8. Assignment of Proceeding

Timothy Alan Simon is the assigned Commissioner and Maribeth A. Bushey is the assigned ALJ and Presiding Officer in this proceeding.

1. Notice of Verizon's filing of this complaint appeared in the Commission's daily calendar on November 30, 2007.

2. The scoping memo, see Attachment A, was issued on December 3, 2007, and included the procedures and schedule to be followed for this proceeding.

3. Public notice of the January 10 and 11 hearings first appeared on the Commission's daily calendar on December 4, 2007, and each day thereafter until the dates of the hearing.

4. The five-mile section of Summit Road at issue in this proceeding is subject to reciprocal negative easements held by the 71 owners of record for the property over which the road passes.

5. Verizon served notice of this proceeding upon all 71 owners of record, who are named defendants to this proceeding.

6. Verizon's Inter Office Fiber Trunk Project is a 26-mile fiber optic trunk line running from Gilroy to Los Gatos along Summit Road.

7. Verizon has obtained municipal authorization and completed construction in the portions of Summit Road under municipal control, about 21 miles, by extending cable approximately nine miles northwest from Gilroy and 12 miles southwest from Los Gatos. The remaining five-mile section is the private portion of the road.

8. The IOF project would require that Verizon obtain by condemnation or otherwise, a nonexclusive underground utility easement in a 10-feet wide section of the private section of Summit Road and a temporary construction easement.

9. Verizon is constructing the IOF project to offer local telephone service and high speed internet access, for which there is intermodal competition.

10. The chief purpose of IOF project is to increase system reliability and remedy inadequate data transmission capabilities out of Verizon's Morgan Hill and Gilroy offices, with about 65,000 residential and 80,000 business customers benefiting from the increased system reliability and data transmission capability.

11. The portions of the IOF that Verizon has installed along Summit Road leading up to the private section allow about 250 customers to now purchase high-speed fiber-based internet access for the first time.

12. The IOF will also enable Verizon to offer modern, fiber-based service to residents of the private section of Summit Road and solve the persistent telephone maintenance problems along this road. When the IOF is completed within the private portion of Summit Road, up to 200 customers will be able to receive landline telephone service with high speed fiber-based internet service to 144 customers.

13. The record shows that wireless telephone service is only available at some locations along Summit Road, and that satellite-based internet service is more expensive than fiber-based.

14. Verizon proposes to use directional boring to place the conduit for the fiber optic cable in the private portion of Summit Road.

15. Directional boring will result in disturbance of less than 2% of the roadway surface; disturbance will be limited to four feet square bore pits placed about every 300 feet.

16. The owners of the private portion of Summit Road are solely responsible for maintaining this section of the road.

17. The Opposing Defendants fear that Verizon's construction activities will result in deterioration of the roadway.

18. The policy of the State of California is to encourage widespread deployment of basic telephone service and advanced telecommunications services, and to remove any governmental or regulatory barriers to open and competitive markets so as to promote fair product and price competition.

19. There will be no change to the use of the surface property comprising the private section of Summit Road roadway with the proposed condemnation.

20. Verizon has agreed to avoid all existing and planned road traversing facilities, so the proposed condemnation would not affect the use of the subsurface property under the private portion of Summit Road.

21. The Implementation Requirements will substantially mitigate the harm to the roadway and, thus, to the landowners.

22. The public benefits of the IOF project, as set forth in Findings of Fact 9 through 13 above, are significant benefits.

23. Neither of the Opposing Defendants' two alternatives to the overall IOF project would extend basic telephone service or advanced telecommunication services into underserved areas.

24. Continuing to use only the AT&T contract would impose lower levels of reliability on Verizon's 145,000 customers, as compared to completing the IOF project.

25. Public right of way construction in the State Highway 101 corridor would impose traffic delay and inconvenience on dramatically more members of the traveling public than construction on Summit Road.

26. The IOF project, including Verizon's proposed condemnation along Summit Road, is located in a manner most compatible with the greatest public good and least private injury than the two IOF alternatives suggested by the Opposing Defendants

27. The 71 landowners should experience little, if any, discernible difference in Summit Road's conditions before and after completion of the IOF.

28. The November 27, 2008, meeting of two Verizon representatives with Commission President Peevey's advisor occurred before this proceeding was filed and was not intended to influence the post-filing outcome.

29. In its proceedings, the Commission routinely uses scoping memos to set issues and written direct testimony distributed prior to hearings. Cross-examination is limited to issues raised in the direct testimony. Such use conforms to the statute and the Commission's Rules of Practice and Procedure.

30. Verizon's plans for its facilities in Summit Road showed a sufficient level of detail for the Commission to make its determinations under § 625.

1. Verizon is a public utility.

2. In D.07-06-030, the Commission determined that Verizon is subject to intermodal competition in its provision of voice services.

3. In its August 22, 2007, decision in Case 1-04-CVO28324, the Santa Clara County Superior Court determined that § 625 "places the issue of whether Verizon's project would serve the public interest within the special competence of the PUC."

4. For purposes of today's decision, we should exercise jurisdiction and determine whether Verizon's proposed condemnation of a nonexclusive underground utility easement, and related temporary construction easement, serves the public interest as set forth in § 625.

5. The private five-mile portion of Summit Road is necessary to connect the extant sections of the IOF project extending from Gilroy and Los Gatos.

6. The surface of the property under which Verizon proposes to condemn a nonexclusive utility easement is already subject to reciprocal negative easements for a roadway among the landowners.

7. The Implementation Requirements set out in Attachment E should be adopted and the parties directed to comply with the measures.

8. The public benefits of the proposed condemnation outweigh the hardship to the landowners.

9. The IOF project is located in a manner most compatible with the greatest public good and least private injury.

10. Completing the IOF project will bring significant public benefits to 145,000 of Verizon's existing customers, and will extend landline telephone service to up 200 new customers and advanced telecommunications service to up to 144 new customers.

11. Completing the IOF project will enhance the availability of advanced telecommunications services and, through competition, promote lower prices and broader customer choice.

12. The public interest and necessity require Verizon's proposed condemnation of a nonexclusive underground utility easement in Summit Road, and a temporary construction easement to install the facilities.

13. The November 27, 2008, meeting with Commission President Peevey's advisor did not violate Rule 8.2(b) of the Commission's Rules of Practice and Procedure.

14. The proceedings referred to in the Commission's Rules of Practice and Procedure are Commission proceedings, not Superior Court proceedings.

15. CEQA Guideline Section 15304 exempts from CEQA review minor alternations to land. The proposed easements are minor alterations and therefore are exempt from CEQA.

16. The Commission publication, Information for Property Owners, Utilities, and the Public Regarding Senate Bill 177, does not create a requirement that utilities seeking to condemn property serve a copy of the complaint on all entities offering or proposing to offer the same type of service in the same geographic area.

17. The evidentiary hearings in this proceeding were conducted consistent with the Commission's procedural standards for hearings and afforded both parties a fair hearing to resolve the issues raised by the complaint.

18. The timing constraints set by § 625 require an expeditious hearing.

19. The public interest would be served by Verizon's proposed condemnation.

20. The Superior Court transcripts and testimony may be used only to support the propositions set forth in the Opposing Defendant's opening brief.

21. The Opposing Defendants' appeal presented no basis for substantive alteration of the Presiding Officer's Decision and no such alterations should be made.

22. Verizon's facilities in Summit Road will be dedicated to public use and will be subject to the Commission's ongoing supervision and regulation.

23. Today's order should be made effective immediately.

ORDER

IT IS ORDERED that:

1. Pursuant to Public Utilities Code Section 625, this Commission finds that the condemnation by Verizon California Inc. (Verizon) of a nonexclusive underground utility easement under the private section of Summit Road, and a temporary construction easement will serve the public interest.

2. Verizon shall comply with all provisions of the Implementation Requirements contained in Appendix E, if Verizon is successful in its Superior Court condemnation action.

3. The Director of the Communications Division shall provide guidance to the parties as necessary and, with such additional advice as may be necessary, has the authority to oversee and resolve the parties' disagreements regarding the Implementation Requirements.

4. The appeal of the Opposing Defendants, identified in Attachment B, is denied.

5. Case 07-11-019 is closed.

This order is effective today.

Dated June 12, 2008, at San Francisco, California.

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