On Dec. 1, 2016, the California PUC (CPUC) unanimously adopted Resolution SED-3, which implements a safety enforcement citation program for communications infrastructure providers (CIPs) including CLECs, cable operators, wireless providers, and facilities-based VoIP providers. The citation program appears focused on violations pertaining to General Order (GO) 95 (aerial facilities) and GO 128 (underground facilities), but conceivably could be applied to any violation involving “communications facilities.”
Safety Violation Corrections
The program mirrors citation programs adopted for gas and electric utilities in 2012 and 2014. The program establishes a schedule for correction of safety violations that conflicts in some respects with GO 95’s Rule 18. While both require immediate safety threats to be corrected “immediately,” SED-3 requires other violations to be corrected within 30 days. If 30 days is not possible, the CIP must submit a “detailed compliance plan” reflecting the “soonest date” when the corrections can be made. By contrast, Rule 18 allows non-immediate threat violations to be corrected in 12 months or 59 months in some cases. Note, however, that the CPUC is considering major changes to Rule 18 – including possibility its complete elimination – in Rulemaking 16-12-001 and the “Fire Map II” proceeding (Rulemaking 15-05-006).
A CIP’s repair schedule is “irrelevant” for setting fines. Staff has been given authority to issue citations in the maximum amount allowed by California law: $50,000 per day per violation – up to $8 million per citation. Staff must use the following criteria in setting fines: severity of the harm; conduct of the CIP (including self-reporting and mitigating efforts); financial resources; totality of the circumstances; and CPUC precedent. CIPs may voluntary self-report major violations as a mitigating effort.
A CIP can appeal any citation to an Administrative Law Judge (ALJ) and ultimately the CPUC. On appeal, Staff has the burden of proof by a preponderance of the evidence. The appeal process includes a hearing, a draft resolution by the ALJ within 60 days, a comment period, a decision by the CPUC, and opportunity for rehearing and judicial review. There is no clear way to appeal a finding of an immediate safety threat without first making the correction.
The citation program became effective on Dec. 1. No party requested rehearing of the Resolution by the statutory deadline and therefore it will not be subject to a court challenge.