Public Power and Telecommunications

CARB Adopts Final GHG Cap-and-Trade Program

October 26, 2011, by Edward Grutzmacher,

After surviving a highly publicized ballot box challenge and lawsuit, the California Air Resources Board ("CARB") unanimously adopted a final greenhouse gas ("GHG") cap-and-trade program regulation.  The cap-and-trade program is considered to be the cornerstone of CARB's implementation of California's landmark Global Warming Solutions Act of 2006, Assembly Bill 32 ("AB 32").  The first of CARB's cap-and-trade program auctions for allowances for use in 2013 will be held August 15 and November 14, 2012. 

Major industrial sources and electric utilities must begin compliance with the cap-and-trade program in 2013.  By 2015, distributors of transportation fuel and natural gas also become obligated to comply with cap-and-trade program requirements.   In addition, the cap-and-trade program will likely create a market for CARB-certified offset projects in areas of livestock management, elimination of ozone depleting substances, urban forest projects, and U.S. Forest projects.

To view the full summary of the program, follow this link.

Solar Development Promoted By Department of Conservation for Williamson Act Land

March 23, 2011, by Meyers Nave

The California Department of Conservation just issued the opinion "Considerations in Siting Solar Facilities on Land Enrolled in the Williamson Act" ("Opinion"), which provides suggestions to cities and counties for permitting solar development on property under contract of the California Land Conservation Act ("Act"). While the Opinion discusses nonrenewal and cancelling Act contracts as options to permit solar development, the critical part of the Opinion discuses how to determine if solar development is a compatible use for agricultural land under the Act. It provides guidelines and suggestions on the criteria that counties should follow in determining if solar development is a compatible use and suggests that solar development should be approved even if inconsistent with principles of compatibility, so long as certain criteria are met. Ultimately, it opines that the Act should not be an impediment to solar development.

As background, the Act promotes land conservation, with an emphasis on agricultural conservation. (California Government Code Section 51200 et seq.). It provides property tax relief to owners in exchange for an agreement that the land will not be developed or otherwise converted to another use for periods of 9 or 20 years. Currently, approximately 17 percent of California’s total acreage (or approximately 16.6 million acres) is restricted by Williamson Act contracts.

For the full opinion, click here.

Counties Should Consider Adopting Wind Ordinances Before Significant Restrictions Take Effect

April 6, 2010, by Dawn McIntosh

Counties that have not done so should consider adopting wind energy system ordinances before Dec. 31, 2010, when restrictions on wind ordinance regulations will take effect pursuant to Assembly Bill No. 45 (“AB 45”) . [To see the codified sections of AB 45, click here.] AB 45 encourages counties to adopt ordinances that provides for the installation of small wind energy systems and declare s it to be the policy of the state to promote and encourage the use of distributed renewable energy systems and to limit obstacles to their permitting and use, including minimization of permitting costs. (See Govt. Code § 65897.) AB 45 also establishes timelines under which counties may review applications for small wind systems and limited fees charged by counties to review applications to those reasonably incurred. (Govt. Code §§ 65895(b)(2), 65920, 66014 and 66016.)

This bill has allowed counties to exercise great flexibility in crafting regulations for small wind energy systems in keeping with state policy goals and objectives, but this broad latitude will come to an end on December 31, 2010. After that, counties will be far more limited in the conditions and restrictions they may impose on these projects relating to notice, tower height, setback, noise level, visual effects, turbine approval, tower drawings, engineering analyses, and line drawings. (Govt. Code § 65896.) Ordinances in effect before January 1, 2011 will be grandfathered in and will not need to comply with Govt. Code §65896. In light of these changes which will take effect in 9 months, counties that intend to adopt such ordinances but have not yet done so should consider whether to make this effort a priority for completion in 2010.

Ninth Circuit Narrows Federal Telecommunications Act's Preemption Standard for Local Regulation

September 22, 2008, by Meyers Nave

Overturning recent decisions regarding local regulation of telecommunication facilities, the Ninth Circuit, in Sprint Telephony PCS, L.P. v. County of San Diego, recently reversed course in finding that enforcement of San Diego's wireless telecommunications ordinance was not preempted by the federal Telecommunications Act of 1996. Section 253(a) of the Telecommunications Act provides that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate telecommunications service." Similarly, § 332(c)(7) of the Act states that local regulations: "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." In 2003, the County of San Diego enacted a Wireless Telecommunications Facilities Ordinance, which established permit requirements and additional restrictions on the placement and construction of wireless telecommunication facilities. Sprint challenged the County's Ordinance arguing that it violated § 253(a) of the Act because the Ordinance prohibited, or had the effect of prohibiting, the provision of wireless telecommunication services. The County argued that § 253(a) was inapplicable because § 332(c)(7) of the Act was the exclusive authority on wireless regulations.

Governor Signs Bill to Create Statewide Franchising for Video Service Providers

October 3, 2006, by Meyers Nave

The Governor signed into law the Digital Infrastructure and Video Competition Act of 2006 (AB 2987), which becomes effective January 1, 2007. The law establishes a statewide franchising procedure for video service providers to be administered by the California Public Utilities Commission (CPUC), and preempts local government franchising authority. The law also allows cable companies with existing local franchises to, when a state franchise holder enters the jurisdiction, to opt out of those local franchises and into a state franchise.

The main provisions of the Act include:

  • Application Process: Applications must be filed with the CPUC, which must begin accepting such applications by April 1, 2007. Applications must, among several other items, include a description of the “video service area footprint” that the applicant proposes to serve.
  • Franchise Fees: State franchise holders must pay the local entity 5 percent of gross revenues or the incumbent cable operator’s percentage, whichever is less. Where a state franchise holder provides bundled-service packages to subscribers, the franchise fee only applies to the gross revenue attributable to video service.
  • Discrimination and Build-Out Provisions: The Act provides that a state franchise holder may not discriminate against or deny access to service to any group of residential subscribers based on income, and includes several service requirements to implement this provision. The Act provides for additional build out requirements for state franchise holders or their affiliates with more than 1,000,000 telephone customers in California.
  • PEG:  The Act requires state franchise holders to provide the same number of public, educational, and government (PEG) channels as the incumbent cable operator has activated. The Act preserves the PEG capital support requirements contained in existing local franchises, and, if there are no existing unsatisfied PEG obligations, allows the local entity to establish a fee to support PEG channel facilities in an amount not to exceed 1 percent of the state franchise holder’s gross revenue.

If you have questions on the Act or other telecommunications matters, please contact John Bakker, the co-chair of Meyers Nave's Public Power and Telecommunications Practice Group, at jbakker@meyersnave.com.

To read the text of the Act, click here.

Bill Establishing Statewide Franchise for Video Service Providers Before Governor

September 27, 2006, by Meyers Nave

The Digital Infrastructure and Video Competition Act of 2006 (AB 2987, Nunez and Levine) awaits the Governor's signature or veto. AB 2987 establishes a statewide franchising procedure for video service providers to be administered by the California Public Utilities Commission and preempts local government franchising authority. The bill regulates several elements of the franchise, including franchise fees, public, educational and governmental (PEG) carriage and capital support, and non-discriminatory access to service.

If the Governor signs the bill, we will post a more detailed summary. To review AB 2987, click here.

If you have questions on AB 2987 or other telecommunications matters, please contact John Bakker, the co-chair of Meyers Nave's Public Power and Telecommunications Practice Group, at jbakker@meyersnave.com.

AB 2987 Creating a Statewide Franchise for Cable and Video Service Providers Goes to Governor

September 5, 2006, by Meyers Nave

AB 2987 (Nunez/Levine) passed both the Assembly and Senate, and heads to the Governor for approval. The official site for California legislative information has not yet been updated with the version of AB 2987 as passed, but check back here for updates.

AB 2987 enacts the Digital Infrastructure and Video Competition Act of 2006 and creates a new statewide franchise for cable and video service providers to be administered by the Public Utilities Commission. The bill provides that cities, counties, cities and counties, or joint powers authorities shall receive state franchise fees in exchange for the use of public rights-of-way for the delivery of video services. In addition, the bill provides that local entities may establish a fee to support public, educational and governmental (PEG) channel facilities.

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