VIII. Assignment of Proceeding
Geoffrey F. Brown is the Assigned Commissioner and Janet A. Econome is the Presiding Officer in this case.
1. Complainants AT&T, Telescape, Wholesale Airtime, and Intervenors nii, MCI, Call America, and Navigator have valid interconnection agreements with Verizon.
2. Complainant ACN's interconnection agreement with Verizon has expired.
3. Pursuant to the valid interconnection agreements, Verizon currently provides complainants and intervenors with unbundled Local Switching and Common Transport network elements. These two network elements are part of the unbundled network elements platform (UNE-P) by which complainants and intervenors provide local service to many California consumers in Verizon's service territory.
4. In a June 15, 2004 letter to complainants and intervenors, Verizon stated that, beginning September 17, 2004, it would convert its Class 5 circuit switches to packet switches in two of its five central offices, and that in so doing, it would eliminate complainants' and intervenors' access to the Local Switching and Common Transport unbundled network elements.
5. Verizon has stated that it can serve complainants and intervenors' customers through the resale platform, as opposed to the UNE-P.
6. On September 15, 2004, the Assigned Commissioner and ALJ issued a September 15 Ruling Maintaining the Status Quo requiring Verizon to continue to provide AT&T and similarly situated CLECs access to unbundled Local Switching and Common Transport network elements under the terms of the interconnection agreements.
7. On September 23, 2004, the Commission issued an interim order, D.04-09-056, which clarified and confirmed the September 15 Ruling. On that same day, the Commission issued D.04-09-057 which denied Verizon's appeal as to the categorization of this case and affirmed the categorization as "adjudicatory."
8. The AT&T Communications ICA defines Local Switching as "the Network Element that provides the functionality required to connect the appropriate originating lines or trunks wired to the Main Distributing Frame (MDF) or Digital Signal Cross Connect (DSX) panel to a desired terminating line or trunk. Such functionality shall include all of the features, functions, and capabilities of the [Verizon] switch including but not limited to ... ."
9. The AT&T Communications ICA definition of Local Switching speaks in terms of "functionality," e.g., the functional means to accomplish the task of Local Switching. Local Switching is not defined in terms of the underlying technology used to "connect the appropriate originating lines or trunks...to a desired terminating line or trunk." Nowhere does the ICA state that Verizon's obligations to provide Local Switching are limited by the type of technology used to provide it.
10. Attachment 2, § 63 to the AT&T Communications ICA defines Common Transport as "an interoffice transmission path between ... Network Elements that carries the traffic of more than one carrier and is not dedicated to a single carrier." Nothing in the ICA defines Common Transport based on the technology used to provide it, nor does the ICA permit Verizon not to provide Common Transport based on the type of switching technology deployed.
11. The interconnection agreements of the other complainants and intervenors for whom we grant relief contain similar provisions with respect to unbundled local switching. Nothing in these interconnection agreements limits Verizon's obligation to provide local switching to the type of hardware used.
12. All of the underlying interconnection agreements at issue in this proceeding were executed prior to the date the FCC released the Triennial Review Order (August 21, 2003).
13. Verizon admits that it is technically feasible to provide AT&T (and other CLECs) with UNE-P through a packet switch, but will not do so because Verizon believes it is not legally obligated to do so.
14. Verizon tried to install its Nortel switches as pure packet switches for the main purpose of "immunizing against UNE-P business erosion." Verizon did not install a pure packet switch because its switch still contains the ENET, which is the TDM fabric used in circuit switching. According to Verizon, the ENET is not there for switching voice traffic, but has been retained as an interface with other legacy devices to provide alarm and monitoring functions and is slated for elimination in an upcoming Nortel release to provide greater efficiencies.
15. Verizon was aware of its obligations under the interconnection agreements to provide Local Switching and Common Transport when it installed its packet switches. It chose to ignore these obligations and specifically designed its network with the intent to eliminate UNE-P.
16. The interconnection agreements of Telescape, Wholesale Airtime, and nii; MCI; Call America and Navigator require Verizon to provide the network elements only to the extent required by applicable law.
17. ACN's interconnection agreement expired on April 15, 2004.
18. Other than requesting intervention, Fones4All has not otherwise requested relief or participated in this proceeding.
19. On May 6, 2005, AT&T filed a motion to withdraw its complaint with prejudice.
20. Withdrawal of AT&T's complaint serves the limited public interest with respect to AT&T and its customer.
21. The parties and the Commission spent significant time and resources litigating this case, and the ALJ had issued her POD before AT&T filed its motion. The settling parties engaged the Commission's resources and put the other parties and the Commission to considerable expense, only to resolve the disputes after they received a result that, but for an appeal, would have been a final decision adverse to one of the settling parties.
22. The Commission relies upon adjudication cases to enunciate Commission policy on a case-by-case basis. This policy is useful not only to the specific parties to the litigation, but to similarly situated persons who may or may not have filed their own complaint.
23. Although each complainant or intervenor relies upon its own interconnection agreement, the record was developed as a whole, and the discussion, findings and conclusions with respect to the AT&T complaint help illuminate the entire controversy.
1. Complainants Blue Casa Communications, LLC, Covad Communications Company, and Vycera Communications, Inc.'s motions to withdraw from this proceeding should be granted.
2. Federal law defines a network element as the facility or equipment used to provide telecommunications service, as well as the features, functions, and capabilities provided by means of such facility or equipment. Once a feature or function provided by a facility or piece of equipment is identified as a network element, that feature or function remains a network element regardless of the piece of equipment used to provide it.
3. The FCC has declined to require unbundling of packet switches for advanced services, but has not squarely addressed the issue of whether the ILECs can replace circuit switches with packet switches to avoid unbundling obligations.
4. In 1997 and 1998, at the time the AT&T interconnection agreements were executed, the law was unsettled as to whether packet switches were to be unbundled.
5. Verizon's argument applying a definition to the interconnection agreements from an order that was not released when the underlying interconnection agreements were executed is not persuasive.
6. The AT&T Communications ICA, Part II: Unbunbled Network Elements § 29 and § 30.1, among other sections, and similar sections in the TCG ICA, contain general references to federal law. We read these references to refer to the law at the time the interconnection agreements were entered into, and not to changes of law that may occur over the life of the ICA.
7. According to § 3.3 of the General Terms and conditions in the AT&T Communications ICA, and § 2.1 of the TCG ICA, Verizon may unilaterally discontinue an unbundled network element only after proper notice "to the extent required by network changes or upgrades."
8. Sections 3.3 and 2.1, discussed above, respectively provide that, (a) in the event a final order by the court or the FCC allows but does not require discontinuance of an unbundled network element, the parties must try to reach agreement, and if unsuccessful, (b) either party may submit the matter to alternative dispute resolution. Thus, assuming for the sake of argument that, subsequent to the Local Competition Order, the FCC determined that Verizon was not required to unbundle packet switches under any circumstances, Verizon would still have to follow these change of law provisions and could not unilaterally discontinue providing the Local Switching and Common Transport network elements to AT&T.
9. Verizon is not relieved of its obligation under the AT&T interconnection agreements to provide access to the Local Switching and Common Transport network elements because modifications to its new switch may be time consuming and costly, especially under the circumstances of this case.
10. Based on applicable law, Verizon is not relieved of its obligation to provide the unbundled local switching and common transport network elements to AT&T; Telescape, Wholesale Airtime, and nii; MCI; Call America and Navigator on the grounds that Verizon changed certain hardware (i.e., replaced the circuit switch with a packet switch) used to provide the network elements.
11. ACN's requested relief should be denied because its underlying interconnection agreement is not currently in force.
12. Fones4All should be denied relief for failure to prosecute.
13. Verizon's motion to strike MCI's February 28, 2005 brief should be denied.
14. Verizon's March 7, 2005 conditional request that the Commission take administrative notice and Call America and Navigator's June 22, 2005 request that the Commission take official notice should be granted. Pursuant to Rule 73 of the Commission's Rules of Practice and Procedure, the Commission should take notice of (a) Verizon's March 4, 2005 motion for reconsideration of the Washington State Public Utilities Commission, which was attached to Verizon's March 7, 2005 conditional request filed with the Commission; and (b) Verizon's Motion for Leave to Withdraw Petition for Arbitration as to certain parties, filed December 2, 2004, in A.04-03-014. In granting this motion, we recognize that Verizon filed these documents, but make no findings or conclusions about the veracity of the representations.
15. The ability for AT&T to withdraw its complaint at this juncture rests with the Commission's discretion.
16. In exercising our discretion on AT&T's motion to withdraw its complaint, AT&T's motion should be granted out of deference to the settlement between the parties. However, the discussion, findings and the conclusions made by the POD with respect to the complaint should be retained in order to illuminate the entire controversy in this consolidated proceeding.
17. This order should be effective immediately to ensure Verizon continues to comply with its interconnection agreements.
IT IS ORDERED that:
1. Verizon California Inc. (Verizon) must allow Complainants Telescape Communications, Inc and Wholesale Airtime, Inc.; Intervenor nii Communications, Inc.; Intervenor MCI, Inc.; and Intervenors Anew Telecommunications Corporation d/b/a Call America and Navigator Telecommunications, LLC to purchase unbundled Local Switching and Common Transport network elements under the terms of their interconnection agreements, and may not decline to sell the unbundled network elements on the grounds that Verizon has changed certain hardware (i.e., replaced the circuit switch with a packet switch) used to provide the network elements.
2. The relief granted in Ordering Paragraph 1 is limited to the competitive local exchange carrier base for which Verizon is still required to provide unbundled Local Switching and Common Transport network elements for a limited period, as this requirement is phased out under In the Matter of Unbundled Access to Network Elements; Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, WC Docket No. 04-313, CC Docket No. 01-338 released February 4, 2005 (Triennial Review Remand Order), and related proceedings.
3. Complainant ACN Communications Services, Inc. is denied relief because its interconnection agreement with Verizon has expired.
4. Intervenor Fones4All is denied relief for failure to prosecute.
5. Complainants Blue Casa Communications, LLC, Covad Communications Company, and Vycera Communications, Inc.'s motions to withdraw from this proceeding are granted.
6. Complainants, AT&T Communications of California, Inc., TCG Los Angeles, Inc, TCG San Diego and TCG San Francisco May 6, 2005 motion to withdraw their complaint with prejudice, made after issuance of the Presiding Officer's Decision (POD), is granted. However, the discussion, findings, and conclusions made by the POD shall be retained in order to illuminate the entire controversy in this consolidated proceeding.
7. Verizon's motion to strike MCI's February 28, 2005 brief is denied.
8. Verizon's March 7, 2005 conditional request that the Commission take administrative notice and Call America and Navigator's June 22, 2005 request that the Commission take official notice are granted. Pursuant to Rule 73 of the Commission's Rules of Practice and Procedure, the Commission takes notice of (a) Verizon's March 4, 2005 motion for reconsideration of the Washington State Public Utilities Commission, which was attached to Verizon's March 7, 2005 conditional request filed with the Commission; and (b) Verizon's Motion for Leave to Withdraw Petition for Arbitration as to certain parties, filed December 2, 2004 in Application 04-03-014. In granting these motions, we recognize that Verizon filed these documents with the Commission, but make no findings or conclusions about the veracity of the representations.
9. Case (C.) 04-08-026, C.04-09-001, and C.04-09-010 are closed.
This order is effective today.
Dated , at San Francisco, California.
APPENDIX A
LIST OF APPEARANCES
Cheryl L. Hamill |
Anita Taff-Rice
|
(END OF APPENDIX A)
