VI. Collocation
A. State Tariff as Collocation Option
Level 3 proposes that it be allowed to choose between the negotiated terms specified in the Agreement and those contained in SBC's state tariff for purposes of collocating with SBC. SBC contends that the negotiated terms in the Physical Collocation and Virtual Collocation Appendices should be the exclusive terms governing the parties' physical and virtual collocation arrangements.
SBC points to the FCC's "all or nothing" rule that prohibits carriers from picking and choosing from among collocation rates, terms and conditions from another interconnection agreement. However, as SBC acknowledges, the FCC's "all or nothing" rule was made in a different context. It is one thing to allow a carrier to pick and choose between individual terms that were negotiated in the context of a comprehensive agreement; doing so creates a disincentive to give and take in interconnection agreements. It is another thing to allow a carrier to opt into a state tariff.
SBC cites decisions by the federal courts of appeal in the 6th and 7th Circuits rejecting certain state commissions' orders requiring the incumbent local exchange carriers to file tariffs setting forth interconnection rates and terms as impermissibly interfering with the provisions of the Telecommunications Act. In addition, SBC points out that in any event it has no collocation tariff in California, making Level 3's proposal irrelevant.
It makes no sense for the agreement's collocation terms to make reference to non-existent California collocation tariffs. For this reason, I reject Level 3's proposed language in § 7.3 of the Physical Collocation Appendix.
However, SBC's proposed language goes too far in that it precludes the applicability of any future, legally sustainable California tariff that may be ordered by this Commission.31 For this reason, I likewise reject SBC's proposed language in § 4.4 of the Physical Collocation Appendix and §§ 1.2 and 1.10 of the Virtual Collocation Appendix.
In addition, § 21.1 of the General Terms and Conditions Appendix shall be modified to account for the possibility of a future, applicable California tariff, as specified at XII.C.
B. Collocation of Equipment SBC Believes is Non-Compliant
This dispute concerns whether Level 3 should be permitted to collocate equipment that SBC believes is non-compliant while the dispute over such compliance or non-compliance is pending. SBC and Level 3 agree that Level 3 is not permitted to collocate unnecessary or unsafe equipment. Level 3 contends, however, that SBC's proposed language precluding collocation of disputed equipment pending dispute resolution unreasonably gives SBC the unilateral discretion to deny collocation.
Contrary to Level 3's complaint, precluding the collocation of equipment while a dispute over its compliance is pending does not give SBC unilateral discretion over its placement. The agreement's dispute resolution procedures guard against such abuse.
Level 3 complains that SBC's proposed language allows it to unnecessarily delay Level 3's ability to compete and provide services to its customers. Presumably, Level 3 is concerned that SBC will raise groundless objections to collocation. Level 3 does not offer any evidence of abuse by SBC in this regard.
Level 3 asserts that SBC's proposed language is barred by 47 C.F.R. § 51.323(c) which provides that an incumbent local exchange carrier "may not object to the collocation of equipment on the grounds that the equipment does not comply with safety or engineering standards that are more stringent than the safety or engineering standards that the incumbent LEC applies to its own equipment." This provision has nothing to do with objections based on failure to meet applicable safety standards.
Level 3 asserts that the FCC's Collocation Remand Order32 resolved this issue in Level 3's favor. To the contrary, the FCC order addressed the substantive interpretation of the term "necessary." It did not address whether equipment may be collocated while a dispute over whether the equipment is "necessary" is pending.
The choice here is between permitting collocation during a dispute, and precluding it until and unless it is found to be in compliance. The prudent course is to preclude it until it is determined that the equipment meets applicable safety standards and is necessary.
Accordingly, I resolve Issues PC-2 and VC-2 by adopting SBC's proposed language in § 1.10.10 of the Virtual Collocation Appendix and § 6.13 of the Physical Collocation Appendix.
31 SBC cites, among other 6th and 7th Circuit decisions, Wisconsin Bell, Inc. v. Bie, 3410 F.3d 441 (7th Circ. 2003) for the proposition that state tariffs addressing interconnection rates and terms impermissibly interfere with the provisions of the Telecommunications Act. It is premature to anticipate whether any potential future action by this Commission would suffer from the same defect.
32 Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147, Fourth Report and Order, 16 FCC Rcd 15345, FCC 01-204 (rel. Aug. 8, 2001), aff'd sub nom. Verizon Telephone Cos. V. FCC, 293 F.3d 903 (D.C. Cir. 2002).
