California Communications Infrastructure Update: A Look Ahead at Potential Regulatory Developments in 2022
As explained in our earlier post, we expect the substantial pace of regulatory developments related to communications infrastructure in California to continue in 2022. Additionally, changes at the California Public Utilities Commission (CPUC) may alter the direction of current and future proceedings.
Alice Busching Reynolds and John Reynolds recently were appointed by Governor Newsom to join the CPUC to fill roles left by the departures of former President Marybel Batjer and former Commissioner Martha Guzman Aceves.
As in 2021, we anticipate continued activity in CPUC proceedings in 2022 to: (i) close the digital divide; (ii) improve access to utility poles; and (iii) enhance communications network resiliency. Below is a brief overview:
Closing the Digital Divide
Statewide Middle-Mile Network
In 2021, the California Legislature adopted SB 156, which allots $3.25 billion for the construction of a new statewide open-access middle-mile broadband network. The legislation instructs the CPUC to issue a staff report recommending priority locations for the middle-mile network.
In November 2021, then-CPUC President Batjer sent a letter to the California Department of Technology memorializing the CPUC's concurrence in the 18 initial middle-mile project locations throughout the state. However, SB 156 set no deadline for the issuance of the staff report, which has not yet been released. (Rulemaking 20-09-001)
Federal Funding Account Broadband Infrastructure Grants
SB 156 also creates a Federal Funding Account (FFA) into which state and federal funds can be deposited, including $2 billion in federal funds intended to extend last-mile facilities to unserved and underserved areas in California. The CPUC noted that it will consider how the "digital divide and low and/or no broadband access impacts … environmental and social justice communities," dividing the proceeding into three phases.
Having received comments on the apportionment of funds for the FFA grant program last fall, the CPUC's likely next action will be to issue a proposed decision setting out parameters and rules for the FFA program. There is no set timeline for this action. (Rulemaking 20-09-001)
California Advanced Services Fund (CASF) Developments
In January 2022, Commissioner Houck's office issued a proposed decision establishing a Local Agency Technical Assistance grant program. Comments on the proposed decision were filed in February 2022.
If adopted, this proposed decision would allow grants to be made available to local and tribal governments to reimburse costs related to the development of broadband network deployment projects (with symmetrical 100 Mbps download speed and upload speeds), including the cost of joint powers authority formation, environmental studies, network design, and engineering study expenses. In 2022, the CPUC also anticipates initiating a rulemaking on the Loan Loss Reserve Fund, which would help fund local government agencies' or nonprofit organizations' financing costs associated with the deployment of broadband infrastructure. (Rulemaking 20-08-021)
The annual CASF application deadline typically has been April 1. However, late last year, the CPUC postponed the next application submission deadline until the third quarter of 2022 (after previously postponing the deadline from April 1, 2021, to February 28, 2022). The CPUC has not yet announced the next application deadline.
Improving Access to Utility Poles
Track 2 Pole Database Proceeding
In accordance with Decision 21-10-019, the five major pole owners (AT&T, Frontier, PG&E, SCE, and SDG&E) held a four-day workshop in January 2022 to discuss strategies for complying with the Decision. By the end of March 2022, the major pole owners will file advice letters with more specific information about the attachment data to be collected and the collection process.
Commission staff should act on the advice letters in May 2022. Pole attachers will not need to submit data to the major pole owners until at least May 2023. (Investigation 17-6-027)
Possible OTMR Regulations
Last spring, parties filed comments on an Administrative Law Judge ruling proposing new One-Touch Make-Ready (OTMR) requirements in California as part of the CPUC's proceeding investigating access by competitive communications providers to utility poles and conduits. The ruling proposes rules that would implement new OTMR processes in California and (long awaited) mandatory timelines for steps in the make-ready process that mirror the FCC's rules.
The likely next step is a proposed decision, which is expected during the first quarter of 2022. (Rulemaking 17-06-028)
Enhancing Wireline Network Resiliency
Backup Power Requirements
Pursuant to Decision 21-02-029, by August 2021, wireline providers must have installed equipment to provide 72-hours of backup power for all of their facilities in the Tier 2 and 3 High Fire-Threat Districts (HTFDs), unless they secured a waiver for "facilities that do not need backup power, are unable to support backup power due to a safety risk, or are objectively impossible or infeasible to deploy backup power to," with a discussion of actions "to mitigate service loss resulting from the lack of backup power at those locations."
In 2022, facilities-based wireline providers will be required to file their Emergency Operations Plans and Wireline Resiliency Plans with the CPUC, but the filing dates have not yet been announced. Last year's deadlines for Emergency Operations Plans and Wireline Resiliency Plans were April 12 and August 11, respectively. (Rulemaking 18-03-011)
Other Actions
PG&E Undergrounding
Pacific Gas & Electric Company (PG&E), announced in July 2021 that it plans to underground 10,000 miles of its power lines to mitigate the risk of igniting wildfires. The removal of thousands of utility poles could have major implications for communications companies with attachments on those PG&E poles.
PG&E more recently announced that its undergrounding project will cost its ratepayers more than $25 billion and will start in 2022. PG&E plans to underground 175 miles in 2022 and ramp up to 1,200 miles per year by 2026. PG&E has not yet announced the specifics of where and when it intends to underground, but there may be details forthcoming in PG&E's filings in its ongoing general rate case proceeding with the CPUC. (Application 21-06-021)
Updated CAL FIRE Fire-Threat Map
A news report from late December 2021 indicates the California Department of Forestry and Fire Protection (CAL FIRE) is in the process of updating its statewide fire-threat map, which is expected to result in an expansion of areas deemed to have high or extreme risk of wildfire. CAL FIRE's action could lead the CPUC to revise its own fire-threat map.
For communications companies, this means any facilities they have in the newly expanded high fire-threat areas will be subject to more stringent inspection and repair intervals, as required by CPUC General Order 95.
This advisory is intended to serve as a high-level overview of the most significant expected developments related to communications infrastructure regulations in California in 2022. Please contact DWT for more detailed information.