ALJ/JJJ/MOD-POD/jva DRAFT Agenda ID #4765

Adjudicatory

9/22/2005 Item 36

Decision ______________

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

AT&T Communications of California, Inc. (U 5002 C), TCG Los Angeles, Inc. (U 5462 C), TCG San Diego (U 5389 C) and TCG San Francisco (U 5454C), Complainants, vs. Verizon California Inc. (U 1002 C), Defendant.	Case 04-08-026 (Filed August 19, 2004)
Telescape Communications, Inc. (U 6589 C), Wholesale Airtime, Inc. (U 5751 C), and Blue Casa Communications, LLC (U 6764 C), Complainants, vs. Verizon California, Inc. (U 1002 C), Defendant.	Case 04-09-001 (Filed September 1, 2004)
ACN Communication Services, Inc. (U 6342 C), Covad Communications Co. (U 5752 C), and Vycera Communications, Inc. (U 5477), Complainants, vs. Verizon California Inc. (U 1002 C), Defendant.	Case 04-09-010 (Filed September 7, 2004)

Table of Contents

Title Page

OPINION ON CONSOLIDATED COMPLAINTS 22

I. Summary 22

II. Procedural Background 44

A. Verizon's June 15, 2004 Letter 44

B. The Consolidated Complaints 55

C. The Order Maintaining the Status Quo 55

D. September 17, 2004 Hearing and Decision Confirming
September 15 Ruling 66

E. Subsequent Events 77

III. Circuit Switches vs. Packet Switches 99

IV. Parties' Positions 1010

A. AT&T 1010

B. Telescape, Wholesale Airtime, nii; ACN; Call America
and Navigator 1111

C. MCI 1111

D. Verizon 1212

V. Applicable Law 1414

A. Network Elements 1414

B. Local Switching 1616

C. Packet Switching 1717

VI. The Interconnection Agreements 2121

A. AT&T 2222

1. Verizon's Obligation to Provide Local Switching
and Common Transport Network Elements Under the Interconnection Agreements 2222

2. Verizon's Arguments 2424

B. Other CLEC Interconnection Agreements 2929

C. State Law Issues 3232

VII. Appeal of Presiding Officer's Decision 3333

A. AT&T's Motion to Withdraw Its Complaint With Prejudice 3434

1. AT&T's Supplemented Motion and Responses 3434

2. Discussion 3636

B. Verizon's Appeal 3939

VIII. Assignment of Proceeding 4141

Findings of Fact 4141

Conclusions of Law 4545

ORDER 4848

(See Appendix A for List of Appearances)

OPINION ON CONSOLIDATED COMPLAINTS

I. Summary

Complainants in three consolidated complaints, (1) AT&T Communications of California, Inc., TCG Los Angeles, Inc., TCG San Diego, Inc. and TCG San Francisco, Inc. (AT&T); (2) Telescape Communications, Inc. (Telescape) and Wholesale Airtime, Inc. (Wholesale Airtime);¹ and (3) ACN Communications Services, Inc. (ACN),² allege in essence that their interconnection agreements with Verizon California, Inc. (Verizon) require Verizon to provide complainants unbundled access to the Local Switching and Common Transport network elements. These complainants, together with intervenor nii Communications, Inc (nii), as well as Intervenors Anew Telecommunications Corporation d/b/a Call America and Navigator Telecommunications, LLC (Call America and Navigator), filed summary judgment motions, and Verizon filed a cross motion for summary judgment. Intervenor MCI, Inc. (MCI) did not seek summary judgment, but opposed Verizon's motion and participated in the evidentiary hearings.

We hold that Verizon must allow Telescape, Wholesale Airtime, nii, MCI, Call America, and Navigator 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. We so hold because the interconnection agreements address the functionality, and not the specific hardware, of the switch providing the Local Switching and Common Transport network elements. Verizon's obligation to continue to provide these network elements is also circumscribed by implementation of other decisions, such as the Triennial Review Remand Order,³ and related proceedings, as explained below.

Complainants filed these complaints before the Federal Communications Commission (FCC) issued the Triennial Review Remand Order. That order determined, among other things, that the incumbent local exchange carriers (ILECs) are not obligated to provide unbundled local switching pursuant to Section 251(c)(3) of the Federal Telecommunications Act.⁴ The FCC made the Triennial Review Remand Order effective as of March 11, 2005, with a 12-month transition period for certain customers. The relief granted in these cases is limited to the competitive local exchange carrier (CLEC) customer base for which Verizon is still required to provide unbundled Local Switching and Common Transport for a limited period, as this requirement is phased out under the Triennial Review Remand Order and related proceedings.

Furthermore, this order does not prohibit Verizon from deploying its new packet switches, nor does the order require Verizon to unbundle and provide the advanced service capabilities of its packet switches to complainants and intervenors. This order does require Verizon to comply with its interconnection agreements with complainants and intervenors and to provide the Local Switching and Common Transport network elements pursuant to those agreements.

We deny relief to complainant ACN, because ACN's interconnection agreement has expired. We also deny relief to Intervenor Fones4All for failing to prosecute or in anyway meet its burden of proof. After being granted intervention, Fones4All did not request specific relief or participate in any aspect of these cases, including the motions for summary judgment, the hearings, or post-hearing briefing. Finally, the relief ordered in this decision does not extend to AT&T because we grant AT&T's motion to withdraw its complaint which was filed after the Presiding Officer's Decision (POD) issued. However, as explained in Section VII below, we retain the discussion, findings and conclusions made by the POD in order to illuminate the entire controversy in this consolidated proceeding.