulations to CMRS carriers, giving these carriers equal access to public utility infrastructure throughout the state. In making their decision, the CPUC pointed to the growing demand for wireless services and the need to constantly expand and augment wireless infrastructure due to these demands. The CPUC also said that facilitating investment in wireless infrastructure brings significant safety benefits through enhancing emergency communication abilities. The term “CMRS Carrier” was defined by the CPUC as all entities holding a current Wireless Identification Registration with the CPUC or a current Certificate of Public Convenience and Necessity issued by the CPUC that authorizes the certificate holder to provide Commercial Mobile Radio Service.

As part of their final order, the CPUC set the rate and fees that public utilities can charge CMRS carriers for access to their utility infrastructure. CMRS carriers will have to pay the same make ready charges for access to the utility’s infrastructure plus the same annual fees for use of support structures (other than poles) as the CLECs and CATVs pay. Additionally, CMRS carriers will pay the same annual 7.4% (of cost of pole ownership) per pole attachment fee, as the CLECs and CATVs. However, instead of the flat 7.4% fee CLECs and CATVs pay, CMRS carriers will pay 7.4% per vertical foot of space that is dedicated to the CMRS attachment. This dedicated space includes the area needed for mandatory safety clearances. The CPUC noted that a single CMRS installation can occupy up to twelve vertical feet of pole space. Where more than one carrier makes use of the same space on the pole, the carriers will share evenly the costs for that vertical space. Pole attachment fees cannot exceed 100% of the host pole’s cost of ownership.

The CPUC also reviewed new safety regulations proposed by its Safety Enforcement Division (“SED”).   Over the last year, the SED held public workshops and solicited comments before making their recommendations on new safety regulations for CMRS installations. The CPUC adopted some of the proposed regulations such as prohibiting the installation of antennas on guard arms and requiring pole overturning calculations before a pole top antenna can be installed. However, other proposed regulations were rejected by the CPUC. Notably, the CPUC rejected the recommendation that all non-antenna equipment must be pad mounted which opens the way for pole mounting of this equipment.   Additionally, they rejected SED’s proposed rule requiring load calculations for all new CMRS pole attachments. The CPUC pointed out that an existing rule already requires load calculations for a CMRS carrier’s first attachment and for all future attachments that materially increase the load on the pole. Material Increase is defined as an addition which increases the load on a structure by more than five percent per installation or ten percent over a 12 month span.   The CPUC directed the SED to review whether the definition of “material increase” should be revised and to report back to the commission within the next 12 months.

In addition to agreements with pole owners, local zoning approvals and permits will continue to be required for pole attachments. The new CPUC rules governing CMRS installations in the ROW go into effect on May 28, 2016.