Cpuc General Order 95 and General Order 128 to Permitting and Project Reviews

Legal Alerts February 24, 2022

In With the New – Part V

BB&Chiliad's New Police Guidance for a Happy New Twelvemonth

In Part Five of our "In With the New" series, BB&K details new and notable telecommunications laws. Within, you will find takeaways and assay of the following: AB 537, SB 378, SB 4 and SB 28.

This legislative session added a mix of new telecommunication laws: two oriented to benefit the industry's desire to fast-track their deployments, and two others to give local governments a new funding source for broadband and to eternalize customer service requirements applicable to cablevision providers. The one telecommunication pecker vetoed past the governor, SB 556, is besides worthy of special mention.

AB 537
When Gov. Newsom signed AB 537 into police, he expanded the reach of the "accounted granted" remedy in Government Code 65964.1 to now include applications for "small cells"—those antennas and equipment oftentimes placed on utility poles and street lights. Government Code 65964.1, which had been available since 2016 to applicants for certain wireless facility permits, allows applicants to send a notice if they believe (rightly or wrongly) that the local authorities missed the applicable FCC shot clock for the wireless application. While the final text of AB 537 did not include troubling language that appeared in earlier drafts authorizing the applicant to "brainstorm structure" and did add some protections for compliance with safety standards and traffic command for construction in public rights-of-way, the law still puts the burden on local governments to respond to deemed granted notices within 30 days of receipt.

With AB 537 in effect, there is a accounted granted remedy available in California for all five FCC "shot clocks" or timelines for acting on wireless applications—four nether Government Code Section 65964.1 equally amended by AB 537 and ane nether FCC regulations applicable to eligible modifications to existing wireless facilities (47 CFR Section ane.6100). The just wireless applications not subject to a accounted granted remedy nether Government Code 65964.ane are those proposed for placement on fire department facilities.

SB 378
With the passage of SB 378, cities (including charter cities), counties, special districts and publicly-owned utilities with jurisdiction to approve excavations must now permit microtrenching, a new structure technique for the installation of hush-hush fiber. SB 378 defines a "microtrench" as "a narrow open up digging trench that is less than or equal to 4 inches in width and not less than 12 inches in depth and not more than 26 inches in depth and that is created for the purpose of installing a subsurface pipe or conduit."

Local agencies may need to adopt or amend existing policies, ordinances, codes or structure rules to allow for microtrenching and to establish let review and installation inspection fees, including costs to expedite processing and review if the bidder so elects. A local agency may refuse to permit microtrenching merely by making a written finding that microtrenching for a fiber installation would have a specific, adverse impact on the public wellness or safety. Rubber standards such as CPUC Full general Order 128 applicable to underground electrical supply and advice systems and the state DigAlert noticing requirements keep to apply.

SB 4
Equally a result of SB 4, the California Advanced Services Fund (CASF), a fund administered by the CPUC to encourage deployment of high-quality advanced communications services to all Californians, has been extended through 2032 with some major modifications. Significant changes include:

• Eliminating prior limitations on the eligibility of local governments for CASF grants (such equally the pre-condition that no private service provider sought funding for the same unserved area)
• Allowing funding for projects that deploy broadband to unserved nonresidential facilities used for local and country emergency response activities, including fairgrounds
• Requiring CASF-funded infrastructure to exist capable of speeds of at to the lowest degree 100 Mbps downstream and 20 Mbps upstream

Additionally, the definition of "unserved area" has been updated to 25 Mbps downstream and 3 Mbps upstream, with the CPUC required to prioritize CASF projects specifically to the subset of unserved areas where no internet is available or connectivity is at or below 10 Mbps downstream and i Mbps upstream.

Local governments interested in improving broadband in their communities should accept a close wait at this program.

SB 28
This bill amends the Digital Infrastructure and Video Communications Human activity (DIVCA), a state police adopted in 2006 to take away local cable franchising potency in favor of a state video franchising regime mainly managed past the CPUC. Possibly recognizing some flaws in the current approach, this pro-consumer legislation requires the CPUC to collect more granular information on actual locations served by country franchise holders and to adopt customer service requirements for state franchise holders, and adjudicate any customer complaints.

The governor's signing argument is noteworthy, as it encourages the legislature to review and update DIVCA in the next session, suggesting the existing constabulary is outdated and does non reverberate market realities. The governor too requests the CPUC to collect meliorate data on whether providers discriminate based on income and to provide recommendations on how to address these concerns.

Local governments should consider participating in the CPUC rulemaking on client service.  More than broadly, governments should consider identifying areas where changes to DIVCA might be warranted, (the treatment of streaming video service providers for example), and communicating their thoughts to their country representatives.

SB 556 Vetoed
Gov. Newsom vetoed SB 556—a minor cell neb that, if it had been signed into law, would take forced local governments and municipal utilities to make their street light poles and traffic signal poles available for small cell deployments under price-based rates and strict timelines. Only local publicly-endemic utilities are required to make their utility poles (but not other types of poles) available for use past communications providers under state law.

The veto was in part due to Gov. Newsom's opinion against codifying, conflicting with or complicating the similar but somewhat less onerous requirements to make poles bachelor under the FCC'due south 2018 small jail cell order. This is the 2d time that a country small cell bill was vetoed in California, the other being SB 649 vetoed by Gov. Brown in 2017.

Disclaimer: BB&M Legal Alerts are non intended as legal communication. Boosted facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the communication of an chaser before interim or relying upon any information herein.

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Source: https://www.bbklaw.com/news-events/insights/2022/legal-alerts/02/in-with-the-new-part-five

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