# I No. 03-14-00340-CV 

### IN THE THIRD COURT OFAPPEALS 

### AUSTIN, TEXAS 

## APPELLANTS, CPSENERGY, TIME WARNER CABLETEXASLLC, AND SOUTHWESTERNBELL TELEPHONE COMPANYD/B/AAT&T// CROSS-APPELLANT, PUBLIC UTILITY COMMISSION OFTEXAS V. 

### APPELLEE, PUBLIC UTILITY COMMISSION OFTEXAS//CROSS

### APPELLEE, CPS ENERGY, TIME WARNER CABLE TEXAS LLCAND SOUTHWESTERNBELL TELEPHONE COMPANYD/B/AAT&T 

## On appeal from D-l-GN-13-001238 (Consolidated) 

# inthe250thJudicialDistrictCourt, Travis County, Texas

CPS ENERGY'S BENCHNOTEBOOK

CPS ENERGY Curt D. Brockmann 

### cdbrockmann(5),cpsenergv.com 145 Navarro P.O. Box 1771 

### SanAntonio, Texas 78296 

### (210) 353-5689 (Voice) 

### (210) 353-6832 (Facsimile) HERRERA & BOYLE, PLLC Alfred R. Herrera State BarNo. 09529600 aherrera@herrerabovlelaw.com 

### 816 Congress Avenue, Suite 1250 Austin, Texas 78701 

### (512) 474-1492 (Voice) (512) 474-2507 (Facsimile)

April 22,2015No. 03-14-00340-CV IN THE THIRD COURT OFAPPEALS 

### AUSTIN, TEXAS 

### APPELLANTS, CPS ENERGY, TIME WARNER CABLE TEXAS LLC, AND SOUTHWESTERN BELL TELEPHONE COMPANY D/B/A AT&T// 

### CROSS-APPELLANT, PUBLIC UTILITY COMMISSION OF TEXAS V. 

### APPELLEE, PUBLIC UTILITY COMMISSION OF TEXAS//CROSSAPPELLEE, CPS ENERGY, TIME WARNER CABLE TEXAS LLCAND SOUTHWESTERN BELL TELEPHONE COMPANY D/B/A AT&T 

### On appealfrom D-l-GN-13-001238 (Consolidated) kth 

### in the 250mJudicial District Court, Travis County, Texas

CPS ENERGY'S BENCH NOTEBOOK

CPS ENERGY Curt D. Brockmann 

### cdbrockmann@cpsenergy.com 145 Navarro P.O. Box 1771 

### San Antonio, Texas 78296 

### (210) 353-5689 (Voice) (210) 353-6832 (Facsimile) HERRERA & BOYLE, PLLC Alfred R. Herrera State Bar No. 09529600 aherrera@herrerabovlelaw.com 

### 816 Congress Avenue, Suite 1250 Austin, Texas 78701 

### (512) 474-1492 (Voice) (512) 474-2507 (Facsimile)



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## V.T.C.A.,Transportation Code § 311.001 § 311.001. General Authority ofHome-Rule Municipality Effective: June 19, 2009 

### (a) A home-rule municipality has exclusive control over and under the public highways, streets, and alleys ofthe municipality. (b) The municipality may:

(1) control, regulate, or remove an encroachment orobstruction on a public street or alley ofthe municipality; 

### (2) open or change a public street or alley ofthe municipality; or (3) improve a public highway, street, or alley ofthe 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 c municipality must: 

## [ (1) publish standards and criteria, which must include sufficient notice to allow the governing body to receive and consider public comments from 

### P residents within one-halfmile ofthe proposedtraffic calming measure; 

### (2) on request ofaffected residents, schedule and hold a public meeting before implementation ofthe measure; and (3) ifthe measure involves the closure ofa street to motorvehiculartraffic, before the closure: 

### (A) hold a public hearing on the issue ofthe closure; and 

### (B) approve the closure by a majority vote.
Court ofAppeals No. 03-14-00340-CV CPS Energy's Bench Notebook April 22,2015p

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### IITAB 2



### In this chapter: 

### V.T.C.A., GovernmentCode § 1502.001 § 1502.001. Definitions
(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.

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### V.T.C.A., GovernmentCode § 1502.070 

## § 1502.070. Management and Control ofUtility System Effective: May 18, 2013 (a) Management and control ofa 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 ofnot more than: (A) five members, one ofwhom must be the mayorofthe municipality; (B) seven members, one ofwhom must be the mayor ofthe municipality, ifthe municipality is located in a county:

(i) with a population ofat least 800,000; and 

### (ii) that is located on an international border; or (C) seven members, one ofwhom must be the mayor ofthe municipality, ifthe municipality is located in a county:

(i) with a population ofat least 375,000; (ii) that is located on an international border; and (iii) that borders the GulfofMexico. 

### (b) The compensation ofthe trustees shall be specified by the proceedings. The compensation may not exceed five percent ofthe gross receipts ofthe utility system in any year. (c) The proceedings ofthe municipality may specify the terms ofoffice of the board oftrustees, theirpowers and duties, the manner ofexercising those powers and duties, the election ofsuccessor trustees, and any matter relating 

### to the organization and duties ofthe board. On any matternot 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 ofAppeals No. 03-14-00340-CV CPS Energy's Bench Notebook April 22, 2015•I I

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Tex. Gov't Code 

### p § 1502.070 

## i City ofSan Antonio



## City Council Controls Rights of Way (ROWs)
ROW Agreements

Pole Attachment Agreement

ENERGY 

# f§> ROW Agreements



### TIME WARNER CABLE

Pole Attachment Agreement



## Governedby Independent Boardof j Trustees Enter into Pole Attachment 

### Agreements

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EXHIBIT 

# 7Zsc~GL\ CourtofAppeals No. 03-14-00340-CV EXHIBIT A

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# r TAR 5

POLE UCBBE mgHOff 

# TUBAsruomtentered late tela ZJ97* day of PtOUBBtef, 1«6f» by *ad between the City ofBanantealo, Texas* sating through the City Public £ervloe Beard ofau Jataale, a aaaloipal board ofsaid City, hereinafter called "Ueaaaor" eod. sogers Cablesystau ofTexas, lac. hereinafter called "Ueeasee." VXTIBSSETH: Za eaaalderetien oftha BStual eevenaats. tent* sad rmnrittlona bamla contained, tbt parties hereto da hereby asteally eevcniat aad agree as followsI

* 1. aauaod la tfala "Uceaaar'a poles" eases eleetrle dlatribuUoa systaa utility pales Of •Uncasce's faciliUai" Beaaa Ueenaae's cables, wires, aupportung atraad. brackets, erap ulm. tapoffa, llaa aapliflara. paver supplies aad ether eatiipaeat used la eeaneetloa with tee apsratloa of Ueessee'a i. "•——'ty aateaae talevialea ayatea. m "feiat bear* ansae aay pabllo utility, geveroaestal body, or other entity uhlan owe poles to Balsa Ueeaaar is extended Joint use ettaeaaeat privilege* aad to whoa Ueeaaar faaa esteaded Joint use •rtecbnaot privileges ofUecaaer'e poles'.

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### [ "Other Licensee* naaaa aay eatity, ether than licensee berela or a Joint User, to uboa Ueeaaar hee or hereafter shall extead the privilege ofattsenlag facilities to Ueeeaor's poles. 2. Ueeaaar agrees to great to Lioeesea. to tbe extent it aay lawfully da • so ead aubjeot to the tarns aad condltiona oftUa Asrecacnt. revocable, aoaanelualve lleenooe to attach pertteaa of UeoBeec'a feclXltleB to Ueeaaar'e poles, where reasonably available sad where each) aaa will sat iaterfare with Ueeoeor's aervlee reejuiraMBta or tha aso oflta facilities by othera. Tula Ucenee la for tha provision of Ucanacofa eeaaaaltr aateBaa taleeiaioa aarrlee attain these pertleaa afthe Ua*assr*s serviea area in ublefa the Ueesaee bss beea fraanhtsed by appropriate aotboritlaa. Ueeasee hereby agrees to ha bound by the teres aad cnndltfnmi hereof. ATOCBHBIIT PZMII8 Agg BHIgS 3. Prior to aafclBg aay attaebaaat appUeatlaas hereaader, Ueeasee shall obtaia. aad open reeuaat eball anbalt to Ueeaser, evidence, aatiefectcry to Ueeaaar, ofe freaehlse or other eatboriey authsrixiss Licensee to ereet aad ajaiataia for the purposes sat eat la Seotlea 2 hereof, lta faculties within the public streets, highways, allays. utility eaaaeeata, ether thoroughfares, aad ea private property situated la Ueeasar?a serviea area, aad ofsay other necessary eoaaeat

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### Attachment2 

# Joint Use Pole ContactAgreement

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### B. LESSOR, Joint Users and OTHER LESSEES reserve the right to utilize and/or maintain LESSOR'S poles and-to operate their facilities thereon in such manner as sill best enable then to fulfill their service requirements.
ARTICLE VI - RIGHTS OFWAT FORLESSEE'S ATTACHMEhTS Hhile the LESSOR and.the LESSEE.sill cooperate as far as nay be practicable 

### in obtaining rights of way for bothparties on Joint poles, ao guarantee la given by the LESSOR ofpermission from property owners, municipalities or others for the use of its poles by the LESSEE, aad if objection is nade thereto and the LESSEE is anahie satisfactorily to adjust the matter within a reasonable tine, the LESSOR may at aay time -upon sixty (60) days notice in writing to the LESSEE, require the LESSEE to remove its attachments from the poles -involved; And the LESSEE shall, within six months after receipt of said notice, remove lta attachments from -such poles at its sole expense.
ARTICLE VII
- IMTBRgSBgHSB While it Is not foreseen, should the-LESSEE'S operations in any way interfere with LESSOR'S operational functions or needs or ifLESSEE'S activities constitute disruption or interference, LESSOR shall have the right to immediately terminate 'the Agreement and LESSEE will be required to remove all equipment within a reasonable period of time at lta sole coat.
ARTieLB Till
- HAIBTEMASCB OF POLES AHD AITACHMEHTS The LESSOR shall maintain its Joint poles in a safe and serviceable condition and in accordance with the specifications mentioned in Article III and shall replace said poles as they become defective. LESSEE'S rights under this 5

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# PW) TAB 7 - SECTIONS OF UTILITIES CODE SHOWING DISTINCTION BETWEEN DUTY TO "CHARGE" AND TO "COLLECT" A RATE Sec. 17.002. DEFINITIONS. In this chapter: (7) "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. Sec. 31.002. DEFINITIONS. In this subtitle:... (15) "Rate" includes a compensation, tariff, charge, fare, 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 definition of electric utility in this section and a rule, practice, or contract affecting the compensation, tariff, charge, fare, toll, rental, or classification that must be approved by a regulatory authority.
Sec. 39.302. DEFINITIONS. In this subchapter: (7) "Transition charges" means nonbypassable amounts to be charged for the use or availability ofelectric services, approved by the commission under a financing 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. 41.002. DEFINITIONS. In this chapter: (2) "Rate" includes any compensation, tariff, charge, fare, toll, rental, or classification that is directly or indirectly demanded, observed, charged, or collected by an 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 abilling utility.
Court ofAppeals No. 03-14-00340-CV Sec. 33.008. FRANCHISE CHARGES. (b) If a municipality collected a charge or fee for a franchise to use a municipal street, alley, or public way from an electric utility, a municipally owned utility, or an electric cooperative ... is entitled to collect from each electric utility, transmission and distribution utility, municipally owned utility, or electric cooperative that uses the municipality's streets, alleys, or public ways to provide distribution service a charge based on each kilowatt hour of electricity delivered by the utility to each retail customer whose consuming facility's point of delivery is located within the municipality's boundaries.
Sec. 36.403. STANDARDS AND PROCEDURES GOVERNING SECURITIZATION AND RECOVERY OF SYSTEM RESTORATION COSTS. (0 For purposes of this subchapter, "transition charges," ... includes nonbypassable amounts to be charged for the use ofelectric services, approved by the commission under a financing order to recover system restoration 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 exchange company the duty or obligation to:... (2) bill or collect for the use of the pay telephone;... (V.A.C.S. Art. 1446c-0, Sec. 3.2625(d).)

CPS Energy's Bench Notebook 

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- Substantial Evidence In Record Supporting PUCT's Finding That



## [ ActualDataSupportsAverageNumberof AttachingEntitiesof 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 ofthe number ofattachments."
- A. R. Part IIofIII, Binder 15, CPS Energy Ex. I8A, Rebuttal TestimonyofRicardo Lopez at 20:11-16. 

### 2. "In this worst-case, hypothetical and unrealistic scenario, I took the smallest possible number ofpoles with CPS Energy and at least one attaching entity. ... I 

### then divided all billed attachments, plus all known COSA attachments, by this smallest number ofpossiblejoint use poles."
- A. R. Part II ofIII, Binder 

### 16, CPS Energy Ex. 19B, Supplemental Rebuttal Testimony ofRicardo Lopez 

### (Confidential) at 16:8-14. [Emphasis added.] 3. "The result ofthis worst-case calculation was 3.12 average attaching entities. Of 

### this amount, COSA attachments represent 0.02 out ofthe 3.12 average number of 

### attaching entities. This demonstrates that my original statement that there is m virtually no impact to including COSA attachments is accurate, even in the worst-case scenario."
- A. R. Part II ofIII, Binder 16, CPS Energy Ex. 19B, 

### Supplemental Rebuttal Testimony of Ricardo Lopez (Confidential) at 17:5-10. [Emphasis added.] 

### 4. "[According 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 11 ofIII, Binder 16, CPS Energy Ex. 19B, SupplementalRebuttal TestimonyofRicardo Lopez(Confidential)at 17:19-18:2. 

### 5. "COSA has approximately 1,240street intersections with traffic signals within the city limit... Assuming four attachments to CPS Energy poles at each ofthese intersections produces 2,000 as the total numberofCOSA attachments for traffic cables."
- A.R. Binder Part II ofIII, Binder 15, CPS Energy Ex. 18B, Rebuttal 

### Testimony ofRicardo Lopez (Confidential)at21:10-18. 

### 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 

### ofIII, Binder 15, CPS Energy Ex. 18B, Rebuttal Testimony ofRicardo Lopez (Confidential) at 21:19-22:1. 

### 7. "Adding the 3,200 attachments to the calculation for average numberofattachers 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 ofIII, Binder 15, CPS Energy Ex. 18B, 

### Rebuttal Testimony ofRicardo Lopez(Confidential) at 22:1-8. [Emphasis added.]
Court ofAppeals No. 03-14-00340-CV 1 of3 CPS Energy's Bench Notebook April 22,2015

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- Substantial Evidence In Record Supporting PUCT's Finding That Actual Data Supports Average Number of Attaching Entities ofThree 

### 8. "[T]he total number ofattachments for an entity such as AT&T or TWC does not 

### change significantly from year to year." - A.R. Part II ofIII, Binder 15, CPS Energy Ex. 18B, Rebuttal TestimonyofRicardo Lopez (Confidential) at 27:15-16. 9. "The most current calculation ofpole attachments was performed in 2009 ...The 

### validity ofthe 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 ofIII, Binder 15, CPS Energy Ex 18B, Rebuttal TestimonyofRicardo 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 ofIII, Binder 15, CPS Energy Ex. 18A, Rebuttal TestimonyofRicardo 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 ofnew attachments, the most current calculated number ofAT&T pole contacts is a reasonably accurate number. - A.R. Part II ofIII, Binder 15, CPS Energy Ex. 18A, Rebuttal TestimonyofRicardo Lopez at 20:11-14. 

### 12. "More importantly, CPS Energy's average number ofattaching 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 ofattaching entities has come forward with any data to support a number different than what CPS Energy's actual data show."
-A. R. Part IIofIII, Binder 16, CPS Energy Ex. 19B, Supplemental Rebuttal Testimony ofRicardo 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 ofIII, Binder 16, CPS Energy Ex. 20A, Second Supplemental Rebuttal Testimony of PaulA. 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 ofIII, Binder 16, CPS Energy Ex. 20B, Second Supplemental Rebuttal Testimony ofPaul A. Escamilla (Confidential) at Exhibit SSPAE-1. 

### 15. "Information is received from the Overhead Engineering Department which details the quantities ofpole contacts and the rate to be charged per contact to each entity that is attached to CPS Energy's poles. Staffwithin Current Asset 

### Court ofAppeals No. 03-14-00340-CV 2 of3 CPS Energy's Bench Notebook April 22, 2015FR

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- Substantial Evidence In Record Supporting PUCT's Finding That ActualData SupportsAverage Number of Attaching Entities ofThree 

### 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. m Part IIofIII, Binder 14, CPSEnergyEx. 4, Direct Testimony ofDavid J. Ramirez at 5:11-16. 

### 16. "Please see the attached spreadsheet ["Exhibit - Pole Contacts Summary"] which details the quantities ofcontacts, the rates and the amounts billed to each pole contact customer for the calendaryears 2005 through 2009 inclusive." A. R. Part p" // ofIII, Binder 14, CPS Energy Ex. 4, Direct TestimonyofDavid J. Ramirez at 6:3-5. 17. See attached, "Exhibit - Pole Contacts Summary" A. R. Part II ofIII, Binder 14, 

### CPS EnergyEx. 4, Direct Testimony ofDavid J. Ramirez at 8-14.

Court ofAppeals No. 03-14-00340-CV 3 of3 CPS Energy's Bench Notebook 

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