STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor
PUBLIC UTILITIES COMMISSION
505 VAN NESS AVENUE
SAN FRANCISCO, CA 94102-3298
August 5, 2008 Agenda ID #7822
Quasi-legislative
TO PARTIES OF RECORD IN RULEMAKING 08-01-005
This is the proposed decision of Commissioner Rachelle Chong. 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 proposed 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 proposed decision as provided in Article 14 of the Commission's Rules of Practice and Procedure (Rules), accessible on the Commission's website at www.cpuc.ca.gov. Pursuant to Rule 14.3, opening comments shall not exceed 15 pages.
Comments must be filed either electronically pursuant to Resolution ALJ-188 or with the Commission's Docket Office. Comments should be served on parties to this proceeding in accordance with Rules 1.9 and 1.10. Electronic and hard copies of comments should be sent to ALJ Thomas at srt@cpuc.ca.gov and Commissioner Chong's advisor Jane Whang at jjw@cpuc.ca.gov. The current service list for this proceeding is available on the Commission's website at www.cpuc.ca.gov.
/s/ ANGELA K. MINKIN
Angela K. Minkin, Chief
Administrative Law Judge
ANG:mto
Attachment
COM/CRC/mto DRAFT Agenda ID #7822
Quasi-legislative
Decision PROPOSED DECISION OF COMMISSIONER CHONG (Mailed 8/5/2008)
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Rulemaking Regarding Whether to Adopt, Amend, or Repeal Regulations Governing the Retirement by Incumbent Local Exchange Carriers of Copper Loops and Related Facilities Used to Provide Telecommunications Services. |
Rulemaking 08-01-005 (Filed January 10, 2008) |
DECISION DECLINING TO ADOPT REGULATIONS GOVERNING
RETIREMENT BY INCUMBENT LOCAL EXCHANGE CARRIERS
OF COPPER LOOPS AND RELATED FACILITIES USED TO PROVIDE
TELECOMMUNICATIONS SERVICES ON GROUND DISPUTE IS UNRIPE
1. Summary
The Commission declines, at this time, to adopt rules requiring California's incumbent local exchange carriers to seek this Commission's permission before permanently removing copper wire local loops from the telephone network. We find that the party requesting such rules, the California Association of Competitive Telecommunications Companies (CALTEL), has not demonstrated a current need for action by this Commission. We therefore decline to take further action at this time.
We find that CALTEL has not demonstrated any current harm that necessitates the issuance of further rules. The record of this proceeding contains no evidence showing that the installation of facilities to replace the copper network has resulted in adverse impacts to consumers or competition. However, we leave open the possibility for the Commission to take later action if circumstances change and we believe that there is a need for us to revisit this matter.
2. Background
Copper wiring has been used in telephone networks across the country for more than 100 years, but as fiber optic cable becomes more widely used, competitive local exchange carriers (CLECs) and consumer groups have raised questions about whether this Commission should impose rules to preserve the copper facilities in order to safeguard choices by consumers and protect competition by CLECs.
We therefore opened this rulemaking on CALTEL's petition (Petition (P.) 07-07-009) to examine: (1) whether we should establish procedural rules that incumbent local exchange carriers (ILECs) and others must follow when an ILEC intends to retire or permanently remove copper loop facilities, and if so, what the rules should be; (2) whether we should adopt substantive prohibitions or conditions on the removal of such facilities, and, if we require that the facilities be maintained, who shall pay for such maintenance; and (3) whether ILECs are permanently removing copper drops and, if so, what action we may take to ensure their replacement where a customer so requests.
In examining these issues, we specifically reviewed the extent to which ILECs that are installing fiber are removing the copper network, whether customers or ILEC competitors have been harmed by any such practice, and whether we should adopt rules to preserve the copper network for future generations.
In addition to the comments and data we received in response to
P.07-07-009, we took comments in connection with this Rulemaking. CALTEL, Integra Telecom of California, Inc. (Integra), the United States Department of Defense/Federal Executive Agencies (DOD/FEA), the Commission's Division of Ratepayer Advocates (DRA), and The Utility Reform Network (TURN) filed comments generally supporting CALTEL's proposed rules, while the ILECs -Pacific Bell Telephone Company dba AT&T California (AT&T), Verizon California Inc. (Verizon), SureWest Telephone (SureWest) and the small California ILECs1 (Small LECs) - each filed comments, data request responses, or both in P.07-07-009 (with comments filed on August 13, 2007, August 23, 2007, and October 16, 2007, and data request responses2 filed on October 4, 2007) and in this proceeding (with comments filed on March 14, 2008 and May 28, 2008).
We sought information from the ILECs as to whether they were permanently removing or retiring copper facilities in the "local loop," located between the ILECs' central offices and customers' homes and businesses, including the "drop" line that attaches underground or overhead telephone facilities to individual customer premises.3 Based on the record, it appears that Verizon is the only large ILEC whose new broadband-based network - called FiOS - consists entirely of fiber. Thus, Verizon is the ILEC most likely to remove copper plant, although its removal to date and plans for future removal are somewhat limited, as we discuss below.
AT&T's network, U-Verse, is a hybrid network of fiber and copper that will require AT&T to leave the copper portion of the network in its system. Thus, AT&T asserts, it has no plans to remove the copper network in the foreseeable future.
While SureWest is in the process of rebuilding its network to install fiber all the way to the home, it has no CLEC in its service territory that obtains unbundled network element (UNE) loops from SureWest using copper plant. Thus, SureWest claims, removing its copper network will not deprive any CLEC of its right to lease UNEs on the SureWest network.
Finally, the Small LECs are not building fiber optic networks to replace copper facilities, and have no CLECs leasing their lines, so they too claim the facts do not support action in this proceeding.
Verizon's actions to date consist of removal of approximately 40,000 copper drops, the short span between customers' premises and Verizon's poles or underground facilities.4 Because Verizon will replace these facilities upon customer request, Verizon contends that removal of copper drops does not constitute permanent removal of copper loops. We agree that as long as Verizon continues to replace drops upon request, such action does not constitute permanent removal of the copper loop.
We also asked CALTEL to identify any harm it had suffered as a result of the status quo.5 Neither CALTEL nor the other parties favoring CALTEL's proposed rules were able to identify any harm, or pattern of harm, that convinces us to adopt rules at this time. CALTEL could point to no customer of its members that had lost service, no customers who had complained, and no member companies that had lost their ability to serve customers as a result of ILEC removal of copper facilities to date.
3. The Commission Has Jurisdiction To Act
While we decline to adopt rules at this time, we find that we have jurisdiction to do so. In its Triennial Review Order (TRO) order,6 the Federal Communications Commission (FCC) explicitly left open for state commission consideration the adoption of rules governing the retirement of copper facilities:
We stress that we are not preempting the ability of any state commission to evaluate an incumbent LEC's retirement of its copper loops to ensure such retirement complies with any applicable state legal or regulatory requirements. We also stress that we are not establishing independent authority based on federal law for states to review incumbent LEC copper loop retirement policies. We understand that many states have their own requirements related to discontinuance of service, and our rules do not override these requirements.7
We find that in this passage the FCC granted this Commission express authority to consider whether state law, rules or procedures exist or should exist to govern ILEC retirement of copper facilities. Even if, as the ILECs contend, the state law had to pre-date the 2003 TRO decision by virtue of the FCC's use of the present tense in stating that "many states have their own requirements,"8 at least one California statute qualifies.
Pub. Util. Code § 709, effective January 1, 2003, requires the Commission to facilitate the availability of broadband networks in California, as follows:
1) "continue our universal service commitment by assuring the continued affordability and widespread availability of high-quality telecommunications services to all Californians"
(§ 709(a));2) "encourage the development and deployment of new technologies and the equitable provision of services in a way that efficiently meets consumer need and encourages the ubiquitous availability of a wide choice of state-of-the-art services" (§ 709(c)); and
3) make efforts to "assist in bridging the `digital divide' by encouraging expanded access to state-of-the-art technologies for rural, inner-city, low-income and disabled Californians" (§ 709(d)).
The record of this proceeding demonstrates that the copper network is increasingly useful to facilitate advanced services in this state. As Integra points out in material submitted with its comments,9 DSL is but one use of copper plant to facilitate broadband. While ADSL started out with up to 1.5 megabits per second (Mbps) of capacity, ADSL2 can provide 25 Mpbs/pair. VDSL2 can provide up to 100 Mbps/pair on short loops of less than 1,000 feet, enough bandwidth to support services such as high definition television and video-on-demand. Thus, use of copper wiring is one way of meeting our obligations to advance broadband deployment under § 709. While we do not act on CALTEL's petition here, § 709 is a statute under which we could act if the evidence so merited.
Pub. Util. Code § 851, enacted in 1951, requires utilities to apply for Commission approval to remove facilities that are necessary or useful. CALTEL argues that the retirement of copper loops is removal of plant that is necessary or useful and that the ILECs must obtain Commission approval regarding such retirement.10 AT&T argues on the other hand that Section 851 "by its own terms, does not apply to property that is no longer necessary or useful to the ILEC in the performance of the ILEC's duties to the public."11 Verizon argues that Pub. Util. Code § 851 does not apply to the "retirement" of copper loops, as it only applies to "transactions" such as the sale, lease, encumbrance or "disposition" of public utility property that is necessary or useful to its public service obligations.12
The Commission has previously stated that "[o]ne of the fundamental purposes of Section 851 approval of the sale or transfer of utility assets is to permit the Commission to make a determination that the assets transfer will not impair the ability of the utility to provide adequate service to its customers following the transaction."13 As discussed, there is no evidence that the retirement of copper loops will impair the ILECs' ability to provide adequate service to its customers. We thus decline to find that ILECs must seek Commission approval pursuant to Section 851 of the retirement of individual copper loops. However, we are not foreclosing our authority to act under Section 851 in the future if we obtain evidence that the retirement of copper loops will impair the ILECs' ability to provide service to customers or harm customers or competition, and that such facilities are "necessary or useful" in the performance of the ILEC's duties.
Thus, the Commission has jurisdiction to act to preserve the copper network. However, for the reasons discussed below, we do not believe that there is adequate evidence that the ILECs are unilaterally disrupting competitors' service over copper lines. While we decline to act at this time, we do so because we do not find that there is a need to do so, and not because we lack jurisdiction.
4. CALTEL Has Not Provided Any Evidence Of Harm Necessitating Rules
Neither CALTEL nor any other commenter in this proceeding has provided evidence of harm justifying rules such as those CALTEL proposes.14 While TURN supports CALTEL's request that we adopt rules, it acknowledges a "lack of data" showing that problems currently exist.15 We find that hypothetical problems do not provide a basis for new regulations in this highly competitive area of telecommunications service.
CALTEL's rules would require that an entity seeking to retire copper facilities file an application with the Commission and make a showing that the copper removal would serve the public interest, convenience and necessity, among other requirements.16 The rules would prohibit ILECs who could not meet this test from retiring the facilities, perhaps indefinitely.
Before we impose such rules, there must be evidence that they are needed. As noted previously, no ILEC participating in this proceeding is currently retiring copper loops. Verizon's removal of copper drops does not constitute retirement so long as it replaces the drops upon request. (Were Verizon's practice to change and there were evidence, for example, that consumers were not able to switch back to copper-based service if they desired it, the case for action might be stronger.)
Despite the absence of current harm, CALTEL asks us to act proactively to preserve the network. DRA, FEA/DOD and TURN concur. The ILECs, in contrast, assert that the proposed rules are unnecessary in light of the FCC's existing rules and CALTEL's failure to demonstrate harm.
As we discuss below, implementing rules governing the retirement of copper loops could require an extensive examination of who will bear the cost of maintaining a network an ILEC no longer needs. CALTEL and the ILECs have vastly different opinions about how to calculate such costs and who should bear them. Moreover, CALTEL itself has noted that it is not interested in acquiring the copper network from the ILECs. Accordingly, before we embark on what might be a several years-long exercise, we believe we must be provided with a reason to act. We are not persuaded that preventing speculative future harm is an adequate basis to do so.
Further, the record shows that copper is currently not being removed on a large scale and that the ILECs' deployment of all-fiber networks is limited to date.17 While Verizon and AT&T have both announced plans to increase the pace of their fiber network build outs, all-fiber networks are still the exception rather than the rule in California.18 Verizon's fiber-only FiOS network is far from ubiquitous and AT&T's fiber network is still copper dependent.19
CALTEL's proposed rules would place a heavy burden of proof on ILECs to prove that removal of copper facilities is in the public interest. It would also be a time consuming proceeding Given the lack of proof of harm at this time, lack of actual removal of copper facilities or plans to do so, and the limited deployment of fiber networks to date, we are not prepared to take the action CALTEL urges at this time. We do not rule out the possibility of action in the future if parties can show harm from actual copper network removal to consumers or competitors.
5. The FCC Has Rules In Place
The FCC has rules in place that require ILECs to provide notice of proposed action to remove copper loops. Those rules are found at 47 C.F.R. 51.333 et seq. We do not express an opinion on whether those rules are adequate for all potential future copper retirement, but do summarize them here.
The FCC rules give competitors that lease lines from an ILEC proposing to remove copper facilities the right to file objections to gain time to smoothly transition service. Under these rules, ILECs planning to retire copper loops that have been replaced with a Fiber to the Home (FTTH) or Fiber to the Curb (FTTC) loop must comply with the network disclosure requirements set forth in 47 C.F.R. 51.325-51.335.20 These rules provide that ILECs must provide public notice or planned changes at the "make/buy point."21 The make/buy point, in this instance, is the time at which an ILEC decides to replace copper loops within its network with fiber facilities.22 The notice requirement depends on when the planned change can be implemented after the make/buy point. The ILEC must give notice within 12 months of the make/buy point except:
(1) If the changes can be implemented within 12 months of the make/buy point, public notice must be given at the make/buy point but at least six months before implementation.
(2) If the changes can be implemented within six months of the make/buy point, public notice may be given pursuant to the short-term notice procedures provided in 51.333.23
The short term notice requirements under 47 C.F. R. 51.333 require public notice if the ILEC wishes to implement the planned network changes less than six months after public notice.24 In this case, the ILEC must serve a copy of its public notice upon each telephone exchange service provider that directly interconnects with the ILEC's network at least five business days in advance of its filing with the FCC.25 Notices of replacement of copper loops or subloops with FTTH or FTTC loops shall be deemed approved on the 90th day after release of the FCC's public notice of the filing, unless an objection is filed.26
An information service provider or telecommunications service provider that directly interconnects with the ILEC's network may file objections to an ILEC's notice.27 These objections must be filed with the FCC and served on the ILEC no later than the ninth business day following the release of the FCC's public notice.28 The objecting party must clearly set forth reasons why it cannot accommodate the ILEC's changes by the date stated in the public notice and must indicate any specific technical information required that would enable the objector to accommodate those changes.29 Further, the objector must list steps that it is taking to accommodate the planned retirement and state the earliest possible date (not to exceed six months from the original date given in the public notice) by which the objector anticipates it can accommodate the proposed retirement.30 It must also provide an affidavit stating that the objection is reasonable and not being submitted for purposes of delay.31
The ILEC shall have until no later than the 14th business day following the release of the public notice to file a response to the objection with the FCC and serve the response on all parties that filed objections.32 If an objection is filed, the FCC will issue an order determining a reasonable public notice period.33
Under the FCC's rules, ILECs must provide a minimum of 90 days of notice to CLECs that will be directly affected by planned copper retirement.34 Further, ILECs must notify affected CLECs directly if they plan to implement the retirement in fewer than six months. These requirements, paired with CLECs' ability to object to the timeframe of the copper retirement, give CLECs adequate time to avoid harm in fiber overbuild situations. Thus, while the FCC rules do not allow a CLEC to prevent a proposed retirement, the rules do give affected CLECs notice and information regarding the planned retirements.
The FCC's website also lists the number of copper retirement notices that have been filed with the FCC.35 Since January 1, 2006 there have been over
250 notifications of proposed copper retirements by ILECs throughout the country, although the number in California is small. Despite these numerous notifications, filed pursuant to the FCC's rules, commenters in this proceeding failed to submit any evidence that CLECs or consumers have been harmed in any way as a result of these copper retirements. The Commission believes that there would be at least some evidence of harm if copper retirement posed the significant threat to competition, customers, and safety that CLECs claim, and if the FCC's rules were inadequate to protect against this threat.
Given the record available regarding copper retirements throughout the country and the lack of evidence on record here showing that the FCC's rules fail to protect CLECs and consumers from harm caused by copper retirement, we decline to adopt the rules that CALTEL proposes.
6. The Case Is Not Ripe For Decision
For the reasons discussed above - the lack of actual harm to competitors or customers, the limited build-out of fiber facilities, and the limited removal or plans for removal of copper facilities - we decline to adopt the proposed CALTEL rules at this time. We make no finding as to the merits of future action should circumstances change, but now is not the time, in our view, to adopt rules supplemental to those of the FCC.
As we have stated in the past, in order for the Commission to act, "there must be a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of relief."36 Thus, "the legal issues posed must be framed with sufficient concreteness and immediacy so that the court can render a conclusive and definitive judgment rather than a purely advisory opinion based on hypothetical facts or speculative future events."37
Thus, we decline to adopt CALTEL's proposed rules on the ground at this time.
7. We Are Addressing Emergency Preparedness In A Separate Proceeding
Several parties, including CALTEL, ask us to preserve the existing copper network because it is more reliable in a disaster. We are examining the issue of availability of backup power for telephone service over fiber, in R.07-04-015, our Rulemaking on the Commission's Own Motion into Reliability Standards for Telecommunications Emergency Backup Power Systems and Emergency Notification Systems Pursuant to Assembly Bill 2393 (Backup Power Rulemaking). That proceeding is the appropriate forum to consider issues of reliability and emergency preparedness on fiber networks.
Moreover, to the extent that an ILEC has transferred a customer to its fiber-based service, the underlying copper loop cannot be easily used in the event of an emergency. Once Verizon switches a group of customers on a particular copper facility to FiOS, for example, it removes or disables the copper drop to make room for the fiber facility, subject to replacement on customer request. In the event of an emergency, therefore, the customer may not easily switch back to copper-based service for emergency purposes without a visit from a Verizon service technician. Further, electric outages often result from cable cuts that also affect telecommunications wiring, so power outages also sever the copper connection to the home. In view of these facts, it is far from clear that redundancy in copper-fiber networks is the best way to ensure emergency preparedness. Access to wireless phones and computer phones via Wi-Fi already provides significant redundancy.
Thus, we do not find that the emergency preparedness issues, standing alone, merit rules prohibiting copper removal absent evidence that ILECs are currently engaged in such removal.
8. Cost Issues Are Complex
In seeking parties' input on CALTEL's proposed rules, we learned that the ILECs and CALTEL have disparate views on who should pay to maintain the network, the costs involved and how to calculate them, and whether we should have CLECs purchase portions of the network the ILECs no longer need. We are well aware of the disputes that arose over cost and pricing of UNEs, both at this Commission and around the country.38
Evidence the parties submitted in this record indicates that any effort to determine the cost to an ILEC of preserving aspects of the copper network that it no longer needs could be equally difficult. While Total Element Long Run Incremental Cost - the UNE standard - might be the appropriate cost basis according to the CLECs, the ILECs certainly would dispute this methodology and assert that many other costs should be included in any price to competitors of maintaining a network the ILECs no longer use. Further, neither CALTEL nor the ILECs expressed interest in having the Commission broker a purchase by competitors of copper facilities that the ILECs no longer need.
Thus, any proceeding on this topic could require extensive litigation on how to compute costs. We are reluctant to expend the substantial resources and time that would be required to take on this task without a clear showing of need.
9. New Petition For Rulemaking
Because we dismiss this proceeding on ripeness grounds, we will not preclude a party from returning, with evidence, to the Commission with a new Petition for Rulemaking within one year. Thus, for purposes of the dispute CALTEL raises here, we will waive the requirement of Rule 6.3(f) which states "The Commission will not entertain a petition for rulemaking on an issue that the Commission has acted on or decided not to act on within the preceding 12 months".
10. Comments on Proposed Decision
The proposed decision of the Commissioner in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code and comments were allowed under Rule 14.3 of the Commission's Rules of Practice and Procedure. Comments were filed on ______, and reply comments were filed on ______ by _______.
11. Assignment of Proceeding
Rachelle B. Chong is the assigned Commissioner and Sarah R. Thomas is the assigned Administrative Law Judge in this proceeding.
1. Verizon is installing an all fiber network.
2. AT&T's broadband network is a hybrid of copper and fiber.
3. No CLEC in SureWest's service territory obtains UNE loops from SureWest using copper plant.
4. The Small LECs are not building fiber optic networks to replace copper facilities, and have no CLECs leasing their lines.
5. No ILEC is currently permanently retiring copper loops in California.
6. Verizon's removal of copper drops is not permanent removal of copper loop facilities so long as it replaces such drop(s) upon request.
7. Verizon's FiOS network is far from ubiquitous.
8. No party has made a showing of harm justifying the rules CALTEL proposes.
9. The Commission is addressing emergency preparedness issues in a separate proceeding.
10. Customers who have switched to fiber-based service may not easily switch back to copper in an emergency.
11. Redundancy for emergency preparedness purposes exists, in part, via wireless services such as cellular service and Wi-Fi.
12. Cost issues regarding the copper network are complex and may take years to litigate.
13. The FCC has existing rules providing notice to and an opportunity to object from CLECs that may be adversely affected by ILEC copper facility removal.
1. We have jurisdiction to impose rules regarding copper retirement.
2. This case is not ripe for adoption of copper retirement rules.
3. We should allow reopening of this proceeding if a party can make a showing of harm as a result of the ILECs' retirement of copper loops.
IT IS ORDERED that:
1. We decline to adopt the rules proposed by California Association of Competitive Telecommunications Companies (CALTEL) in this proceeding on the ground that the matter is not ripe for decision.
2. For purposes of the dispute CALTEL raises here, we will waive the requirement of Rule 6.3(f) which states "The Commission will not entertain a petition for rulemaking on an issue that the Commission has acted on or decided not to act on within the preceding 12 months."
3. Rulemaking 08-01-005 is closed.
This order is effective today.
Dated , at San Francisco, California.
INFORMATION REGARDING SERVICE
I have provided notification of filing to the electronic mail addresses on the attached service list.
Upon confirmation of this document's acceptance for filing, I will cause a Notice of Availability of the filed document to be served upon the service list to this proceeding by U.S. mail. The service list I will use to serve the Notice of Availability of the filed document is current as of today's date.
Dated August 5, 2008, at San Francisco, California.
/s/ ROSCELLA GONZALEZ |
Roscella Gonzalez |
************** PARTIES ************** |
Regina Costa |
Michael Morris |
Thomas Selhorst |
Margaret L. Tobias |
1 Calaveras Telephone Company (U1004C), Cal-Ore Telephone Co. (U1006C), Ducor Telephone Company (U1007C), Foresthill Telephone Co. (U1009C), Global Valley Networks, Inc. (U1008C), Happy Valley Telephone Company (U1010C), Hornitos Telephone Company (U1011C), Kerman Telephone Company (U1012C), Pinnacles Telephone Co. (U1013C), The Ponderosa Telephone Co. (U1014C), Sierra Telephone Company, Inc. (U1016C), The Siskiyou Telephone Company (U1017C), Volcano Telephone Company (U1019C), Winterhaven Telephone Company (U1021C) ("Small LECs").
2 The Administrative Law Judge (ALJ) issued a ruling on September 14, 2007 asking the ILECs to disclose the extent of their removal of copper facilities, how they defined retirement, the impact of such retirement, and related information. The ILECs' responses are the data request responses referred to in text above.
3 Rulemaking Regarding Whether to Adopt, Amend, or Repeal Regulations Governing the Retirement by Incumbent Local Exchange Carriers of Copper Loops and Related Facilities Used to Provide Telecommunications Carriers of Copper Loops and Related Facilities Used to Provide Telecommunications Services, Rulemaking (R.) 08-01-005, Order Granting Petition for Rulemaking and Instituting Rulemaking as to Whether to Adopt, Amend or Repeal Regulations Governing the Retirement by Incumbent Local Exchange Carriers of Copper Loops and Related Facilities Used to Provide Telecommunications Carriers of Copper Loops and Related Facilities Used to Provide Telecommunications Services (OIR), Appendix A, at 2 (R.08-01-005).
4 P.07-07-009, Additional Comments and Information Request Responses of Verizon California, Inc, October 16, 2007, Attachment A, at A-2, Response to Question 3 and Question 4 (Verizon Additional Comments and Information); see also Initial Comments of The Utility Reform Network to Order Granting Petition for Rulemaking, R.08-01-005, filed March 14, 2008 (TURN Opening Comments) at 17; Reply Comments of Verizon California Inc. and Verizon West Coast Inc. on Order Instituting Rulemaking, R.08-01-005, filed May 28, 2008 (Verizon Reply Comments) at 19.
5 Order Instituting Rulemaking, § 4.3 (Issues to be Considered) & Appendix A;
P.07-07-009, Administrative Law Judge's Requesting Additional Information and Noticing Prehearing Conference, filed Sept. 14, 2007.
6 Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers; Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Development of Wireline Services Offering Advanced Telecommunications Capability, 18 FCC Rcd 16978 (2003) (TRO).
7 Id. ¶ 284.
8 We do not necessarily agree with the ILECs' interpretation of the FCC language as applying only to pre-existing state law, but assume that interpretation for purposes of argument.
9 Comments of Integra Telecom of California, Inc. on Order Instituting Rulemaking, R.08-01-005, dated March 14, 2008, Exhibit 1, at 8-9.
10 Comments of CALTEL on Order Instituting Rulemaking, R.08-01-005, dated March 14, 2008 (CALTEL Opening Comments), at 14-15. CALTEL's argument is that Section 851 applies to the retirement of copper facilities because the facilities are an integrated part of the network that is used by the ILECs and CLECs. CALTEL also asserts that the ILECs have a duty to serve the CLECs; and that copper facilities are used to provide wholesale services.
11 Comments of AT&T on Order Granting Petition for Rulemaking, R.08-01-005, filed March 14, 2008 (AT&T Opening Comments) at 8.
12 Verizon Reply Comments, at 29-30. Verizon further asserts that absent a "transaction," Section 851 does not apply on its face to copper loop retirement.
13 See D.07-03-008; D. 05-09-008 (noting that "Our primary objective in reviewing the sale of utility property is to ensure that disposition or encumbrance of public utility property does not impair a utility's public service to customers").
14 Indeed, by asking us to preserve the status quo pending the outcome of this rulemaking, CALTEL essentially concedes that the current situation poses no harm.
15 TURN Reply Comments at 11 ('TURN submits that the lack of data is one reason that establishing copper retirement rules is important.").
16 Id. at 2.
17 See AT&T Opening Comments at 27; Response of The Division of Ratepayer Advocates on Order Instituting Rulemaking, R.08-01-005, filed May 28, 2008 (DRA Reply Comments) at 2-3; Response of Dr. William E. Taylor prepared for AT&T California on Order Instituting Rulemaking, R.08-01-005, filed May 28, 2008 (AT&T's Expert Reply Comments) at 9. See also Comments of Small LECs on Order Instituting Rulemaking, R.08-01-005, filed March 14, 2008 (Small LECs' Opening Comments) at 7.
18 CALTEL Opening Comments at 19, Response of AT&T California to Order Instituting Rulemaking, R.08-01-005, filed May 28, 2008 (AT&T Reply Comments) at 32, DRA Reply comments at 2-3. See also Response of Small LECs to on Order Instituting Rulemaking, R.08-01-005, filed May 28, 2008 (Small LECs' Reply Comments) at 3; AT&T's Expert Reply Comments at 12.
19 See CALTEL Reply Comments at 16-17.
20 47 C.F.R. 51.325(a)(4).
21 47 C.F.R. 51.331(b).
22 Id.
23 47 C.F. R. 51.331(a).
24 47 C.F. R. 51.333(a).
25 Id.
26 Id.
27 47 C.F.R. 51.333(c).
28 Id.
29 Id. at (c)(1).
30 Id. at (c)(2) and (3).
31 Id. at (c)(5).
32 Id. at (d).
33 Id. at (e).
34 Id. at (f).
35 The FCC website may be found at http://www.fcc.gov/wcb/cpd/other_adjud/network.html.
36 D.02-10-066, 2002 Cal PUC LEXIS 657, at *3, citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1968); BKHN, Inc. v. Dep't of Health Services, 2 Cal. App. 4th 301, 308 (1992).
37 2002 CAL PUC LEXIS 657 at *3, citing Hayward Area Planning Assoc., Inc., 72 Cal. App. 4th 95, 103 (1999); see also D.01-07-009, 2001 Cal. PUC LEXIS 548, at *13 (declining to adopt rules supplemental to those of FCC on ripeness grounds).
38 See The Echoes Of Forgotten Footfalls: Telecommunications Mergers At The Dawn Of The Digital Millennium, 43 Hous. L. Rev. 1311, 1330 (2007) ("For its part, TELRIC [the price CLECs ultimately were required to pay ILECs for UNEs] has a storied history.").
