CEQA and Competition
This Rulemaking was initiated in part to respond to concerns about the wide variation in the level of environmental review required for different types of telecommunication providers. For most incumbent local exchange carriers, such as AT&T (the former SBC) and Verizon, whose authority to operate and construct facilities predates the enactment of CEQA, the Commission performs no environmental review of any of their construction projects, no matter how large. For competitive local exchange carriers fortunate enough to apply for a CPCN from approximately 1995 through most of 1999, the Commission also performs no ongoing environmental review of construction projects within the limitations of those carriers' CPCNs,2 again regardless of the scale or location of the construction. Non-dominant inter-exchange carriers, and competitive local exchange carriers certificated after 1999 generally received (and continue to receive) individualized project-specific environmental review under CEQA. In short, the Commission's past environmental review practice placed widely varying burdens on different telecommunications providers, and the disparities are also ongoing. (See, Comments of AboveNet Communications, pp. 2-3.)
In this decision we level the CEQA treatment for telecommunications providers regulated by the Commission. We do not want our CEQA compliance requirements to be so uneven that they create competitive disparities; at the same time, it is not appropriate to use CEQA as a tool to attempt to counterbalance other competitive advantages or disadvantages. Our purpose here is to make sure that our CEQA regime does not itself tilt the competitive playing field. To the extent that the playing field is tilted for reasons beyond CEQA, it is also beyond the scope of this proceeding.
Parties should not look to this proceeding to remedy all possible competitive disparities. For example, a new market entrant who wishes to lay conduit will need to undergo a CEQA review in order to dig trenches, while an incumbent who already has fiber in the ground does not. The focus of CEQA and this proceeding are on environmental impacts, and all we can do is ensure fair treatment going forward. Neither CEQA nor this proceeding can remove those advantages held by incumbents, particularly if the incumbents need not cause as much disturbance to the physical environment as a new entrant.3
However, as ClearLinx points out, to the extent our new process replaces multiple local reviews with a uniform statewide review, it also helps to level the competitive playing field:
Localized CEQA review would also create an onerous and disproportionate burden on new market entrants and smaller carriers whose projects and operations are on a limited scale. These carriers do not have the government relations and regulatory compliance resources that are routinely deployed by dominant incumbent local exchange carriers ("ILECs") that operate in, and have regular dealings with, virtually all municipalities in the state. Moreover, carriers such as ClearLinx that provide service using a distributed antenna system ("DAS"), typically have construction projects that are smaller in scale and have a lesser impact on any single municipality than the larger scale projects of the dominant carriers. Nevertheless, these projects frequently involve more than one municipality. Thus, having the ability to obtain centralized CEQA review from a state agency is critical to providing a level playing field for new market entrants such as DAS carriers. (Reply Comments of ClearLinx, p.2.)
This decision does not address issues relating to cell sites and mobile telephone switching offices, which are subject to our General Order 159-A. To the extent that a wireless telecommunications carrier regulated by this Commission constructs facilities other than cell sites or mobile telephone switching offices, this decision does apply, as such construction is beyond the scope of General Order 159-A. Finally, this decision does not apply to entities that are not subject to this Commission's jurisdiction, such as cable television providers not certificated by this Commission.
2 The primary limitation placed on these carriers, via a Mitigated Negative Declaration (MND) that accompanies the CPCN, is that their construction is limited to existing utility rights-of-way, and is subject to standardized mitigation measures required by the MND.
3 A properly administered CEQA regime may in fact provide an advantage to an incumbent carrier that does not need to do as much construction as a new entrant.
