VI. California Environmental Quality Act (CEQA)

The California Environmental Quality Act (CEQA, Public Resources Code Section 21000 et seq.) applies to discretionary projects to be carried out or approved by public agencies. A basic purpose of CEQA is to "inform governmental decision-makers and the public about the potential significant environmental effects of the proposed activities." (Title 14 of the California Code of Regulations, hereafter CEQA Guidelines, Section 15002.)

Because the Commission must issue a discretionary decision (i.e., grant Section 1001 certificate authority) without which the proposed activity will not proceed, the Commission must act as either a Lead or Responsible Agency under CEQA. The Lead Agency is the public agency with the greatest responsibility for supervising or approving the project as a whole (CEQA Guidelines Section 15051(b)). The Commission is the Lead Agency for this project under CEQA. CEQA requires that the Commission consider the environmental consequences of a project that is subject to its discretionary approval.

NewPath seeks authority in this application to modify its existing limited facilities-based CPCN to include full facilities-based competitive local exchange, access and non-dominant interexchange service. NewPath initially filed this application on May 25, 2005, and filed supplements to its application on November 23, 2005 and December 7, 2005. In its November supplement, NewPath provides additional information to address its compliance with Rules of Practice and Procedure 17.1 and the degree to which its planned outside construction implicates CEQA.

NewPath outlines its projected business activities and describes the types of facilities; its geographical location and extent; and provides adequate information to determine the degree of impact on the environment from such activities and the degree to which such activities and facilities may be exempt from further CEQA review. Applicant's facilities will carry the radio frequency traffic of Wireless Service Providers (WSPs) between its newly-deployed shared distributed antenna systems (DAS) and WSPs' existing facilities.

NewPath submits that its business activities associated with the installation of its DAS facilities are of such a limited nature that they should potentially qualify for a number of categorical exemptions available under CEQA. NewPath supports its case by providing a description of the types of facilities involved in a DAS network; and by Attachment E which provides both a proposed procedure by which NewPath would provide notice of the claimed exemption, and a detailed list of existing CEQA categorical exemptions that would apply to its installation of DAS facilities. The procedure proposed by NewPath would involve a submission of the following to the Commission CEQA staff: a detailed description of the proposed project; a description of the environmental setting; a construction workplan; a statement of the CEQA exemption(s) applicable to the proposed project; and documentation supporting the finding of an exemption.

Applicant's proposal would provide the Commission CEQA staff with a 21-day notice of a claim of exemption from CEQA; the staff would then have the opportunity to review the submittal and notify NewPath either of its approval or denial of its claim for exemption from CEQA review. An approval would result in the staff preparing a Notice to Proceed and a filing of a Notice of Exemption with the State Clearinghouse, Office of Planning and Research; a denial would result in NewPath either re-designing the specific project and facilities, or filing a formal application with the Commission seeking the requisite approval and full CEQA review.

This application makes clear that Applicant's facilities-based DAS projects will consist of: predominantly aerial fiber optic facilities; the installation of compact "nodes" on existing utility poles; a minor amount of ground disturbance (100 - 200 feet) associated with connecting equipment enclosures on private property with the aerial right-of-way; aerial fiber runs of short distances, rarely exceeding 1,000 feet in length; all facilities to be located within public utility rights-of-way (with the exception of ingress and egress to and from); and projects and facilities that are widely separated geographically.

We have carefully reviewed this application and supplements and find that (1) applicant's proposed facilities-based project activities are indeed of a limited nature; (2) they would in almost all circumstances be highly likely to qualify for an exemption from CEQA; and (3) that the proposed process for reviewing the applicability of the exemptions for Applicant's DAS facilities-based projects is not only adequate for the Commission's purposes as CEQA Lead Agency, but is also in the public interest in that NewPath would be able to respond in a timely manner to WSPs requests for service without the delay or burden of a full CEQA review where it is not necessary.

A generic review of CEQA as it applies to jurisdictional telecommunications utilities is being undertaken in Rulemaking 00-02-003. To the extent a decision in that rulemaking proceeding modifies the CEQA process being adopted in this decision, applicant shall conform its CEQA process to that decision.