Background

In California there is presently a significant disparity in the quality and quantity of the environmental review performed on telecommunications infrastructure construction. Some telecommunications providers have been authorized to build essentially anything, anywhere, without a discretionary decision from this Commission that would trigger a CEQA review.

Others, who received what was known as the "batch mitigated negative declaration," have been authorized to build statewide, within existing utility rights-of-way, although there is some variation in the requirements imposed by the various batch negative declarations. ¹⁷ While the Commission stopped issuing batch negative declarations in late 1999 (see D.99-12-050), carriers holding them are still building facilities under their requirements. Other carriers, including many that obtained their CPCNs after late 1999, received individual and project-specific CEQA review.

This multiplicity of environmental standards is problematic both from a CEQA standpoint and from a competitive fairness standpoint. The CEQA review provided does not match the construction that is going on. A company building almost nothing may have received greater environmental review than a company laying fiber statewide. Or two companies engaged in almost identical physical construction may be subject to very different environmental compliance regimes. This is neither a sound practice for protecting the environment nor for competitive fairness.

For example, under past Commission practice, all facilities-based CLECs received essentially the same level of environmental review (via the batch negative declaration), regardless of what they were planning to build. Such undifferentiated environmental review is not a good fit with CEQA, as some companies may receive less environmental review than warranted by their actual construction projects, while others may be burdened with more environmental scrutiny than needed.

¹⁷ There is also some uncertainty as to the precise meaning of the term "right-of-way."