10. Comments on Revised Proposed Decision
CALTEL, AT&T, Verizon, SureWest, the Small LECs, DRA and TURN (jointly) and Integra filed comments in response to the revised proposed decision. Their points, and our responses, appear below.
First, many parties disagree with the revised proposed decision's conclusion that the Commission is not enacting "rules" or "regulations" with this proposed decision. CALTEL argues that not enacting rules will lead to ILEC claims that the Commission has simply encouraged compliance.73 CALTEL claims that the unwillingness of the Commission to issue a binding determination on proposed retirements deprives the parties of any venue in which they may resolve a dispute over which the Commission has sole jurisdiction. Similarly, DRA and TURN object to the "process" that this proposed decision creates as it is "outside the Commission's formal proceedings and informal advice letter process. "74 We are satisfied with our conclusion that there has been insufficient evidence of harm presented in the record of this proceeding to require comprehensive new rules. The decision has been amended to make clear that we are establishing a notice and commercial negotiation process for the ILECs to comply with when retiring copper loops where a CLEC has indicated interest in purchase or lease.
Second, no parties object to the requirement of filing concurrent copies of all notices of network changes filed with the FCC. This requirement, therefore, will be adopted in the final decision and ILECs wishing to retire copper facility will be required to provide the Commission's Communications Division with a concurrent copy of notices filed with the FCC pursuant to 47 C.F.R. § 51.325.
Third, ILECs object to the requirement for mandatory arbitration if negotiations with CLECs are not successful. These parties express concerns that such a requirement would divert financial resources away from advanced infrastructure build-out.75 Further, ILECs note that parties are already free to engage in commercial negotiations today without the need for regulatory intervention76 and that CLECs have successfully negotiated intermodal access options and self deployed or leased their own last-mile facilities without unnecessary regulatory interference.77 ILECs maintain that if a mandatory arbitration procedure is adopted, it must be non-binding. They assert that the FCC rejected proposals that would have required affirmative regulatory approval prior to the retirement of such copper loop facilities, placing the decision to retire copper loops in connection with fiber in the sole control of the ILEC.78
CLECs, however, assert that if arbitration is non-binding there will be no incentive on the part of the ILEC to reach a negotiated settlement. Further, CALTEL notes that if the default process favors one party, if there is no final resolution that party (the ILEC) will always prevail.79 CALTEL proposes three alternatives to the revised proposed decision's non-binding arbitration model including one requiring Commission approval of the non-binding arbitration determination.80
After consideration of these comments, we agree that the non-binding arbitration process would not add more to the commercial negotiation process that we set forth. We find that mandating non-binding arbitration would only consume additional resources of the parties and the Commission. Those resources may be put to better use with the parties engaging directly in negotiation. We continue to provide a process for CLECs to negotiate with the ILEC to purchase, or for access to, the copper facility, and require the ILEC to negotiate in good faith with the CLEC.
Fourth, Verizon emphasizes the complexity of the cost issue, noting that CALTEL has stated on the record that its members are not interested in purchasing retired copper facilities and would demand to continue paying the incremental costs of leasing individual loops, ignoring the substantial costs required to maintain any given copper cable in working condition regardless of how many individual copper pairs are in use. 81 We understand that the cost issues are complex, and have noted that the costs associated with access to a copper facility over retired copper plant may encompass a variety of costs. We maintain our decision to require good faith negotiations between parties to attempt to resolve these cost issues privately. To the extent that an ILEC is required to provide certain facilities under the FCC's rules or our rules, nothing in this decision relieves the ILEC of those duties.
Fifth, Integra again states that CALTEL's proposed rules should be adopted.82 We retain our initial conclusion rejecting these rules at this time.
Finally, DRA and TURN urge the Commission to require ILECs and CLECs to provide notice to all of their customers who may be affected by a copper retirement.83 We find that the Commission already has sufficient rules in place to protect consumers with respect to ILEC and CLEC notification of changes to service. For example, if a CLEC will need to discontinue service to a customer where the copper loop is being retired, the carrier of last resort will be required to provide service to the customer, and the CLEC is required under our rules to provide notice of its discontinuance/transfer of service to the customer. Moreover, an ILEC will need to provide 30-day notice to customers when the ILEC is retiring a copper loop and transferring them to a fiber-service, if there is a change in the rates, terms, and conditions associated with the service. The ILEC must also offer its customer the comparable service over fiber.
Further, if an ILEC is advertising its new fiber-based service to customers, it should not represent that the customer must purchase the fiber-based service.
73 Comments of CALTEL on Commissioner Chong's Revised Proposed Decision, filed October 14, 2008 (CALTEL RPD Comments), at 1.
74 Comments of DRA/ TURN on Commissioner Chong's Proposed Decision, filed October 14, 2008 (DRA/ TURN RPD Comments), at 4.
75 Comments of Verizon on Commissioner Chong's Proposed Decision, filed October 14, 2008 (Verizon RPD Comments), at 2, Comments of AT&T California on Commissioner Chong's Revised Proposed Decision, filed October 14, 2008 (AT&T RPD Comments), at 2.
76 Verizon RPD Comments at 3.
77 Verizon RPD Comments at 7.
78 AT&T RPD Comments at 1, 3.
79 CALTEL RPD Comments at 5.
80 Id. at 5.
81 Verizon RPD Comments at 4-5.
82 Comments of Integra on Commissioner Chong's Revised Proposed Decision, filed October 14, 2008 (Integra RPD Comments), at 2.
83 DRA/ TURN RPD Comments at 3.
