II. Modification and Confirmation of the Joint Ruling

A copy of the Joint Ruling is attached as Appendix A hereto. We hereby confirm the Joint Ruling, except as modified in this order, in accordance with the provisions of Pub. Util. Code § 310 which states, in part:

"Every finding, opinion, and order made by the commissioner or commissioners so designated, pursuant to the investigation, inquiry, or hearing, when approved or confirmed by the commission and ordered filed in its office, is the finding opinion and order of the commission."

Because the ruling is attached to this decision, we do not repeat its full contents. In brief, the Joint Ruling found that language in the TRRO and the change of law provisions of the existing interconnection agreement supported the use of change of law negotiations and dispute resolution to effectuate the FCC's unbundling rule changes. On that basis, the Joint Ruling concluded that SBC remains obligated to continue offering the equivalent functionality of dedicated transport, high capacity loops, dark fiber, and UNE-P for both existing and new customer arrangements under the current ICA, at prices specified by the FCC during specified twelve and eighteen month UNE transition periods. Finally, the Joint Ruling provided 60 days, or until May 9, 2005, for XO and SBC to negotiate conforming modifications to their ICA, with provision for an extension to allow time for dispute resolution under existing change of law provisions.

Given Commission action in Decision (D.) 05-03-028, which does not require SBC to provide UNE-P to new customers, the Joint Ruling should be modified to avoid an inconsistent result. If the Joint Ruling were confirmed as written, SBC would be required to provide the UNEs at issue to new customers of XO, while based on D.05-03-028, it would not be required to do so for new customers of other CLECs. By this order, we clarify that we do not intend for SBC to treat XO differently from other CLECs. For consistency in the UNE market, the directives of D.05-03-028 should apply to SBC's treatment of XO as well. The finding of D.05-03-028 that SBC does not have to process UNE-P orders for new customers should apply to all the UNEs raised in XO's motion. In other words, SBC is not obligated to process orders for transport, high capacity loops, and dark fiber, to serve new customers, where conditions set forth in the TRRO regarding the number of business lines served and the number of facilities-based competitors in a particular market are met, because the TRRO treats these UNEs in the same manner that it treated UNE-P, with a transition period for existing customers and a prohibition on CLECs adding new customers as of March 11, 2005. (See TRRO, paras. 5, 142, 195 and 227.) As set forth in the TRRO, XO shall self-certify that any new orders for high capacity loops and transport are consistent with the FCC's requirements for competitors and business lines. (TRRO, para. 234.) While the TRRO allows SBC to challenge XO's self certification, the order requires SBC to immediately process XO's requests and continue to provision the disputed UNEs until the applicable dispute resolution process is resolved at the state commission or other appropriate authority. (Id.)

Therefore, the Joint Ruling is herein modified to remove the requirement that SBC process orders for dedicated transport, high capacity loops, dark fiber, and unbundled local switching (including UNE-Platform) for new customers as of March 11, 2005, unless conditions set forth in the TRRO regarding the number of business lines served and the number of facilities-based competitors in a particular market are met. Other aspects of the Joint Ruling remain unchanged in that SBC shall continue to honor obligations to provide these UNEs for existing customers, including requests for moves, adds and changes, for 60 days from the date of the initial Joint Ruling pending execution of applicable change of law provisions in accordance with its ICA with XO.