ACCEPTED 03-14-00340-CV 5116335 THIRD COURT OF APPEALS AUSTIN, TEXAS 5/1/2015 11:36:48 AM JEFFREY D. KYLE CLERK No. 03-14-00340-CV
IN THE THIRD COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 5/1/2015 11:36:48 AM APPELLANTS, CPS ENERGY, TIME WARNER CABLEJEFFREY TEXASD.LLC, KYLE Clerk AND SOUTHWESTERN BELL TELEPHONE COMPANY D/B/A AT&T// CROSS-APPELLANT, PUBLIC UTILITY COMMISSION OF TEXAS
V.
APPELLEE, PUBLIC UTILITY COMMISSION OF TEXAS// CROSS- APPELLEE, CPS ENERGY, TIME WARNER CABLE TEXAS LLC AND SOUTHWESTERN BELL TELEPHONE COMPANY D/B/A AT&T
On appeal from D-1-GN-13-001238 (Consolidated)
in the 250th Judicial District Court, Travis County, Texas
CPS ENERGY'S BENCH NOTEBOOK
CPS ENERGY HERRERA & BOYLE, PLLC
Curt D. Brockmann Alfred R. Herrera cdbrockmann@cpsenergy.com State Bar No. 09529600 aherrera@herreraboylelaw.com 145 Navarro 816 Congress Avenue, Suite 1250 P.O. Box 1771 Austin, Texas 78701 San Antonio, Texas 78296 (512) 474-1492 (Voice) (210) 353-5689 (Voice) (512) 474-2507 (Facsimile) (210) 353-6832 (Facsimile)
TAB 1
V.T.C.A., Transportation Code § 311.001 § 311.001. General Authority of Home-Rule Municipality Effective: June 19, 2009
(a) A home-rule municipality has exclusive control over and under the public highways, streets, and alleys of the municipality.
(b) The municipality may:
(1) control, regulate, or remove an encroachment or obstruction on a public street or alley of the municipality;
(2) open or change a public street or alley of the municipality; or
(3) improve a public highway, street, or alley of the municipality.
(c) Notwithstanding Subsection (a) or (b) or Section 311.007, before a municipality with a population of 1.9 million or more may install traffic calming measures within the municipality, the governing body of the municipality must:
(1) publish standards and criteria, which must include sufficient notice to allow the governing body to receive and consider public comments from residents within one-half mile of the proposed traffic calming measure;
(2) on request of affected residents, schedule and hold a public meeting before implementation of the measure; and
(3) if the measure involves the closure of a street to motor vehicular traffic, before the closure:
(A) hold a public hearing on the issue of the closure; and
(B) approve the closure by a majority vote.
Court of Appeals No. 03-14-00340-CV CPS Energy's Bench Notebook
TAB 2
V.T.C.A., Government Code § 1502.001 § 1502.001. Definitions
In this chapter:
(1) “Combined system” means any combination of one or more of the following:
(A) an electric system;
(B) a water system;
(C) a sewer system;
(D) a solid waste disposal system;
(E) a drainage utility system; and
(F) a natural gas system.
(2) “Public security” has the meaning assigned by Section 1201.002.
(3) “Utility system” means an electric, water, sewer, solid waste disposal, drainage utility, or natural gas system. The term includes one or more combined systems.
Court of Appeals No. 03-14-00340-CV CPS Energy's Bench Notebook
TAB 3
V.T.C.A., Government Code § 1502.070 § 1502.070. Management and Control of Utility System Effective: May 18, 2013
(a) Management and control of a utility system may be vested in:
(1) the municipality’s governing body; or
(2) a board of trustees named in the proceedings adopted by the municipality and consisting of not more than:
(A) five members, one of whom must be the mayor of the municipality;
(B) seven members, one of whom must be the mayor of the municipality, if the municipality is located in a county:
(i) with a population of at least 800,000; and
(ii) that is located on an international border; or
(C) seven members, one of whom must be the mayor of the municipality, if the municipality is located in a county:
(i) with a population of at least 375,000;
(ii) that is located on an international border; and
(iii) that borders the Gulf of Mexico.
(b) The compensation of the trustees shall be specified by the proceedings. The compensation may not exceed five percent of the gross receipts of the utility system in any year.
(c) The proceedings of the municipality may specify the terms of office of the board of trustees, their powers and duties, the manner of exercising those powers and duties, the election of successor trustees, and any matter relating to the organization and duties of the board. On any matter not covered by the proceedings, the board of trustees is governed by the laws and rules governing the municipality’s governing body, to the extent applicable. Court of Appeals No. 03-14-00340-CV CPS Energy's Bench Notebook
TAB 4
CITY OF SAN ANTONIO
City Council Controls Rights of Way (ROWs)
ROW ROW Agreements Agreements
TEX. GOV’T CODE § 1502.070
Pole Attachment Pole Attachment Agreement Agreement
Governed by Independent Board of Trustees
Enter into Pole Attachment Agreements
Court of Appeals No. 03-14-00340-CV CPS Energy's Bench Notebook
TAB 5
,EXHIBIT ·. Jt~G-f.,Z. '
Court of Appeals No. 03-14-00340-CV CPS Energy's Bench Notebook 34
TAB 5 ,
'Dda ....., ..,, •and 1Dto *-• zp Til day or .Caerr. 19~ .,, ...d bftW• * cn7 ot 1111 AlltoD:Lo, tau, IOt1111 'llraulb tile Cl PUblic:_" &enloe BDI!ilrll or Ilia Jatala!D, 1 -loi.Pil board at said City, Jlere:lut'Mr called •L:la.iiDr• lllld. loB..• C.bl••rnaa or texaa, Illc. b...1111ner called •uc:aaee .• VITIISS!TR:
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35
Court of Appeals No. 03-14-00340-CV CPS Energy's Bench Notebook
TAB 6
Attachmenfl
Joint Use Pole Contact Agreement
.EXHIBIT
I Tt&C-,{,g3 Court of Appeals No. 03-14-00340-CV CPS Energy's Bench Notebook
TAB 6
B. LESSOR, Joiat U.aers and OTHER LESSEES reserve the right to utilize and/or
maintain LESSOR"'S poles and ·· to operate their facilities thereon in such
manner 8#J will best enable them to fulfill their se~vic:e requirements.
UTict.i VI - Jl.Ic,;IJTS OF WAY P'Oll LESSEE'S ATlAQIMUTS
While the LESSOR aDd. tbe LES.SBE. will cooperate as far as .DU9' he practicable
in obtaiD.iqg rights of way for both parti.e& on joint poles, no .guarantee is gi.veo.
l!f the LBSSOB. &f perllission fro,.a property onera, IIIUnicipalities or others for
the use of iu poles by the LESSEE, and :l:f objection is ude thereto and the
LESSEE 1~ unable satisfactorily to adjust the matter within a reasonable time,
the LESSOR may :at any ti•e upon sizty (60) -days li.Otice ·i n wridng to the l,!SSU,
require the LESSEE to r..o~e its attachments f,roa the poies -!nirolved; .and the
LESSEE ·shall, within iix months aft~ r·ece:lpt of said notic.e, r .- .ve its
attac:hmenu from--~ch pol.es .at it.s .s.o le ez:pea.se.
AJXL~ VII - INta~BB&NeB
.ndle it is no.t foreseen, ·•·h euld tb-e - ~SSEE·'"'S a:peradou in ay way
inter.fere with l.ESSOB."'S ~erational functions or needs or if ·LB.SSEE"'S activities
constitute dis.r uption or interference, LESSOR shall have the rj,gbt to :l1111ediately
terminate ·the Agreeilent -and LESSEE will be -r equired to r~ve all equipment
within a Teasoaabl.e per:lod of t!•e at :tts sole eost.
~~I~ VUI ... !V.UUNANC$ 01 POUS .ANll 4TT4c:aMUrS The LESSOR thall maintain its joint poles in a safe and serviceable
~on:dit:l.on and in accordance with the spec:ificatiou mentioned in Article III and
shall repl~c:e said poles as tl:tey become defective. LESSIE'"'S rights 11nd.er ;his
5
Court of Appeals No. 03-14-00340-CV 53 CPS Energy's Bench Notebook
TAB 7 - SECTIONS OF UTILITIES CODE SHOWING DISTINCTION BETWEEN DUTY TO “CHARGE” AND TO “COLLECT” A RATE Sec. 17.002. DEFINITIONS. Sec. 33.008. FRANCHISE CHARGES.
In this chapter: (b) If a municipality collected a charge or fee for a franchise to use a municipal street, alley, or public (7) "Service provider" means any entity that offers a way from an electric utility, a municipally owned utility, product or service to a customer and that directly or or an electric cooperative … is entitled to collect from indirectly charges to or collects from a customer's bill an each electric utility, transmission and distribution utility, amount for the product or service on a customer's bill municipally owned utility, or electric cooperative that received from a billing utility.
uses the municipality's streets, alleys, or public ways to Sec. 31.002. DEFINITIONS. provide distribution service a charge based on each In this subtitle: … kilowatt hour of electricity delivered by the utility to each retail customer whose consuming facility's point of (15) "Rate" includes a compensation, tariff, charge, fare,delivery is located within the municipality's boundaries.
toll, rental, or classification that is directly or indirectly demanded, observed, charged, or collected by an electric utility for a service, product, or commodity described in the Sec. 36.403. STANDARDS AND PROCEDURES definition of electric utility in this section and a rule, GOVERNING SECURITIZATION AND practice, or contract affecting the compensation, tariff, RECOVERY OF SYSTEM RESTORATION charge, fare, toll, rental, or classification that must be COSTS. approved by a regulatory authority.
(f) For purposes of this subchapter, "transition charges," … includes nonbypassable amounts to be charged for the use of electric services, Sec. 39.302. DEFINITIONS.
approved by the commission under a financing order In this subchapter: to recover system restoration costs, that shall be (7) "Transition charges" means nonbypassable collected by an electric utility, its successors, an amounts to be charged for the use or availability of electric assignee, or other collection agents as provided for in services, approved by the commission under a financing the financing order. … order to recover qualified costs, that shall be collected by an electric utility, its successors, an assignee, or other collection agents as provided for in the financing order. Sec. 55.176. CHARGE FOR 800-TYPE CALLS.
(g) The commission may not impose on a local Sec. 41.002. DEFINITIONS.
exchange company the duty or obligation to: … In this chapter:
(2) bill or collect for the use of the pay (2) "Rate" includes any compensation, tariff, telephone; … charge, fare, toll, rental, or classification that is directly or indirectly demanded, observed, charged, or collected by an (V.A.C.S. Art. 1446c-0, Sec. 3.2625(d).) electric cooperative for any service, product, or commodity and any rule, practice, or contract affecting the compensation, tariff, charge, fare, toll, rental, or classification Sec. 64.002. DEFINITIONS.
In this chapter:
(5) "Service provider" means any entity that offers a product or service to a customer and that directly or indirectly charges to or collects from a customer's bill an amount for the product or service on a customer's bill received from a billing utility.
Court of Appeals No. 03-14-00340-CV CPS Energy's Bench Notebook
TAB 8 - Substantial Evidence In Record Supporting PUCT’s Finding That Actual Data Supports Average Number of Attaching Entities of Three
1. “Unless attachers such as TWC have been making unauthorized attachments to CPS Energy poles, there is no sound basis to the position that billing data presents an inaccurate picture of the number of attachments.” - A. R. Part II of III, Binder 15, CPS Energy Ex. 18A, Rebuttal Testimony of Ricardo Lopez at 20:11-16.
2. “In this worst-case, hypothetical and unrealistic scenario, I took the smallest possible number of poles with CPS Energy and at least one attaching entity. … I then divided all billed attachments, plus all known COSA attachments, by this smallest number of possible joint use poles.” - A. R. Part II of III, Binder 16, CPS Energy Ex. 19B, Supplemental Rebuttal Testimony of Ricardo Lopez (Confidential) at 16:8-14. [Emphasis added.]
3. “The result of this worst-case calculation was 3.12 average attaching entities. Of this amount, COSA attachments represent 0.02 out of the 3.12 average number of attaching entities. This demonstrates that my original statement that there is virtually no impact to including COSA attachments is accurate, even in the worst-case scenario.” - A. R. Part II of III, Binder 16, CPS Energy Ex. 19B, Supplemental Rebuttal Testimony of Ricardo Lopez (Confidential) at 17:5-10. [Emphasis added.]
4. “[A]ccording to CPS Energy GIS data, there are only 1,616 CPS Energy fiber attachments to distribution poles. Inclusion of CPS Energy fiber would only increase the worst-case theoretical maximum by 0.01 up to 3.13 average number of attaching entities.” - A. R. Part II of III, Binder 16, CPS Energy Ex. 19B, Supplemental Rebuttal Testimony of Ricardo Lopez (Confidential) at 17:19-18:2.
5. “COSA has approximately 1,240 street intersections with traffic signals within the city limit… Assuming four attachments to CPS Energy poles at each of these intersections produces 2,000 as the total number of COSA attachments for traffic cables.” - A.R. Binder Part II of III, Binder 15, CPS Energy Ex. 18B, Rebuttal Testimony of Ricardo Lopez (Confidential) at 21:10-18.
6. “Also COSA has installed approximately 500 cameras and 700 wi-fi antennas throughout the city limit … This increases COSA’s worst case total number of attachments on CPS Energy poles to approximately 3,200.” - A.R. Binder Part II of III, Binder 15, CPS Energy Ex. 18B, Rebuttal Testimony of Ricardo Lopez (Confidential) at 21:19-22:1.
7. “Adding the 3,200 attachments to the calculation for average number of attachers would change the number for the year 2007 from 2.23 to 2.24. … As demonstrated by this exercise, there is virtually no impact to including the COSA attachments.” - A. R. Part II of III, Binder 15, CPS Energy Ex. 18B, Rebuttal Testimony of Ricardo Lopez (Confidential) at 22:1-8. [Emphasis added.]
Court of Appeals No. 03-14-00340-CV 1 of 3 CPS Energy's Bench Notebook
TAB 8 - Substantial Evidence In Record Supporting PUCT’s Finding That Actual Data Supports Average Number of Attaching Entities of Three
8. “[T]he total number of attachments for an entity such as AT&T or TWC does not change significantly from year to year.” - A.R. Part II of III, Binder 15, CPS Energy Ex. 18B, Rebuttal Testimony of Ricardo Lopez (Confidential) at 27:15-16.
9. “The most current calculation of pole attachments was performed in 2009 …The validity of the original count [from 2000] is not in question because it is based on a statistically valid survey, and, moreover, the original count is constant for the most part. This establishes that the AT&T pole count is reasonably accurate and not a ‘guess.’” - A. R. Part II of III, Binder 15, CPS Energy Ex. 18B, Rebuttal Testimony of Ricardo Lopez (Confidential) at 27:18-24.
10. “The only attachments with the greatest difference between billing data and field survey results, thus, are the AT&T attachments. The difference is due to the fact that they are based on a statistical sampling from 2000, but the difference is not significant.” - A.R. Part II of III, Binder 15, CPS Energy Ex. 18A, Rebuttal Testimony of Ricardo Lopez at 20:6-8.
11. “Considering the magnitude of AT&T’s original pole count from the 2000 sampling, and the fact that the only significant change to the pole count is the addition of new attachments, the most current calculated number of AT&T pole contacts is a reasonably accurate number. - A.R. Part II of III, Binder 15, CPS Energy Ex. 18A, Rebuttal Testimony of Ricardo Lopez at 20:11-14.
12. “More importantly, CPS Energy’s average number of attaching entities is based on its actual data, and its actual data is further supported by a statistically valid survey. By contrast no party in this proceeding that is challenging CPS Energy’s average number of attaching entities has come forward with any data to support a number different than what CPS Energy’s actual data show.” - A. R. Part II of III, Binder 16, CPS Energy Ex. 19B, Supplemental Rebuttal Testimony of Ricardo Lopez (Confidential) at 20:12-20.
13. “In Exhibit SSPAE-1, I provide the calculation for CPS Energy’s maximum allowable pole attachment rates for test years 2004 through 2009 (billing years 2005 through 2010) using the prior Telecom Formula.” A. R. Part II of III, Binder 16, CPS Energy Ex. 20A, Second Supplemental Rebuttal Testimony of Paul A. Escamilla (Redacted) at 8:21-23.
14. At Exhibit SSPAE-1: See tables (attached) showing year-by-year data used to calculate maximum allowable pole attachment rate. A. R. Part II of III, Binder 16, CPS Energy Ex. 20B, Second Supplemental Rebuttal Testimony of Paul A. Escamilla (Confidential) at Exhibit SSPAE-1.
15. “Information is received from the Overhead Engineering Department which details the quantities of pole contacts and the rate to be charged per contact to each entity that is attached to CPS Energy’s poles. Staff within Current Asset
Court of Appeals No. 03-14-00340-CV 2 of 3 CPS Energy's Bench Notebook
TAB 8 - Substantial Evidence In Record Supporting PUCT’s Finding That Actual Data Supports Average Number of Attaching Entities of Three
Management then prepares the invoices and records the billings in CPS Energy’s SAP accounting system. The invoices are then printed out and mailed to the customers. The invoices for pole contacts are prepared on an annual basis.” A. R. Part II of III, Binder 14, CPS Energy Ex. 4, Direct Testimony of David J. Ramirez at 5:11-16.
16. “Please see the attached spreadsheet [“Exhibit - Pole Contacts Summary”] which details the quantities of contacts, the rates and the amounts billed to each pole contact customer for the calendar years 2005 through 2009 inclusive.” A. R. Part II of III, Binder 14, CPS Energy Ex. 4, Direct Testimony of David J. Ramirez at 6:3-5.
17. See attached, “Exhibit - Pole Contacts Summary” A. R. Part II of III, Binder 14, CPS Energy Ex. 4, Direct Testimony of David J. Ramirez at 8-14.
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