Sequence of Events Leading to the Motion

On February 4, 2005, the FCC issued the TRRO, determining that the incumbent local exchange carriers (ILECs) are not obligated to provide unbundled local switching (i.e. UNE-P), dedicated interoffice transport in wire centers meeting certain conditions, certain DS-1 and DS-3 loops, and dark fiber pursuant to Section 251(c)(3) of the Telecommunications Act of 1996. (47 USCS § 151 et seq.) The effective date of the TRRO is March 11, 2005. Regarding the required process for implementing the TRRO, the FCC stated, however: "We expect that incumbent LECs and competing carriers will implement the Commission's findings as directed by Section 252 of the Act. [footnote omitted.] Thus, carriers must implement changes to their interconnection agreements consistent with our conclusions in this Order." (TRRO ¶ 233.) (Section 252 prescribes a regime for establishing ICAs and resolving disputes arising therefrom.) The FCC adopted transition plans that call for competitive local exchange carriers (CLECs) to move their embedded customers served by these various UNEs to alternative service arrangements within twelve or eighteen months of the effective date of the TRRO. The transition period varies depending on the specific UNE used to serve a customer. The FCC also prescribed the basis for pricing of these various UNEs during the transition period pursuant to Section 251(c)(3).

SBC issued several "Accessible Letters" on February 11, 2005 (attached as Exhibit A to XO's Motion) in which SBC provided notification to competitive local exchange carriers (CLECs) concerning how it intended to modify its service offerings in response to the TRRO. SBC's Accessible Letters indicate it will reject all new orders (including new lines being added to existing accounts), migration orders, or move orders for the UNEs at issue in this motion. The SBC Accessible Letter for unbundled switching states that "SBC stands ready to negotiate Commercial Agreement alternatives with you during this Transition Period." SBC includes a sample amendment to its ICA to facilitate meeting ¶ 233 or the TRRO. Under this commercial offering, SBC would continue to provide the CLEC with the ability to acquire and provision new mass market local switch port with loop combinations, but at a new price to be unilaterally determined by SBC, and higher than the UNE-P prices currently paid under the Agreement.