In 1993, this Commission articulated a clear policy that all telecommunications markets should be open for competition.24 The Legislature followed suit, adopting Public Utilities Code Section 709.5, which ordered the opening of all markets to competition. The Commission implemented this statute and opened the local telecommunications markets to competition in D.95-07-054.25 The federal government subsequently adopted the Telecommunications Act of 1996.
The opening of local telephone markets to competition in the 1990s required the Commission to begin granting CPCNs to new carriers. These actions raised the issue of how the Commission can best discharge its obligations under CEQA when granting authority to provide local telephone service. There are incumbent local exchange carriers (ILECs), competitive local carriers (CLCs), non-dominant interexchange carriers (NDIECs), and wireless carriers, and different CPCN processes apply to these different types of carriers.
We initially established rules for granting CPCNs to facilities-based CLCs in D.95-07-054. Different rules apply to NDIECs.26 Under the procedures established in D.95-07-054, we processed a group of 40 CLC CPCN candidates who filed petitions for CPCN approval by September 1, 1995, and granted qualifying CLCs authority, effective January 1, 1996, to provide facilities-based competitive local exchange service. The rules in D.95-07-054 required that all CLCs comply with the provisions of CEQA pursuant to Commission Rules, and that the Commission perform CEQA review for each CLC filing at the level it determined to be appropriate.
As part of the approval process of the initial group of facilities-based CLCs, we prepared and approved a mitigated negative declaration as called for under CEQA. We found that, with the incorporation of appropriate mitigating measures as identified in the negative declaration, the proposed CLC projects would not have a significant adverse environmental impact.27 We adopted this consolidated mitigated negative declaration in conjunction with our approval of the CLC CPCNs in D.95-12-057.28
We advised prospective CLCs that any filings for CLC operating authority made after September 1, 1995, would be treated as standard applications and processed in the normal course of the Commission's business.
In D.96-12-020, we instituted a quarterly processing cycle for granting CPCN authority to facilities-based CLCs in order to streamline the approval process.29 For facilities-based CLCs with environmental impacts similar to those CLCs already approved in prior decisions, the CEQA review process required the quarterly preparation of a consolidated mitigated negative declaration. It is this process that has been referred to as the "batch negative declaration" process. If we found, upon review, that a negative declaration was unsuitable because of the nature of construction or installation of facilities being proposed by a given CLC, we retained the discretion to prepare an EIR.
In D.99-12-050, we revised our administrative procedures for the filing and processing of CLCs CPCN request for facilities-based authority, because of challenges we faced with the batch mitigated negative declaration process.30 Rather than preparing consolidated negative declarations, we began performing specific environmental reviews of each CLCs' proposed projects.31
Thus, as of January 1, 2000, we reviewed, on an individual basis, each application by a CLC before us. If we determined that a negative declaration or an EIR was necessary, we prepared it on an individual, project-specific basis. We recognized in D.99-12-050 that this change in our approach to CEQA review for CLC CPCN applications raised concerns for local competition, and we stressed the need to further address this issue.32 Less than two months after the issuance of D.99-12-050, we opened R.00-02-030 to address, among others, this concern.
Recently, as we have issued CPCNs for facilities-based networks, we have clarified a process by which carriers may claim that their projects are categorically exempt under CEQA. We first applied this new process for claiming exemptions in D.06-04-030, issued April 13, 2006, where we granted NewPath communications a modification of its CPCN to offer facilities based service.33 In that decision, we laid out a process for carriers to claim an exemption from CEQA. We have applied the same procedural requirements to other applications for CPCNs or modifications to CPCNs that we have granted since April 2006 on an ad hoc basis pending the development more comprehensive policy.
Under this recent process, if a carrier wishes to engage in full facilities-based construction activities and believes that these activities are exempt from CEQA, the carrier shall first apply to the Commission's Energy Division staff for a determination of exemption from CEQA using the following procedure:
· Applicant provides 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, including at a minimum:
· Cultural, historical, and paleontologic resources;
· Biological resources; and
· Current land use and zoning.
o A construction workplan, including:
· 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) claimed to apply to the proposed project; and
o Documentation supporting the finding of exemption from CEQA.
The Commission's Energy Division then reviews the submittal and notifies the applicant, within 21 days, of either its approval or its denial of the applicant's claim of exemption. If the Commission's Energy Division approves the applicant's claimed CEQA exemption(s), Commission staff prepares a Notice to Proceed (NTP) and files a Notice of Exemption with the State Clearinghouse at the Office of Planning and Research.
However, if the Commission's Energy Division disapproves the applicant's claimed CEQA exemptions, it will issue a letter stating the specific reasons that the claimed CEQA exemptions do not apply to the proposed project In this case, the applicant must either re-design the specific project and facilities and 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 facilities-based construction activities. Applicants are not allowed to engage in any construction activity relating to a pending CEQA exemption request before receiving an NTP from the Commission's Energy Division staff. The CPCNs the Commission is currently issuing make it clear that the requirements regarding CEQA may be changed if the Commission adopts new policies or processes.
24 See Enhancing California's Competitive Strength: A Strategy for Telecommunications Infrastructure: A Report to the Governor, California Public Utilities Commission, November 1993. This report may be found at the following URL: http://haven.com/calstrat.html
25 D.95-07-054, 1995 Cal. PUC LEXIS 604.
26 D.97-06-107, Registration Process for NDIECs (1997), 1997 Cal. PUC LEXIS 535.
27 D.95-12-057, Opinion in Order Instituting Rulemaking on the Commission's Own Motion into Competition for Local Exchange Service; Order Instituting Investigation on the Commission's Own Motion into Competition for Local Exchange Service, 1995 Cal. PUC LEXIS 967, *11-*12.
28 Id., *39-*40.
29 D.96-12-020, Opinion in Order Instituting Rulemaking on the Commission's Own Motion into Competition for Local Exchange Service; Order Instituting Investigation on the Commission's Own Motion into Competition for Local Exchange Service, 1996 Cal. PUC LEXIS 1081, *1.
30 D.99-12-050, 1999 Cal. PUC LEXIS 787, *5.
31 Id., *5-*6.
32 Id., *5-*6.
33 D.06-04-030, Application of NewPath Networks, LLC (U-6928-C) for a Modification to its Certificate of Public Convenience and Necessity in Order to Provide Competitive Local Exchange, Access and Non-Dominant Interexchange Services, 2006 Cal. PUC LEXIS 118.