Rhythms' Motion to Strike

Rhythms filed its motion to strike the direct testimony filed by Richard Scholl on behalf of Pacific Bell (Pacific), the direct testimony filed by Kevin Collins on behalf of Verizon California, Inc. (Verizon), and portions of the direct testimony of Trevor Roycroft on behalf of the Utility Reform Network (TURN) in the Line Sharing Phase of the Open Access and Network Architecture Development (OANAD) proceeding. In its motion, Rhythms cites the grounds for striking portions of the direct testimonies of the three witnesses that are the subject of the motion as follows:

1. Scholl: Improperly attempt to relitigate certain decisions of the Commission and the Federal Communications Commission (FCC) not at issue in this proceeding.

The basis for Scholl's contention that Pacific will not recover its forward-looking costs is his comparison of 1FR (single line residence flat rate service) revenue numbers that include universal service fund calculations, against claimed OANAD-compliant annual 1FR loop costs, including shared and common costs. However, both the Commission and the FCC have ruled that universal service costs are not relevant to calculation of TELRIC-compliant costs and prices for unbundled network elements (UNEs). The HFPL is a UNE so Scholl's attempt to include universal service fund calculations as a relevant factor in determining the price for the HFPL UNE is an attempt to relitigate an approach that has been precluded by prior Commission and FCC precedent.

2. Collins: Ignores completely the Total Element Long Run Incremental Cost (TELRIC) costing and pricing standards mandated by this Commission and the FCC for line sharing, and improperly attempts to introduce evidence of Verizon's claimed embedded costs.

Collins ignores completely the TELRIC costing and pricing standards mandated by this Commission and the FCC for line sharing, and improperly attempts to introduce evidence of Verizon's claimed embedded costs. Collins proposed monthly recurring rate of $7.32 is based on what he calls "embedded constraint" costs. This approach violates the requirement of the FCC and this Commission that the prices for UNEs be based solely on the forward-looking TELRIC approach, which by definition excludes any consideration of the types of costs that are the foundation for Collins' calculations.

3. Roycroft: Exceeds the defined scope of the High Frequency Portion of the Loop (HFPL) pricing phase of this proceeding.

Rhythms asserts that the testimony in the HFPL portion of the proceeding is to address public policy arguments concerning whether the Commission should impose a positive monthly recurring charge for the HFPL. According to Rhythms, the discussion at the May 2, 2001 Prehearing Conference (PHC) made it clear that such testimony was not to include cost studies re-examining the underlying loop rates, but was to be limited only to a discussion of whether any portion of the already existing UNE loop rate should be allocated to CLECs' use of the HFPL for DSL services.




Roycroft's testimony filed on behalf of TURN submits a new cost analysis of UNE loop rates. According to Rhythms, such material is beyond the scope of the proceeding and should be stricken. Further, Roycroft's testimony attempts to introduce an analysis of charges for DSL provided over fiber-fed DLC, or Project Pronto, loops. The assigned Administrative Law Judge (ALJ) excluded fiber-fed DLC pricing from this portion of the case, because such issues are to be addressed in later portions of the proceeding. Thus, Rhythms concludes that this portion of Roycroft's testimony exceeds the allowable scope of the proceeding and should be stricken and resubmitted in the later portions of the proceeding.