3. Cities' Petition to Modify
In their petition to modify, Cities request that the NPC procedure be modified to require NextG to include any proposed construction consisting of a DAS, including the limited facilities-based part of any project (installation of facilities in or on existing buildings and structures).6 NextG characterizes the request to change the definition of full facilities-based authority as an untimely challenge to the decision granting limited facilities-based authority, D.03-01-061, and states this restriction would be placed unfairly on NextG and not on its DAS competitors. 7
In their reply, Cities contend they were unaware of how the NPC operated and did not realize that certain construction, including installing facilities on existing poles under limited facilities-based authority, would not be part of the NPC process.8 Cities allege the NPC process is deficient under CEQA, because it fails to consider all planned construction. NextG disagrees. NextG states that the Commission has required the NPC process only for full facilities-based construction and has permitted DAS carriers to proceed with limited facilities-based construction without CEQA review.9
Cities assert their petition for modification is the proper way to review the NPC process for limited facilities-based construction for NextG. We disagree. NextG received limited facilities-based local exchange authority in D.03-06-031. That authority permitted construction projects in or on existing buildings and structures without environmental review.10 In D.06-07-036, we reaffirmed our earlier conclusion that limited facilities-based construction projects required no CEQA review. In this proceeding, we granted NextG full facilities-based authority and extended the NPC process, already in place for two other DAS carriers, to NextG's full facilities-based construction. Cities' proposal is not a request for modification of that process; instead, it is a request to expand the process to construction addressed in other proceedings. We decline to revisit the necessary CEQA review for limited facilities-based construction in this proceeding. We will briefly address Cities' contentions that there is a cumulative environmental effect from limited facilities-based construction, that excluding such construction from the NPC process is piecemealing, and that the NPC process does not comply with CEQA.
Cities state there are potential environmental impacts from the installation of antennas on utility poles. Cities note that General Order 95 requires that antennas be located at least two feet from the center of the pole. NextG's antennas in San Francisco are installed almost five feet from the center of the pole and rest on thick cross arms supported by braces. Cities also note there are three additional boxes attached to the pole below the antenna. Cities state the cumulative effect of allowing such installations, plus the potential for installation in historic districts or in front of historic buildings, could have an environmental impact.11
We have consistently concluded there is no need for environmental review of projects that consist of NextG's placement of antennas and microcells on utility poles. (See D.03-01-061, D.06-01-006, and D.06-07-036.) In D.06-07-036, we stated a complaint was the appropriate procedural vehicle to raise any contentions that NextG's equipment placement potentially could result in environmental harm.12 A petition for modification is not the appropriate means to resolve concerns about cumulative or other environmental impacts from NextG's placement of antennas and microcells.
Cities allege that NextG is able to piecemeal environmental review when projects include construction under both limited facilities-based and full facilities-based authority. NextG submits an NPC for the facilities-based component of a project, because the NPC process was limited to facilities-based construction for DAS carriers. We are addressing piecemealing in the telecommunications CEQA OIR, and concerns about piecemealing should be raised there.13 In the interim, NextG should provide in the NPC all information on projects that include facilities-based and limited facilities-based construction. CEQA staff needs information on the whole project in order to assess NextG's claimed exemption for the facilities-based portion of the project.
Cities contend the Commission does not comply with CEQA in the use of the NPC process, because projects with limited facilities-based and full facilities-based construction are not reviewed in their entirety. NextG responds that the Commission, both in the DAS carriers' use of the NPC process and in the construction of electric transmission facilities has recognized the distinction between projects requiring CEQA review and projects that are exempt from CEQA review. We also are addressing whether our policies conform to CEQA in the telecommunications CEQA rulemaking.14 Any concerns about whether expedited CEQA review processes, including the NPC process, comply with CEQA should be raised in that rulemaking. We find no merit in Cities' request to expand the NPC process to limited facilities-based construction projects and deny Cities' petition to modify. Cities' additional concerns about the NPC process should be raised in the telecommunications CEQA rulemaking.
6 Cities filed their petition to modify on December 3, 2007.
7 NextG filed its response on January 3, 2008.
8 Cities filed their reply on January 14, 2008.
9 NextG filed its response to Cities' reply on January 25, 2008.
10 The City of San Francisco challenged this authority in Case (C.) 05-03-010.
11 NextG states Cities have improperly alleged facts and have failed to authenticate the attached photographs with a declaration. Cities provide a declaration in their reply to NextG.
12 Complaints are appropriate for allegations of first impression concerning environmental harm.
13 In R.06-10-006, we have asked: How can the Commission avoid the "piecemealing" or "segmenting" of telecommunications construction projects, including projects claimed to be CEQA-exempt, for the purposes of environmental review?
14 In R.06-10-006, we have asked: Do the Commission's current policies and procedures for environmental review of telecommunications construction projects fully comply with the requirements of CEQA? If not, how can the Commission improve its CEQA policies and procedures in order to do so?
