Discussion
By modifying the approval process for amendments to the JPSA so that consensus changes to it can be approved using the advice letter process set forth in the Proposed Decisions of Commissioner Chong,27 the Commission will be able to rely more fully on what carriers have agreed to between themselves for measuring and reporting performance regarding UNEs and other wholesale services. The Commission in the past has allowed utilities to use advice letters to replace applications when their requests appear neither to be controversial nor to raise important policy questions. For instance, in 2005, the Commission initiated a pilot program that allows utilities to use advice letters for Public Utilities Code (Pub. Util. Code) Section 851 transactions instead of the formal application process if those transactions are uncontroversial.28
Similarly, the Commission has approved Interconnection Agreements (ICAs) between ILECs and CLECs reached through negotiation pursuant to the advice letter process. We find that an unopposed JPSA warrants a simplified review process, such as Section 851 pilot cases, to reduce the time and resources necessary to be devoted by the Commission and the parties. Moreover, an unopposed JPSA, like an ICA, is essentially a voluntary agreement, and merits the advice letter process.
Based on the Proposed Decision of Commissioner Chong expressed in the Opinion Adopting Telecommunications Industry Rules, we approve of the use of the "Tier 2"advice letter process for uncontested JPSA filings. We find the "Tier 2" advice letter process will strike the most appropriate balance for the OSS JPSA, and allow uncontested JPSAs to become effective expeditiously as well as provide an adequate venue to get protesting carriers' concerns properly reviewed by the Communication Division and/or by the Commission.
In D.07-01-024, the Commission addressed a utility preference for prior approval over immediate effectiveness in advice letters by (1) expressly delegating authority to the Commission's Industry Divisions to handle the review and disposition of many kinds of advice letters, and (2) allow certain non-controversial advice letters to become approved after thirty days. Staff retains the ability to review the advice letter and parties retain the ability to protest, pursuant to the GO 96-B rules. The Commission separated advice letters into a three-tiered review process for disposition so that the Commission and the stakeholders can focus their resources on more controversial matters and ensure that less controversial matters do not get unnecessarily delayed, thereby improving overall regulatory efficiency.29
The Commission provided the following process for Tier 2 advice letter review:
· The initial review period for a Tier 2 advice letter (i.e., an advice letter effective upon staff approval) is 30 days; filing, protest, and reply all occur during this period.
· After 30 days have elapsed from the date of filing, the advice letter is deemed approved unless there is a timely protest within 20 days from the date of filing.
· If there is a timely protest, the reviewing Industry Division may suspend the initial review period. The Industry Division will notify the utility and any protestants if disposition of the advice letter will not occur within the 30-day initial review period. The notification will state the reason for the suspension.
· If no protest and no problem is found in the review, the advice letter is deemed approved at the end of the initial review period.30
As the non-disputed JPSAs are settlements negotiated and agreed upon by ILECs and CLECs, the filings are likely to be less controversial. In addition, by allowing such filings to utilize the Tier 2 process, they can become approved within thirty days, and the agreed upon ILECs' performance metrics can go into effect within a month. This Tier 2 process will satisfy the Joint Applicants' request that the JPSA amendment process is substantially simplified and continues to provide adequate protection to all affected carriers, and the protested advice letter cannot go into effect unless the Commission affirmatively approves it.31 Heretofore, these matters have been delayed years. Based on the reasons set forth above, we shall modify D.99-08-020 so that consensus changes to the JPSA can be approved using the Tier 2 advice letter process of D.07-01-024. In case of any protests, the advice letter will not go into effect unless the Commission affirmatively approves it.
27 Opinion Consolidating Proceedings, Clarifying Rules for Advice Letters Under the Uniform Regulatory Framework, and Adopting Procedures for Detariffing, Rulemaking (R.) 05-04-005, R.98-07-038 and Opinion Adopting Telecommunication Industry Rules, R.05-04-005, R.98-07-038 (Mailed 7/23/2007).
28 "As a formal proceeding, a Section 851 application takes time, often results in significant costs for the applicant, other parties and the Commission, and may create uncertainties about the terms and conditions of approval. The cost, time, and risk of a formal proceeding may not be warranted in the case of many simple, uncontroversial Section 851 applications." ALJ Resolution 186, Appendix A, at p. 1. (Mailed August 30, 2005.)
29 See D.07-01-024, mimeo., pp. 11-12.
30 Id. at 20.
31 Joint Motion at 6.
