October 23, 2008	2008-R-0511
Siting of VRAD Telecommunications Boxes
By: Kevin E. McCarthy, Principal Analyst

You asked for an update on OLR memo 2007-R-0553, on the siting of telecommunications equipment known as video ready access device (VRAD) cabinets, in light of the Department of Public Utility Control’s (DPUC) subsequent decision in docket 07-03-34.

summary

In the docket DPUC reviewed the petition of the cities of Bridgeport, Danbury, and Stamford to investigate the safety and siting of VRAD cabinets that AT&T had installed.  The attorney general, the Office of Consumer Counsel (OCC), the Department of Transportation (DOT), additional municipalities, and people who own property adjacent to VRAD cabinets also participated in this docket.

In its draft decision, DPUC concluded that the siting of VRAD and other utility distribution equipment in the public rights of way and on other public lands requires prior notice to and consent of adjoining proprietors and municipal officials prior to installation, under CGS §§ 16-234 and 16-235. Under these provisions, utilities can appeal to DPUC if the proprietor or municipality refuses its consent. DPUC limited these notice and consent provisions to future cabinet installations. DPUC also imposed several reporting requirements on AT&T.

Several parties filed exceptions to the draft decision. The attorney general, OCC, and the petitioning cities argued that the notice and consent requirements should apply to existing as well as future cabinet installations. On the other hand, AT&T objected to the requirement that it obtain the consent of municipal officials, although it expressed a willingness to cooperate with the officials in addressing their concerns. AT&T also sought several changes in reporting requirements.

The final decision made several minor changes to the reporting requirements, but was otherwise substantially identical to the draft decision.

background

VRAD boxes are nodes on the telecommunications network where fiber optic lines are connected to the copper wires that serve individual homes and businesses. AT&T is installing these cabinets in Connecticut to support its video, voice, and data transmission services, notably its new U-Verse service. Typically the cabinets are installed on telephone poles.

On March 30, 2007, the cities of Bridgeport, Danbury, and Stamford requested that DPUC hold a hearing to investigate the safety of VRAD cabinets that had been installed on utility poles throughout the three cities. They asserted that the VRAD cabinets represent a threat to the safety of pedestrians, motorists, and cyclists.  The cities requested a declaratory ruling from DPUC that AT&T lacks the statutory authority to install and maintain the cabinets on utility poles without regulatory approval or permission from the department.  The cities also requested that if such installations do not require DPUC’s approval or are not subject to its regulations, that each city employ its authority under CGS § 16-235 to direct, control, regulate, and prohibit the placement of the VRAD cabinets on utility poles in locations where they present a safety hazard. At the time of the petition, AT&T had installed approximately 2,000 VRAD cabinets statewide.

The first hearing on the petition was held on May 31, 2007 and was continued to June 14, 2007.  During the June 14, 2007 hearing, based on an agreement reached by the parties and intervenors, DPUC began an alternative dispute resolution (ADR) process. It assigned staff members to try to mediate disputed issues.  The mediation team also agreed to monitor the activities of the parties and submit periodic reports to DPUC on the progress of reaching a collaborative agreement of the outstanding issues.  The ADR sessions began in June 2007 and ended in January 2008.

positions of the parties

Petitioning Cities

During the proceedings the three cities argued that AT&T, in rendering its U-Verse service with its VRAD equipment, is subject to DPUC’s jurisdiction regarding public safety under CGS § 16-11 and the requirements imposed by DPUC in an earlier decision regarding cable TV service (docket 00-03-09). The cities asked that DPUC require AT&T to comply with CGS § 16-234, which requires that telecommunications and electric utilities seek consent from adjoining proprietors when they install their wires and related equipment within a public right-of-way. The cities argued that this requirement should apply to the VRAD cabinets that had already been installed.

The cities recommended that the DPUC adopt the municipal guidelines drafted during the ADR process, which require AT&T to notify, consult, and cooperate with the cities regarding VRAD cabinet installations.  The guidelines called for periodic meetings, a limit to the number of proposed locations submitted to the cities in a given week, and that they provide at least 30 days advance notice to affected municipalities to inspect, evaluate and notify AT&T of any safety concerns regarding proposed VRAD locations. 

The cities also requested that DPUC require AT&T to (1) provide each municipality the street address of the adjoining proprietors and the nearest intersecting streets for every proposed installation; and (2) treat Connecticut customers the same way as the company does in other states with respect to equipment installations, including prompt graffiti removal, consideration of aesthetic factors, and screening.  The cities also asked that AT&T (1) report any safety hazard concerns or issues, including providing periodic updates to DPUC, municipalities and adjoining proprietors regarding the company’s affiliates’ experience in other states with VRAD cabinets and associated equipment and (2) commission a study on the feasibility of mounting the VRAD cabinets on utility poles seven feet above the ground.  The cities requested that the study results be made available to DPUC and to the parties in the proceeding for their review. 

AT&T

The company argued that its VRAD cabinets are safe and had been safely installed. It stated that it conducts safety reviews and provides notice and consultation with municipalities installing the cabinets. It requested that DPUC approve the municipal guidelines, as modified by the company.  While the company stated that it would collaborate with DOT on possible solutions to any claimed line of sight or other safety problems arising from cabinets installed along state highways, it requested that DPUC reject DOT’s request to retroactively apply its policies or guidelines to VRAD cabinets that the company had already installed.

Other Parties

The attorney general argued that AT&T should be required to (1) obtain consent from all adjoining proprietors for the installation of existing and future VRAD cabinets and (2) provide reasonable notice to municipalities and engage in meaningful consultation and cooperation with them for VRAD cabinet installations. He also requested that DPUC require AT&T to adopt its “best practices” from other states where it operates regarding the installation of VRAD cabinets here, specifically those practices undertaken in other states that have eased the impact of the installation of the cabinets on local communities.

OCC argued that there was ample statutory and regulatory precedent for DPUC to order a revised implementation plan that includes retroactive notice to all adjoining proprietors or the removal of infrastructure found to be too dangerous to remain in public rights of way.

DOT requested that DPUC defer to the DOT’s expertise in protecting the traveling public and recognize its concurrent jurisdiction over AT&T’s facility placement in state highway rights of way.  Specifically, DOT requested that DPUC require AT&T to comply with all applicable DOT statutes and regulations concerning the location and installation of its VRAD cabinets in state highway rights of way.

Several municipalities and adjoining proprietors complained that AT&T did not provide adequate notice prior to the installation of the VRAD cabinets, although some municipalities noted that they had made progress with the company when meeting and discussing its deployment plans and placement of VRAD cabinets.  Some adjoining proprietors also objected to the size and placement of the VRAD equipment located near their property.  Some municipal officials and adjoining proprietors also alleged that the safe and reasonable use of roads and sidewalks had been compromised by the company’s installation of the VRAD cabinets.

interim rulings

In an interim ruling, the DPUC indicated that CGS § 16-234 applies to AT&T (and all entities installing their facilities in public rights of way) regarding the placement of its VRAD cabinets.  DPUC directed the company to comply with the law by: (1) providing prior notice and obtaining consent from adjoining proprietors of public highways or public grounds prior to installing and operating any more VRAD boxes; and (2) requesting and obtaining informed consent from adjoining proprietors of property adjoining public highways or public lands where VRAD cabinets had been installed and where such consent was contested.  For those VRAD cabinets already in place, AT&T was required to go back and provide adequate notice and obtain consent from adjoining proprietors in cases where such consent was contested.

draft decision

In its draft decision, DPUC reaffirmed its interim rulings. It found, among other things:

1. VRAD cabinets and associated equipment constitute “plant” (i.e., poles and wires used t conduct the company’s business) that is subject to DPUC’s safety jurisdiction;

2. CGS § 16-234 applies to AT&T regarding its VRAD installations;

3. AT&T did not appropriately notify and consult with the cities of its VRAD cabinet installation until the docket was in process (although subsequently AT&T inspected its VRAD cabinet locations cited by the cities and addressed their safety concerns);

4. CGS § 13a-126a authorizes DOT to regulate the installation and location of facilities along state highways, so long as DOT does not limit, restrict or derogate DPUC’s statutory jurisdiction over these facilities; and

5. AT&T must comply with all applicable DOT statutes and regulations when installing its facilities or equipment within state highway rights of way.

The decision concluded that AT&T has brought the difficulties regarding placement and installation of its VRAD cabinets on itself by failing to provide proper notice and obtain consent from adjoining proprietors, the petitioning cities and other municipalities, and DOT.

DPUC ordered that AT&T provide municipalities with specific locations for its proposed VRAD cabinet installations, including utility pole number, street address, or nearest intersecting streets. It ordered AT&T to explore other technologies or alternatives to the present VRAD cabinets and adopt any of those “best practices” by AT&T’s affiliates in other states that could enhance the cabinet installations in Connecticut. The DPUC also imposed several reporting requirements on AT&T. On the other hand, DPUC found that the cities’ request for a study on how high to mount the cabinets was not warranted. 

Exceptions

Attorney General

While generally supportive of the draft decision, the attorney general proposed that DPUC revise it to require AT&T to seek notice and consent of all adjoining property owners of installed VRAD cabinets, not just of those who initially contested its installation. He argued that CGS § 16-234 is not restricted to prospective installations of utility plant and to those adjoining property owners who happened to contest the installation. Rather, he contended that the provision applies to all installations of utility plant, existing and proposed. He further argued that AT&T did not provide adequate notice to adjoining property owners before installing its VRAD cabinets. As a result, they were not informed that they had the right to contest that installation.

Office of Consumer Counsel

OCC made similar arguments that the notice and consent requirements should apply to all VRAD installations. It claimed that DPUC has no statutory authority to excuse AT&T from observing the statutory provisions for all the VRAD installations made illegally to date. OCC noted that DPUC has on other occasions held that CGS § 16-234 applies in circumstances such as presented in this case, including one virtually identical expressly requiring a cable company to retroactively obey the statute’s requirements or else remove the offending steel cabinets in the public rights of way. OCC also claimed AT&T could easily and promptly implement the procedures established in that cable case for retroactively providing notice and obtaining consent, notwithstanding AT&T’s assertions that this would be a burden to the company and would cause consumer inconvenience.

AT&T

The company filed two exceptions to the draft decision. The first contested DPUC’s determination that CGS § 16-235 gives municipalities jurisdiction over AT&T’s installation of VRADs along public rights of way.  While the company agreed that it should consult with municipalities on VRAD placements both as a matter of prior DPUC precedent and good corporate citizenship, AT&T disagreed that municipalities have control authority under § 16-235.

AT&T’s also requested that DPUC modify the reporting deadlines.  The draft decision called for quarterly working group and adjoining proprietor reports to be filed no later than December 30, 2008.  AT&T asked DPUC to modify the initial due date to January 31, 2009 and have subsequent reports due one month after the end of each calendar quarter.

Petitioning Cities

Like the attorney general and OCC, the petitioning cities asked that DPUC revise its draft decision so that its orders regarding notice to and obtaining the consent of abutters be extended to abutters of existing VRAD cabinets. The cities claimed that allowing AT&T to place some 2,000 VRAD cabinets throughout Connecticut in violation of statutory requirements without requiring any remedial action seals a poor regulatory signal to other utilities.

The cities also asked that AT&T be required to report back to DPUC periodically, perhaps semi-annually, regarding the results of its exploration of alternative technologies.  With respect to “best practices,” as detailed in the draft decision, they argued that DPUC should require AT&T to file draft best practices for review by the department and comments by the participants in this docket and other interested parties, within a specified time frame, but no later than December 30, 2008. 

Finally, the cities recommended that AT&T be required to report to DPUC any incident presenting a safety issue or concern within 15 days of the incident.  They also recommended that AT&T be further required to submit a follow-up report or reports as necessary to keep DPUC fully informed of investigative results and corrective action.

final decision

On September 29, 2008, DPUC issued its final decision in the case. The final decision makes three changes regarding reporting requirements. First, it requires that AT&T’s first quarterly report regarding the company’s efforts to obtain the consent of the adjoining property owners be submitted by April 30, 2009, rather than by December 30, 2008. It requires that the working group submits its first quarterly progress report with regard to the application of the municipal guidelines by January 31, 2009 rather than by December 30, 2008. Otherwise the final decision’s findings, conclusions, and orders are identical to those of the draft decision. Finally, it specifies that AT&T’s reports regarding safety issues regarding VRAD cabinets be made within 15 days of the problem’s occurrence and requires that AT&T provide notice to DPUC of the resolution of any previously identified safety issues.

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