VI. California Environmental Quality Act (CEQA)

CEQA applies to discretionary projects to be carried out or approved by public agencies. A basic purpose of CEQA is to "inform governmental decision makers and the public about the potential significant environmental effects of the proposed activities."⁴ Because the Commission must issue a discretionary decision before the proposed activity can proceed, the Commission must consider whether the proposed activity requires environmental review, and, if so, act as either a lead agency or responsible agency for CEQA purposes and assess the potential environmental impact of a project in order that adverse effects are avoided, alternatives are investigated, and environmental quality is restored or enhanced to the fullest extent possible.

Applicant represents that it will not construct any facilities for the purpose of providing local exchange services, but instead expects to purchase conduit and vaults installed by the Joint Utilities Contractor in a trench excavated for purposes of installing electric, gas, telephone and cable television facilities. Applicant notes that "in most cases, the utility line mapping will have been subject to review under [CEQA] in conjunction with the city's adoption of its General Plan," and that [t]o the extent supplemental CEQA review is required, it will be conducted by the City.

Although the Joint Utilities Contractor will install the conduit and vaults that Applicant expects to purchase, Paxio describes a scenario where its purchase of the conduit and vaults is the expected outcome of the transaction, so even if Paxio does not install the vaults and conduit, the installation would be for Paxio's benefit. Nevertheless, we believe that the activities Paxio describes-installation of conduit and vaults in a joint utilities trench as part of a master-planned housing development-falls within the Commission's definition of limited-facilities based authority. Limited-facilities based authority allows carriers to install "UNEs [unbundled network elements] or other equipment placed within previously existing buildings or structures" without environmental review, since it can be seen with certainty that such activities do not adversely impact the environment.⁵

The joint utilities trench, which contains the infrastructure for gas, electricity, telephone and cable television, will be excavated whether or not the Joint Utilities Contractor installs additional facilities for Applicant. Under these circumstances-installation of infrastructure in a trench excavated to contain other utilities, and which must comply with General Plan requirements and in some cases, the California Environmental Quality Act-we believe that the trench can be considered an "existing structure" and that Applicant's described activities are consistent with "limited facilities-based" authority, which allows the installation of facilities in existing structures.

Because the trenching activities will be conducted in accordance with General Plan and, in some cases, local CEQA requirements, and because the applicant's activities will be limited to simply installing its facilities during the trench excavation, it can be seen with certainty that there is no possibility that granting this application will have an adverse effect upon the environment. Applicant must file for additional authority, and submit to any required CEQA review, before it can construct facilities other than equipment to be installed in existing buildings or structures, or during trench excavation as described above.

⁵ (D.99-12-050, p. 5 and Ordering Paragraph 4.)