STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor

PUBLIC UTILITIES COMMISSION

505 VAN NESS AVENUE

SAN FRANCISCO, CA 94102-3298

December 13, 2005 Agenda ID #5168

Adjudicatory

TO: PARTIES OF RECORD IN CASE 05-03-010

This is the draft decision of Administrative Law Judge (ALJ) Janice Grau. It will not appear on the Commission's agenda for at least 30 days after the date it is mailed. The Commission may act then, or it may postpone action until later.

When the Commission acts on the draft decision, it may adopt all or part of it as written, amend or modify it, or set it aside and prepare its own decision. Only when the Commission acts does the decision become binding on the parties.

Parties to the proceeding may file comments on the draft decision as provided in Article 19 of the Commission's "Rules of Practice and Procedure." These rules are accessible on the Commission's website at http://www.cpuc.ca.gov/PUBLISHED/RULES PRAC PROC/44887.htm. Pursuant to Rule 77.3 opening comments shall not exceed 15 pages. Finally, comments must be served separately on the ALJ and the assigned Commissioner, and for that purpose I suggest hand delivery, overnight mail, or other expeditious method of service.

/s/ ANGELA K. MINKIN by LTC

Angela K. Minkin, Chief

Administrative Law Judge

ANG:sid

Attachment

ALJ/JLG/sid DRAFT Agenda ID #5168

Adjudicatory

Decision DRAFT DECISION OF ALJ GRAU (Mailed 12/13/2005)

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

City and County of San Francisco, Complainant, vs. NextG Networks of California, Inc. (U6754 C), Defendant.

Case 05-03-010 (Filed March 9, 2005)

OPINION RESOLVING COMPLAINT

1. Summary

In Decision (D.) 03-01-061, we authorized NextG Networks of California, Inc. (NextG) to provide competitive local exchange services as a limited facilities-based provider. NextG provides wireless carriers certain radiofrequency transport services, which augment those carriers' geographic wireless coverage and improve system capacity. NextG sought to provide those services in San Francisco, but The City and County of San Francisco (CCSF) claimed those services were outside the authority granted by us. In today's decision, we find NextG did not violate its certificate of public convenience and necessity (CPCN), did not fail to timely exercise the authority granted in D.03-01-061, and did not misrepresent the scope of that authority.

We reaffirm that the authority granted in D.03-01-061 includes the provision of radiofrequency transport services. Our standard limited facilities-based CPCN does not mention the type of service provided by the telephone corporation. However, we have granted authority to carriers providing similar services.

In providing radiofrequency transport services, NextG installs microcells and antennas on existing utility poles. Allowing placement of microcells and antennas on existing utility poles is consistent with limited facilities-based authority, because no construction is involved. We find limited facilities-based authority for carriers providing radiofrequency transport services includes installation in or on existing utility poles.

NextG informed CCSF and other localities about the authority it was granted and the services it provides. CCSF did not rely on this information; it did not permit NextG to operate in San Francisco. Without reliance on a material fact, there is no actionable misrepresentation. NextG followed our procedures for accepting its CPCN, including requesting an extension of time. Because we reaffirm our grant of authority to NextG, we find NextG timely exercised that authority.