D. Comments on Proposed Decision

The draft decision (DD) of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 14.2 of the Rules of Practice and Procedure. Comments on the DD were submitted by CPSD on October 4, 2006, and reply comments were submitted by Qwest on October 10, 2006. Both sets of comments dealt with small technical errors in the DD, which have been corrected herein at appropriate points in the text.

Findings of Fact

1. The OII alleged that Qwest's failure to conduct research on known cultural resources before commencing construction in 1999 in Santa Clara, San Luis Obispo and Los Angeles Counties necessitated an investigation into Qwest's compliance with the conditions set forth in applicable Commission orders.

2. The order directing Qwest to stop work on all construction, which was issued by the Energy Division on December 16, 1999, was lifted on February 17, 2000, the day after Qwest agreed to abide by the cultural resource protocols.

3. CSD was not able to engage a consulting archaeologist to offer it advice in this proceeding until December 2000.

4. Because of CSD's difficulties in hiring a consulting archaeologist, the Commission issued D.01-02-067 on February 22, 2001, which extended the one-year deadline for this proceeding pursuant to Pub. Util. Code § 1701.2(d).

5. The parties submitted briefs on what they contended were threshold jurisdictional issues in June 2001.

6. In September 2003, CPSD and the Salinan Nation jointly renewed the request that a ruling be issued on the threshold jurisdictional issues briefed in June 2001.

7. On December 30, 2003, the Assigned Commissioner and the ALJ issued a joint ruling which held that in view of the state of the record, it was not possible to rule either that (a) Qwest had conceded at a December 21, 1999 meeting that all of the construction at issue took place under the authority granted (and subject to the conditions set forth) in D.97-09-110, or (b) that the advice letter process used by Qwest's predecessor in 1994 to convert the authority granted in D.93-10-018 into authority to offer facilities-based services carried with it any authority to construct telecommunications facilities.

8. At the March 10, 2004 PHC, Qwest announced that one of its defenses against the allegations in the OII would be that the Commission lacked subject matter jurisdiction over the facilities in question, because they were interstate facilities constructed pursuant to a grant of authority from the FCC under 47 U.S.C. § 214.

9. At the March 10, 2004 PHC, at the suggestion of the ALJ, the parties agreed to a two-phase hearing schedule. Under this schedule, the first phase would be devoted to the questions of whether (a) the advice letter process used to convert the CPCN granted in D.93-10-018 into authority to offer facilities-based services conferred any authority on Qwest to construct telecommunications facilities, and (b) whether the Commission lacked jurisdiction over the Qwest construction because it related to interstate facilities build pursuant to a grant of FCC authority under 47 U.S.C. § 214. If Qwest could not establish either of these things, then a second phase of hearings would consider what penalties were appropriate for Qwest's construction work undertaken in the absence of Commission authority.

10. At the March 10, 2004 PHC, a procedural schedule for the first phase of hearings, as described in the foregoing Finding of Fact (FOF), was adopted.

11. On June 29, 2004, Qwest's new counsel filed four motions going to the validity of the proceeding. They consisted of (a) a motion to dismiss the proceeding, (b) a motion to suspend the procedural schedule adopted at the March 10, 2004 PHC, (c) a motion to refer the proceeding to mediation, and (d) a motion to require the preparation of a final scoping memo, including a precise definition of the scope of the proceeding.

12. On July 12, 2004, the ALJ issued a ruling suspending the due date for Qwest's testimony in the first phase of hearings, and scheduling a PHC for July 29, 2004.

13. At the July 29, 2004 PHC, the ALJ told the parties that his preliminary reaction to Qwest's arguments that (a) the extension order in D.01-02-067 was invalid, (b) the proceeding should be dismissed under the doctrine of administrative laches due to the passage of time since issuance of the OII, and (c) the scope of the proceeding was so vague that Qwest could not reasonably be expected to prepare opening testimony for the first phase of hearings as described in FOF 10, was that all of these arguments lacked merit.

14. At the July 29, 2004 PHC, the ALJ encouraged the parties to discuss a settlement of the proceeding after reviewing each other's archaeological reports concerning the damage, if any, caused by the Qwest construction at issue.

15. In February 2005, under ground rules established by the ALJ, Qwest took the depositions of the three authors and four peer reviewers connected with the archaeological study prepared by ARC for CPSD concerning the impacts of Qwest's construction.

16. On April 2005, CPSD took the deposition of the Qwest consultant who had authored the archaeological report submitted by Qwest concerning the impacts of its construction activities.

17. In the Spring of 2005, Qwest, CPSD, and the Salinan Nation commenced settlement discussions concerning this proceeding. In the Summer of 2005, CPSD and Qwest agreed to continue the settlement discussions without the participation of the Salinan Nation.

18. At a PHC held on December 19, 2005, CPSD and Qwest reported that they were making progress in their settlement discussions, and that they were optimistic they could reach a settlement.

19. The settlement agreement set forth in Attachment A was filed on May 30, 2006.

20. On June 29, 2006, the Salinan Nation filed comments stating that although it would not oppose the settlement agreement, it was disappointed with the agreement.

21. Under the settlement agreement in Attachment A, Qwest agrees to pay $150,000 to the State's General Fund, as well as an additional $30,000 to be distributed at Qwest's election among one or more of three organizations that promote awareness of Native American history and archaeology in California.

22. In addition to the payments described in the foregoing FOF, the settlement agreement requires Qwest to (a) continue abiding by the cultural resource protocols Qwest entered into on February 16, 2000, (b) conduct a refresher course concerning these cultural resource protocols for all of Qwest's California construction employees within six months after Commission approval of the settlement, and (c) offer training on the cultural resource protocols within the same time frame to any construction contractor Qwest is using in California.

23. In addition to the foregoing terms, the settlement agreement requires Qwest, beginning on the first day of the first full quarter following Commission approval of the settlement, to file quarterly reports with the Telecommunications Division summarizing Qwest's future construction projects.

24. The settlement agreement set forth in Attachment A resolves all of the issues in this proceeding.

Conclusions of Law

1. The proposed settlement set forth in Attachment A is reasonable in light of the whole record.

2. The proposed settlement is consistent with law.

3. The proposed settlement is in the public interest.

4. The proposed settlement satisfies the requirements of Rule 12.1(d) for approving settlements.

5. The proposed settlement set forth in Attachment A should be approved without condition.

6. Investigation 00-03-001 should be closed.

ORDER

IT IS ORDERED that:

1. The Settlement Agreement and Release appended to this decision as Attachment A is approved.

2. The Commission preliminarily determined that hearings would be required in this proceeding. Hearings have not been held, and the preliminary determination has been changed from "Yes" to "No."

3. Investigation 00-03-001 is closed.

This order is effective today.

Dated October 19, 2006, at Fresno, California.

Previous PageTop Of PageGo To First Page