6. Discussion
We reject ATC's argument that the disclosure requirements of D.97-06-107 for expedited Registration Process applicants do not apply to CPCN applicants who do not use the expedited Registration Process. Regardless of which type of application is used, the issue is the same - the fitness of the applicant to provide telecommunications services in California. The question of fitness is broad and should be no different for the traditional CPCN applicant as opposed to the Registration Process applicant.4
We commend CPSD for its diligence in carefully researching the background of CPCN applicants and bringing questionable behavior regarding fitness of applicants to the Commission's attention. However, we do not find that the matters brought to our attention by CPSD are a sufficient basis to deny ATC's application.
Our rules require disclosure of judgments or verdicts involving violations of the California Business and Professional Code and for consumer misrepresentations. ATC's failure to disclose the civil judgment against American Tower for violations of California environmental law and the voluntary agreement with EPA, do not comprise strict Rule 1.1 violations, because the Commission's rules require reporting of judgments or verdicts involving violations of the Bus. & Prof. Code § 1700 et seq. or consumer misrepresentations but not these types of violations. However, ATC's omission of this information is disturbing in light of the fact that applicant seeks full facilities-based authority. Also, we do not take lightly American Tower's transgressions with the County of Santa Clara in 2001. While the voluntary agreement with EPA (see Section 5.2 above) allows American Tower to claim that it was not sanctioned by EPA, nevertheless there would have been sufficient cause for EPA to have initiated an action against American Tower for failing to comply with environmental requirements. Furthermore, this matter with EPA is particularly significant since ATC's application now before us seeks authorization of a procedure for expedited review of claimed exemptions from CEQA.
On the other hand, we take into consideration that in 2005 American Tower entered into a voluntary agreement with EPA to institute a self-policing procedure to address environmental requirements. Thus, American Tower has demonstrated a willingness to seriously address environmental requirements as a matter of corporate policy. Accordingly, we conclude that ATC's application should be granted on condition that ATC institutes procedures within the company for strict compliance with CEQA requirements. Should we find that ATC is less than serious about compliance with CEQA requirements or has not strictly followed our CEQA rules, we will not hesitate to take the steps necessary to withdraw ATC's operating authority.
Regarding the 2003 bankruptcy of Verestar Inc. issue raised by CPSD, ATC explained that Verestar held no California authority, was sold in 2004, and was not an IEC in California.5 While some officers of ATC were also affiliated with Verestar at the time of the bankruptcy, there is no indication that any of them were found either criminally or civilly liable for a violation of §§ 17000 et. seq. of the California Business and Professional Code or for actions involving misrepresentation to consumers.6 Therefore, we do not find the failure to disclose the Verestar bankruptcy to be a Rule 1.1 violation or a sufficient basis to deny ATC's application.
Regarding CPSD's assertion that ATC should have disclosed ongoing or pending civil litigation, including the securities class action suit, we are not persuaded that ATC was required to include information on pending litigation with its application. Nothing in our rules requires disclosure of such actions or pending civil litigation, and we do not consider pending civil litigation as a basis to determine fitness to provide telecommunications services in California.
4 The Commission's objective in adopting the expedited Registration Process was to allow applicants that have no history of questionable behavior and that present noncontroversial applications to rely on an expedited and inexpensive means of securing telecommunications operating authority. If applicants do not meet these standards, they need to use the more extensive (CPCN) application process. (Rulemaking to Establish a Simplified Registration Process for Non-Dominant Telecommunications Firms, D.97-06-107, 73 CPUC2d 288, 293.) The questions that must be answered under the expedited Registration Process, which ATC argues are not required to be addressed by CPCN Applicants, are:
Question 7 of the Registration Process application asks the applicant
to state that no officer, director, general partner, or owner of applicant
had acted in that capacity with an interexchange carrier that 1) filed for
bankruptcy; 2) had a judgment or verdict involving a violation of Bus. &
Prof. Code § 1700 et seq. or consumer misrepresentation; or 3) is under
investigation for similar violations.
Question 8 of the Registration Process application asks the applicant to
state that neither applicant nor an officer, director or owner of applicant
has been sanctioned by a state regulatory agency for failure to comply
with that agency's rules or orders.
5 According to ATC, Verestar Inc. was a reseller of satellite transponder space capacity and provider of teleport (earth station uplink/downlink) services, and was not an IEC in California.
6 Question 7, Application for Registration. Also, see D.97-06-107.
