4. Summary of Parties' Comments in response to ALJ Ruling

In response to the May 8, 2007 ALJ ruling, which directed the parties to meet and confer and to file comments on designated issues, both the Joint Carriers and the Joint CLECs filed timely opening comments and proposals for improving the Commission's CEQA process as applied to telecommunications carriers.  Below is a summary of these comments and proposals.

4.1. Joint Carriers' Comments and Proposal

Under the Joint Carriers' proposal, existing carriers, (i.e., telecommunications utilities that are currently certificated to operate in this State) would no longer be required to apply for an amended CPCN before constructing telecommunications facilities that will: (1) extend their services in any city or city and county in which they have already lawfully commenced operations; (2) extend services into territory either within or without a city or city and county contiguous to their lines, plants or systems and not already served by another telecommunications utility; or (3) extend their services within or to territory already served by them, as necessary in the ordinary course of business.

The Joint Carriers' proposal states that existing carriers would have the right to construct in public rights of way within their approved service areas without returning to the Commission for approval, subject to the requirements of federal, state and local law. For existing carriers, local agencies would generally be the Lead Agency under CEQA, would conduct any necessary environmental review of telecommunications construction projects within their jurisdictions, and may also find that a proposed construction project is categorically or statutorily exempt from CEQA.  However, the Commission would be the Lead Agency under CEQA if an existing carrier applies to the Commission for a modification of its CPCN to authorize new construction projects. 

The Joint Carriers propose that new or modified CPCNs issued after the effective date of the final Commission decision in this proceeding would not authorize the construction of telecommunications facilities, unless:  (1) the CPCN identifies the facility by size, type, and geographic location, or (2) the Commission analyzed the construction of the facility under CEQA when issuing the CPCN. In cases in which the Commission issues a new or modified CPCN, telecommunications utilities would also obtain any other required permits, licenses or entitlements from federal, state, or local agencies having jurisdiction over the construction project.

The Joint Carriers have proposed an expedited procedure for Commission staff approval of construction projects claimed to fall within statutory or categorical exemptions under CEQA, which is similar to the process currently utilized by the Commission for some carriers on a case-by-case basis.  (For example, see Decision (D.) 06-04-030, (Newpath)).  Under the Joint Carriers' Proposal, when a telecommunications utility applies to the Commission for a new or modified CPCN for projects claiming to be CEQA-exempt, the carrier would identify the relevant categorical or statutory exemptions and for categorical exemptions, would explain the carrier's basis for claiming that no exception to the exemption exists.  The Commission or its staff would issue a written determination within 21 days finding that either: (1) the project is exempt from CEQA and, in the case of categorical exemptions, no exceptions to the exemption apply, or (2) the project is not exempt from CEQA and an explanation of this finding; or (3) there is insufficient information to determine whether the project is exempt from CEQA.  For projects found to be categorically exempt, Commission staff would issue a Notice of Exemption as required by State CEQA Guidelines Section 15062.

4.2. Joint CLECs' Comments and Proposal

Under the Joint CLECs' proposal, all certificated carriers would have the authority to construct facilities needed to provide telecommunications service in California, without regard to the specific type of technology, equipment or facility being deployed.  All carriers would have the right to: a) operate in public rights of way, b) access public rights of way, including facilities such as utility poles and conduit located therein,  c) construct telecommunications facilities in public rights of way, subject to applicable time, place, and manner restrictions, and d) occupy public rights of way subject to obtaining all required excavation or encroachment permits, and/or agreements to attach equipment to facilities located in the public rights of way, such as utility poles and conduit. 

The Joint CLECs' proposal emphasizes leveling the playing field. All telecommunications utilities in this state, including the ILECs, carriers whose construction projects were previously approved by "batch" negative declarations, newly certificated carriers, carriers holding CPCNs that require further Commission approval in order to construct telecommunications facilities, and any carriers operating pursuant to other authority from the Commission, would be subject to a uniform process for CEQA review of new construction. Under the Joint CLECs' proposal, telecommunications carriers that wish to engage in new construction may elect to have either the Commission or another state or local agency having jurisdiction over the project serve as the Lead Agency under CEQA.

The Joint CLECs state that telecommunications utilities that choose the Commission as the Lead Agency under CEQA and believe that a proposed construction project is exempt from CEQA may submit to Commission staff a Construction Statement that describes the proposed construction activities, identifies the statutory or categorical exemptions claimed to apply, and in the case of categorical exemptions, states the basis for claiming that no exception to the categorical exemption applies.  Within five business days, Commission staff would issue a letter determination that the proposed construction project either is or is not exempt from CEQA.  If Commission staff finds that the construction project is exempt from CEQA, the carrier may proceed with construction.__The Commission would conduct an environmental review of standard ground-disturbing telecommunications construction statewide and would either issue and certify a program or master EIR or a master negative declaration (ND) or mitigated negative declaration (MND).

Under the Joint CLECs' proposal, if a telecommunications carrier believes that a proposed construction activity is within the scope of the Master or Program EIR, ND or MND and elects to have the Commission, rather than another state agency or a local agency, serve as Lead Agency, the telecommunications carrier shall submit an advice letter to the Commission which describes the proposed construction and demonstrates that this construction activity is substantially of the same type and scope as reviewed in the Master or Program EIR or ND or MND.  Within 21 days, the Commission would prepare an initial study and notify the carrier whether the proposed project is within the scope of the Master or Program EIR or ND or MND, and, if so, would issue a written finding approving the project and identifying all feasible mitigation measures or feasible alternatives. 

If a telecommunications utility wishes to engage in ground-breaking construction outside of public rights of way that does not fall within the scope of the Commission's Master or Program EIR or ND or MND, and chooses to have the Commission act as the Lead Agency, the Joint CLECs propose that the carrier file an application that describes the type, location, and size of the proposed construction and proposes additional mitigation measures necessary to reduce the environmental impacts of the project. 

4.3. Reply Comments of Joint Carriers

The Joint Carriers state that the proposal of the Joint CLECs is unwieldy, does not comply with CEQA, and would perpetuate distinctions between telecommunications carriers and intermodal enterprises.  The Joint Carriers further comment that local governments are generally in the best position to evaluate the environmental impacts of telecommunications projects, and local CEQA review will prevent inconsistent and anticompetitive treatment of telecommunications carriers and intermodal providers.  However, the Joint Carriers believe that the Commission should be the Lead Agency when it issues a new or amended CPCN that will have foreseeable environmental impacts.

The Joint Carriers state that CLECs, which previously obtained batch negative declarations for their projects, and the ILECs, which have operating authority that predates the requirement for a CPCN under Section 1001, are not legally required to undergo CEQA review of their projects because the Commission need not make any discretionary decision on their projects.  The Joint Carriers also claim that their proposal lessens the unequal treatment of CLECs that were not issued batch negative declarations by superseding the requirement for CEQA review by the Commission of additional projects not specifically authorized in their CPCNs.

According to the Joint Carriers, the tiered CEQA review proposed by the Joint CLECs is cumbersome and inconsistent with CEQA. The Joint Carriers believe that the Joint CLECs' proposal fails to describe the specific project that would be reviewed in a Program EIR or a Master EIR or Master Negative Declaration.   According the Joint Carriers, CEQA review requires analysis of a specific project, and hypothetical statewide construction of telecommunications facilities is not a project.   The Joint Carriers feel the proposed tiered approach is overly broad because the CEQA review would include all hypothetical telecommunications projects, even those which are exempt from CEQA.

The Joint Carriers also contend that the Joint CLECs' proposal appears to involve the unlawful piecemealing of projects.

4.4. Reply Comments of Joint CLECs 

The Joint CLECs believe that the Commission needs to level the playing field so that all carriers undergo CEQA review for their projects that may have significant environmental impacts in order to ensure equitable treatment of all carriers and to remove barriers to entry into the telecommunications market in California. The Joint CLECs comment that their proposal levels the playing field by allowing carriers to choose whether they wish to undergo CEQA review at the Commission or at the local level, which gives CLECs the opportunity to avoid problems with local agencies that require unlawful payments as a condition of permitting construction.  The Joint CLECs state that CEQA focuses on the type of construction to be performed and the potential environmental impacts, not the type of CPCN held by the carrier or the time period within which the CPCN was issued, and the Commission should modify its CEQA process to reflect this principle.

The Joint CLECs disagree with the Joint Carriers that the affected local agency is always better suited to be the Lead Agency than the Commission.  Therefore, the Joint CLECs' proposal states that in many circumstances, it is appropriate for the Commission to be the Lead Agency for telecommunications projects because the Commission is the only agency charged with regulating the telecommunications industry, removing barriers to entry into the marketplace, and fostering fair competition among carriers.

The Joint CLECs state that the Joint Carriers' proposal puts the heaviest burden on new CLECs entering the California market, when their construction projects, such as the installation of facilities necessary to provide Distributed Antenna System (DAS)-based services, may have less impact on the environment than other types of construction performed by carriers.

The Joint CLECs also contend that the Joint Carriers proposal makes the
21-day expedited process for Commission staff review of claimed CEQA-exempt projects adopted in Newpath and other Commission orders more cumbersome and more time-consuming by requiring a formal application. In addition, the Joint CLECs claim that the Joint Carriers' proposal suggests that both the Commission and the local agency might make a determination regarding whether the project is exempt from CEQA, which is not permitted under CEQA.

The Joint CLECs also object to the Joint Carrier's Proposal on the grounds that it would require CLECs applying for CPCNs to describe any facilities for which construction is reasonably foreseeable.  The Joint CLECs state that this requirement would results in new CLECs having to undergo CEQA review whether or not they have a definite plan to construct particular facilities.__The Joint CLECs state that, in order to avoid disruption, their proposal excludes projects already carried out by the ILECs or carriers holding batch negative declarations.

The Joint CLECs also comment that the Commission has met all procedural prerequisites to issuing an order approving the Joint CLECs' proposal. The Commission has given public notice of its intent to modify its CEQA process in the OIR and has given the parties the opportunity to attend workshops, file proposals, and to file comments on each other's proposals.

4.5. Other Parties' Comments

Additional comments were filed on the proposals of the Joint Carriers and the Joint CLECs by AboveNet, the AG, Cities, and Salinan Nation on September 10, 2007. These comments are summarized below.

AboveNet

AboveNet commented that it supports the goal of the Joint CLECs' proposal.  AboveNet contends that the Joint Carriers' proposal contains elements that favor the ILECs.  For example, the Joint Carriers' Proposal "grandfathers" the authority of the existing ILECs, supersedes existing Commission decisions that require certain carriers to obtain additional review and approval from the Commission before constructing telecommunications facilities, would exempt the ILECs from further review and approval of proposed construction by the Commission, and would defer the responsibility for CEQA review of these projects to local governments.  AboveNet states that since new carriers would still be required to comply with the Commission's CEQA procedures, the Joint Carriers' proposal would perpetuate the favored status of the ILECs and perpetuate the disparate treatment of other carriers.

The AG

The AG states that the Joint Carrier's proposal could become the basis for a Commission General Order (GO), but makes several comments. The AG recommends that any GO adopted in this proceeding specifically state that the new GO is not intended to alter the respective rights of carriers and local governments regarding the use of public rights of way for telecommunications facilities under state law. 

The AG notes that under the Joint Carriers' Proposal, existing carriers do need to return to the Commission for authorization to construct new facilities within the areas authorized by Section 1001, and that unless the carrier applies to the Commission for such authorization, the carrier would undergo any CEQA review only as may be required by the local agency. However, the AG recommends that the Commission reserve its authority to conduct CEQA review when the carrier applies to the Commission for authorization to construct, when the Commission is the first agency to act on an application for authorization to construct, or in other appropriate cases.

The AG states that if carriers are no longer required to return to the Commission for authorization to construct every new facility, the Commission and the public may not receive notice of CEQA-exempt projects that are proposed or are under construction within California, because CEQA does not require public disclosure of exempt projects.  Therefore, the AG recommends that when a Lead Agency other than the Commission approves a telecommunications construction project that is exempt from CEQA, and the Lead Agency does not file a Notice of Exemption (NOE), then the carrier should be required to file a NOE in accordance with State CEQA Guidelines Section 15062.

The AG also proposes that in order to avoid the unlawful "piecemealing" of projects, the Commission should include language in its decision or any GO adopted to state that in considering proposed CEQA exemptions for telecommunications construction activities, the Commission shall consider all reasonably foreseeable construction by the carrier and shall not apply exemptions to segments of the project without considering all reasonably foreseeable construction.

The AG generally supports the concepts in the Joint CLECs' proposal, but makes note of several legal issues.__The AG points out that the Joint CLECs' proposal appears to exceed the legal right of carriers to utilize public rights of way for their facilities, by: (1) giving carriers an unqualified right to construct facilities without prior Commission approval in violation of Section 1001; (2) including an overly expansive definition of "public rights of way;" and (3) giving carriers rights to operate in the public right of way that exceed the express grant of authority to them in Section 7901. The AG also observes that although carriers may not choose the Lead Agency under CEQA, the agency that acts first on a proposed project may be the Lead Agency.

The AG states that the Commission could prepare a program or master EIR that analyzes the potential environmental impacts of the planned deployment of telecommunications services in California, and then perform a stream-lined site-specific review of a carrier's application to construct certain facilities that are within the scope of the Master or Program EIR, ND or MND. However, the Joint CLECs proposal fails to specify the mechanism that the Commission should use to accomplish this objective or to link its proposal to the requirements for tiered environmental review stated in CEQA and the State CEQA Guidelines.  In addition, the Joint CLEC's proposal fails to state the manner in which "program" MND or ND would differ from the "batch" negative declarations that the Commission discontinued in 1999.

Cities

Cities generally support the proposal of the Joint Carriers, but raised several issues. Cities state that by eliminating the requirement for existing carriers to apply for modified CPCNs before constructing additional facilities, the Joint Carriers' Proposal appears to permit carriers to perform new construction without CEQA review by the Commission.  In order to remedy this problem, Cities propose that carriers required by previous Commission decisions to apply for amended CPCNs before constructing additional facilities file applications with the Commission.  If the Commission determines that the proposed construction will potentially result in a significant direct or indirect physical change in the environment, the application for an amended CPCN is a project under CEQA, and the Commission would be the Lead Agency.

Cities state that the Joint Carriers' proposal regarding Commission review of construction activities claimed to be exempt from CEQA fails to acknowledge that CEQA requires the Lead Agency to analyze projects as a whole, rather than engaging in piecemealing or segmenting of projects.  Cities contend that although some of the construction activities that Joint Carriers claim are exempt from CEQA may be exempt in routine, isolated projects, segmenting a large project so that each segment is "stuffed" into one of the exemptions in order to reach the conclusion that the entire project is exempt would be inconsistent with CEQA. 

Cities note that the Joint Carriers' Proposal provides that the installation of antennas, microcells, and supporting equipment in or on existing utility poles or other support structures used to provide telephone, electric power or other utility services would be exempt from CEQA, so long as the installation does not represent a substantial change in the nature of the structure. Cities propose that this language be modified to provide that installation of this type of equipment is exempt from CEQA only if the installation does not substantially change the size of the structure on which it is mounted and would not be installed in locations that are a historic resource, in order to avoid potential impacts on safety, aesthetics, and migratory birds. 

Cities state that the Joint CLECs' proposal does not meet the requirements of CEQA and should be rejected.__The State CEQA Guidelines set forth specific criteria for selection of the Lead Agency and address situations in which more than one public agency has for supervising or approving a project. According to Cities, under CEQA, the applicant does not have a legal right to select the Lead Agency by "forum-shopping."

Cities note that since CEQA authorizes the use of Master EIRs only for designated classes of projects and Program EIRs only to analyze "a series of actions that can be characterized as one large project," neither a Master nor a Program EIR could properly be used to analyze the environmental impacts of a hypothetical "standard" telecommunications project. 

Cities contend that the Joint CLECs' proposal expands the right of carriers to use public and private property beyond the authority granted in Section 7901. Cities state that under Section 7901, carriers have a right to use certain public property to construct telephone lines.  Further, Cities contend that despite its broad regulatory powers, the Commission does not have jurisdiction to interfere with the statutory rights of local agencies to regulate the use of public rights of way by telecommunications carriers. 

Salinan Nation

Salinan Nation commented on  the proposals filed by the Joint Carriers and the Joint CLECs and proposed a "best practices" cultural resources standard and procedures for the identification and protection of historical resources and Native American cultural places, which are subject to impacts from telecommunications construction projects, including CEQA-exempt projects. Salinan Nation states that since California has failed to adopt "best practices" standards and procedures for compliance with CEQA, CEQA has been applied unequally and often inadequately with regard to cultural and historic resources. Salinan Nation states that impacts to Native American archaeological resources during a fiber optics installation project resulted in a Commission investigation (I.00-03-001).

Salinan Nation also disputes the assumption that that the public right of way is already highly disturbed and has no reasonable chance for significant impacts on archaeological or native American cultural resources.  Salinan Nation points out that Caltrans has an extensive historic preservation program and has had hundreds of cases in which historic or cultural resources were uncovered during construction in the public right of way.  Modern roads typically follow age-old trails used by Native Americans in prehistoric times and were later used as land transportation corridors by Spanish, Mexican and American settlers.  Therefore, archaeological resources and traces of historic and prehistoric human land use are most heavily concentrated along public rights of way.  CEQA requires that cultural resources older than 50 years old be identified and assessed pursuant to established criteria in order to determine whether a proposed project will have a significant adverse impact on a significant cultural resource. Salinan Nation also states that even minor trenching and backhoeing may uncover and disturb archaeological and cultural resources, and the installation of antennas or microcells in or on existing structures could have a significant environmental impact if the existing structure is a historic building.

Salinan Nation does not contest the recommendation that either the Commission or local agencies be able to serve as the Lead Agency under CEQA for telecommunications projects. However, Salinan Nation requests that the Commission give notice to the public and conduct public hearings before issuing a decision in this proceeding. Salinan Nation also states that both the Commission and local governments should have staff with sufficient professional training and experience in historic preservation to handle CEQA review in a consistent, competent and timely manner.  

Salinan Nation states that the best practices standards adopted by Caltrans in its updated Stanford Environmental Reference (SER), Volume 2, Chapter 4.  Cultural Resources Identification, gives adequate guidance regarding compliance with the requirement for all telecommunications carriers to conduct and documents appropriate data research to determine whether historic resources or Native American cultural places would be significantly impacted by a proposed project.

Salinan Nation recommends that when the Commission or local agencies require the monitoring of construction activities in areas that may be archaeologically sensitive for unlocated, buried Native American cultural places by a trained experienced archaeologist and a trained Native American monitor from the tribe(s) or groups that are culturally affiliated with project area.

Salinan Nation also states that the public needs to have at least 21 days advance notice of any claimed CEQA exemptions for telecommunications construction projects. Salinan Nation recommends that the Commission post notices of claimed CEQA- exempt projects, sorted by geographic area, and any determinations that certain projects are found to be exempt from CEQA on its website. Local agencies should also post these notices when they are reviewing claimed CEQA-exempt telecommunications construction projects.

Salinan Nation recommends that carriers report annually on the status of their construction projects.  Salinan Nation believes that carriers should summarize each case in which an inadvertent archaeological discovery was made during project implementation, the outcome, e.g., whether the project was redesigned to avoid impacts or archaeological data was recovered, and the carrier's recommendations for avoiding post CEQA-review discoveries and improving the process for notifying and resolving sensitive discoveries in consultation with the involved public agencies and culturally affiliated Native Americans.