4. Comments on the Proposed Decision

The proposed decision of the assigned ALJ 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 February 27, 2012 by AT&T and XO. Reply comments were filed on March 15, 2012 by AT&T and XO. We have reviewed the comments and reply comments and have made appropriate refinements in finalizing this decision, specifically by (1) clarifying Findings of Fact 14 and 15 and the associated text and (2) adding an additional Ordering Paragraph regarding AT&T's write-off of prior bills in excess of the rate ordered in this decision (discussed further below).

We also address here several specific comments by the parties.  XO proposed that Conclusions of Law 8 and 9 be added to D.10-07-005.  Although we understand XO's consistency concern, such a change is inappropriate.  The ICA rate sheet discussed in Conclusions of Law 8 and 9 was not in the record during the underlying proceeding and thus was not before the ALJ and the Commission at the time the Commission issued D.10-07-005.  XO also proposes to change Ordering Paragraph 1(a), which modifies section 3 of D.10-07-005.  We reject XO's proposed changes to Ordering Paragraph 1(a) for the same reason as above and because the proposed changes go beyond what we set forth in this decision.  XO also proposes to change Ordering Paragraph 1(f) to reinstate and modify Ordering Paragraph 2 of D.10-07-005 to require AT&T to adjust its past bills to XO pursuant to the decision.  Once again, those proposed changes reference a rate set forth in an ICA rate sheet that was not in the record at the time of D.10-07-005's issuance.  However, we recognize XO's concern regarding AT&T's write-off of past charges in excess of the rate ordered in this decision; thus, we have included an Ordering Paragraph to explicitly address AT&T's write-off and set a 60-day window for compliance.

AT&T contends that the decision improperly relies on AT&T's conduct to show that AT&T agrees with XO's interpretation of the ICA.  AT&T misses the point.  We draw no such conclusion.  Rather, we rely on the fact-admitted by AT&T-that it did and does charge XO a rate out of the ICA for cross-connects via the MDF.  As it has argued previously, AT&T also asserts that parties must affirmatively "opt in" to the section 251 requirements in their ICAs.  Even if AT&T's argument had merit, we feel that the language in the ICA discussed above would satisfy AT&T's interpretation of section 252(a)(1).  Finally, the remainder of AT&T's comments reiterated arguments considered and rejected in the proposed decision, and we accorded them no weight.