Cable companies fight undergrounding advisory committee

Residents of Kensington and Talmadge say the city must take a greater role in regulating where the green utility boxes are placed during the massive effort to bury overhead utility lines. Cable companies disagree, claiming the city has no say in the matter.

During the past two months, legal counsel for both sides have drafted letters to city councilmembers, fanning the flames to a longstanding conflict over public right-of-way.

The issue dates back to 2003, when the California Public Utilities Commission tacked on a surcharge to electric bills that would pay for the removal of overhead utility lines and underground them, having them meet inside green utility boxes.

The city has so far annually spent approximately $54 million in surcharge revenues to bury the lines.

The program got off to a quick start, but not without some bumps in the road, and the sidewalk. The Kensington and Talmadge communities were among the first neighborhoods to host the undergrounding efforts and the first to lodge complaints over the scattering of green utility boxes along the sidewalk and public right-of-way. Their complaints spurred them to hire legal counsel.

Residents and their legal counsel urged city representatives to address the issue.

They suffered a setback when city attorney Jan Goldsmith's office issued a May 2012 report that found the city did not have the authority to regulate the placement of the boxes. The report didn't stop the residents.

"Currently, there is no forum to address these issues, particularly in regard to the placement of utility boxes," wrote attorneys for the residents in an October 21 letter to the city. "Creation of the proposed Utility Underground Advisory Committee would allow all stakeholders — the utilities, the city, and the communities — to work together to study ways to potentially mitigate these concerns and consider options."

The letter claimed that the City Attorney's Office got it wrong in its May 2012 report, citing three legal cases that indicate local municipalities have a right, and obligation, to factor in impacts to neighborhood aesthetics when burying the lines.

A partial victory came when the Land Use and Housing Committee formed the Utility Underground Advisory Committee during an October 23 meeting.

Now, attorneys for Cox and Time Warner Communications are firing back. They oppose the creation of the advisory group and believe that the city should shoulder the financial burden if any new regulations are enacted.

In early November, an attorney for the California Cable Telecommunications Association, which represents Cox and Time Warner cable companies, responded to the October 21 letter. The letter takes issue with the city assuming any role other than funding the program. Attorneys argue that the California Public Utilities Commission is in charge of the program, not the city or some city-sponsored advisory committee.

"The cable operators also maintain that imposing additional undergrounding requirements and providing a role for property owners in the design process would materially breach the cable operator's agreements with the city," wrote attorney Gardner Gillespie from the Sheppard Mullin law firm in a November 4 letter. "Accordingly, the cable operators urge the city not to go forward with any of the suggested modifications to the undergrounding policy."

(corrected 12/27, 5:40 p.m.)