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Contested Places, Utility Pole Spaces: a Competition and Safety Framework for Analyzing Utility Pole Association Rules, Roles, and Risks

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Contested Places, Utility Pole Spaces: a Competition and Safety Framework for Analyzing Utility Pole Association Rules, Roles, and Risks Catholic University Law Review Volume 69 Issue 3 Summer 2020 Article 8 2-11-2021 Contested Places, Utility Pole Spaces: A Competition and Safety Framework for Analyzing Utility Pole Association Rules, Roles, and Risks Catherine J.K. Sandoval Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the Antitrust and Trade Regulation Commons, Communications Law Commons, Energy and Utilities Law Commons, and the Legal History Commons Recommended Citation Catherine J. Sandoval, Contested Places, Utility Pole Spaces: A Competition and Safety Framework for Analyzing Utility Pole Association Rules, Roles, and Risks, 69 Cath. U. L. Rev. 473 (2020). Available at: https://scholarship.law.edu/lawreview/vol69/iss3/8 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Contested Places, Utility Pole Spaces: A Competition and Safety Framework for Analyzing Utility Pole Association Rules, Roles, and Risks Cover Page Footnote Catherine J.K. Sandoval, Associate Professor, Santa Clara University School of Law. Former Commissioner, California Public Utilities Commission (CPUC). Thanks to Santa Clara University’s Faculty Scholarship Fund for their support of this work. Thanks to the Loyola University Antitrust Colloquium and the Center for Research in Regulated Industries Eastern Conference for the opportunity to present and engage in dialogue about this work. Thanks to SCU Law Librarian Eli Edwards and to SCU Law Students Robert Murillo and Hannah Ford-Stille for their research that contributed to this article. Special thanks to the Commissioners and staff of the CPUC for their dedication to public safety and work on utility pole safety and competitive access. Thanks to my husband Steve Smith for his support during the 2018 utility pole tour and for his daily encouragement and good cheer. This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol69/iss3/8 CONTESTED PLACES, UTILITY POLE SPACES: A COMPETITION AND SAFETY FRAMEWORK FOR ANALYZING UTILITY POLE ASSOCIATION RULES, ROLES, AND RISKS Catherine J.K. Sandoval+ I. SAFETY, COMPETITION, RELIABILITY, RATE, AND ENVIRONMENTAL RISKS POSED BY UTILITY POLE ASSOCIATION RULES AND ROLES ................. 474 A. Article Organization ........................................................................... 477 II. AS THE CENTURIES TURN; HISTORICAL AND LEGAL ANACHRONISMS OF JPC FORMATION .......................................................................................... 480 A. California Utility Rights of Way Authorization; From the State’s 1850 Admission to the Union through the Dawn of the Twentieth Century .......................................................................................................... 480 B. Establishment of the California Public Utilities Commission, Competitive Infrastructure Access, and Rights-of-Way Authorization .......................................................................................................... 485 C. Competition for Utility Pole Access with the Rise of Cable, the 1996 Telecommunications Act, and the CPUC’s 1998 Rights-of-Way Decision ............................................................................................ 486 III. SAFETY, RELIABILITY, AND COMPETITION; INTERTWINED VALUES FOR UTILITY POLE GOVERNANCE ............................................................... 489 A. The Role of JPCs in Just and Reasonable Rates ................................ 491 B. CPUC Utility Pole Safety Regulation and JPCs ................................ 493 IV. JPC INCUMBENT VETO RULES ADOPTED BY THE NCJPA DURING THE CPUC 1998 RIGHTS-OF-WAY PROCEEDING ......................................... 501 A. NCJPA 1998 Agreement Adopts Supermajority Quorum and Voting Requirements to Consider New Members ......................................... 501 B. NCJPA Supermajority Quorum and Rules to Consider New Members .......................................................................................................... 502 C. Supermajority Quorum and Voting Requirements for Prospective New Members Restrict Pole Access, Raising Utility Regulation and + Catherine J.K. Sandoval, Associate Professor, Santa Clara University School of Law. Former Commissioner, California Public Utilities Commission (CPUC). Thanks to Santa Clara University’s Faculty Scholarship Fund for their support of this work. Thanks to the Loyola University Antitrust Colloquium and the Center for Research in Regulated Industries Eastern Conference for the opportunity to present and engage in dialogue about this work. Thanks to SCU Law Librarian Eli Edwards and to SCU Law Students Robert Murillo and Hannah Ford-Stille for their research that contributed to this article. Special thanks to the Commissioners and staff of the CPUC for their dedication to public safety and work on utility pole safety and competitive access. Thanks to my husband Steve Smith for his support during the 2018 utility pole tour and for his daily encouragement and good cheer. 473 474 Catholic University Law Review [Vol. 69.3:1 Antitrust Concerns ............................................................................ 504 D. JPCs Lack Non-Profit Status, Are Not Government Agencies, and Are Not Actively Supervised by the CPUC or Any State Agency ............. 506 V. THE ROLE OF UTILITY POLE ASSOCIATIONS ............................................. 510 A. JPC Roles, Function, and Competitive Significance .......................... 510 B. The Competitive Significance of the JPCs Function, Structure, and Membership Rules to Competition, Safety, and Reliability ............... 516 VI. INFRASTRUCTURE ACCESS, GOOGLE AND THE CPUC FACE THE NCJPA SUPERMAJORITY QUORUM AND NEW MEMBER VOTING REQUIREMENTS .............................................................................................................. 519 A. Google and the CPUC Confront JPC Membership Barriers ............. 519 B. CPUC Jurisdiction Over Disposition of Utility Assets ....................... 523 VII. NETWORK EFFECTS OF UTILITY POLE JOINT MANAGEMENT AND REGULATION OF COMPETITIVE ACCESS AND SAFETY .......................... 524 VIII. STATE ACTION ANTITRUST EXEMPTION DOES NOT APPLY TO NCJPA SUPERMAJORITY VOTING REQUIREMENTS ........................................... 527 A. The Legal Standard for the State Action Immunity Doctrine ............. 527 B. No State Action Immunity for the NCJPA’s Supermajority Voting Requirements .................................................................................... 530 IX. RECOMMENDATIONS AND CONCLUSIONS ................................................ 532 They blend along small-town streets Like a race of giants that have faded into mere mythology.1 - John Updike, “Telephone Poles” I. SAFETY, COMPETITION, RELIABILITY, RATE, AND ENVIRONMENTAL RISKS POSED BY UTILITY POLE ASSOCIATION RULES AND ROLES The humble wooden utility pole, first deployed in America in 1844 to extend telegraph service,2 forms the twenty-first century’s technological scaffold. Many states adopted laws in the mid-nineteenth through the early twentieth centuries granting rights-of-way (ROW) to construct utility poles, wires, and facilities to transmit electric and communications signals.3 First telegraph, then telephone, electricity, cable, wireless, and Internet Service Providers (ISPs) 1. JOHN UPDIKE, TELEPHONE POLES AND OTHER POEMS (1963). 2. See April Mulqueen & Marzia Zafar, A Brief Introduction to Utility Poles, CAL. PUB. UTIL. COMM’N 5 (2014), http://www.cpuc.ca.gov/uploadedFiles/CPUC_Public_Website/Content/ About_Us/Organization/Divisions/Policy_and_Planning/PPD_Work/PPDUtilityPole.pdf [hereinafter Mulqueen, Brief Introduction to Utility Poles]. 3. See, e.g., An Act Concerning Corporations, ch. 128, § 150, 1850 Cal. Stat. 369; T-Mobile West LLC v. City & Cty. of S.F., 438 P.3d 239, 244 n.9 (2019) (“The predecessor of Public Utilities Code section 7901, Civil Code section 536, was first enacted in 1872 as part of the original Civil Code.”). 2020] Utility Pole Association Rules, Roles, and Risks 475 sought to attach facilities to wooden, and later steel or composite, utility poles.4 As the twentieth century dawned, several California electric and telephone companies formed Joint Pole Committees (JPCs) that stand sentry over utility pole access through private governance and standard-setting.5 This article argues that JPC standard-setting outside of regulatory supervision creates a safety gap in utility pole maintenance and operation and constrains competitive access to critical utility facilities and ROW. This Article offers a framework to put safety, competition, and accountable governance at the forefront of utility pole, conduit, and ROW regulation. This article lifts the veil JPCs have maintained for more than a century over their function and rules. JPCs have effectively guarded their rules as member secrets by not registering as non-profits and operating largely without government supervision. JPC members include investor-owned utilities (IOUs), municipal utilities, irrigation districts, and some municipalities that have formed associations to “share expenses regarding ownership, maintenance, use, setting, replacement, dismantling, relinquishment or removal of jointly owned poles.”6 The California Public Utilities Commission (CPUC) and competition
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