9. Comments on Proposed Decision
CALTEL, AT&T, Verizon, SureWest, the Small LECs, DRA, TURN and Integra filed comments and reply comments. Their points, and our responses, appear below.
First, several parties claim61 that "ripeness" is technically a concept only applicable to adjudicatory cases.62 While the Commission has applied the ripeness principle in other contexts than adjudications - see D.01-07-009, declining to adopt rules in a rulemaking63 - we modify the proposed decision to state that we have made a policy decision not to act at this time in the absence of evidence of actual or threatened harm and consistent with our state policies and the FCC's goals of encouraging broadband deployment. Such a decision is within our discretion. While CALTEL would like us to act "proactively,"64 we are not required to do so, especially if we are not faced with evidence of customer or competitor harm.
Second, several parties claim the evidence of harm is greater than the decision indicates, or introduce new evidence they claim should prompt us to act now. CALTEL notes that "in the past six weeks" AT&T has expressed plans to install a copper-only network in Downieville and Watsonville, California, rather than the hybrid copper-fiber network AT&T told the Commission about and on which the proposed decision relies. However, CALTEL notes that "it appears that no competitive carriers are directly impacted by these planned changes...."65 Further, these changes were not copper replacements with FTTH or FTTC installation or part of a coordinated campaign to change copper to fiber, but came about in special circumstances where there is no evidence of harm to competitors or customers.66
We are not persuaded by this new evidence that a problem exists requiring comprehensive new rules. We have, however, decided to require the ILECs to file concurrently with Commission's Communications Division and all CLECs that are interconnected with the ILECs, a copy of their FTTH or FTTC related copper retirement notices that are filed with the FCC. We are also establishing a process as discussed above, for the parties to negotiate with each other over the loop facilities.
In this regard, DRA erroneously asserts that we are "tacitly allowing the ILECs to retire copper loops without any state oversight."67 As discussed above, the FCC established a clear policy in the TRO not to prevent the ILECs from retiring copper loop when they deploy FTTH or FTTC facilities. Further, the state has a clear policy encouraging ILECs to build fiber facilities as evidenced by DIVCA and Pub. Util. Code § 709. These fiber networks support both voice and advanced services, and represent one type of advanced communication system desired by the FCC and our State legislature. We are reluctant to impose rules on the retirement of copper loops in light of the FCC's and our state's clear policies and in the absence of evidence of any actual harm to competition or customers. Further, TURN claims the decision ignores its evidence that Verizon's practice regarding reinstallation of copper drops on customer request is "confusing, time-consuming and burdensome to customers and very likely discourages customers from having Verizon complete the process to reinstall cooper drops that should not have been disconnected in the first place."68 Contrary to TURN's claim, this Commission does not believe there is harm to the ILEC's retail consumers from the replacement of copper loop given the scant evidence in this proceeding to date. To the contrary, this Commission believes that these advanced communications systems will greatly benefit retail consumers by giving them more choices in their voice, video and Internet service providers. Should actual harm occur, any party may bring this information to this Commission's attention.
Third, the parties supporting rules continue to assert that the FCC rules are inadequate because they do not allow the FCC to prohibit copper removal,69 but only contain procedural notice requirements. We note that the FCC in the TRO rules effectively provided notice to competitive carriers that unbundled copper loops may not be available indefinitely. The FCC's rationale for this policy was in part to increase facilities-based investment. Similarly, in California, Pub. Util. Code § 709 encourages the deployment of new technologies and services to meet customer need and encourage the ubiquitous availability of state-of-the-art services. We are also charged with increasing competition for video and broadband services under Pub. Util. Code § 5800 et seq. Although we believe that we have jurisdiction to review issues where there may be substantial, actual harm to customers or competition, we decline to establish rules that may interfere with these pro-investment policies. At this time, in the absence of anti-competitive behavior by the ILECs, we are setting forth a limited notice and negotiation process.
Fourth, the ILECs dispute the conclusion that the Commission has jurisdiction to promulgate rules in this area.70 This issue was fully briefed, and we are satisfied with our conclusion that the Commission has jurisdiction.
Fifth, Verizon asserts that the process the proposed decision sets forth for parties to return to the Commission with evidence of actual harm is overly vague. It asks us to consider reopening of this proceeding only if a party can make a showing of significant, actual harm to the public interest that applicable law does not already anticipate and address. We have established a process for the parties to negotiate access to loop facilities in the event of copper retirement plans.
Sixth, TURN and DRA raise issues regarding our emergency preparedness discussion. We clarify that section with citations to the record and other minor wording changes.
Finally, several parties dispute the proposed decision's conclusion that cost issues could be complex and time-consuming. CALTEL, for example, reiterates its position that the ILECs bear no cost from retaining copper.71 However, the ILECs strongly dispute this claim, and contend CLECs or others wishing to use copper facilities that would otherwise be retired should bear full responsibility for those facilities' maintenance.72 We decline to change our prior conclusion that the cost issues are complex and could require a great deal of time-consuming litigation. In light of limited agency resources, we decline to engage in these issues absent evidence of any actual harm at this time.
We retain our initial conclusion rejecting CALTEL's proposed rules at this time. We will, however, require the ILECs to file concurrently with Commission's Communications Division a copy of their FTTH or FTTC related copper retirement notices that are filed with the FCC. ILECs must also serve copies of those notices on all CLECs that are interconnected with the ILECs, regardless of whether a CLEC is currently serving a customer on the copper loop. We establish a process for the CLEC to request negotiations for either the purchase of the copper loop, or negotiation for continued access to loop facilities. As discussed above, we also require the ILEC to negotiate in good faith with the CLEC.
61 Opening Comments of DRA on Commissioner Chong's Proposed Decision, filed August 25, 2008 (DRA PD Opening Comments)at 3-4; Opening Comments of CALTEL on Commissioner Chong's Proposed Decision, filed August 25, 1008 (CALTEL PD Opening Comments) at 4; Opening Comments of Integra on Commissioner Chong's Proposed Decision, filed August 25, 2008 (Integra PD Opening Comments) at 2; Opening Comments of TURN on Commissioner Chong's Proposed Decision, filed August 25, 2008 (TURN PD Opening Comments) at 2.
62 An earlier version of the Proposed Decision stated that the issues were not yet "ripe."
63 2001 Cal. PUC LEXIS 548, at *12-13, cited in the original proposed decision, in which we declined to establish rules regarding eight digit dialing in telecommunications context on ripeness grounds.
64 See CALTEL PD Opening Comments at 9.
65 Id. at 11. CALTEL also refers to a change AT&T is making in Georgia, which is irrelevant here. Id. at 12.
66 See Reply Comments of AT&T California on Commissioner Chong's Proposed Decision Declining to Adopt etc., filed September 2, 2008 (AT&T PD Reply Comments) at 2-3.
67 DRA PD Opening Comments at 10.
68 TURN PD Opening Comments at 4.
69 See, e.g., Integra PD Opening Comments at 4; DRA PD Opening Comments at 8; TURN PD Opening Comments at 6.
70 AT&T PD Opening Comments at 1-2; Opening Comments of SureWest on Commissioner Chong's Proposed Decision, filed August 25, 2008 (SureWest PD Opening Comments) at 2; Opening Comments of Small LECs on Commissioner Chong's Proposed Decision, filed August 25, 2008 (Small LECs' PD Opening Comments) at 2.
71 See also DRA PD Opening Comments at 11.
72 See, e.g., AT&T Opening Comments, filed March 14, 2008, at 27.
