3. Requirements for "Opt-In" Arbitration

When an incumbent local exchange carrier like Roseville seeks arbitration with another carrier that seeks to "opt in" to an existing interconnection agreement, special rules apply.

Rule 7.2 of the Commission's Resolution ALJ-181, reflecting federal requirements, sets forth the applicable rules as follows:

"Rule 7.2. Incumbent Local Exchange Carrier's Response

"Within 15 days of its receipt of the Advice Letter or Letter of Intent, the ILEC [incumbent local exchange carrier] shall either send the requesting carrier a letter approving its request or file a request for arbitration based solely on the requirements in [47 C.F.R.] § 51.809:

"a. Any individual interconnection, service, or network element arrangement contained in any agreement approved by the Commission pursuant to Section 252 of the Telecommunications Act of 1996, must be made available upon the same rates, terms, and conditions as those provided in the agreement.

"b. The obligations of section (a) above shall not apply where the ILEC proves to the state commission that:

"(1) The costs of providing a particular interconnection, service, or element to the requesting telecommunications carrier are greater than the costs of providing it to the telecommunications carrier that originally negotiated the agreement.

"(2) The provision of a particular interconnection, service, or element to the requesting carrier is not technically feasible."

The requirements of Rule 7.2(b)(1) and (2) are identical to those of the FCC, as set forth in 47 C.F.R. § 51.809. Rule 7.3.1 of Resolution ALJ-181 establishes the burden of proof as follows:

"In any application for arbitration filed pursuant to Rule 7, the ILEC has the burden of proof that the carrier's request does not meet the requirements of § 51.809. The ILEC's request for arbitration must include facts and evidence that its request for arbitration is consistent with the requirements of § 51.809 and Rule 7.2."