C. Discussion

WilTel has already built certain aspects of its fiber optic telecommunications network in California pursuant to various Commission decisions.⁷ With this application, it seeks blanket authorization, without individualized Commission CEQA review, of

spurs directly or indirectly connecting its backbone network to new locations so long as

· All construction is no more than five miles in length;

· All construction is done inside existing rights of way;

· WilTel notifies the Commission staff of each qualifying construction project prior to commencing construction; and

· WilTel fully complies with any CEQA review required by local permitting agencies.

WilTel claims that we have authorized other carriers to construct new facilities within existing rights of way without a CPCN. It cites D.98-01-006 and D.00-06-018 as examples,⁸ but examination of those cases reveals that they did not involve CEQA issues or Level 3, the carrier to which WilTel claims the cases pertain. We assume WilTel is referring to D.00-08-016. In that case, however, Level 3 sought additional authority to undertake specified network construction outside of the area that we had previously reviewed for environmental impact. Level 3 submitted a proponent's environmental assessment (PEA), and the Commission engaged an environmental consultant to evaluate the impact of the proposed fiber optic build-out.⁹ We received and took into account comment from several agencies with jurisdiction over the state's natural resources. We prepared and adopted a Subsequent Mitigated Negative Declaration to require additional project-specific mitigation measures.

Here, in contrast, WilTel proposes that we approve unspecified construction on a state-wide basis in areas stretching as far as five miles from any given point. It has not submitted a PEA for the areas to be built on, specified areas that may have been previously received environmental review, or asked that we study the potential environmental impact of the construction in the new areas.

We acknowledge WilTel's assertion that we have historically treated various types of telecommunications carriers differently in the level of CEQA analysis we apply to their construction activities. This difference is not a function of any conscious effort to apply different environmental review standards to different carriers. Instead, the difference flows from the fact that CEQA applies to "discretionary" agency decisions, such as approval of a utility application that has the potential to cause either a direct or reasonably foreseeable physical change in the environment. (CEQA Guidelines §§ 15268, 15369, 15378.) We only are presented with a "discretionary decision" - the type of decision to which CEQA applies - with regard to some carriers' applications. Where carriers need not request a discretionary decision, CEQA, by its terms, does not apply. Indeed, in opening the rulemaking WilTel cites, Rulemaking (R.) 00-02-003, we acknowledged this disparity:

Recent improvements in our CEQA program may have inadvertently created inequities among carriers and highlight existing inequities. Although D.99-12-048 and D.99-12-050 require new CLECs to be subject to more stringent CEQA review, local exchange carriers with pre-existing authority have not been required to submit to that oversight. Incumbents, such as Pacific Bell, AT&T and cellular carriers need no CEQA review for new facilities construction because we currently have no "discretionary decision" (see, e.g. Public Resources Code Section 21080) that would trigger CEQA review. Disparate regulatory treatment of new and existing carriers raises issues regarding fairness and whether carriers have an equal opportunity to compete.¹⁰

WilTel correctly observes that we have not yet resolved the disparity we acknowledged in R.00-02-003. However, unless and until we do so, we cannot bend the rules arbitrarily to meet the needs of a single carrier. Much as we empathize with WilTel, we are unable to grant it the relief it seeks.

Nor is it appropriate to refrain from conducting CEQA analysis on the assumption that local agencies will perform the analysis. It is not at all clear that WilTel will be required to obtain a discretionary decision from any particular local entity to do the work it proposes, or that the local entity will perform environmental review. Even if local entity did perform CEQA review, we would still be required to review that environmental assessment as a Responsible Agency under CEQA prior to granting WilTel the authority it seeks here.

Finally, CEQA is state law and is binding on all California state agencies. (CEQA Guidelines Section 15000, Public Resources Code Section 21083.) Thus, absent a broader Commission proceeding that might lead to establishment of environmental compliance criteria that could be applied industrywide, we do not believe that we have authority to "waive" the requirement that we conduct CEQA review, as WilTel proposes.

Thus, we have no choice but to deny WilTel's application. We do so without prejudice to its right to reapply for approval to perform its proposed construction under changed circumstances.