XI. Assignment of Proceeding
John A. Bohn is the Assigned Commissioner and Michael J. Galvin is the assigned Administrative Law Judge in this proceeding.
1. A notice of the filing of the application appeared in the Daily Calendar on May 27, 2005.
2. There were no protests to this application.
3. A hearing is not required.
4. In prior decisions, the Commission authorized competition in providing interexchange services for carriers meeting specified criteria.
5. In prior decisions, the Commission authorized competition, by carriers meeting specified criteria, in providing local exchange telecommunications services within the service territories of Pacific, Verizon, SureWest, and CTC.
6. Applicant has a minimum of $100,000 of cash or cash equivalent that is reasonably liquid and readily available to meet its start-up expenses.
7. Applicant has sufficient additional cash or cash equivalent to cover any deposits that may be required by other telecommunications carriers in order to provide the proposed service.
8. Applicant possesses sufficient experience and knowledge to provide telecommunications services.
9. As part of its application and supplemental application dated December 7, 2005, Applicant submitted a draft of its initial tariff that contained the deficiencies identified in Attachment A to this decision. Except for these deficiencies, Applicant's draft tariffs complied with the Commission's requirements.
10. Applicant's outside plant construction differs from that of traditional NDIECs and Competitive Local Carriers (CLCs) in that Applicant's projects consist largely of deploying aerial facilities that cover short distances, widely geographical, and not interconnected in a traditional network.
11. Applicant proposed a modified CEQA review process for its future construction projects.
12. The Commission is the Lead Agency for this project under CEQA.
13. NewPath seeks Section 1001 facilities-based certificate authority to install and operate DAS facilities.
14. NewPath filed a supplement to its application on November 23, 2005, wherein it provided detailed information on the degree to which its planned outside construction implicates CEQA.
15. 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.
16. NewPath has proposed a procedure by which it would provide for both notice of the claimed exemption and for Commission staff review of said claim.
17. NewPath has provided a detailed list of existing CEQA categorical exemptions that would potentially apply to the installation of DAS facilities.
18. NewPath's proposed facilities-based project activities are indeed of a limited nature and would in almost all circumstances be highly likely to qualify for an exemption from CEQA.
19. NewPath's proposed process for reviewing the applicability of the exemptions for DAS facilities-based projects is adequate for the Commission's purposes as CEQA Lead Agency and in the public interest.
1. Applicant has the financial ability to provide the proposed service.
2. Applicant has sufficient technical expertise to operate as a telecommunications carrier.
3. Public convenience and necessity require the competitive local exchange services to be offered by Applicant, subject to the terms and conditions set forth herein.
4. It can be seen with certainty that Applicant's construction projects and mitigation measures detailed in its PEAs attached to its application will not have a significant effect on the environment.
5. Applicant should use its modified CEQA review process for its future construction projects.
6. The application should be granted to the extent set forth below.
7. Applicant, once granted a CPCN, should be subject to the applicable Commission rules, decisions, General Orders, and statutes that pertain to California public utilities.
8. Applicant's initial tariff filing should correct the deficiencies noted in its draft tariffs as indicated in Attachment A to this decision.
9. Applicant has shown good cause for granting its motion for a limited protective order and to file certain information under seal.
10. Because of the public interest in CLECs, the following order should be effective immediately.
ORDER
IT IS ORDERED that:
1. NewPath Networks, LLC's (Applicant) Certificate of Public Convenience and Necessity is expanded to include full facilities-based competitive local exchange and access services in the service territories of Pacific Bell Telephone Company, Verizon California Inc., SureWest Telephone Company, Citizens Telecommunications Company of California and NDIEC service for the entire state of California.
2. Applicant is authorized to file tariff schedules for the provision of competitive local exchange services (CLECs). Applicant may not offer such service until tariffs are on file. Applicant's initial filing shall be made in accordance with General Order (GO) 96-A, excluding Sections IV, V, and VI, and shall correct the deficiencies noted in Attachment A. The tariff shall be effective not less than one day after approval by the Commission's Telecommunications Division. Applicant shall comply with its tariffs.
3. The certificate granted and the authority to render service under the rates, charges, and rules authorized herein will expire if not exercised within 12 months after the effective date of this order.
4. The corporate identification number assigned to Applicant, U-6928-C, shall be included in the caption of all original filings with this Commission, and in the titles of other pleadings filed in existing cases.
5. Applicant shall comply with all applicable rules adopted in the Local Exchange Competition proceeding (Rulemaking (R.) 95-04-043/ Investigation 95-04-044), as well as all other applicable Commission rules, decisions, GOs, and statutes that pertain to California public utilities, subject to the exemptions granted in this decision.
6. Applicant shall comply with the requirements applicable to CLECs included in Attachment B to this decision.
7. Applicant is authorized to construct equipment to be installed in existing buildings or structures. For all other future construction projects Applicant shall use the modified California Environmental Quality Act (CEQA) review process set forth in Attachment E to this decision, pending any decision in R.00-02-003 that modifies this authority.
8. The staff of the Energy Division is authorized to review, process, and respond to Applicant's requests for exemptions from CEQA.
9. Applicant shall not engage in any construction activity related to a pending exemption request prior to receiving a Notice-to-Proceed (NTP) from the Energy Division staff.
10. Should the Energy Division staff be unable to issue an NTP confirming the applicability of a CEQA exemption to a specific Applicant activity, Applicant shall file a formal application with the Commission seeking a discretionary grant of construction authority for that specific activity.
11. All information placed under seal shall remain sealed for two years from the effective date of this decision. During that period information shall not be made accessible or disclosed to anyone other than the Commission staff except on the further order or ruling of the Commission, the Assigned Commissioner, the assigned Administrative Law Judge (ALJ), or the ALJ then designated as the Law and Motion Judge. If Applicant believes that it is necessary to keep this information under seal for a period longer than two years, Applicant shall file a new motion at least 30 days before the expiration date of this limited protective order.
12. Application 05-05-021 is closed.
This order is effective today.
Dated April 13, 2006, at San Francisco, California.
MICHAEL R. PEEVEY
President
GEOFFREY F. BROWN
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
Commissioners
ATTACHMENT A
List of deficiencies in tariffs filed by NewPath Networks, LLC in A.05-05-021 to be corrected in its Tariff Compliance Filing.
1. Sheet 6: include the actual service area map in the tariff.
2. Sheet 26: include the following in the CPC tariff: "Pursuant to Resolution T-16901, all telecommunications carriers are required to apply CPUC mandated Public Program surcharge rates (including (a) Universal Lifeline Telephone Service (ULTS) billings; (b) charges to other certificated carriers for services that are to be resold; (c) coin sent paid telephone calls (coin in box) and debit card calls; (d) customer-specific contracts effective before 9/15/94; (e) usage charges for coin-operated pay telephones; (f) directory advertising; and (g) one way radio paging) and the CPUC Reimbursement Fee rate (excluding (a) directory advertising and sales; (b) terminal equipment sales; (c) inter-utility sales) to intrastate services. For a list of the Public Program surcharges and Reimbursement Fee, and the amounts, please refer to the Pacific Bell (d.b.a. SBC California) tariffs.
3. Include sample forms in the CLC tariff.
(END OF ATTACHMENT A)
ATTACHMENT B
REQUIREMENTS APPLICABLE TO
COMPETITIVE LOCAL EXCHANGE CARRIERS
Applicant shall file, in this docket, a written acceptance of the certificate granted in this proceeding within 30 days of the effective date of this order.
Applicant is subject to the following fee and surcharges that must be regularly remitted per the instructions in Appendix E to Decision (D.) 00-10-028. The Combined California PUC Telephone Surcharge Transmittal Form must be submitted even if the amount due is zero.
a. The current 1.29% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the Universal Lifeline Telephone Service Trust Administrative Committee Fund (Pub. Util. Code § 879; Resolution T-16966, dated December 1, 2005, effective January 1, 2006);
b. The current 0.27% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California Relay Service and Communications Devices Fund (Pub. Util. Code § 2881; D.98-12-073 and Resolution T-16965, dated December 1, 2005, effective January 1, 2006);
c. The user fee provided in Pub. Util. Code §§ 431-435, which is 0.11% of gross intrastate revenue (Resolution M-4816, dated March 15, 2006, effective April 1, 2006);
d. The current 0.21% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California High Cost Fund-A (Pub. Util. Code § 739.3; D.96-10-066, pp. 3-4, App. B, Rule 1.C; Resolution T-16963, dated December 1, 2005, effective January 1, 2006);
e. The current 2.00% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California High Cost Fund-B (D.96-10-066, p. 191, App. B, Rule 6.F., Resolution
T-16964, dated December 1, 2005, effective January 1, 2006); andf. The current 0.13% surcharge applicable to all intrastate services except for those excluded by D.94-09-065, as modified by D.95-02-050, to fund the California Teleconnect Fund (D.96-10-066, p. 88, App. B, Rule 8.G, Resolution T-16888, dated December 1, 2005, effective January 1, 2006).
3. Applicant is a competitive local exchange carrier (CLC). The effectiveness of its future tariffs is subject to the schedules set forth in Appendix C, Section 4.E of D.95-12-056:
"E. CLCs shall be subject to the following tariff and contract filing, revision and service pricing standards:
(1) Uniform rate reductions for existing tariff services shall become effective on five (5) working days' notice. Customer notification is not required for rate decreases.
(2) Uniform major rate increases for existing tariff services shall become effective on thirty (30) days' notice to the Commission, and shall require bill inserts, or first class mail notice to customers at least 30 days in advance of the pending rate increase.
(3) Uniform minor rate increases, as defined in D.90-11-029, shall become effective on not less than (5) working days' notice to the Commission. Customer notification is not required for such minor rate increases.
(4) Advice letter filings for new services and for all other types of tariff revisions, except changes in text not affecting rates or relocations of text in the tariff schedules, shall become effective on forty (40) days' notice.
(5) Advice letter filings revising the text or location of text material which do not result in an increase in any rate or charge shall become effective on not less than five (5) days' notice to the Commission.
(6) Contracts shall be subject to GO 96-A rules for NDIECS, except interconnection contracts.
(7) CLCs shall file tariffs in accordance with PU Code § 876.'"
4. Applicant may deviate from the following provisions of GO 96-A: (a) paragraph II.C.(1)(b), which requires consecutive sheet numbering and prohibits the reuse of sheet numbers; and (b) paragraph II.C.(4), which requires that "a separate sheet or series of sheets should be used for each rule." Tariff filings incorporating these deviations shall be subject to the approval of the Commission's Telecommunications Division. Tariff filings shall reflect all fees and surcharges to which Applicant is subject, as reflected in 2 above.
5. Applicant shall file a service area map as part of its initial tariff.
6. Prior to initiating service, Applicant shall provide the Commission's Consumer Affairs Branch with the name and address of its designated contact person(s) for purposes of resolving consumer complaints. This information shall be updated if the name or telephone number changes, or at least annually.
7. Applicant shall notify the Director of the Telecommunications Division in writing of the date that local exchange service is first rendered to the public, no later than five days after service first begins.
8. Applicant shall notify the Director of the Telecommunications Division in writing of the date interLATA) service is first rendered to the public within five days after service begins, and again within five days after intraLATA service begins2
9. Applicant shall keep its books and records in accordance with the Generally Accepted Accounting Principles.
10. In the event Applicant's books and records are required for inspection by the Commission or its staff, it shall either produce such records at the Commission's offices or reimburse the Commission for the reasonable costs incurred in having Commission staff travel to its office.
11. Applicant shall file an annual report with the Director of the Telecommunications Division, in compliance with GO 104-A, on a calendar-year basis with the information contained in Attachment C to this decision.
12. Applicant shall file an affiliate transaction report with the Director of the Telecommunications Division, in compliance with D.93-02-019, on a calendar year basis using the form contained in Attachment D.
13. Applicant shall ensure that its employees comply with the provisions of Public Utilities (Pub. Util.) Code § 2889.5 regarding solicitation of customers.
14. Within 60 days of the effective date of this order, Applicant shall comply with Pub. Util. Code § 708, Employee Identification Cards, and notify the Director of the Telecommunications Division in writing of its compliance.
15. If Applicant is 90 days or more late in filing an annual report, or in remitting the surcharges and fee listed in 2 above, the Telecommunications Division shall prepare for Commission consideration a resolution that revokes Applicant's CPCN unless it has received written permission from the Telecommunications Division to file or remit late.
16. Applicant is exempt from General Order 96-A, subsections III.G(1) and (2), and Commission Rule of Practice and Procedure 18(b).
17. Applicant is exempt from Pub. Util. Code §§ 816-830.
18. Applicant is exempt from the requirements of Pub. Util. Code § 851 for the transfer or encumbrance of property whenever such transfer or encumbrance serves to secure debt.
19. If Applicant decides to discontinue service or file for bankruptcy, it shall immediately notify the Telecommunications Division's Bankruptcy Coordinator.
20. Applicant shall send a copy of this decision to concerned local permitting agencies not later than 30 days from the date of this order.
(END OF ATTACHMENT B)
ATTACHMENT C
ANNUAL REPORT
An original and two copies shall be filed with the California Public Utilities Commission, 505 Van Ness Avenue, Room 3107, San Francisco, CA 94102-3298, no later than March 31st of the year following the calendar year for which the annual report is submitted.
Failure to file this information on time may result in a penalty as provided for in §§ 2107 and 2108 of the Public Utilities Code.
Required information:
1. Exact legal name and U # of the reporting utility.
2. Address.
3. Name, title, address, and telephone number of the person to be contacted concerning the reported information.
4. Name and title of the officer having custody of the general books of account and the address of the office where such books are kept.
5. Type of organization (e.g., corporation, partnership, sole proprietorship, etc.).
If incorporated, specify:
a. Date of filing articles of incorporation with the Secretary of State.
b. State in which incorporated.
6. Number and date of the Commission decision granting the CPCN.
7. Date operations were begun.
8. Description of other business activities in which the utility is engaged.
9. List of all affiliated companies and their relationship to the utility. State if affiliate is a:
a. Regulated public utility.
b. Publicly held corporation.
10. Balance sheet as of December 31st of the year for which information is submitted.
11. Income statement for California operations for the calendar year for which information is submitted.
For answers to any questions concerning this report, call (415) 703-2883.
(END OF ATTACHMENT C)
ATTACHMENT D
CALENDAR YEAR AFFILIATE TRANSACTION REPORT
1. Each utility shall list and provide the following information for each affiliated entity and regulated subsidiary that the utility had during the period covered by the annual Affiliate Transaction report.
· Form of organization (e.g., corporation, partnership, joint venture, strategic alliance, etc.);
· Brief description of business activities engaged in;
· Relationship to the utility (e.g., controlling corporation, subsidiary, regulated subsidiary, affiliate);
· Ownership of the utility (including type and percent ownership)'
· Voting rights held by the utility and percent;
· Corporate officers.
2. The utility shall prepare and submit a corporate organization chart showing any and all corporate relationships between the utility and its affiliated entities and regulated subsidiaries in #1 above. The chart should have the controlling corporation (if any) at the top of the chart; the utility and any subsidiaries and/or affiliates of the controlling corporation in the middle levels of the chart and all secondary subsidiaries and affiliates (e.g., a subsidiary that in turn is owned by another subsidiary and/or affiliate) in the lower levels. Any regulated subsidiary should be clearly noted.
3. For a utility that has individuals who are classified as "controlling corporations" of the competitive utility, the utility must only report under the requirements of #1 and #2 above any affiliated entity that either (a) is a public utility or (b) transacts any business with the utility filing the annual report excluding the provision of tariffed services.
4. Each annual report must be signed by a corporate officer of the utility stating under penalty of perjury under the laws of the State of California (CCP 2015.5) that the annual report is complete and accurate with no material omissions.
5. Any required material that a utility is unable to provide must be reasonably described and the reasons the data cannot be obtained, as well as the efforts expended to obtain the information, must be set forth in the utility's annual Affiliate Transaction Report and verified in accordance with Section I-F of Decision 93-02-019.
6. Utilities that do no have affiliated entities must file, in lieu of the annual transaction report, an annual statement to the commission stating that the utility had no affiliated entities during the report period. This statement must be signed by a corporate officer of the utility, stating under penalty of perjury under the laws of the State of California (CCP 2015.5) that the annual report is complete and accurate with no material omissions.
(END OF ATTACHMENT D)
2 California is divided into ten LATAs), each containing numerous local telephone exchanges. InterLATA describes services, revenues and functions relating to telecommunications originating within one LATA and terminating in another LATA. IntraLATA describes services, revenues and functions relating to telecommunications originating within a single LATA.
