General Order 95
SETTLEMENT AGREEMENT AMONG AT&T CALIFORNIA, CALIFORNIA CABLE & TELECOMMUNICATIONS ASSOCIATION, CLEARLINX NETWORK CORPORATION, COMMUNICATIONS WORKERS OF AMERICA DISTRICT 9, CONSUMER PROTECTION AND SAFETY DIVISION, CROWN CASTLE USA INC., INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL 1245, NEW CINGULAR WIRELESS PCS, LLC, NEXTG NETWORKS OF CALIFORNIA INC., OMNIPOINT COMMUNICATIONS, INC., dba T-MOBILE, PACIFIC GAS AND ELECTRIC COMPANY, SOUTHERN CALIFORNIA EDISON COMPANY, SPRINT NEXTEL, VERIZON CALIFORNIA INC., VERIZON WIRELESS AND WILLIAM ADAMS
In order to resolve disputed issues of fact and law and settle on a mutually acceptable outcome to the proceeding with due regard for public and worker safety concerns, and subject to the Recitals and reservations set forth in this Agreement, the Settling Parties hereby agree that this Agreement resolves all disputed issues relating to Rule 94.6 and Rule 94.7 raised in this proceeding.
The Agreement is presented to the Commission pursuant to Rule 51 of the Commission’s Rules of Practice and Procedure.
The Settling Parties agree that, in the event any party, as a joint owner, lessee or licensee (“Antenna Owner/Operator”) seeks to install or causes the installation of an Antenna (as defined in General Order (GO) 95 Rule 20.0) on a joint use utility pole, it is agreed that:
Related to the FCC’s MPE Limits.
The Antenna Owner/Operator shall provide, and update as necessary, accurate information regarding compliance with the Federal Communications Commission’s Maximum Permissible Exposure (MPE) limits as set forth in Title 47 of the Code of Federal Regulations (CFR) for each particular Antenna installation. The Antenna Owner/Operator shall communicate such information through the use of a pole mounted marking as described in Exhibit A (Additional Marking Requirements) and in writing to the other utilities and/or companies with facilities affixed to the pole in accordance with Paragraph 4 of this Agreement.
of De-energizing Antennas.
The Antenna Owner/Operator shall not install an Antenna on a joint use pole that emits RF energy in excess of the FCC’s General Population/Uncontrolled maximum permissible exposure limits as set forth in 47 C.F.R. or effect a change to an existing Antenna site that will cause that Antenna to emit RF energy in excess of the FCC’s General Population/Uncontrolled maximum permissible exposure limits as set forth in 47 C.F.R. except by providing to any other utility or company with facilities attached to the affected pole, a locally verifiable means to de-energize said Antenna. The protocols set forth in Exhibit B shall apply to non-emergency or routine working conditions. The protocols set forth in Exhibit C shall apply to emergency working conditions.
The provisions of this Agreement shall not apply to Antennas that are exempt from the provisions of General Order 95, Rule 94.
of Operating Procedures.
The Settling Parties further agree to memorialize the agreements set forth in Section 1 and 2 of this Agreement (including the procedures and protocols to be adopted thereunder) in separate, private agreements with affected utilities, companies or municipalities or in the Northern California Joint Pole Association’s Operating Routine. Such agreements and procedures shall be adopted in a timely manner and Settling Parties agree to execute any and all supplementary documents and take all actions which may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement.
Approval of Settlement and Modification of Rule 94.
The Settling Parties shall jointly request Commission approval of this Agreement and that the Commission adopt Rule 94, as that rule is set forth in Exhibit 1 of the Proposed Decision of ALJ Walker (mailed April 25, 2006), with the exception of provisions 94.6 and 94.7, which the parties stipulate should be removed from the rule. The Settling Parties additionally agree to actively support prompt approval of the Agreement and adoption of the modified Rule 94. Active support may include briefing, comments on the proposed decision, written and oral testimony, if testimony is required, appearance at hearings, and other means as needed to obtain the approvals sought. The Settling Parties further agree to participate jointly in briefings to Commissioners and their advisors, either in-person or by telephone, as needed regarding the Agreement and the issues compromised and resolved by it.
6. This Agreement is contingent upon (1) the Commission approving the terms and conditions herein as reasonable, and adopting it unconditionally and without modification, and (2) the Commission adopting the modified Rule 94 as provided in Paragraph 5, above. Upon satisfaction of these contingencies, the Settling Parties agree to waive any and all rights to challenge and/or appeal in any state or federal forum the Commission’s decision in this proceeding.
7. The Settling Parties agree to negotiate in good faith to resolve any dispute arising out of the implementation, interpretation or alleged breach of this Agreement. In the event such negotiations are unsuccessful, the Settling Parties may seek appropriate relief from the Commission. Such proceeding before the Commission will be limited to determining whether there has been a breach of this Agreement and ordering appropriate relief. In the event any of the Settling Parties do not reach agreement on the protocols described in this Agreement, the Commission may mediate a resolution between those Settling Parties. Nothing herein is intended to expand or restrict the jurisdiction of the Commission and the Settling Parties retain all of their rights with respect thereto.
8. The Settling Parties agree that this Agreement represents a compromise of positions, without agreement or endorsement of disputed facts and law presented by the Settling Parties in the proceeding.
9. This Agreement and the covenants and agreements contained herein shall be binding on, and inure to the benefit of, the parties hereto and their respective heirs, successors and assigns. The Settling Parties further agree and acknowledge that this Agreement and the covenants and agreements contained herein shall remain binding on the Settling Parties, notwithstanding the expiration of the term of any contract, lease or license relating to the use of a joint use pole.
10. This Agreement embodies the entire understanding and agreement of the Settling Parties with respect to the matters described herein, and, except as described herein, supersedes and cancels any and all prior oral or written agreements, principles, negotiations, statements, representations or understandings among the Settling Parties relating to the use of joint use poles.
11. The Settling Parties have bargained earnestly and in good faith to achieve this Agreement. The Settling Parties intend the Agreement to be interpreted and treated as a unified, interrelated agreement.
12. Each of the Settling Parties hereto and their respective counsel and advocates have contributed to the preparation of this Agreement. Accordingly, the Settling Parties agree that no provision of this Agreement shall be construed against any Party because that Party or its counsel or advocate drafted the provision.
13. Each of the Settling Parties represents that it is duly authorized to enter into this Agreement, and each person signing on behalf of an entity represents that he or she is duly authorized to sign on behalf of that entity.
14. This document may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
15. This Agreement shall become effective among the Settling Parties on the date the last Party executes the Agreement as indicated below.
16. In witness whereof, intending to be legally bound, the Settling Parties hereto have duly executed this Agreement on behalf of the Settling Parties they represent: