LYN/MCK/sid 12/30/2003

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Investigation into the Operations and Practices of Qwest Communications Corporation, et al. Concerning Compliance with Statutes, Commission Decisions, and Other Requirements Applicable to the Utility's Installation of Facilities in California for Providing Telecommunications Service.

Investigation 00-03-001 (Filed March 2, 2000)

JOINT ASSIGNED COMMISSIONER'S AND ADMINISTRATIVE LAW JUDGE'S RULING CONCERNING JOINT MOTION BY THE CONSUMER PROTECTION AND SAFETY DIVISION AND THE SALINAN NATION REGARDING "JURSIDICTIONAL" ISSUES

This Joint Ruling by the Assigned Commissioner and the assigned Administrative Law Judge (ALJ) is issued in response to a joint motion filed on September 19, 2003 by the Consumer Protection and Safety Division (CPSD) and the Salinan Nation, an intervenor in this proceeding, seeking a ruling by the full Commission on what the moving parties characterize as threshold jurisdictional issues.

Summary

The joint motion arises out of the discussion at a prehearing conference (PHC) held on August 5, 2003 that the ALJ convened to discuss ideas for settling this proceeding. CPSD and the Salinan Nation argue that because the ALJ stated at the PHC that he believed he could not rule on the "jurisdictional" issues briefed by respondents and the Consumer Services Division¹ in June 2001-i.e., the question of which of three certificates of public convenience and necessity (CPCNs) held by Qwest Communications International, Inc. (Qwest Inc.) applied to the construction work at issue-CPSD cannot determine what is an appropriate settlement position, nor can it determine the scope of the investigation it should undertake to arrive at a settlement position. Thus, the moving parties assert, the failure to rule on this issue is "obstructing this proceeding," and the full Commission should decide the allegedly jurisdictional issues so that "the factual evidence can be evaluated and the matter brought to hearing or to the settlement table as expeditiously as possible." (Joint Motion, pp. 4-5.) The opening brief that CSD filed on June 15, 2001, and the reply brief that it filed on June 29, 2001, are attached to the Joint Motion.

On October 6, 2003, Qwest Communications Corporation (QCC), a subsidiary of Qwest Inc., filed a response to the Joint Motion. In its response, QCC reiterates the arguments set forth in its briefs of June 15 and June 29, 2001 (which are attached to its response) and states that it does not oppose a decision by the full Commission on the Joint Motion. QCC continues, however, that in its opinion the issue to be decided is "whether Qwest's . . . CPCN [granted in D.93-10-018] authorized Qwest to act as a facilities-based carrier without the conditions in the . . . CPCN [granted in D.97-09-110] that CPSD alleges Qwest violated. Indeed, a ruling on the issue will clear Qwest of any misconduct and end this investigation." (Response, p. 6.)

For the reasons set forth below, we conclude that based on the current record, it is not possible to rule on the issues as framed by the briefs submitted by CPSD and QCC in June 2001. As indicated below, we believe that more briefing and factual development of these issues will be necessary to resolve them.

First, it is not possible to determine whether, as CPSD asserts, Qwest's attorneys conceded at a December 21, 1999 meeting with Commission staff that all of the relevant construction work took place pursuant to the CPCN granted in Decision (D.) 97-09-110. The authority granted in that decision was subject to a Mitigated Negative Declaration (MND) requiring the applicant to "conduct appropriate data research for known cultural resources in the proposed project area, and avoid such resources in designing and constructing the project." (D.97-09-110, Appendix D, p. 10.)² QCC maintains that at the December 21 meeting, its attorneys merely told Commission staff that Qwest Inc. had adequate authority to construct under one or more of the CPCNs it held.

It is also not possible to rule, as QCC has asked us to do, that the construction at issue was within the scope of the authority originally issued to QCC's predecessor, Southern Pacific Telecommunications Company (SP Telco), in D.93-10-018. That 1993 decision expressly stated in Conclusion of Law (COL) No. 12 that "no facilities are to be constructed." In its papers here, QCC has not demonstrated how the advice letter process that was used in 1994 to convert SP Telco's CPCN into authority to operate as a facilities-based reseller of interLATA services carried with it any authority to construct facilities.

In view of the significant gaps in and need for more development of the record, the joint motion must be denied. It is also clear that because of this situation, it would not be appropriate to refer the joint motion to the full Commission.

¹ The Consumer Services Division (CSD) was the predecessor of CPSD.

² This MND, which QCC acknowledges it did not comply with prior to the December 16, 1999 Stop Work Order, also required that "should cultural resources be encountered during construction, all earthmoving activity which would adversely impact such resources shall be halted or altered until the petitioner retains the service of a qualified archaeologist who will do the appropriate examination and analysis." (Id.) As a condition of having the Stop Work Order lifted, Qwest Inc. agreed to abide by a special set of Cultural Resource Protocols in connection with all construction work done by itself or on its behalf in California. Qwest Inc. has asserted that these Cultural Resource Protocols impose requirements that go well beyond those set forth in the MND adopted in D.97-09-110. No party has suggested that Qwest Inc. or any of its affiliates has failed to abide by the Cultural Resource Protocols since they were entered into.