6. California Environmental Quality Act (CEQA)

The CEQA requires that the Commission act as the designated lead agency for this project to 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.

In its application, Digital asserts that it intends to install its facilities, such as fiber optic cable and related equipment, primarily in existing conduits and other existing buildings and infrastructure. Digital further asserts that it may, however, need to undertake outside plant construction activities in order to serve some customer locations if, for example, there are no existing conduits or there is inadequate space in the existing conduits. Such activities may include trenching for the installation of underground conduit and the installation of new utility poles, equipment shelters, or other above-ground support structures. Digital asserts that it expects that such construction ordinarily would be very small in scale, consisting of construction of short conduit extensions or stubs and installations of a limited number of poles or other above-ground facilities. Further, such construction generally would occur in existing roadways or other previously-developed and disturbed rights-of-way. Digital asserts that specific projects are unknown at this time.

These activities may fall within the classes of projects that are exempt from CEQA and for which neither an Environmental Impact Report nor a Negative Declaration is required.

Digital requests leave to utilize a procedure for expedited review of its projects once it is aware of a specific site(s) in which it plans construction. The proposed procedure generally tracks the expedited review process that we have approved for other carriers.⁴ Such a process will expedite CEQA review and is appropriate for any type of construction that is categorically exempt. By establishing this expedited review process, we are able to review the information on a specific project to confirm that it is categorically exempt from CEQA or explain why further environmental review is required. At the same time, the proposed CEQA review process will enable Digital to undertake construction of its projects in a timely manner.

Similar to the procedure approved for other carriers,⁵ the following procedure will be used to obtain Commission approval of Digital's claimed CEQA exemptions for proposed construction projects:

· Digital will provide the Commission's Energy Division with:

o A detailed description of the proposed project, including:

· Customer(s) to be served;

· The precise location of the proposed construction project; and

· Regional and local site maps.

o A description of the environmental setting, to include at a minimum:

· Cultural, historical, and paleontological resources;

· Biological resources; and

· Current land use and zoning.

o A construction workplan, to include:

· Commission Preconstruction Survey Checklist-Archaeological Resources;

· Commission Preconstruction Survey Checklist-Biological Resources;

· A detailed schedule of construction activities, including site restoration activities;

· A description of construction/installation techniques;

· A list of other agencies contacted with respect to siting, land use planning, and environmental resource issues, including contact information; and

· A list of permits required for the proposed project.

o A statement of the CEQA exemption(s) applicable to the proposed project; and

o Documentation and factual evidence sufficient to support a finding that the claimed exemption(s) is (are) applicable.

o The Energy Division will review Digital's submission for the proposed project to confirm that the claimed exemption(s) from CEQA are applicable.

o Within 21 days from the date of Digital's submittal, the Energy Division will issue either:

· A Notice to Proceed (NTP) and file a Notice of Exemption with the State Clearinghouse, Office of Planning and Research, or

· A letter of denial stating the specific reasons why the claimed exemption(s) are not applicable to the proposed project.

We have reviewed the application and find that:

· Digital's proposed facilities-based project activities are very limited;

· These activities would in almost all circumstances be very likely to qualify for an exemption from CEQA; and

· The proposed process for reviewing the applicability of CEQA exemptions to Digital's facilities-based projects is not only adequate for the Commission's purposes as CEQA Lead Agency, but is also in the public interest because it enables Digital to respond in a timely manner to requests for service without the delay or burden of a full CEQA review when such review is unnecessary.

We therefore authorize Digital to follow the process described in the order herein, for Commission review of claimed CEQA exemptions for construction projects undertaken pursuant to Digital's full facilities-based authority with the following modifications related to the Commission's Energy Division review and approval or disapproval of the proposed exemptions.

· If the Energy Division disapproves Digital's claimed CEQA exemption(s), and issues a letter of denial to Digital, Digital must either re-design the specific project and facilities and then reapply for a finding of exemption from CEQA, or file a formal application with the Commission seeking the requisite approval and full CEQA review, before commencing any construction activities.

Digital shall not perform any full facilities-based construction activities without first obtaining an NTP from the Energy Division or authorization by the Commission after the requisite environmental review.

We have previously determined in Rulemaking 95-04-043/
Investigation 95-04-044 that the public convenience and necessity require that competition be allowed in the provision of competitive local exchange service. Granting this application will benefit the public interest by expanding the availability of technologically advanced telecommunications services within the state.

⁴ See D.10-12-004 (Mobilitie, LLC); D.08-12-027 (ATC Outdoor DAS); D.10-04-038 (SnowCrest Telephone, Inc.); D.10-01-014 (Pacific Lightwave); D.09-11-021 (Freedom Telecommunications, Inc.); D.09-07-043 (PublicWireless, Inc.).

⁵ See e.g., D.06-04-030 (NewPath Networks, LLC); D.06-04-063 (ClearLinx Network Corporation); D.06-06-047 (Sunesys, Inc.); D.08-12-027 (ATC Outdoor DAS, LLC); D.07-04-045 (NextG Networks of California, Inc.); D.07-08-026 (Broadband Associates International); and D.07-11-028 (Trillion Partners, Inc.).