Conclusions of Law

1. Pursuant to Section 251(c)(6) of the Act, ILECs must allow CLECs to collocate their equipment in ILEC premises and must provide CLECs with cross-connects "as requested" by a CLEC to connect the CLEC's equipment both with the ILEC's equipment and other CLECs' collocated equipment.

2. Section 251(c)(3) of the Act and implementing FCC orders regarding the ILECs' Section 251(c)(3) unbundling obligation do not apply to CLEC-to-CLEC cross-connects, a form of collocation under Section 251(c)(6).

3. FCC orders provide that cross-connects via the MDF are a type of cross-connects that ILECs must provide.

4. Pursuant to the Act and implementing FCC orders, the rate for cross-connects is TELRIC.

5. Parties may opt out of the requirements of the Act pursuant to a negotiated ICA.

6. State commissions may lawfully interpret and enforce existing approved ICAs.

7. Pursuant to the parties' ICA, XO is entitled to cross-connect service, including cross-connects via the MDF.

8. The proper rate for cross-connects via the MDF that AT&T provides XO is the rate set forth in the ICA that AT&T has charged and continues to charge XO for cross-connects via the MDF in impaired wire centers, as currently set forth in the 2005 amendment to the ICA, Attachment 1, entitled "Monthly Rec Rates."

9. Even if the ICA were silent on whether XO is entitled to cross-connects via the MDF, XO would still have a right to cross-connects via the MDF under Section 251 of the Act, and it would be proper to apply a TELRIC rate as required by the Act.

ORDER

IT IS ORDERED that:

1. Decision (D.) 11-07-032, modifying the underlying decision D.10-07-005, is modified to provide as follows:

a. Delete Section 3 of D.10-07-005, beginning with the first full paragraph on page 4 through the end of Section 3 on page 5. Replace with the following language:

We note that neither AT&T nor XO directly address Section 252(a)(1) which operates to require that when there is an applicable negotiated ICA, that document will determine the rates, terms and conditions of service. In paragraph 66 of the Local Competition Order, the FCC specifically found that Section 252(a)(1) affords carriers the ability to deviate from the preferred outcomes under the Act. Our review of the ICA between AT&T and XO reveals that Section XI.A applies to the service in dispute here. That Section of the ICA specifically states that the applicable rates, terms and conditions will be those in Section 16 of AT&T's P.U.C. Tariff 175-T, as adjusted by the modifications enumerated in Section XI.A.1.of the ICA. We recognize that ICAs have the binding force of law, and are aware of no circumstances which would defeat the ICA's application to resolve this dispute. Accordingly, we find that AT&T is required to charge XO the rates for collocation (including physical
cross-connects such as cross-connects via the MDF) that are identified in the ICA.

b. D.10-07-005 Conclusion of Law 1 is modified to read:

Section 252(a)(1) of the Act applies to require that the ICA between AT&T and XO governs the rate to be charged for the disputed service.

c. D.10-07-005 Conclusion of Law 2 is modified to read:

AT&T California must provide cross-connection to XO, including cables between cages and main distribution frames at rates pursuant to the ICA.

d. D.10-07-005 is modified to delete Conclusion of Law 3.

e. D.10-07-005 Ordering Paragraph 1 is modified to read:

Pacific Bell Telephone Company d/b/a AT&T California is required to charge XO Communications Services, Inc. for providing physical cross-connects, including cross-connects via the MDF, at rates pursuant to the ICA.

f. D.10-07-005 Ordering Paragraph 2 is deleted.

2. Pacific Bell Telephone Company d/b/a AT&T California (AT&T) shall charge XO Communications Services, Inc. (XO) for CLEC-to-CLEC cross connects via the main distribution frame (MDF) (i.e., cabling between XO's termination on AT&T's MDF to another competitive local exchange carrier's termination on AT&T's MDF) at the Total Element Long Run Incremental Cost rate which AT&T has charged and continues to charge XO for cross-connects via the MDF in impaired wire centers, as set forth in the 2005 amendment to the interconnection agreement, Attachment 1, entitled "Monthly Rec Rates."

3. From January 1, 2008, to the effective date of this order, XO Communications Services, Inc. (XO) shall pay Pacific Bell Telephone Company d/b/a AT&T California (AT&T) for the provision of cross-connects via the main distribution frame (MDF) at the Total Element Long Run Incremental Cost rate which AT&T has charged and continues to charge XO for cross-connects via the MDF in impaired wire centers, as set forth in the 2005 amendment to the interconnection agreement, Attachment 1, entitled "Monthly Rec Rates."

4. Within 60 days of the effective date of this order, Pacific Bell Telephone Company d/b/a AT&T California (AT&T) shall write off that portion of any bill rendered to XO Communications Services, Inc. (XO) for the provision of cross-connects via the main distribution frame (MDF) from January 1, 2008 to the effective date of this order in excess of the Total Element Long Run Incremental Cost rate which AT&T has charged and continues to charge XO for cross-connects via the MDF in impaired wire centers, as set forth in the 2005 amendments to the interconnection agreement, Attachment 1, entitled "Monthly Rec Rates."

5. Case 09-07-021 is closed.

This order is effective today.

Dated March 22, 2012, at San Francisco, California.

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