4. Discussion
To resolve this complaint, we first must determine whether we granted NextG the authority to provide radiofrequency transport services as competitive local exchange services. After resolving concerns regarding the scope of the authority we granted to NextG, we then must decide whether the installation of wireless microcells and antennas on public utility poles has an adverse environmental impact under CEQA. Finally, we must resolve whether NextG timely exercised the authority we granted and/or misrepresented the scope of that authority.
4.1. Authority to Provide Radiofrequency
Transport Services
In D.03-01-061, we granted NextG the authority to provide competitive local exchange and nondominant interexchange services. CCSF claims NextG has violated our rules and orders by failing to provide competitive local exchange services. CCSF asserts the radiofrequency transport services provided by NextG are not competitive local exchange services, primarily because NextG provides those services to wireless carriers who are uncertificated. To ascertain whether NextG's provision of radiofrequency services violates the authority granted in D.03-01-061, we must reexamine that decision, including the authority requested and granted, in the context of our decisions authorizing local exchange competition.
In its application, NextG stated it would provide radiofrequency transport services. Radiofrequency transport services augment geographic wireless coverage and improve system capacity. NextG provides these services to wireless telecommunications service providers. (See Material Facts 1 and 2.) NextG does not provide residential or business exchange services to end users. (See Material Fact 3.) D.03-01-061 granted NextG a CPCN to "operate as a limited facilities-based and resale provider of competitive local exchange services." (D.03-01-061, Ordering Paragraph 1.)
We initially authorized carriers to provide facilities-based competitive local exchange telecommunications services to residential or business customers. (See D.95-12-056.) In establishing facilities-based local exchange services, we stated carriers providing such services must "directly own, control, operate, or manage conduits, ducts, pokes, wires, cables, instruments, switches, appurtenances, or appliances in connection with or to facilitate communications within the local exchange portion of the public switched network." (D.95-07-054, 60 CPUC 2d 611, 642, Appendix A, p. 3.)
Since authorizing facilities-based competitive local exchange services, we have extended competitive local exchange carrier (CLC) authority to other types of carriers. We have found wholesale services to be competitive local exchange services. For example, we granted Southern California Edison a CPCN as a CLC to provide wholesale services to other CLCs and to other telecommunications providers, including wireless carriers, as a facilitator of local communications services, rather than as a competitor. (D.98-12-053, 84 CPUC 2d 468, 472-473.)
We have made no distinction between carriers providing wholesale services to wireline or wireless carriers or certificated or uncertificated providers. We have stated our rules concerning competitive services necessarily apply to all CLCs, whether they use wireline, wireless or both. (D.95-07-054, 60 CPUC 2d at 629.) Many telecommunications providers are not traditionally regulated, yet they purchase regulated telecommunications services from regulated carriers. We must focus on what we are authorizing, the authority to provide a type of telecommunications service, and not on the technology used or the customers for that service. Nonetheless, wireless carriers do register with the Commission. We also regulate the terms and conditions of wireless service.
We have granted CLC authority to carriers providing services similar to NextG's. For example, we reaffirmed Teligent Inc.'s authority to install microwave antennas as part of its limited facilities-based authority in D.01-06-019, 2001 Cal. PUC LEXIS 334 *1. We also granted a limited facilities-based CPCN to Crown Castle Solutions Corp., a provider operating a distributed antenna network system NextG asserts is almost identical to NextG's, in D.05-01-021, 2005 Cal. PUC LEXIS 21. CCSF is correct that our standard limited facilities-based CPCN decision does not mention the type of service the telephone corporation is providing. Again, our focus is on the authority we are granting.
We further note that the CLC authority we have granted to NextG is consistent with other states' characterization of NextG's services. (See, e.g., Order No. 05-189, In the Matter of NextG Networks of California, Inc. dba NextG Networks West, 2005 Ore. PUC LEXIS 158 *5; Application of NextG Networks of Illinois, Inc., d/b/a NextG Networks Central for Certification as a Competitive Local Exchange Carrier and Alternative Telecommunications Utility, 4142-NC-100, 2005 Wisc. PUC LEXIS 282, mailed April 25, 2005; and Application of NextG Networks Atlantic, Inc. for certificates of public convenience and necessity to provide local exchange and interexchange telecommunications services, Case No. PUC-2004-00009, 2004 Va. PUC LEXIS 241.)
When examining whether a carrier is providing service that exceeds the authority granted by its CPCN, we have looked for any limitations to that authority. (See, e.g., D.03-12-064, 2002 Cal. PUC LEXIS 1060 *10.) The underlying decision here, D.03-01-016, does not limit the authority granted to NextG.
Because we have granted other carriers similar operating authority and did not limit the authority granted to NextG in D.03-01-061, we conclude our decision grants the authority requested and authorizes NextG to provide radiofrequency transport services. Thus, NextG has not violated D.03-01-061 by providing radiofrequency transport services.
4.2. CEQA
In D.03-01-061, we stated NextG's authority was limited to installation of facilities in existing buildings or structures. (D.03-01-061, Ordering Paragraph 8.) We must determine whether that authority permits NextG to place microcells and antennas on utility poles.
The limitation to installation of facilities in existing buildings or structures is standard in our grant of limited facilities-based CLC authority. In D.99-10-025 we found no material adverse environmental impacts would result from limited-facilities based service, utilizing equipment installed in previously existing structures, since no external construction would occur. (D.99-10-025, 2 CPUC 3rd 700, 703.) As NextG notes, in the past we have granted limited facilities-based CPCNs that approve "equipment installed solely within or on existing buildings and structures." (See D.00-12-009, Ordering Paragraph 1.) However, we no longer do so. A blanket extension allowing installation on existing buildings and structures without limit is too broad for a finding of no material adverse environmental impact. Although NextG's application clearly signaled its intent to install facilities on existing structures, we did not address that issue in D.03-01-061. Thus, we now must consider whether NextG's placement of equipment on existing utility poles is within the scope of its limited facilities-based authority.
NextG constructs microcellular networks that in part transport wireless carriers' voice and data traffic. NextG's network comprises a "hub," which operates like a traditional central switch in the wireline network and a system of fiber optic cables, remote nodes and small antennas attached to poles and other structures. (See Material Facts 9 and 10.) Fiber optic cables are strung on existing utility poles or installed in existing underground conduit. (See Material Fact 10.) NextG's brief includes pictures and diagrams of the remote nodes and antennas it uses. On distribution poles directional antennas are approximately 25" long and remotes are approximately 29" long.
Allowing placement of microcells and antennas on existing utility poles is consistent with limited facilities-based authority, because no construction is involved. It is also consistent with our prior decision that installation of fiber optic equipment on existing utility structures is categorically exempt from CEQA.1
CCSF's Planning Department concluded that the installation of antennas, repeaters, wiring, and equipment cabinets on existing utility poles by NextG would have no effect on land use, traffic and circulation, geology/seismicity, water, hazardous materials, biology, archeological resources or public services. (NextG's Brief, p. 19 n.58.) Our review of the information provided by NextG is in accord. Thus, it can be seen with certainty that there is no possibility that the installation of antennas and microcells will have an adverse effect upon the environment. Having determined the installation of microcells and antennas on existing utility poles will not have an adverse effect, we find that their installation is permissible under limited facilities-based authority. This construction activity is within the scope of the authority granted in D.03-01-016. We conclude that a grant of limited facilities-based authority for carriers providing radiofrequency transport services includes installation in or on existing utility poles.
NextG must file for additional authority, and submit to any required CEQA review, before it can construct facilities other than equipment to be installed in or on existing buildings or structures. NextG recognized it would need to expand its requested authority if it needed to construct new facilities. (Proponent's Environmental Assessment, n.1.) NextG's request for additional authority should conform to authority granted to carriers with distributed antenna systems networks. NextG should contact our Energy Division in advance of filing a request for expanded authority.
4.3. Misrepresentation
CCSF asserts NextG negligently misrepresented the scope of its authority. The information NextG provided to CCSF and other localities basically derives from D.03-01-061. NextG made the following representations to CCSF: (1) NextG is a facilities-based provider of protocol-agnostic, fiber-aggregated optical-to-radio frequency conversion and microcellular repeater services; (2) NextG will make its radiofrequency transport services available to wireless carriers; (3) the Commission granted NextG a CPCN to operate as a telephone corporation; and (4) NextG will attach microcells and antennas to utility and other poles located in rights-of-way. NextG provided CCSF with a copy of its CPCN. NextG made similar representations to representatives of 67 other localities in California. (See Material Facts 13 and 14.)
One element of actionable negligent misrepresentation is reliance on a material fact. (See Hydro-Mill Co., Inc., v. Hayward, Tilton, Rolapp Ins. Associates, Inc., 115 Cal. App. 4th 1145, 1154.) All of the representations NextG made to CCSF are material; however, CCSF has not proved it relied on that information. Instead, CCSF disagreed with NextG's claims. CCSF further has challenged the veracity of that information in this complaint.
NextG also gave localities more specific information concerning its plans. NextG stated it would install fiber optic cable either underground or on existing utility poles and antennas and associated equipment on utility poles and/or streetlight poles. Finally, NextG stated if the locality did not permit NextG to attach to its streetlight or traffic poles, NextG might need to install its own utility poles. (Declaration of Theresa L. Mueller, Attachment D.) The limited facilities-based authority we granted in D.03-06-016 does not permit NextG to install its own utility poles. Again, although this information is material and some of it is inaccurate, CCSF has not shown it relied on it. CCSF did not permit NextG to engage in any construction.
CCSF has not shown that it relied on any information concerning the scope of authority or business plans provided by NextG. Thus, there is no actionable misrepresentation.
4.4. NextG Timely Exercised Its Authority
We next consider whether NextG timely exercised the authority granted in D.03-01-061. NextG filed a written acceptance of the CPCN on February 25, 2003. On January 23, 2004, NextG requested an extension of time to commence service under its CPCN. The Commission granted the requested extension until July 30, 2004. On July 21, 2004, NextG notified the Commission that it had commenced providing telecommunications service under its CPCN in California. (Material Facts 7 and 8.) NextG has constructed or is constructing networks in numerous localities in California. (Material Fact 12.)
Having reaffirmed that D.03-01-061 authorized NextG to provide radiofrequency transport services as competitive local exchange services and finding that NextG has and continues to provide those services in California, we find that NextG timely exercised the authority granted in D.03-01-061.
1 In our Metropolitan Fiber Network Services, Inc. proceeding, we found the "installation of optical fiber and related telecommunications equipment on existing utility structures by third-party telecommunications providers . . . is categorically exempt from environmental review under the California Environmental Quality Act (CEQA)." (D.04-04014, 2004 Cal PUC LEXIS 142 *1.)
