II. Background
This is one in a series of applications related to MFNS' California fiber optic construction project. MFNS, now in Chapter 11 bankruptcy proceedings,1 has in separate applications or petitions for modification sought (and received) approval of the San Francisco Bay Area fiber optic installation2; sought 82 (and received 80) modifications to that installation project3; sought and received permission for additional modifications4; sought approval of the San Diego and Sacramento portions of its fiber optic network5; and in this application seeks, via a PG&E application, approval of the PG&E-attached portions of its network. The Commission also has an enforcement action pending against MFNS to determine whether MFNS' commencement of construction of the project approved in D.00-09-039 without CEQA review warrants penalties.
Both MFNS and PG&E have made clear that this application primarily benefits MFNS' fiber optic network development. In a letter to the Commission dated June 14, 2002 (Appendix A hereto), MFNS states that action on this application is necessary so that "MFN has the regulatory certainty necessary to make an informed decision about treatment of [the portion of its system that is at issue in this application]." 6 PG&E's own letter of June 14, 2002 to the Commission defers entirely to MFNS' desire to have "the Commission . . . proceed with A.01-03-008 so [that MFNS] may have regulatory certainty regarding its use of PG&E fiber and facilities installed as a result of the contract. . . . . Consistent with MFN'S request, PG&E also believes the Commission should proceed with this application." (Appendix B hereto.) PG&E cites no independent reason for its request that the Commission process this application.
PG&E did not seek or receive CEQA review for this project. It claims the project is exempt from CEQA requirements. First, PG&E states that the affected fiber optic installation "is being installed on existing transmission facilities and creates dark fibers for [PG&E's] use in electric and gas utility operations." (Application at 13.) PG&E claims that the project involves the "minor alteration of existing utility facilities" and is exempt from CEQA review.
Second, PG&E claims a cable already built across the San Francisco Bay received a determination from the San Francisco Bay Conservation and Development Commission (BCDC) that CEQA does not apply to this project, and that that determination binds this Commission.
The application does not specify what facilities are involved. In an August 14, 2001 filing, MFNS identified facilities installed to date,7 but did not identify the future installations for which it seeks approval.
1 We take official notice of MFNS' bankruptcy filing. MFNS may respond to such notice in comments on this decision. 2 MFNS Application (A.) 00-02-039/Decision (D.) 00-09-039. 3 MFNS Petition for Modification filed November 8, 2000, granted in D.00-09-039. 4 Petition for Modification filed June 15, 2001, granted in D.01-09-018. 5 MFNS has since asked the Commission to hold A.00-11-039 "in abeyance and defer [its] further processing. . . ." 6 MFNS also states in this June 14 letter that it "is currently reviewing its plans for the San Francisco Bay Area and has not yet decided whether or not to retain the portion of its system that is at issue in this application." While MFNS complains in its letter that this application has been pending for some time, it also acknowledges that the Commission has acted on three other applications or petitions related to the same project. 7 MFNS said it had already installed 1) one fiber optic cable crossing the San Francisco Bay on existing PG&E electric transmission towers parallel to the San Mateo Bridge; 2) a point of presence, or "POP" site, at the East end of this crossing in Hayward; and 3) one 150 foot section of fiber optic cable in existing PG&E telecommunication conduit in San Francisco. Errata to response of [MFNS] to July 26, 2001 questions from [Judge] Thomas, filed August 14, 2001, at 2 (MFNS August 14, 2001 Response).
