2. Background
On October 5, 2006, the Commission opened this Order Instituting Rulemaking (OIR) in order to consider changes to the Commission's enforcement of CEQA for projects undertaken by telephone corporations. The stated goals of this OIR are to develop rules and policies that will:
· Ensure that the Commission's practices comply with the current requirements and policies of CEQA;
· Promote the development of an advanced telecommunications infrastructure, particularly with regard to facilities that provide broadband facilities; and
· Make certain that the application of CEQA in the area of telecommunications does not cause undue harm to competition, particularly intermodal competition.
The Commission's current application of CEQA to carriers has resulted in inconsistent requirements, largely depending on when the particular company began to do business in California. For example, the large incumbent local exchange telephone corporations obtained their operating authority1 from this Commission decades ago, prior to the Legislature adopting CEQA, and these corporations did not then and do not now submit their construction projects for Commission CEQA review. Between 1995 and 1999, the Commission, when granting operating authority to competitive local exchange carriers, conducted environmental review through "batch negative declarations" which authorized construction of facilities statewide within existing utility rights-of-way without any additional CEQA review, with some variation in the requirements of individual batch declarations.2 In contrast, new entrants to the California telecommunications marketplace that wish to perform construction, other than very minor activities such as the use of existing facilities and placement of switches or other equipment in or on existing buildings, must generally undergo CEQA review at the Commission in order to obtain a full facilities-based CPCN.3
The goals of this proceeding include the adoption of clear, consistent, and effective policies, programs, and requirements for the Commission's implementation of CEQA as applied to carriers.
As specified in the OIR, parties filed opening comments on certain issues in November 2006. Workshops were held in this proceeding on January 24, and February 27, 2007. At the February 27, 2007 workshop, a number of the parties proposed that local agencies, rather than the Commission, conduct any required CEQA review for telecommunications projects.
The parties through an informal process of meeting and conferring, divided themselves into two groups, the Joint Carriers and the Joint Competitive Local Exchange Carriers (CLECs). The Joint Carriers group is comprised of established telephone corporations with relatively long-standing operating authority, including specifically the local exchange carriers and some competitive carriers that received CPCNs from the Commission before 1996 and had "batch negative declarations" approved for their construction projects.4 The Joint CLECs group includes ExteNet Systems, LLC (ExteNet); NewPath Networks, LLC (NewPath); NextG Networks of California, Inc.(NextG); Southern California Edison; Sprint Communications Company, LP; Sunesys, LLC (Sunesys); and Utility Telephone, Inc.
The Joint Carriers filed opening comments in response to the assigned ALJ's ruling on August 24, 2007, and the Joint CLECs filed their opening comments on August 27, 2007.
Comments were filed on the two proposals by the League of California Cities, the City and County of San Francisco, the City of Walnut Creek and SCAN NATOA, Inc.5 (jointly referred to as Cities); the California Attorney General's Office (AG), the Salinan National Cultural Preservation Association and the Society for California Archaeology (Salinan Nation), and AboveNet Communications (AboveNet) in September 2007. These comments raised legal and policy issues in response to the two proposals. The Joint Carriers and the Joint CLECs also filed reply comments to each other's proposals on September 10, 2007.
On April 18, 2008, the assigned Commissioner and Administrative Law Judge issued the scoping memo for this proceeding which set forth the issues to be resolved and the plan to issue a proposed decision for comment from the parties. Today's decision completes the procedural schedule adopted in the scoping memo.
1 Pursuant to Pub. Util. Code § 1001, the Commission must issue a Certificate of Public Convenience and Necessity (CPCN) prior to any "telephone corporation" commencing construction of "a line, plant, or system, or any extension thereof."
2 All telephone corporations must also obtain any required local permits or meet other regulatory requirements imposed by local governments or agencies consistent with this decision and GO 170.
3 As an exception, the Commission has permitted a small number of new entrants, which plan to construct facilities that they claim are exempt from CEQA, to obtain authorization to construct through an expedited process, on a case-by-case basis. For example, see Decision (D.) 06-04-030, Application of NewPath Networks, LLC (U-6928-C) for a Modification to its Certificate of Public Convenience and Necessity in Order to Provide Competitive Local Exchange, Access and Non-Dominant Interexchange Service (Newpath).
4 More specifically, the Joint Carriers includes Astound Broadband, LLC: Citizens Telecommunications Company of California, Inc. d/b/a Frontier Telecommunications Company of California; Citizens Telecommunications Company of Tuolumne d/b/a Frontier Telecommunications Company of Tuolumne, Frontier Communications of America, Inc.; Level 3 Communications, LLC; Pacific Bell Telephone Company, d/b/a AT&T California; Surewest Telephone; Time Warner Telecom of California, LP; Verizon, including Verizon California Inc. and its certificated California affiliates; and the following small Incumbent Local Exchange Carriers (ILECs): Calaveras Telephone Company, Cal-Ore Telephone Co., Ducor Telephone Company, Foresthill Telephone Co., Global Valley Networks, Inc., Happy Valley Telephone Company, Hornitos Telephone Company, Kerman Telephone Company, Pinnacles Telephone Co., The Ponderosa Telephone Co., Sierra Telephone Company, Inc., The Siskiyou Telephone Company, Volcano Telephone Company, and Winterhaven Telephone Company.
5 States of California and Nevada Chapter, National Association of Telecommunications Officers and Advisors.
