3. This Arbitration Was Filed in Compliance With the Act, FCC Regulations, and Resolution ALJ-181
Section 252(i) of the Act provides that:
"A local exchange carrier shall make available any interconnection, service, or network element provided under an agreement approved under this Section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement." (47 U.S.C. § 252(i).)
The FCC adopted regulations implementing the Act. Regarding § 252(i) of the Act, the FCC adopted regulation § 51.809 (47 C.F.R. § 51.809), which states:
"Section 51.809 Availability of provisions of agreements to other telecommunications carriers under section 252(i) of the Act.
a. An incumbent LEC shall make available without unreasonable delay to any requesting telecommunications carrier any individual interconnection, service, or network element arrangement contained in any agreement to which it is a party that is approved by a state commission pursuant to section 252 of the Act, upon the same rates, terms, and conditions as those provided in the agreement. An incumbent LEC may not limit the availability of any individual interconnection, service, or network element only to those requesting carriers serving a comparable class of subscribers or providing the same service (i.e., local, access, or interexchange) as the original party to the agreement.
b. The obligations of paragraph (a) of this section shall not apply where the incumbent LEC proves to the state commission that:
1. the costs of providing a particular interconnection, service, or element to the requesting telecommunications carrier are greater than the costs of providing it to the telecommunications carrier that originally negotiated the agreement, or
2. the provision of a particular interconnection, service, or element to the requesting carrier is not technically feasible.
c. Individual interconnection, service, or network element arrangements shall remain available for use by telecommunications carriers pursuant to this section for a reasonable period of time after the approved agreement is available for public inspection under section 252(f) of the Act."
State commissions may adopt procedures for making agreements subject to § 252(i) of the Act available to carriers on an expedited basis. (FCC 96-325, First Report and Order, adopted August 1, 1996, released August 8, 1996, in CC Docket Nos. 96-98 and 95-185, ¶ 1321.) To that end, the Commission adopted Resolution ALJ-178 on November 18, 1999, which was later modified by Resolution ALJ-181 on October 5, 2000.
Pursuant to Resolution ALJ-181, a CLEC wishing to adopt a previously approved ICA must file and serve an advice letter identifying the agreement and portions thereof it proposes to adopt. (Rule 7.1, Resolution ALJ-181.) The incumbent local exchange carrier (ILEC) upon whom the advice letter is served must, within 15 days after its receipt of the advice letter, either (1) send the requesting carrier a letter approving its request or (2) file an application for arbitration. The request for arbitration must be based solely on the requirements of § 51.809. If the ILEC does not act to either approve the request or file a request for arbitration, the CLEC's request is deemed effective on the 16th day. (Rule 7.2, Resolution ALJ-181.)
Pacific filed its request for arbitration pursuant to the above rules governing adoption of a previously approved agreement pursuant to § 252(i).
