Performance Remedies Plan Fundamentals
The TA967 and the FCC's implementing rules require Pacific and Verizon CA to provide CLECs with nondiscriminatory access to unbundled network elements (UNEs), including OSS. The FCC commented generally that ILECs must provide the CLECs with access to the pre-ordering, ordering, provisioning, billing, repair, and maintenance OSS sub-functions pursuant to the Act such that the CLECs are able to perform such OSS sub-functions in "substantially the same time and manner"8 as the ILECs can for themselves.
The Act does not expressly mandate the establishment of either performance measures or incentives, though the FCC has stated that the most probative evidence that the CLECs are provided with nondiscriminatory access to OSS will be evidence of actual commercial usage evaluated under a set of Commission-approved performance measures. Similarly, TA96 and the implementing rules have no stated requirement for an additional customer economic effect test. The FCC has stated that an ILEC may demonstrate statistically that the differences in measured performance are the result of random variation in the data, as opposed to underlying differences in behavior. The phrase "underlying differences in behavior" means differences in the statistical distributions of the ILEC and the CLEC that are generating the performance outcomes.9 Thus, equality of distributions (when the ILECs' and the CLECs' distributions are the same) is a sufficient condition for parity according to the FCC.10
The cornerstone of any performance incentive structure is how parity is defined, since it is on those occasions when the ILECs are out of parity that incentive payments will be made. This Commission's definition of parity generally incorporates the above-stated objectives of the TA96 and the FCC. Thus, parity means that the ILEC is providing services in substantially the same period of time and manner (including quality) to the CLECs as it is providing to itself. Further, it will be helpful to rely on statistical testing and benchmarks to infer whether or not parity has been achieved. Consequently, we endeavor to ensure that the CLECs have OSS access that is at least equal to the ILECs' own access.
7 Section 251(c)(3).
8 Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, CC Docket No. 96-98, First Report and Order, 11 FCC Rcd, at 15763-64 (1996) (Local Competition First Report and Order). 9 Roughly speaking, distributions are different when average performance and range of performance (variability, distribution) are different. For example, CLEC customer phone service provisioning could take 7 days on the average, whereas ILEC customer service provisioning could take 6 days. In this example, average performance for the ILEC is better than for the CLEC by one day. For variability, even with equal ILEC and CLEC averages of 7 days, CLEC provisioning times could range between 1 and 13 days, whereas ILEC averages could range between 6 and 8 days. In this example, performance for the ILEC is less variable, and thus more predictable. ILEC customers could be told that their new service would be installed in 8 days or less, in contrast to CLEC customers who could only be told that their service would be installed in 13 days or less. 10 Id.
