2. NextG's Petition for Modification
In its petition for modification, NextG seeks to establish a review and approval process, comparable to the existing advice letter process, when protests are received to NPCs.2 Cities concur that some modification to the NPC process is necessary but propose that the process require an advice letter that must be served on local government agencies where any construction is planned.3 Cities also recommend that if a protest is based on disputed issues of law or fact, the Commission should order the filing of a formal application. NextG opposes Cities' recommendations.4
Although NextG and Cities concur that changes to the NPC process are necessary, they disagree on the scope of those changes. NextG proposes adopting one aspect of the advice letter process, the use of a resolution for protested NPCs, and the Cities propose replacement of the NPC process with the use of advice letters. In this application proceeding, only the NPC process for NextG was at issue, although comparable procedures are in place for other distributed antenna system (DAS) carriers. Therefore, any changes to the NPC process adopted in this proceeding would not affect other DAS carriers. If changes are warranted, they should be adopted for all DAS carriers. As a result, this proceeding is not the appropriate forum for addressing generic changes to the NPC process.
Rulemaking (R.) 06-10-006 is the appropriate proceeding to address incorporation of any aspect of the advice letter procedure into the NPC process, since it is addressing the application of CEQA to all telecommunications carriers.5 An expedited procedure for other construction is within the scope of that rulemaking; the April 18, 2008 scoping memo in that rulemaking includes the following issues:
· What type of public notice should an expedited procedure for review and approval of telecommunications construction projects claimed to be exempt from CEQA review [require]?
· Should an expedited procedure for review and approval of telecommunications construction projects claimed to be exempt from CEQA include a process for resolving protests to claimed exemptions? If so, what should this process be?
The telecommunications CEQA rulemaking will address how to resolve protests to NPCs and what notice carriers should provide of their submission of an NPC. Because R.06-10-006 is the appropriate proceeding to resolve the issues raised in the petition for modification, we will dismiss NextG's petition without prejudice.
2 NextG filed its petition on November 1, 2007.
3 Cities filed their partial opposition on December 3, 2007.
4 NextG filed its response on December 14, 2007.
5 As noted in D.07-04-045, the NPC procedure was to remain in place unless we adopted different requirements in R.06-10-006. NextG is a party in R.06-10-006 and has filed comments with the "Joint CLECs." Cities also are parties in the rulemaking and have filed joint comments with other parties.
