Position of the Parties

CommPartners alleges that AT&T California's failure to negotiate an E911 waiver amendment to their ICA, in good faith, was unjustifiable, discriminatory, and a violation of Section 251(c)(1) of the Communications Act of 1934 (the Act).⁶ It contends that AT&T California has granted E911waivers and eliminated 911 trunks for other requesting CLECs that state that they do not offer outgoing voice services.⁷ Complainant asserts that it "was ready and willing to certify that it did not, and could not, originate any traditional circuit-switched 911 calls." It argues that AT&T California's conduct towards it violates Public Utilities Code Section 453(a)⁸ as well as Section 252(i) of the Act.⁹

CommPartners claims that AT&T California has not audited any of the CLECs to which it has granted 911 waivers in order to determine whether the CLEC was originating voice traffic. It believes that at least one of the CLECs to which AT&T California recently granted a waiver has a business plan identical to its own. CommPartners also contends that AT&T California has granted a waiver to another CLEC that is actively marketing voice/data bundles in the areas where the waiver applies.

AT&T California argues that this matter is a contract dispute. The terms and conditions under which CommPartners and AT&T California interconnect their networks are set forth in the ICA between the parties. AT&T California asserts that nothing obligates it to amend the ICA that CommPartners voluntarily adopted under Section 252(i) of the Act merely because CommPartners does not care for some of its terms.¹⁰ It acknowledges having executed 911 waiver amendments with other carriers; however, AT&T California maintains it has done so only in situations and in those locations where the carriers at issue did not offer their customers the ability to place outgoing voice calls. According to AT&T California:

CLECs are not required to have 911 trunks when they do not have two-way interconnection with AT&T California and/or when they serve voice customers that do not have the capability of dialing 911. This would include, for instance, data-only providers and one-way terminating providers. An example of a one-way terminating provider would be one that served only dial-up internet service providers ("ISPs"); another example would be a provider serving only incoming call centers. In these cases, because the customer's service does not include the ability to dial 911, there is no need for 911 trunks.¹¹

AT&T California denies having violated its Section 251 obligation to negotiate in good faith. It submits that because CommPartners adopted an ICA under Section 252(i) instead of negotiating or arbitrating one under Sections 252(a) or (b), there was nothing over which to negotiate. AT&T California asserts that even assuming that Section 252(i) required negotiation, there is no evidence in the record to indicate that it negotiated in bad faith in granting CommPartners' request to adopt the Pac-West agreement.

AT&T California insists that CommPartners is not similarly situated to other carriers to which it has granted 911 waivers. According to Complainant's testimony, it notes, CommPartners' customers are placing 911 calls¹² and those calls are being routed to a 911 service provider named Intrado to whom CommPartners has outsourced its 911 services.¹³ AT&T California states that it has no objection to a CLEC outsourcing its 911 obligations to another company. However, it argues that it is not AT&T California's role, and should not be AT&T California's obligation to sanction the manner in which a CLEC meets its 911 obligations or outsources its 911 applications.¹⁴

AT&T California states that while it is not legally obligated to relieve CommPartners of its obligation under the ICA, it will execute a prospective 911 waiver amendment and do so, if the Commission so directs. AT&T California asks the Commission to relieve it of liability for any failed 911 calls that might occur if it permits CommPartners to disconnect its 911 trunks. It urges the Commission to find that a CLEC outsourcing its 911 obligations to an alternative 911 service provider does not raise public safety concerns.

⁶ As amended by the Telecommunications Act of 1996 (TA96). Section 251(c)(1) states: "(c) Additional Obligations of Incumbent Local Exchange Carriers. -- In addition to the duties contained in subsection (b), each incumbent local exchange carrier has the following duties: (1) Duty to negotiate: The duty to negotiate in good faith in accordance with Section 252 the particular terms and conditions of agreements to fulfill the duties described in paragraphs (1) through (5) of subsection (b) in this subsection. The requesting telecommunications carrier also has the duty to negotiate in good faith the terms and conditions of such agreements."

⁷ CommPartners Opening Brief at 9.

⁸ Section 453(a) reads: "No public utility shall as to rates, charges, service, facilities, or in any other respect, make or grant any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage."

⁹ As amended by TA96. Section 252(i) states: "Availability to Other Telecommunications Carriers. -- A local exchange carrier shall make available any connection, service, or network element provided under an agreement approved under this section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement."

¹⁰ AT&T California Opening Brief at 2.

¹¹ Exhibit 2 at 10, Reply Testimony of Patricia H. Pellerin on behalf of Pacific Bell Telephone Company d/b/a/ AT&T California.

¹² See, e.g., Exhibit 1, Verified Rebuttal Testimony of Michael Burke in Support of Formal Complaint of CommPartners, LLC (U6910C) Against AT&T California, Inc. (U1001C), at 4 ("It does not make any difference to a CommPartners end user how the 911 call gets to the proper PSAP [Public Safety Answering Point]").

¹³ Id.

¹⁴ Exhibit 2 at 12.