IV. Discrimination Issue
The parties stipulated to the relevant facts concerning the connection to the ISP for DSL repair services. If a caller dials 611 from an SBC California telephone line, the caller receives various Interactive Voice Response System (IVR) prompts, including entering the caller's telephone number. If the telephone number is for a line that has DSL Transport Service, the next prompt states: "Our records indicate that your voice line includes DSL service. If you are reporting trouble on the data portion of your line, press 1 . . . ." If the caller presses 1, the next prompt states, " If you are calling about your DSL: Internet access service from SBC Internet Services, press 1 now. Otherwise, if you are calling about DSL Internet access service from another Internet service provider, please hang up and call your Internet service provider." If the caller presses 1, IVR will connect the caller to SBCIS' IVR.
SBC California connects over 10,000 calls each month from its 611 IVR to SBCIS. SBC California does not offer such a connection from its 611 IVR to any other ISP. The issue is whether Defendants unreasonably discriminate by providing subscribers of their affiliated ISP, SBCIS, who dial 611 for DSL repair services the option of connecting to SBCIS without having to hang up, but telling unaffiliated ISPs' subscribers they must hang up and call their ISP.
As a practical matter, both SBCIS and unaffiliated ISPs have numbers for subscribers to access DSL repair services other than 611. However, a significant number of subscribers do call 611 for repair services, and a significant number are connected to SBCIS. We hold that this differential treatment is lawful, because as we discuss below, the fact that Raw Bandwidth's DSL service subscriber must hang up and call Raw Bandwidth's service department does not violate applicable state or federal law.
A. SBC California's Differential Treatment
of Customers Making 611 Calls Does
Not Violate FCC Requirements
The parties stipulated that the FCC's Computer III rules govern SBC California's obligations regarding enhanced services, and agree that the rules require SBC California provide unaffiliated ISPs nondiscriminatory access to the same services and functions underlying the provision of enhanced services to its affiliated ISP. The parties also agree that there is no explicit federal requirement that SBC California automatically connect to their ISP those customers of unaffiliated ISPs who dial 611. We determine that no other federal requirement can reasonably be interpreted to require such a connection.
The connection of 611 repair calls is neither a basic service, nor a basic service function, nor a network capability that is subject to the FCC's Computer III unbundling and tariff requirements.6 The FCC's Computer III Order does not explicitly require SBC California to make no distinction between 611 repair calls concerning unaffiliated ISPs and those calls concerning its own ISP.7 The FCC's focus in the computer inquiry proceedings is on the distinction between regulated basic services and unregulated enhanced services, with telephone service a basic service and Internet access service an enhanced service. Carriers that provide enhanced services must provide access to the basic transmission facilities used to provide enhanced services under the same terms and conditions enjoyed by their own enhanced services affiliate. Those carriers are subject to nonstructural safeguards-Open Network Architecture, unbundling and equal access to basic network functions, and Comparably Efficient Interconnection (CEI), in addition to cost accounting rules. (See generally Amendment of Sections 64.702 of the Commission Rules and Regulations (Third Computer Inquiry), 104 FCC 2d 958 (1986).)
Raw Bandwidth contends that the handling of repair calls is subject to CEI, and specifically to the unbundling of basic services requirement. That requirement provides:
As part of its CEI offering, the basic services and basic service functions that underlie the carrier's enhanced service offering must be unbundled from other basic service offerings and associated with a specific rate element in the CEI tariff. . . . Moreover, any options that are available to a carrier in the provision of such services or functions also must be included in the unbundled offerings. All basic network capabilities utilized by the carrier's enhanced service offerings, including signaling, switching, billing and network management, are subject to this unbundling requirement. (Id. at ¶ 158.)
Defendants contend that the FCC intended that basic service refer to the transmission that carriers use as in input into their enhanced services. By definition, a basic service underlies the carrier's enhanced service offering; therefore, DSL Transport is a basic service that underlies SBCIS' broadband Internet service offering.
However, the handling of repair calls is incidental to SBC's provision of enhanced services and is outside the scope of the FCC's CEI requirements. Thus, the handling of repair calls does not constitute a basic service and is not subject to the CEI unbundling of basic service requirement. SBC notes that under the Computer III Order, it can use the same personnel to repair and install the equipment necessary to provide basic and enhanced services. (Id. at ¶ 100.) Therefore, the differing connection parameters for affiliated and unaffiliated ISP customers do not violate FCC requirements.
Complainant states that SBC California neither has a CEI offering for access to 611 nor tariffs for 611 Repair Transfer Service for unaffiliated ISPs. Complainant states the CEI end-user access requirement compels SBC to provide customers of unaffiliated ISPs access to 611. That access requirement provides:
If a carrier offers end-users the ability to use abbreviated dialing or signaling to activate or access the carrier's enhanced offerings, it must provide, as part of its CEI offering the same capabilities to end-users of all enhanced services that utilize the carrier's facilities. (Id. at ¶ 162.)
SBC responds that it is not required to have a CEI offering because it is not providing access to 611; it merely is making a referral. SBC does not offer abbreviated dialing to activate service nor does it offer abbreviated dialing to directly access SBCIS' offerings. Instead, a subscriber who dials 611 for DSL repair must navigate a series of IVR prompts that could result in a transfer of the caller to SBCIS.
The FCC's end-user access requirement does not require a CEI offering for repair transfers. Because there is no explicit requirement and because an IVR transfer differs from direct access to SBCIS' services, we decline to find one here. In addition, as noted by Defendants, the relief requested by Raw Bandwidth, the transfer of calls to unaffiliated ISPs, could conflict with existing protocols. Competitive Local Exchange Carriers (CLECs) using unaffiliated ISPs could have calls transferred to that ISP, rather than the CLEC, as is currently required by FCC orders.
B. The Transfer of 611 Calls Does
Not Raise Competitive Concerns
The inadvertent transfer of unaffiliated ISPs' subscribers' DSL repair calls to SBCIS does not raise competitive concerns. Raw Bandwidth contends the transfer of those calls amounts to "unfair competition," because SBC California's 611 IVR could transfer both SBCIS' and unaffiliated ISP's subscribers but does not, and SBCIS could use the transfer opportunity to market its own DSL service. Defendants respond that SBC California only offers to transfer SBCIS subscribers, not unaffiliated ISP's subscribers, and that Raw Bandwidth has the means to avoid such transfers, since its CEO, Michael Durkin, sometimes instructs Raw Bandwidth's subscribers to contact SBC California when they experience both voice and data problems. We concur that Raw Bandwidth can educate its subscribers to contact it directly for repair concerns.
We also have provided parameters for marketing to customers who contact SBC California with repair issues. Specifically, in D.00-05-021, approving SBC ASI's application for a certificate of public convenience and necessity, we required Pacific Bell Telephone Company, doing business as SBC California, to address customer's inquiries prior to marketing SBC ASI's services. (Re SBC Advanced Solutions, Inc., 2000 Cal. PUC LEXIS 317, Finding of Fact 3, Conclusion of Law 5.) If a customer with a DSL problem dials SBC California's 611 and inadvertently reaches an SBCIS representative after navigating SBC California's and SBCIS' IVR, SBC California has not addressed that customer's repair concern and no marketing of SBCIS' DSL services should take place.
6 The ACR determined that the provision of the N11 Order, which requires the transfer of local exchange customers to their own carriers when using 611, does not apply to ISPs. (First Report and Order, In the Matter of the Use of N11 Codes and Other Abbreviated Dialing Arrangements, 12 FCC Rcd 5572 (1997) ¶ 46; ACR, p. 4.) We affirm that determination. Another provision of the N11 Order precludes an incumbent local exchange carrier from using N11 codes to offer enhanced services without permitting access to competing enhanced service providers. We further determine that provision does not apply to the connection of customers to 611 repair services. (See First Report and Order, supra at ¶¶ 48, 86.) 7 Similarly, state law permits differential treatment, as long as it is not unreasonable. (See Marin Telemanagement Corp. v. Pacific Bell, (1995) 58 CPUC 2d 554, 560.)
