3. Facilities-Based CPCN
The requirements for the expanded CPCN authority requested by NextG here are the same as those previously met by NextG for its existing CPCN (U-6754 C), except for California Environmental Quality Act (CEQA) requirements.1 We have previously granted the expedited review process requested by NextG to two competitors, ExteNet and CA-CLEC LLC in D.06-04-063 and D.06-04-067. Therefore, we must determine whether NextG's proposed construction and process for requesting determinations of exemption from CEQA by Commission staff meet the requirements of CEQA and similarly should be approved.
NextG seeks authority in this application to modify its existing CPCN to include full facilities-based competitive local exchange service. NextG states that the location of its projects is not known at this time but that they will be geographically dispersed. NextG states that the proposed construction activities include: (1) new pole installations, (2) small-scale trenching and underground conduit installation, and (3) micro-trenching and installation of laterals. NextG states these activities are projects which are categorically exempt from CEQA.
Both in its application and in the record in this proceeding, NextG has demonstrated that its proposed projects take place in existing rights-of-way and in utility easements. NextG will install a limited number of new poles, will engage in small-scale trenching and underground conduit installation of up to five miles, and will do micro-trenching and installation of laterals of up to 25 feet. NextG states these activities fall within the extensions, minor alternations and infill exemptions to CEQA, so neither an environmental impact report nor a Negative Declaration is required.
NextG proposes the following procedure for obtaining Commission approval of its claimed CEQA exemptions for proposed construction projects and for comparable activities where a CEQA exemption is likely:
· NextG will provide the Commission's CEQA staff in the Energy Division with:
o A description of the proposed project, including the environmental setting
o A description of the proposed construction plan
o A list of applicable CEQA exemptions
o Documentation and factual support necessary to support a finding of categorical exemption.
· Within 21 days from the date of the submission, the Commission's Energy Division will issue either:
o A Notice to Proceed (NTP) and file a Notice of Exemption with the State Clearinghouse, Office of Planning and Research, or
o A letter of denial stating the specific reasons why the claimed exemption(s) are not applicable to the proposed project.
The procedure NextG proposes conforms to the procedure adopted in D.06-04-063 and D.06-04-067. We will apply that procedure here. If the Energy Division disapproves NextG's claimed CEQA exemption(s), and issues a letter of denial to NextG, NextG shall 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.
NextG 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. This procedure shall remain in place unless we adopt different requirements in Rulemaking (R.) 06-10-006.
The Cities are concerned that the expedited review process might include the installation of utility poles in underground districts. NextG states local ordinances often grant exceptions for construction in those districts by utilities for communications services. Thus, the procedure we adopt here will apply to installing utility poles in underground districts where local jurisdictions grant such exceptions.
We conclude that the application conforms to our rules for authority to provide full facilities-based local exchange services. Accordingly, we shall approve the application subject to the terms and conditions set forth herein.
1 NextG also filed financial documentation. NextG relies on managerial biographical information filed with its original application. This information demonstrates that NextG otherwise meets the requirements for a full facilities-based CPCN.
