7. Assignment of Proceeding

Rachelle B. Chong is the assigned Commissioner and Janice Grau is the assigned ALJ in this proceeding.

Findings of Fact

1. In D.03-01-061, NextG was granted authority to provide limited facilities-based local exchange services. NextG provides radiofrequency transport services for wireless carriers and constructs transport networks consisting of a central switch-like hub and a system of fiber optic cables, remote nodes, and small antennae attached to poles and other structures.

2. NextG seeks expansion of its existing CPCN to obtain authorization to provide full facilities-based local exchange services by installing and operating DAS facilities. NextG seeks expedited environmental review of its proposed construction activities and comparable activities that likely will be categorically exempt from CEQA.

3. ExteNet protested the application because it alleged NextG had violated its limited facilities-based authority in constructing its DAS networks.

4. The Cities filed a protest to object to allowing the expedited environmental review to include the construction of new utility poles in underground utility districts.

5. In D.06-04-063 and D.06-04-067, ExteNet and CA-CLEC LLC, respectively were granted full facilities-based authority and an expedited environmental review procedure. NextG did not seek comparable authority until after the issuance of those decisions.

6. The proposed construction activities, including installation of poles, small-scale trenching and micro-trenching, are projects which potentially are categorically exempt from CEQA.

7. The procedure proposed by NextG, in which NextG would notify Commission Energy Division staff of the claimed CEQA exemptions and Commission Energy Division staff would review and act upon Applicant's claimed CEQA exemptions, has been adopted for other DAS carriers in D.06-04-063 and D.06-04-067.

8. NextG has met the requirements for issuance of a CPCN authorizing the provision of full facilities-based local exchange services.

9. NextG has engaged in ground-breaking activities in the construction of DAS networks. Between the issuance of D.03-01-061 and the filing of this application, NextG trenched a total of approximately one mile.

10. Most applications for permits for the DAS networks, including new underground construction, were submitted to local jurisdictions in NextG's and the wireless carriers' names. Some applications were submitted in NextG's name only.

11. GO 159-A requires notification letters when land use approvals are required for cell siting and related construction activity. Prior to the filing of this application, no GO 159-A letters were submitted by the wireless carriers for the DAS networks subject to land use approvals or NextG on their behalf.

12. In D.99-11-025, the Commission declined to authorize a limited facilities-based CLEC to engage in construction activities through a partnership arrangement with other certificated carriers.

13. NextG did not seek Commission authorization of a proposed partnership arrangement with wireless carriers to construct DAS networks.

14. NextG received no complaints about environmental concerns for construction of its DAS networks.

Conclusions of Law

1. Except for the requirement for additional environmental (CEQA) review, the requirements for a full facilities-based CPCN are generally the same as for a limited facilities-based CPCN.

2. NextG's description of its future construction projects and proposed process for Commission review of claimed CEQA exemptions for these projects, as described above, meet the requirements of CEQA, based on the specific facts of this case.

3. If the Commission subsequently adopts different requirements for review of claimed CEQA exemptions for telecommunications carriers generally in R.06-10-006, NextG should be subject to those requirements, as applicable.

4. Public convenience and necessity require NextG's full facilities-based local exchange services to be offered to the public subject to the terms and conditions set forth herein.

5. The application should be approved.

6. Upon approval of the application, NextG should be subject to the applicable Commission rules, decisions, GOs, and statutes that pertain to California public utilities.

7. NextG should remain subject to the requirement of D.03-01-061, its licensing decision.

8. It is reasonable to apply D.99-11-025's prohibition against CLEC partnerships with other certificated carriers to NextG's arrangement with wireless carriers to engage in ground-disturbing activities.

9. It is reasonable to open an investigation to consider whether NextG violated its limited facilities-based CPCN issued in D.03-01-061. NextG should be ordered to show cause why a penalty should not be imposed for any violations.

10. NextG's request to file its financial information under seal should be granted, to the extent set forth below.

11. Because of the public interest in competitive local exchange services, the following order should be effective immediately.

ORDER

IT IS ORDERED that:

1. A certificate of public convenience and necessity (CPCN) is granted to NextG Networks of California, Inc. (NextG) to operate as a full facilities-based provider of local exchange services in the service territories of Pacific Bell Telephone Company, Verizon California Inc., SureWest Telephone, and Citizens Telephone Company, subject to the terms and conditions set forth below. This authorization expands NextG's existing authority to provide limited facilities-based local exchange services in this state.

2. NextG is authorized to construct the facilities addressed in this decision only upon receiving prior Commission approval.

3. The staff of the Commission Energy Division is authorized to review, process, and act upon NextG's requests for a determination that its full facilities-based construction activities are exempt from the requirements of the California Environmental Quality Act (CEQA).

4. If NextG wishes to engage in full facilities-based construction activities and believes that these activities are exempt from CEQA, NextG shall first apply to the Commission Energy Division staff for a determination of exemption from CEQA using the following procedure:

A. NextG will provide the Commission Energy Division with:

1. A detailed description of the proposed project, including:

    a. Customer(s) to be served;

    b. The precise location of the proposed construction project; and

    c. Regional and local site maps.

2. A description of the environmental setting, including at a minimum:

    a. Cultural, historical, and paleontologic resources;

    b. Biological resources; and

    c. Current land use and zoning.

    3. A construction workplan, including:

    a. Commission Preconstruction Survey Checklist-Archaeological Resources;

    b. Commission Preconstruction Survey Checklist-Biological Resources;

    c. A detailed schedule of construction activities, including site restoration activities;

    d. A description of construction/installation techniques;

    e. A list of other agencies contacted with respect to siting, land use planning, and environmental resource issues, including contact information; and

    f. A list of permits required for the proposed project.

    4. A statement of the CEQA exemption(s) claimed to apply to the proposed project; and

    5. Documentation supporting the finding of exemption from CEQA.

B. The Commission Energy Division will then review the submittal and notify NextG of either its approval or its denial of NextG's claim for exemption from CEQA review within 21 days from the time that NextG's submittal is complete.

C. If the Commission Energy Division approves NextG's claimed CEQA exemption(s), the staff will prepare a Notice to Proceed (NTP) and file a Notice of Exemption with the State Clearinghouse, Office of Planning and Research.

D. If the Commission Energy Division disapproves NextG's claimed CEQA exemptions, the staff will issue to NextG a letter which states the specific reasons that the claimed CEQA exemptions do not apply to the proposed project.

E. If the Commission Energy Division disapproves NextG's claimed CEQA exemption(s), 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 full facilities-based construction activities.

5. NextG shall not engage in any construction activity relating to a pending CEQA exemption request before receiving an NTP from Commission Energy Division staff.

6. If the Commission adopts different requirements for obtaining Commission review of proposed CEQA exemptions applicable to NextG in Rulemaking 06-10-006, NextG shall be subject to those requirements.

7. NextG remains subject to the requirements of Decision (D.) 03-01-061, which granted NextG a CPCN authorizing the provision of limited facilities-based local exchange services.

8. NextG will operate under its current tariffs. NextG shall comply with those tariffs.

9. 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.

10. The corporate identification number assigned to NextG, U 6745 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.

11. NextG shall comply with all applicable rules adopted in the Local Exchange Competition proceeding (Rulemaking 95-04-043/ Investigation 95-04-044), as well as all other applicable Commission rules, decisions, General Orders, and statutes that pertain to California public utilities, subject to the exemptions granted in this decision.

12. NextG shall comply with the requirements applicable to competitive local exchange carriers included in Attachments A, B, and C to this decision.

13. NextG's financial statements and information filed as Attachment B to the application shall be filed under seal and shall remain under seal for a period of two years after the date of this order. During this two-year period, the information filed as Attachment B to the application shall remain under seal and shall not be viewed by any person other than the assigned Commissioner, the assigned Administrative Law Judge (ALJ), the Assistant Chief ALJ, or the Chief ALJ, except as agreed to in writing by Applicant or as ordered by a court of competent jurisdiction. If NextG believes that it is necessary for this information to remain under seal for longer than two years, NextG shall file a new motion at least 30 days before the expiration of this limited protective order.

14. An investigation and order to show cause shall be opened to consider whether NextG violated the authority granted it in D.03-01-061 and Rule 1.1 of the Commission's Rules of Practice and Procedure.

15. Hearings were necessary in this proceeding.

16. Application 06-05-031 is closed.

This order is effective today.

Dated April 12, 2007, at San Francisco, California.

ATTACHMENT A

REQUIREMENTS APPLICABLE TO COMPETITIVE LOCAL EXCHANGE CARRIERS

1. 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.

2. 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 1.15% surcharge applicable to all intrastate services except or 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-17071), dated March 1, 2007, effective April 1, 2007);

b. The current 0.37% 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-17072, dated March 1, 2007, effective April 1, 2007);

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 1.30% 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-17078, dated March 1, 2007, effective April 1, 2007); and

f. 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).

Note: These fees change periodically. In compliance with Resolution T-16901, December 2, 2004, Applicant should check the joint tariff for surcharges and fees filed by Pacific Bell (dba SBC California) and apply the current surcharge and fee amounts in that joint tariff on end-user bills until further revised.

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 to the Commission. 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 a message on the bill itself, 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 five (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 to the Commission.

"(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 Section 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 Communications 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 Communications 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 Communications 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 begins.3

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 Communications 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 Communications 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 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 Communications 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 Communications 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 Rule 18(b) of the Commission's Rules of Practice and Procedure.

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 Communications 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 A)

ATTACHMENT B

ANNUAL REPORT

An original and a machine readable, copy using Microsoft Word or compatible format 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 Sections 2107 and 2108 of the Public Utilities Code.

Required information:

For answers to any questions concerning this report, call (415) 703-2883.

(END OF ATTACHMENT B)

ATTACHMENT C

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; and

· 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 tariff 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 Sections I-F of Decision 93-02-019.

6. Utilities that do not 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 C)

3 California is divided into ten Local Access and Transport Areas (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.

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