E. Comments on Draft Decision
The draft decision of the ALJ in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on ____________________, and reply comments were filed on ________________.
1. As provided by D.94-05-051 and D.98-07-094, the Commission currently requires certified NDIECs and CLCs who seek a transfer of control or transfer of assets to other certified entities to file an advice letter with the Commission.
2. The current advice letter process for NDIEC and CLC transfers of control or assets allows filings to go into effect automatically after 40 days unless the Commission acts to suspend them.
3. Section 851 provides that no public utility may transfer or encumber its property that is necessary or useful in performing its duties to the public without first having secured the Commission's authorization.
4. The existing advice letter process allows the Commission to consider competitive concerns and environmental issues related to transfers of control and transfers of assets.
5. An IRU or other joint use arrangement is an encumbrance as defined in § 851.
1. An exemption from § 851 for an entire class of carriers is more appropriately the subject of a rulemaking and requires appropriate notification of all affected interests.
2. The Commission should retain the current advice letter process set forth in D.94-05-051 and D.98-07-094 because it provides notification of proposed transactions and expedited approval of non-controversial transactions.
3. The Commission should deny 360networks' request for exemption from § 851 because some level of review of CLC and NDIEC transfers of assets and control is necessary for the public interest.
IT IS ORDERED that:
1. Application (A.) 00-11-055 by 360networks (USA) Inc. for an exemption from Section 851 for transfers of assets, property, or interests by non-dominant interexchange carriers and competitive local carriers is denied without prejudice.
2. A.00-11-055 is closed.
This order is effective today.
Dated , at San Francisco, California.
