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On January 31, 2019, the California Public Utilities Commission held its regularly scheduled agenda meeting in Sacramento. This was the first voting meeting attended by the newly-appointed Commissioner, Genevieve Shiroma, who the Governor appointed to fill the vacancy left by the expiration of Commissioner Peterman’s term. Commissioner Shiroma’s term is six years and concludes at the end of 2024. Substantively, the principal item of interest during the meeting was the approval of a revision to the new confidentiality rules contained in General Order 66-D.

REGULAR AND CONSENT AGENDA ITEMS

New Confidentiality Rules, General Order 66-D Revision 1, Approved. [Item 4, Adopted on Consent Agenda]

The Commission approved a proposed decision to add a section to General Order 66-D, Revision 1, which establishes a process for regulated entities and the public to submit information to the Commission with a claim of confidentiality. This new provision, Section 7, would require an information submitter subject to an audit, inspection, investigation, or enforcement action, to submit information to Commission staff at the time requested, while allowing the information submitter an additional period of time to make a claim of confidential information. During this period, the Commission staff must maintain the confidentiality of the information provided. The Commission goal in establishing this section is to receive information related to information submitters’ audits, inspections, investigations and enforcement matters quickly while maintaining the confidentiality of sensitive documents.

New Section 7 requires the respondent of data requests to inform Commission staff (a) whether the information submitter is making a preliminary claim for confidentiality for information submitted, and (b) whether the information submitter is withholding responsive information per an assertion of privilege. The Commission must maintain the confidentiality of information submitted for 20 days after submission if the respondent asserts a preliminary claim of confidentiality. If the respondent does not submit a claim of confidentiality within 20 days after the submission of information, then the Commission may release information to the public without further action, unless the Commission withholds the information per an exemption of the California Public Records Act Section 5.2. If, on the other hand, the respondent informs the Commission that it withholds responsive information under an assertion of privilege, the respondent must then provide either a redacted version of the information or a “privilege log” to the Commission within 10 days of the Commission request and identify how the claim applies to the specific question requested. Section 7 also grants the Commission the option of physically accessing the requested information at the location where it is maintained under the timelines of Section 7.

The latest version of the proposed decision underlying this item is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M262/K688/262688431.docx

Text Messaging Determined Not Subject to Public Purpose Program Surcharges and User Fees. [Item 14, Adopted on Consent Agenda]

The Commission adopted this proposed decision to exclude text messaging services from Public Purpose Program surcharges and user fees, in light of the FCC’s December 12, 2018, Declaratory Ruling (FCC 18-178) classifying text messaging services as “information services.” CTIA initiated the rulemaking proceeding after Commission staff updated the Surcharge Directive on the CD website in 2016 to state that text messaging was a form of two-way messaging and was therefore subject to Public Purpose Program charges.

The latest version of the proposed decision underlying this item is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M262/K896/262896740.PDF

Cal.net, Inc. Approved as an Eligible Telecommunications Carrier Supported by the Federal High-Cost and Lifeline Fund. [Item 16, Adopted on Consent Agenda]

The Commission adopted a draft resolution to conditionally grant the request of Cal.net, Inc., a competitive local exchange carrier and VoIP provider, to be designated as an eligible telecommunications carrier (“ETC”) to provide high-speed broadband Internet access and VoIP telephony services using fixed wireless technology in connection with its Connect America Fund (“CAF”) II project authorized by the FCC. Cal.net is a winning bidder of the CAF II Auction 903 for an award amount of $50.5 million of assigned support over the 10-year term to serve 20,859 eligible service locations within 598 census block groups in 26 counties in California. For Cal.net to receive this federal universal service support, it must be designated as an ETC pursuant to Section 254(e) of the Communications Act. In order to receive an ETC designation from the Commission, a carrier must satisfy all federal ETC requirements, abide by the Commission’s Comprehensive Procedures and Guidelines for ETC Designation and Requirements, and comply with General Order 153 and the CPUC User Fee and surcharge obligations. A carrier seeking Federal high-cost support must also comply with Resolution T-17002, Appendix B, Section I and II, and file an advice letter with the CPUC on an annual basis.

This draft resolution finds that Cal.net has met federal ETC requirements, committed to complying with annual FCC reporting requirements for CAF II auction recipients, complied with commission user fee and surcharge obligations, and with FCC’s CAF II Auction 903 requirements. The draft resolution also finds that given Cal.net’s lack of experience with the California LifeLine Program and the federal Lifeline program, Cal.net should work with the LifeLine Administrator and Staff to finalize its provisioning process and better understand the program’s process prior to its launch of federal Lifeline services. Lastly, this draft resolution finds that Cal.net meets the criteria for public interest determination by providing high-speed broadband and deployment of communications services to Californians in unserved and underserved areas. Given these findings, along with the finding that Cal.net has not received any Notice of Apparent Liability from the FCC and not been subject to any enforcement sanctions or ETC revocation proceedings, this draft resolution approves Cal.net’s request to be authorized as an ETC service provider to provide federal high cost and Lifeline services to areas approved by the CAF Auction 903. Cal.net’s ETC designation does not make it eligible for any state high-cost support, such as the CHCF-A or the CHCF-B.

The latest version of the draft resolution underlying this item is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M261/K549/261549489.PDF

AT&T California Authorized to Construct an Additional 280 Feet of Overhead Fiber Facilities Along State Scenic Highway 1 in San Luis Obispo County. [Item 17, Adopted on Consent Agenda]

The Commission has approved the request of AT&T California (“AT&T”) for a second deviation from Public Utilities Code Section 320 to construct an additional 280 feet of overhead fiber facilities alongside existing PG&E power lines along State Scenic Highway 1 in San Luis Obispo County. In Resolution T-17552, the Commission had previously approved the construction of 1,235 feet of aerial fiber cables above CA-SLO-175, a large prehistoric habitation site with ancestral human burials. AT&T proposes to construct an additional 280 feet of overhead fiber facilities to avoid further disturbance of the archeologically-sensitive site. AT&T asserted that the project is exempt under Categorical Exemption codified under CEQA Guidelines Section 15301 (Class 1), covering minor alterations of existing public and private structures or facilities involving negligible expansion of use. AT&T supported its request with a letter from the County of San Luis Obispo, stating that the proposed additional span of fiber facilities would have minimal visual impacts, avoid sensitive archaeological resources, and “[appear] to be exempt from County permit requirements pursuant to Coastal Land Use Ordinance Section 23.03.040(d)(6), which relates to to installation, testing, placement in service, or the replacement of any necessary utility connection between an existing service facility and any development that has previously been granted a permit”; a recommendation from R3X Group, Inc., a consulting firm representing the Native American Heritage Commission, that AT&T should avoid environmental impact to the CA-SLO-175/173 sites by continuing aerial placement before transitioning underground; and a statement from Caltrans that the proposed additional 280 feet of aerial facilities would only minimally affect the site and its surroundings and would not degrade the visual value of the State Scenic Highway corridor.

The latest version of the draft resolution underlying this item is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M261/K566/261566380.PDF

Deviation from Section 320 of the Public Utilities Code for CASF Grant Application of Anza Electric Cooperative, Inc. for Phase 2 of the Connect Anza Project. [Item 23, Adopted on Consent Agenda]

The Commission approved a deviation from Section 320 of the California Public Utilities Code for Anza Electric Cooperative, Inc. (AEC) to construct fiber on pole facilities for 30 miles along State Route 74 “Pines to Palms” state Scenic Highway, as part of Phase 2 of AEC’s Connect Anza Project. Phase 2 of the Connect Anza Project is funded by the CASF Infrastructure Grant Account in the amount of $1,796,070. Phase 2, which would extend fiber-to-the-premise with broadband internet service at symmetrical speeds of 50 Mbps and above to over 400 households spread over 69 square miles in the areas of Pinyon and the Santa Rosa Reservation, was approved on May 31, 2018, via Resolution T-17581. To determine whether this deviation should be granted, the Commission considered the economic feasibility of an undergrounding alternative, and the visual impact of the overhead facilities. The Commission received a written determination from the Caltrans Region 8 Landscape Architect that the “addition of a singular fiber optic line would not add a significantly noticeable visual change to the site and it would not change the character of the visual corridor,” and AEC estimated that the cost of undergrounding would be $16.1 million, while an overhead facility would cost $1.8 million. Based on these factors, Commission staff found that Phase 2 of the Connect Anza Project may be constructed relying on CEQA exemptions relating to existing facilities (Section 15301) (Existing Facilities) and minor alterations to land (Section 15304).

The latest version of the draft resolution underlying this item is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M261/K499/261499948.PDF

PAETEC Communications Fined $7,920 for Failing G.O. 133-D Answer Time Standard in 2017. [Item 18, Adopted on Consent Agenda]

This resolution approves PAETEC Communications, LLC (“PAETEC”)’s Advice Letter 182 calculating annual fines totaling $7,920 million pursuant to CPUC General Order 133-D Section 9.6 as a result of failing to meet the Answer Time standard (Section 3.5) in 2017, and orders PAETEC to pay this amount within 30 days of adoption of this Resolution. In 2017, PAETEC failed to meet the Answer Time standard from January through December of 2017, and therefore entered “chronic failure status” beginning in March and incurred fines for substandard performance of the remainder of the year. The Answer Time standard sets a minimum requirement for the amount of time an operator takes to answer the phone when customers call a business office for billing and non-billing inquiries. The minimum standard reporting level for Answer Time is 80% of calls answered by an operator within 60 seconds when speaking to a live agent, or 80% of calls answered within 60 seconds when speaking to a live agent after completing an interactive voice response or automatic response unit system. PAETEC proposed, and Commission staff agreed with, a total fine of $7,920.00.

The latest version of the draft resolution underlying this item is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M260/K122/260122875.PDF

Joint Application of Tofane Global US LLC, et al. for Transfer of Indirect Control of iBasis Retail, Inc. [Item 33, Adopted on Consent Agenda]

The Commission has approved the proposed transfer of indirect ownership of iBasis Retail, Inc. (“iBasis Retail”) from KPN B.V. (“KPN”) to Tofane Global US LLC (“Tofane US”). iBasis Retail, a Delaware corporation with its principal office in Lexington, Massachusetts that provides prepaid calling card services primarily used for international calls, is authorized to provide resold interexchange services pursuant to its CPCN granted by D.16-06-013. KPN, a private limited liability company organized under the laws of the Netherlands, owns iBasis Retail, and iBasis, Inc., the parent company of iBasis Retail. KPN is a wholly-owned direct subsidiary of Koninklijke KPN N.V. (“KPN N.V.”), a publicly-traded telecommunications company headquartered in the Netherlands. Tofane US is a Delaware limited liability company whose sole member is Tofane Global SAS, a newly formed French company based in Paris, France. Both Tofane US and Tofane Global SAS are holding companies without operations of their own. Under the proposed transaction, Tofane Global SAS would acquire all of the outstanding equity interests in iBasis Inc., including the subsidiary iBasis Retail, from KPN. Tofane US would hold the shares of iBasis, Inc., and iBasis Retail will remain a direct, wholly-owned subsidiary of iBasis Inc.

The Commission analyzed this transaction by considering whether the indirect transfer of control of iBasis Retail is in the public interest consistent with Public Utilities Code Section 854(a), and determined that the transaction would benefit consumers and promote the public interest by enhancing iBasis Retail’s ability to compete in the telecommunications marketplace. It found that following the transaction, Tofane US and iBasis Retail will continue to partner with KPN and KPN N.V. to deliver international telecommunications services, that consumers will not face disruption, and would receive the same services as before the transaction, and that the applicants satisfy CPCN requirements. Given these findings, the Commission approved the proposed transaction.

The latest version of the proposed decision underlying this item is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M258/K424/258424586.PDF

Intervenor Compensation to the Greenlining Institute in Connection with WilTel/Level 3 Transaction. [Item 37, Adopted on Consent Agenda]

The Greenlining Institute (“Greenlining”) claimed an intervenor compensation amount of $28,954.50, and received $29,017.50 for its contribution to D.17-10-003, which transferred control of Level 3 Operating Entities, which are non-dominant, California certificated competitive local exchange and/or non-dominant interexchange carriers providing services exclusively to enterprise and carrier customers, and WilTel Communications, LLC to be transferred from Level 3 Communication, Inc., a publicly traded global telecommunications and information services company, to CenturyLink, Inc. The Commission granted an amount slightly above what Greenlining claimed after correcting the reported hours for staff attorney, Vinhcent Le, and the Reasonable Claim preparation rate for staff attorney, Paul Goodman.

Decision 19-01-042 as adopted is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M264/K576/264576831.PDF

Comments on Wireless Coordination With Power Companies Authorized Before FCC . [Item 46, Adopted on Consent Agenda]

The Commission approved a staff recommendation from the Legal and Communications Divisions to file comments in response to the Public Notice of the FCC’s Safety and Homeland Security Bureau (“Bureau”) seeking comment on improving wireless network resiliency through encouraging coordination with power companies. The Bureau’s Public Notice is the second notice inviting comment on optimizing the Wireless Resiliency Cooperative Framework (“Framework”), which is a voluntary wireless industry commitment to promote resilient communications and situational awareness during disasters. The Bureau’s Public Notice seeks to reassess the effectiveness of the Framework’s ability to facilitate the restoration of communications during and following disasters, and identify steps that the FCC, communications providers, and power companies can cooperatively leverage to increase coordination between the power and communications sectors before, during, and after emergencies and disasters. The staff of the Legal and Communications Divisions recommended filing comments in response to the Public Notice to share the Commission’s perspective concerning improving wireless network resiliency. Specifically, staff proposed that the Commission include the following in its comments:

  1. Highlight information sharing practices between utilities and communication providers addressed in CPUC rulemakings;
  2. Inform the FCC of CPUC proceedings addressing coordination and joint planning between communications providers and power companies (e.g., R.18-12-005 (de-energization proceeding), R.18-03-011 (emergency disaster relief proceeding), R.15-06-009 (physical security risks to electric supply facilities));
  3. Inform the FCC of early e-mail notification practices by power companies to communications carriers in the event of an outage, discussed in the November 1, 2018 workshop in R.18-03-011;
  4. Inform the FCC about California’s rules requiring a power company to notify the CPUC “as soon as practicable after a decision to de-energize facilities and within 12 hours after the last service is restored”;
  5. Inform the FCC of CPUC’s rules to strengthen customer notification requirements before de-energization events;
  6. Urge the FCC to coordinate support to the state during commercial power failures in a way that “considers the unique nature of each state’s natural disasters . . . existing protocols, procedures, and infrastructure in place”; and
  7. Urge the FCC to bolster rules pertaining to the availability of back-up power during natural disasters.

The CPUC staff memorandum underlying this item is available here: http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M262/K103/262103301.PDF

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