Parties' Positions

XO argues that SBC's proposed actions would constitute breach of the existing XO/SBC interconnection agreement in at least two respects: (1) by rejecting various UNE orders that it is bound by the ICA to accept and process and (2) by refusing to comply with the change-of-law or intervening law procedures established by the ICAs. XO argues that the TRRO requires that its change-of-law provisions be implemented through modifications to the existing ICAs. In this regard, as noted above, the TRRO (¶ 233) requires that parties "implement the [FCC's] findings" by making "changes to their interconnection agreements consistent with our conclusions in this Order." Thus, this requirement of the TRRO recognizes that some period of time may be necessary for parties to negotiate conforming changes to their interconnection agreements, using the change of law provisions in their existing ICAs.

In addition, XO argues that SBC's threatened action intends to implement SBC's proposal for new change of law language in an amended ICA, which is one issue currently under consideration in this arbitration proceeding, without waiting for the arbitrator's decision. Thus, XO contends SBC's actions flout the authority of the Commission as well as violate the TRRO and the parties' ICA.

Finally, XO maintains that SBC has identified no hardship that would result from continuing to operate under the existing ICA. Once conforming changes are negotiated, any price increase from the provision of the functionality related to UNEs that the FCC has found are no longer impaired (i.e. "declassified UNEs") can apply retroactively to March 11, 2005. Moreover, XO contends that it will be adversely impacted if SBC unilaterally rejects XO's UNE orders because XO will be required to refuse service to its customers or order UNEs as tariffed services at significantly higher prices. Thus, XO requests an order requiring SBC to maintain the status quo and comply with its obligations under the parties' ICA until the conclusion of this proceeding. Further, XO requests a prehearing conference to establish a schedule for addressing changes of law resulting from the TRRO so that the ICA amendment that will be arbitrated in this proceeding will be consistent with the most recent changes in federal law.

SBC opposes the XO motion in its entirety. SBC argues that there is no basis for the Commission to prohibit SBC from terminating its offering of the UNEs at issue in this motion effective March 11, 2005, since SBC is merely complying with the requirements of the TRRO. According to SBC, XO has ample alternatives to the UNEs at issue and the March 11, 2005 effective date of the FCC's new rules is unambiguous and unconditional. Although the FCC adopted 12 and 18-month transition periods from the effective date of the TRRO, SBC argues that these transition periods only apply to the embedded customer base of existing UNEs and not new customer connections. (TRRO ¶ 199.) Further, SBC contends the change of law language in the existing ICA supports immediate effectiveness of the FCC's rules.