7. Assignment of Proceeding

Rachelle B. Chong is the assigned Commissioner and Timothy J. Sullivan is the assigned Administrative Law Judge in this proceeding.

1. It is reasonable to establish a procedure to ensure timely consideration of requests for extensions from the statutory deadlines in DIVCA at this time.

2. An application for an extension in the form prescribed by Rule 2.1 of the Commission's Rules of Practice and Procedures will enable the presentation of relevant facts to the Commission.

3. The use of the application form prescribed in GO 169 is not appropriate for the presentation of relevant facts to the Commission concerning requests for extensions because that form contains highly specific information geared to the statutory requirements for granting a video franchise application.

4. A requirement that applicants file requests for extensions "as soon as practicable" provides adequate guidance to those seeking extensions from build-out deadlines and is not unreasonable.

5. The modifications to GO 169 contained in Appendix A to establish an expeditious process for considering requests for extensions for build-out deadlines by video franchise holders are reasonable and in the public interest.

6. Currently, GO 169 requires that for each video franchise granted, the holder must post a bond of not less than $100,000 but no more than $500,000.

7. A holder of one video franchise that covered the entire state would be liable for a bond of $500,000.

8. Under GO 169, a video service provider who elects to provide service through multiple franchises would be required to post a bond for each franchise. As a result, a holder of multiple franchises could face bonding requirements in excess of $500,000.

9. GO 169 creates disparate bonding requirements depending on whether the video service provider elects to provide service through one franchise or through multiple franchises. As a result, the bonding requirements can be unfair and asymmetric.

10. The proposed modifications to GO 169 contained in Appendix B, which cap the total bonding requirement for any single person or entity holding video franchises in California at $500,000, avoid asymmetric and unfair impacts that could result from the current bonding.

11. Since the adoption of GO 169, the Commission has established the CASF, the Governor's Broadband Task Force collected data regarding broadband availability and broadband speed tiers, and the FCC has indicated that it will expand its collection of broadband data at the federal level to cover availability and subscribership by multiple speed tiers and by census tracts.

12. The FCC is investigating the best ways to obtain information on the availability of broadband service and proposes to adopt an order within four months.

13. Requiring video franchise holders to submit to the Commission the data submitted to the FCC pursuant to its reporting requirements imposes few additional reporting costs.

14. Requiring video franchise holders to report on broadband subscribership by speed tier and by census tract will provide data that will enable the Commission to determine whether DIVCA is meeting its goals of encouraging the development of California's broadband infrastructure.

15. The information reported to the FCC, which shares a common format across all states, will facilitate comparisons of California's broadband infrastructure with that of other states.

16. Requiring the submission of information on broadband subscribership that does not conform to the FCC requirements imposes additional costs on California video franchise holders and provides data that will not be useful in comparing California's broadband infrastructure with that available in other states.

17. At this time, there is no demonstrated need for the reporting of broadband data in tiers beyond those adopted by the FCC and it is therefore unreasonable to require additional reporting.

18. The FCC's adopted speed tiers and reporting requirements by census tract follow closely the approach that was taken and useful to the California Broadband Taskforce and the implementation of the CASF.

19. Requiring California video franchise holders to report data on broadband subscribership at the census block level will impose substantial costs on reporting parties and is not needed for the implementation of DIVCA or the CASF.

20. The FCC's investigation into the best way of obtaining information on the availability of broadband service to each customer address make the modification of the reporting requirements contained in GO 169 inappropriate at this time.

21. Current Commission confidentiality protections included in GO 66-C and Pub. Util. Code § 583 have proved adequate for protection of confidential information across a wide variety of utility settings.

22. No party filing comments requested additional confidentiality protections beyond those included in GO 66-C and Pub. Util. Code § 583.

23. It is reasonable to expect that the confidentiality protections included in GO 66-C and Pub. Util. Code § 583 will adequately protect the sensitive information submitted on broadband subscribership.

24. Technology and economics belie the clean parceling of responsibility between voice, data, and video. Indeed, the same wire is used to transmit voice, data, and video. In addition, voice (with the increasing of VoIP services), data and video are now simply packets of digits.

1. Pursuant to Pub. Util. Code § 5890(f)(1), no request for the extension of a build-out deadline may be filed before two years have lapsed since the granting of a video franchise.

2. There is no conflict between the modifications to GO 169 that require applicants for extensions of build-out deadlines to file "as soon and practicable" and the provisions of Pub. Util. Code § 5890(f)(1) as long as the first request for an extension is not filed until two years have passed from the initial granting of a video franchise.

3. Freezing the compliance period for the build-out of a video franchise pending a determination of the merits of an application for and extension of build-out deadlines is not consistent with DIVCA which, pursuant to § 5890(f)(3), contemplates that the granting of an extension by the Commission follows a review of the facts that the franchise holder alleges have caused the delay.

4. The modifications to GO 169 contained in Appendix A create a reasonable process for reviewing the requests of video franchise holders for extensions of statutory build-out deadlines that is consistent with the statutory provisions of DIVCA.

5. The modification to GO 169 contained in Appendix A of this decision creates a reasonable process that will ensure the timely review of requests for extensions by video franchise holders.

6. The modifications to GO contained in Appendix B, which cap the bonding requirement for a single person or entity holding multiple video franchises at $500,000, are reasonable and consistent with the provisions of DIVCA.

7. The modifications to GO 169 contained in Appendix C, which provide for the submission to the Commission of the broadband subscribership data collected pursuant to FCC requirements, are consistent with DIVCA and needed to assist in the implementation of both DIVCA and CASF.

8. The requirements concerning the reporting of subscribership information by speed tier adopted herein, which are contained in Appendix C and that follow the reporting requirements adopted by the FCC, are reasonable and in the public interest.

9. Based on the four criteria set out in Louisiana Pub. Serv. Comm'n v. FCC, and our consideration of Vonage Holdings Corp. v. Minnesota PUC, we conclude that there is no pre-emption of the reporting requirements adopted herein.

10. There is no conflict between federal and California law. Both aim to promote the development of a digital infrastructure.

ORDER

IT IS ORDERED that:

1. The modifications to General Order (GO) 169 attached to this decision as Appendices A, B and C are hereby adopted and GO 169 is accordingly modified.

2. Applicants and state video franchise holders shall follow the procedures and comply with the requirements of GO 169 as amended herein.

3. Following the Federal Communications Commission's adoption of requirements to report on the availability of broadband services as discussed in the Form 477 Order, the Communications Division shall prepare a resolution that amends GO 169 to ensure that California has access to this data.

4. Rulemaking 06-10-005 is closed.

This order is effective today.

Dated July 10, 2008, at San Francisco, California.

APPENDIX A

APPLICATION FOR EXTENSION

Amend General Order (GO) 169 as follows:

1. Add new section VI.G:

VI.G Extension of Deadlines

Pursuant to Public Utilities Code section 5890(f)(1), a State Video Franchise Holder may apply to the Commission for an extension of time to meet the requirements of subdivision (b), (c), or (e) of section 5890. The Application for extension must be filed as soon as practicable after the State Video Franchise Holder determines that it likely will not be able to meet one or more requirements of subdivision (b), (c), or (e), as applicable, but no sooner than two years from the commencement of service. In no event should the Application for extension be filed later than the earliest deadline under any of the requirements for which an extension is sought.

An Application for extension must state good cause for the Commission to grant the extension. "Good Cause" may include, without limitation, factors beyond the control of the State Video Franchise Holder set forth in section 5890(f)(3). The Application for extension must also state the basis on which the State Video Franchise Holder contends that it has made substantial and continuous efforts to meet the requirements of subdivision (b), (c), or (e) of section 5890, as applicable. The Application for extension must also propose a new schedule for offering service under section 5890, and must support the reasonableness of the compliance deadlines under the proposed schedule.

The Commission will hold a public hearing on any Application for extension. The Commission's Rules of Practice and Procedure will govern participation in the Application for extension.

2. Amend Section I.D (new language underlined):

"Application" means, as appropriate, either (1) an Application in the form prescribed by the Commission for seeking a grant or amendment of a State Video Franchise, or (2) an Application in the form prescribed by Rule 2.1 of the Commission's Rules of Practice and Procedure if the Applicant seeks an extension of time to meet the requirements of subdivision (b), (c), or (e) of Public Utilities Code section 5890.

3. Amend Section I.C (deleted language struck through):

"Applicant" means any person or entity that files an Application seeking to provide Video Service in the state pursuant to a State Video Franchise.

(END OF APPENDIX A)

APPENDIX B

BOND REQUIREMENTS

Amend Section IV.A.1.a of GO 169 to read as follows:

Section IV.A.1.a.

An Applicant is required to provide adequate assurance that it possesses the financial, legal, and technical qualifications necessary to construct and operate the proposed system and promptly repair any damage to the public right-of-way caused by the Applicant. To meet this requirement, the Applicant shall submit a copy of a fully executed bond in the amount of $100,000 per 20,000 households in its Video Service Area to the Executive Director prior to initiating video service and no later than 5 business days after the date of the Commission's issuance of a State Video Franchise to the Applicant. The amount of the bond under any circumstances shall not be less than $100,000 nor more than $500,000 per State Video Franchise Holder, except that a person or entity holding more than one State Video Franchise, directly or through its Affiliate, will not be required to execute bonds in a cumulative amount exceeding $500,000. The bond shall list the Commission as obligee and be issued by a corporate surety authorized to transact a surety business in California. A State Video Franchise Holder shall not allow its bond to lapse during any period of its operation pursuant to a State Video Franchise.

Note 1: Footnote omitted.

Note 2: The capitalization of the last sentence in the section above is corrected to conform with the convention in GO 169 that defined terms are capitalized. The correction is non-substantive.

(END OF APPENDIX B)

APPENDIX C

REPORTING REQUIREMENTS

Amend Section VII.C.1. of GO 169 following subtitle VII.C.1. through subsection VII.C.1.(2). replacing with the language below:

Commencing on April 1, 2008 and annually no later than April 1 each year thereafter, a State Video Franchise Holder or the parent company of the State Video Franchise Holder shall report to the Commission annual information on a Census Tract basis as of January 1, 2008 and each year thereafter on the extent to which the State Video Franchise Holder and any and all of its Affiliates that operate in California provide Video and Broadband Service in the state. The Commission will afford this information confidential treatment pursuant to § 5960(d) and § 583 of the CAL. PUB. UTIL. CODE and General Order 66-C because disclosure would put a franchisee at an unfair business disadvantage. These reports shall include the following information, pursuant to the guidelines established in Appendix D and Appendix E of D.07-03-014:56

(1) Wireline Broadband Information:57

(a) The number of Households in each census tract to which the State Video Franchise Holder and/or any of its Affiliates makes wireline Broadband available in this state. Alternatively, a reasonable approximation of the number of Households in each census tract may be submitted if the State Video Franchise Holder or its parent company is able to produce information that successfully demonstrates to the Commission (i) that the State Video Franchise Holder and/or its Affiliates do not maintain this information on a census tract basis in the normal course of business and (ii) the State Video Franchise Holder's alternate reporting methodology produces a reasonable approximation of data reported by census tract.

(b) The number of Households in each census tract that subscribe to wireline Broadband that the State Video Franchise Holder and/or any of its Affiliates makes available in this state. The information should also indicate the speed of service that the subscriber obtains, based on the speed tiers adopted in Re:  Development of Nationwide Broadband Data to Evaluate Reasonable and Timely Deployment of Advanced Services to All Americans, Improvement of Wireless Broadband Subscribership Data, and Development of Data on Interconnected Voice over Internet Protocol (VoIP) Subscribership, WC Docket No. 07-38 and Re: Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, GN Docket No. 07-45, March 19, 2008 and any successor decisions.

(2) Non-Wireline Broadband Information

(a) If a State Video Franchise Holder and/or any of its Affiliates uses nonwireline technology to provide Broadband, a list of the type(s) of technology used in each census tract.

(b) Non-wireline Broadband availability information in each census tract, in one of three forms:

i. A list of the number of Households in each census tract to which the State Video Franchise Holder and/or any of its Affiliates makes non-wireline Broadband available in this state.

ii. Using geographic information system digital boundaries that meet or exceed national map accuracy standards, maps that delineate (i) census tract boundaries and (ii) where the State Video Franchise Holder and/or any of its Affiliates typically makes non-wireline Broadband available.

iii. Another type of reasonable approximation of the number of Households in each census tract to which the State Video Franchise Holder and/or any of its Affiliates makes non-wireline Broadband available in this state. This approach may be used only if the State Video Franchise Holder or its parent company is able to produce information that successfully demonstrates to the Commission (i) that the State Video Franchise Holder and/or its Affiliates do not maintain this information on a census tract basis in the normal course of business and (ii) the State Video Franchise Holder's alternate reporting methodology produces a reasonable approximation of data reported by census tract.

(c) A State Video Franchise Holder shall report upon the number of Households in each census tract that subscribe to non-wireline Broadband that the State Video Franchise Holder and/or any of its Affiliates makes available in this state. If the State Video Franchise Holder and/or its Affiliates do not collect information by Households, then the State Video Franchise Holder shall report upon the number of total customers in each census tract that subscribe to non-wireline Broadband that the State Video Franchise Holder and/or any of its Affiliates makes available in this state. The information should also indicate the speed of service that the subscriber obtains, based on the speed tiers adopted in Re: Development of Nationwide Broadband Data to Evaluate Reasonable and Timely Deployment of Advanced Services to All Americans, Improvement of Wireless Broadband Subscribership Data, and Development of Data on Interconnected Voice over Internet Protocol (VoIP) Subscribership, WC Docket No. 07-38 and Re:  Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, GN Docket No. 07-45, March 19, 2008, or as modified by the FCC in successor decisions.

(END OF APPENDIX C)

56 For example, the first report filed April 1, 2008 would be for calendar year 2007 (January to December 2007).

57 CAL. PUB. UTIL. CODE § 5960(b)(1).

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