IV. Protest of ORA and Responses

On December 20, 2000, Office of Ratepayer Advocates (ORA) filed a protest urging the Commission to reject the application and require PG&E to refile indicating the specific sites on which OnFiber intends to install its equipment. ORA suggests the application does not comply with § 851 because it fails to identify the specific assets PG&E will encumber. Without this information, ORA claims the Commission cannot adequately evaluate the impact of the lease on PG&E's distribution system and whether the application requires review under the California Environmental Quality Act (CEQA). ORA also objects to a provision in the Master Agreement that allows OnFiber to install additional equipment without prior Commission approval.

In response, both PG&E and OnFiber separately urge rejection of ORA's protest. PG&E argues that the Master Agreement fulfills the policies and requirements of the Commission's ROW Decisions to give certificated competitive local carriers (CLCs) access to PG&E's poles and conduits without undue delay. PG&E claims ORA's suggestion that PG&E identify each pole and conduit to be leased would delay access to utility facilities and thereby contradict the Commission's ROW policies.

PG&E responds to ORA's call for further environmental review under CEQA by stating that the Master Agreement authorizes only minor additions to existing utility facilities. In PG&E's view, such minor work is exempt under § 15301 of the CEQA Guidelines (14 CCR § 15301) and Commission Rule 17.1 (h)(1)(A). PG&E points out that OnFiber has already obtained Commission authority to install equipment within existing structures, and the Master Agreement only applies to that type of construction. PG&E explains that the Master Agreement limits OnFiber's activities to those covered under its CPCN.⁵ Furthermore, the Agreement specifies that OnFiber must obtain any permits required by an authorized permitting agency under CEQA.⁶ PG&E states that any CEQA review is more appropriately performed in connection with OnFiber's CLC certificate rather than in this application.

OnFiber responds to ORA's protest as well by noting that the Commission has already conclusively decided in D.00-06-014 that OnFiber's placement of facilities on existing utility structures would not have an adverse impact on the environment. OnFiber cites several recent decisions where the Commission has approved similar agreements without requiring specifics on equipment locations and without performing site specific environmental review.⁷