7. Comments on Proposed Decision
The proposed decision (PD) of Commissioner Bohn in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed on November 9 and 10, 2010 by AboveNet, CTIA - The Wireless Association, Cities, Joint Carriers, SCAN NATOA, Sunesys, NextG and NewPath. Reply comments were filed on November 15, 2010 by NewPath, NextG, California Wireless Association, Joint Carriers, AboveNet and ExteNet.
The Joint Carriers filed comments opposing the PD as creating an unwieldy new construction permitting regime and recommended changes to the text of
GO 170. The Joint Carriers offered continuing support for their August 24, 2007 proposal. The Joint Carriers first stated that the applicability of Proposed GO 170 should be clarified to apply only to telephone corporations and other applicants seeking discretionary approval from the Commission because CEQA applies only when a government agency takes a discretionary action. The Joint Carriers also opposed the Commission exercising exclusive CEQA jurisdiction over all telephone corporation construction projects related to the provision of telephone service in the State and explained that such a broad exercise of jurisdiction is inconsistent with the CEQA Guidelines. The Joint Carriers supported local entities having the role of lead agency. The Joint Carriers provided a comprehensive set of proposed revisions to the General Order.
The Cities also opposed the proposed GO 170 for asserting that the Commission act as the lead agency which, these parties contended, is at odds with the Commission's current policy of deferring to local agencies.27 The League of Cities particularly objected to the proposed exemption of distributed antenna systems from review. The Cities concluded that the proposed GO should be rejected and the Commission begin anew with the Joint Carriers' 2007 proposal.
CTIA - The Wireless Association sought clarification that the Commission intended to exempt wireless carriers from General Order 170 because General Order 159-A applies to these carriers.28
AboveNet supported the Proposed GO 170 as a means of leveling the playing field for all telecommunications companies.29 AboveNet stated that the Commission's CEQA review and licensing procedures have resulted in significant competitive inequities that have delayed or impeded some carriers from constructing their network infrastructure while other carriers have been free to build their networks without submitting to CEQA review.
Sunesys and NextG supported the proposed GO's streamlined process for review and approval of construction activity that is exempt from CEQA, but recommended further improvements to the advice letter process.30
NewPath also supported the proposed GO 170's uniform application of CEQA licensing and environmental review processes and procedures for telecommunications facility construction.
In reply, the Joint Carriers reiterated their opening comments and stated that their proposal addressed many of the concerns raised by other parties, including the level of review for common construction activities with minimal environmental impacts that should not require environmental review and the proper role for local agencies in the CEQA process.31
ExteNet replied that the opening comments filed by local government entities contain factual and legal errors, and therefore should be given no weight. ExteNet specified that the local government comments inaccurately describe the nature of DAS facilities and services and, based on those errors, the local government entities incorrectly conclude these facilities should be treated the same as cellular carriers for purposes of CEQA review.32
The California Wireless Association also argued that the opening comments filed by Cities should be given no weight because they urge an interpretation of the PD that would constitute legal error by asserting that the Commission may not serve as the lead agency for CEQA review of telecommunications construction, and/or that the PD's reference to "local authorizations" gives local jurisdictions unlimited authority to conduct duplicative review of such construction.33 This Association supported the proposed decision and general order, and the Commission's continued reliance on local jurisdictions to conduct CEQA reviews pursuant to General Order 159-A (subject to the stated limits of its applicability), but encouraged the Commission to remove or clarify the references to local permits and authorization to eliminate the perception that the Commission has ceded to local jurisdictions its responsibility with respect to authorization of utility construction by certificated utilities.
Sunesys and NextG supported NewPath's request that the Commission affirm that it is the lead agency for all California wireline telephone corporation construction projects and that its GO 170 CEQA review comprises the discretionary approval on a project, which local agencies cannot revisit.
NewPath replied that Commission is fully able to serve as the lead agency for CEQA review, with the resources necessary to carry out such reviews. NewPath stated that the large majority of projects will fall within exceptions stated in Sections III or IV.A.,34 and therefore will not require staff time for review. NewPath recommended that GO 170 should be adopted as written, with the modifications suggested in its opening comments.35
We have made a number of changes to this proposed decision in response to comments. Specifically, Sunesys and NextG note that it is important that the Commission provide clarification as to which parties are required to be served by the applicant. We agree that clarifying that carriers must serve local agencies with a permit to issue in the project areas under the process set forth in Section IV.B. of the GO is a good idea. We direct staff to work with the Cities to compile a list of who should be served in each locality and publish this list on the Commission's website.
Joint Carriers and several of the CLEC providers note that there are other activities that belong in the enumerated list in Section III of GO 170. We agree with most of these comments and have included several other types of construction in GO 170 Section III that do not have an environmental impact and therefore do not rise to the level of a project. These include customer drops, replacement or reconstruction of existing facilities and replacement or addition of guy wires or anchors. We also clarify that if any of the exceptions to the categorical exemptions, as set forth in CEQA Guidelines Section 15300.2, apply to a particular project, then the telephone corporation must file an application for full Commission review of the proposed construction project as provided in Section V of GO 170. We also clarify and expand the list of categorical exemptions in Section IV.A.
To address Cities' concerns regarding DAS projects, we have clarified that DAS projects must serve on notice local agencies with a permit to issue in the DAS project location prior to commencing construction. While we recognize that most construction for DAS projects property falls in the enumerated list in Section III of GO 170, we are also cognizant that Cities still have concerns about DAS, perhaps because they are unfamiliar with this new technology. We also clarify that projects involving the construction of new poles must go through the GO 96-B advice letter process set forth in Section IV.B. of GO 170.
In response to Cities' arguments regarding the Commission's authority to regulate telecommunications carriers and to assert primary CEQA responsibility for telecommunications projects in California, we summarize some of the Commission's relevant authority over telecommunications corporations here.
Under California Constitution Article XII, the Legislature vested the Commission with authority over all public utilities, including telephone corporations. Public Utilities Code Section 1001 gives the Commission authority to grant approvals via CPCNs for the construction or extension of telephone lines, systems, plants, or networks. Public Utilities Code Section 7901 broadly provides that telephone corporations may construct telephone lines along and upon any public road or highway, and may erect poles, posts, piers, or abutments to support wires and other necessary fixtures of their lines as not to incommode the public use of the road or highway.
Pursuant to Public Utilities Code Section 709, the Commission has authority and responsibility to ensure open competitive markets and the development of advanced telecommunications services in California.36 Public Utilities Code
Section 709.3 requires the Commission to "convene a proceeding to develop a plan for encouraging the widespread availability and use of advanced communications infrastructure." Moreover, Public Utilities Code Section 709.5 directs the Commission to take steps "to ensure that competition in telecommunications markets is fair and that the state's universal service policy is observed."37
These statutes make it clear that the Commission is the agency with the broadest authority over telephone and telegraph corporations in the State. The Commission is also the agency in California with the greatest technical expertise on telecommunications matters.
27 Opening Comments of the League of California Cities and California Association of Counties at 2.
28 CTIA-The Wireless Association Opening Comments on the Proposed Decision at 2.
29 AboveNet Communications, Inc, Opening Comments on the Proposed Decision at 1.
30 Synesys, LLC, and NextG Networks of California Opening Comments on the Proposed Decision at 4.
31 Joint Carriers Reply Comments on Proposed Decision at 3.
32 ExteNet Systems Reply Comments on Proposed Decision at 2-4.
33 California Wireless Association Reply Comments on the Proposed Decision at 1.
34 NewPath actually referred to Sections II and III.A. of GO 170, but since we have updated the sections of GO 170, we have changed the references to Section III and IV.A. of GO 170, which are the sections to which NewPath referred.
35 NewPath Reply Comments on Proposed Decision at 4 - 5.
36 Section 709 expressly sets forth the Legislature's commitment to ensure the "continued affordability and widespread availability of high-quality telecommunications services to all Californians." Section 709 further expresses California's telecommunications policies include encouraging "the development and deployment of new technologies."
37 See also Public Utilities Code Section 709.6 which required the Commission to commence a proceeding to consider whether to establish a new regulatory framework that, among other things, "[e]ncourages the provision of advanced, high-speed digital telecommunications services to the public."; Public Utilities Code Section 882(a), which directs the Commission to open a proceeding to "consider ways to ensure that advanced telecommunications services are made available as ubiquitously and economically as possible, in a timely fashion, to California's citizens, institutions, and businesses; Executive Order S-23-06, which directed the Commission and other state agencies to assist with the implementation of efforts to increase broadband deployment in California, including streamlining access to public Rights-of-Way and resolving Rights-Of-Way disputes in favor of accelerating deployment of broadband.; 47 U.S.C. Section 706, which directed that the FCC and "each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment."; 47 U.S.C. Section 257(a)(b), which required the FCC to issue regulations to eliminate barriers to entry for entrepreneurs "in the provision and ownership of telecommunications services and information services" and articulated a national policy directing the FCC "to promote the policies and purposes of this chapter favoring diversity of media voices, vigorous economic competition, technological advancement, and promotion of the public interest, convenience, and necessity;." 47 U.S.C Section 253(a), which provides that "no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service"; and 47 U.S.C. Section 253 (b), which provides that "[n]othing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this title, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers."
