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On October 16, 2014, the Commission held its regularly-scheduled agenda meeting.  There were no telecommunications items addressed on the regular agenda, but the Commission placed a hold on the Proposed Decision that would open a rulemaking to address the Commission’s rules and guidelines regarding the disclosure of confidential documents in its possession.  In addition, the Commission staff’s request to submit comments to the FCC regarding the “open internet” issue was withdrawn.  These and other items of interest are discussed in further detail below.
 
CONSENT AGENDA

ATC Granted a CPCN to Provide Limited and Full Facilities-Based, Resold Local Exchange Service, and Non-Dominant Interexchange Services (Item 16, adopted on consent) – This Decision grants ATC Outdoor DAS, LLC (“ATC”) a certificate of public convenience and necessity (“CPCN”) to provide limited facilities-based, full facilities-based, and resold local exchange services in the service territories of Pacific Bell Telephone dba AT&T California (“AT&T”), Verizon California Inc. (“Verizon”), Citizens Telecommunications Company of California, Inc. dba Frontier Communications of California, Frontier Communications of Southwest, Inc., and SureWest Communications dba Consolidated Communications (“Consolidated”).  The CPCN also grants ATC authority to provide non-dominant interexchange services in California.
 
ATC proposes to design and build Distributed Antenna Systems (“DAS”), which can include “send and receive” antennae, various attachment equipment, poles, and short fiber runs to support short haul transport services for wireless carriers. DAS may also provide radio frequency or optical transport and backhaul services for voice and data services providers.  ATC will provide its service by using transport and backhaul through fiber optic cables or wireless radio frequency systems with conversion equipment attached to poles and other structures. 
 
The Decision explains that since ATC sought both limited facilities-based and full facilities-based authority, it was necessary to evaluate the CEQA implications arising from both requests.  The Decision concludes that ATC’s request for a limited facilities-based authority will not have adverse environmental impacts.  The Decision also explains that ATC’s construction activities related to its request for full facilities-based authority will only involve the installation of fiber and/or related equipment in or on existing poles, towers, buildings, fiber, conduits, ducts, rights-of-way, trenches and other facilities and structures of other entities.  Accordingly, since these construction activities are likely to be exempt under CEQA, the Decision authorizes an expedited CEQA review procedure for ATC. 
 
The Decision further concludes that ATC meets the financial and technical and managerial competence requirements necessary to be granted a CPCN. 
 
A copy of the Proposed Decision underlying this item is available at the following link:  
 
IPC Network Granted a CPCN to Provide Resold Interexchange Service (Item 26, adopted on consent) –This Decision grants IPC Network Services, Inc. (“IPC”) a certificate of public convenience and necessity (“CPCN”) to provide resold interexchange service in California. 
           
IPC was previously issued a CPCN on 2004 as a Non-Dominant Interexchange Carrier Telephone Corporation (“NDIEC”).  However, its operating authority was revoked in April 2012 by Resolution T-17359 for failure to comply with performance bond requirements for registered carriers.  Upon discovering that IPC continued to operate in California, staff ordered IPC to cease and desist operating or to file a new CPCN application. 
 
The Decision explains that IPC did not appear to be aware of the performance bond requirement and the subsequent revocation by the Commission of its authority to operate until it received the cease and desist letter from the Communications Division.  The Decision also notes that IPC continued to remit annual reports, and surcharges and user fees to the Commission during the time IPC operated without authority.  As a result, the Decision concludes that IPC’s oversight was inadvertent, and that IPC had in good faith sought to comply with all the Commission’s requirements by remitting surcharges and paying user fees during its revocation.  The Decision also notes that IPC immediately began to rectify compliance problems when it became aware of them. 
 
In addition, the Decision concludes that IPC meets the environmental, financial, and technical and managerial competence requirements necessary to be granted a CPCN and to operating as an NDIEC.
 
A copy of the Proposed Decision underlying this item is available at the following link

Greenlining’s Request for Intervenor Compensation (Item28, held until 11/6) – This Proposed Decision would grant $154,100.50 in intervenor compensation to The Greenlining Institute (“Greenlining”) for its contribution to D.12-08-025, which dismissed the Commission’s investigation into the proposed acquisition of T-Mobile USA, Inc. (“T-Mobile”) by AT&T Inc. (“AT&T”).  The investigation was deemed moot by D.12-08-025 based on the withdrawal of the merger application by AT&T and T-Mobile at the FCC.  Notwithstanding the dismissal of the investigation, the Proposed Decision would find that Greenlining’s participation in the investigative proceeding constituted “substantial contribution” and would have produced benefits for ratepayers had the merger application not been withdrawn.  Therefore, the Proposed Decision would conclude that the vast majority of Greenlining’s claimed costs and expenses are reasonable.  The Proposed Decision would order T-Mobile and AT&T to pay Greenlining their respective share of the award, based on their California-jurisdictional telecommunications revenues for the 2011 calendar year

A copy of the Proposed Decision underlying this item is available at the following link:
 
HELD ITEMS
 
Proposed Rulemaking to Address Public Access to Confidential Documents held by the Commission (Item 7, held by Commissioner Picker until 11/6/14) – This item would open a rulemaking proceeding to address procedures for improving the public’s access to records that are not exempt under the California Public Records Act (“CPRA”) or other state and federal law.
 
The draft Order Instituting Rulemaking (“OIR”) explains that in Resolution L-436, the Commission articulated policies designed to ensure that the public would have easy access to certain safety-related data created by or furnished to the Commission.  In Resolution L-436, the Commission also committed to open the rulemaking contemplated by this draft OIR. 
 
The Proposed Decision would seek to align the Commission’s confidentiality and disclosure rules and procedures with the CPRA.  Currently, the Commission’s confidentiality rules are embodied in General Order (“G.O.”) 66-C, which identifies Commission records as public unless they fall within a short list of exemptions.  Before holding the proceeding, the draft OIR would conclude that G.O. 66-C is inconsistent with the CPRA and would propose to replace G.O. 66-C with a G.O. 66-D.  A copy of the proposed G.O. 66-D is attached to the draft OIR.  The Proposed G.O. 66-Dis intended to remove the list of records that are exempt from public disclosure, remove Public Utilities Code Section 583 as authority for exempting records from public disclosure, and establish a procedure for the public to request records. 
 
A copy of the Proposed Decision underlying this item available at the following link:  

 

CLOSED SESSION ITEMS

Commission Denies Joint Wireless Carrier’s Application for Rehearing of Decision Adopting Revisions to Certification Processes (Item 42, approved) – This Decision addresses the application for rehearing of D.13-05-035 filed by Cricket Communications, Inc. (“Cricket”), Spring Nextel, and T-Mobile West LLC dba T-Mobile (collectively, “Joint Wireless Carriers”).  D.13-05-035 adopted revisions to the certification process for telephone corporations seeking or holding CPCNs, or for registrations for wireless carriers.  The Joint Wireless Carriers specifically alleged that the bonding requirement imposed on wireless carriers as a condition of entry or continued participation in the California market violates federal and state law. 
 
The Decision concludes that federal laws do not preempt the Commission from imposing a bond requirement on wireless carriers.  The Decision dismisses the Joint Wireless Carrier’s assertion that the bond requirement constitutes an impermissible market-entry regulation, explaining that the bond requirement is intended to protect consumers and to ensure there is a means to pursue fines, restitution, taxes and fees.  Accordingly, the Decision concludes that the bond requirement constitutes a permissible regulation of “terms and conditions” of wireless service pursuant to state rules. 
 
The Decision also concludes that the bond requirements do not conflict with state laws.  The Joint Wireless Carriers alleged in their application for rehearing that Public Utilities Code Section 1013(m) exempts wireless carriers from the bond requirement, and therefore the Commission lacks the statutory authority to impose the bond requirement.  The Decision explains that the Commission relies on its authority under Sections 709 and 701 to impose the bond requirement on wireless carriers, and Section 1013(m) does not expressly prohibit the Commission from imposing a bond requirement.  Therefore, the Decision concludes that Section 1013(m) is consistent with the authority afforded under Sections 709 and 701. 
 
A copy of the final Decision underlying this item is available at the following link
 
Commission Denies AT&T’s Application for Rehearing of Decision Addressing Involuntary Market Exits Denied (Item 43, approved) – This Decision addresses an application for rehearing of D.13-07-002, which modified the involuntary exit rules outlined in D.10-07-024.  In D.10-07-024, the Commission established rules for telecommunications carriers that must exit the market, and set forth guidelines for situations in which a wholesale service provider terminates service to a customer CLEC.  These rules were modified by D.13-07-002, which concluded that forced disconnections would conflict with Public Utilities Code Section 558, and modified the involuntary exit rules to clarify that a wholesale provider shall not cease to provide telecommunications service during an ongoing dispute with a carrier customer over intercarrier compensation.
 
AT&T alleged that the Commission erred in D.13-07-002 because the clarifications to the involuntary exit rules: (1) are unnecessary, likely to cause disputes, or will lead to unnecessary delays; (2) include an unnecessary discussion of Section 558; (3) are duplicative; (4) create the risk of unlawful conflict with ICAs by (a) impeding disconnection of a customer carrier if the ICA provides for disconnection; and (b) requiring the customer carrier to notify customers of termination only when staff determines disconnection is not based on disputed charges; and (5) could be interpreted to mean that involuntary exit process applies when no retail end users are affected. 
 
The Decision concludes that allegations numbers 1-3 fail to assert a legal argument and merely reflect AT&T’s belief that D.13-07-002 could be written more “clearly.”  The Decision also concludes that AT&T’s arguments that the guidelines regarding disconnection of customer carriers could potentially conflict with ICA’s have no merit.  The Decision explains that AT&T’s allegations would have the effect of impeding interconnection and nullifying Section 558 of the Public Utilities Code, which requires telephone corporations to receive, transmit, and deliver the conversations and messages of every other corporation with whose lien a physical connection has been made.  The Commission also rejects AT&T’s last argument by clarifying that Section 558 applies to all instances of interconnection, including instances where no retail end users are affected. 
 
A copy of the final Decision underlying this item is available at the following link:  
 
WITHDRAWN ITEMS

Request by Staff to File Reply Comments to the FCC on an Open Internet (Item 38, held by Commissioner Peterman) – In this item, the Communications Division and Legal Division would have renewed their request for authority to submit comments to the FCC in response to a Notice of Proposed Rulemaking (“NPRM”), which set forth proposals to “ensure that the Internet remains open” (“Open Internet NPRM”).  During an earlier Commission meeting, President Peevey placed a hold on this item after a robust discussion by the Commissioners, and therefore prevented staff from filing timely opening comments.  Accordingly, this item was modified by staff to request authority to file reply comments, which would have included much of the same arguments and content that staff sought to assert in opening comments. 
 
The Open Internet NPRM was issued after the Court of Appeals for the District of Columbia vacated the FCC’s net neutrality rules adopted in its 2010 Open Internet Order on the basis that the anti-blocking and anti-discrimination rules imposed per se common carrier obligations on broadband services, which the FCC has classified as an information service.
 
The Communications Division proposed recommendations addressing the following issues: 
 
(A) The Transparency Rule.  CD proposed the following suggestions: (1) ISPs specifically tailor disclosure to meet the needs of edge providers and consumers; (2) support for the Open Internet Advisory Committee’s proposal to require the industry to use a standardize label for Internet service; (3) support the FCC’s proposal to require broadband providers to disclose in a timely manner to consumers, edge providers, and the public when they make changes to their network practices as well as any instances of blocking, throttling, and pay-for-priority arrangements; and (4) the CPUC would report to the FCC about CalSpeed application that is used by California consumers to measure broadband upload and download speeds. 
 
(B) No-Blocking Rule.  CD recommended that the Commission support a No-Blocking Rule, but specified that an effective No-Blocking Rule would require reclassifying broadband as a common carrier service.  Alternatively, should the Commission not support reclassification of broadband services, CD recommended that the Commission ask the FCC to include a requirement that ISPs offer a “minimum level of service” based on “an objective, evolving ‘reasonable person’ standard.”  This “minimum level of service” would operate in conjunction with the “No Commercially Unreasonable Practices” discussed below in (D).  
 
(C) Treatment of Mobile Internet Access Service.  CD recommended that the Commission submit comments supporting the FCC adoption of a No-Blocking rule for mobile broadband that would apply to all applications that compete with the mobile broadband Internet access provider’s other services, unless doing so is technically infeasible. 
 
(D) No Commercially Unreasonable Practices.  Should the Commission support reclassification, CD recommended that the Commission oppose a “commercially reasonable” standard in favor of a “no unreasonable discrimination” standard consistent with Title II of the Communications Act.  In the alternative, if the Commission did not support reclassification, CD recommended that the Commission support the FCC’s proposed “commercially reasonable” standard.
 
(E) Forbearance should the FCC reclassify broadband Internet services.  If the Commission supported reclassification, CD would further recommend that the FCC forbear from many common carrier regulations in order to avoid onerous and burdensome regulations on broadband Internet access, including rate regulating.  ‘
 
A copy of the Staff’s memorandum is available at the following link

COMMISSIONER REPORTS

Commissioner Sandoval announced that she received the McGannon Award from the United Church of Christ, Office of Communications, which has long recognized the important role of media access and communications for the civil rights movement.  In her acceptance speech, she highlighted the work of the Commission, including programs like CASF and efforts at bringing broadband to the Yurok and Karuk tribes in California.  She also noted that she mentioned in her acceptance speech that she has recently filed testimony with Congress and the FCC regarding the Open Internet rulemaking.  She explained that her testimony highlighted the use of internet access by utilities and the importance of openness and low barriers to entry to promote reliability.  She expressed concern in her testimony that the individualized negotiations contemplated by the FCC that would allow for discrimination against individual users that would increase barriers.  She asserted that these impacts would be contrary to the goals of utilities, which are to provide, safe, reliable access to services at just and reasonable rates. 
 
Commissioner Sandoval also highlighted her recent visit to the Tolowa tribe, where she had an opportunity to discuss opportunities to improve broadband service in the community.  Commission Sandoval also attended the North Coast Broadband Conference.
 
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If you have questions regarding any of the above items, or the underlying proceedings in which they arose, please feel free to contact us.
 

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