2. Background
Sprint Communications Company L.P., Sprint Spectrum L.P., as agent for WirelessCo, L.P. and Sprint Telephony PCS, L.P., and Nextel of California Inc. (Sprint Nextel or applicants) filed an application on December 20, 2007. According to the applicants, the sole issue that needs to be considered by the Commission is a legal issue, namely whether, pursuant to the "port-in process" created and accepted by AT&T Inc. as a merger commitment that it voluntarily undertook to secure Federal Communications Commission (FCC) approval of its merger with BellSouth Corporation, this Commission should allow applicants to port-in and adopt in California the Kentucky interconnection agreement (ICA) approved by the Public Service Commission of the Commonwealth of Kentucky (Kentucky PSC) in its orders dated September 18, 2007 and November 7, 2007 in Case No. 2007-00180. The Kentucky ICA was itself approved by the Kentucky PSC pursuant to the "ICA Merger Commitments."
On March 4, 2006, AT&T Inc. entered into an agreement to merge with BellSouth Corporation, the parent company of BellSouth Telecommunications, Inc. On March 31, 2006, AT&T and BellSouth Corporation filed a series of applications seeking FCC approval of the transaction. During the resulting FCC proceeding, AT&T made a number of legal commitments in order to elicit FCC approval. The FCC ordered compliance with those commitments, and included such commitments as conditions of its approval of the AT&T Inc./BellSouth Corporation merger. These commitments are listed in Appendix F of the FCC Order.
In the FCC Order approving the AT&T Inc./BellSouth Corporation merger, the interconnection-related Merger Commitment No. 1 obligates AT&T as follows:
Merger Commitment No. 1:
The AT&T/BellSouth ILECs [Incumbent Local Exchange Carriers] shall make available to any requesting telecommunications carrier any entire effective interconnection agreement, whether negotiated or arbitrated that an AT&T/BellSouth ILEC entered into in a state in the AT&T/BellSouth 22-state ILEC operating territory, subject to state-specific pricing and performance plans and technical feasibility, and provided, further, that an AT&T/BellSouth ILEC shall not be obligated to provide pursuant to this commitment any interconnection arrangement or UNE [unbundled network element] unless it is feasible to provide, given the technical, network, and OSS [Operation Support Systems] attributes and limitations in, and is consistent with the laws and regulatory requirements of, the state for which the request is made.1
On November 20, 2007, Sprint Nextel notified AT&T that Sprint Nextel was exercising its right to adopt the Kentucky ICA in California. On December 13, 2007, AT&T responded to Sprint Nextel's letter explaining that Merger Commitment 7.1 would permit the Kentucky ICA to be ported jointly by one CLEC and one Commercial Mobile Radio Service (CMRS) provider, but not by a consortium consisting of one CLEC and multiple CMRS providers. Therefore, applicants filed the instant application seeking a decision from the Commission requiring AT&T to execute the Kentucky ICA in California.
On January 23, 2008, AT&T California (AT&T) filed a protest to Sprint Nextel's application. According to AT&T, the 1,169-page Kentucky ICA contains provisions that are inconsistent with California law. Moreover, the ICA applicants seek to port is between AT&T Kentucky, on the one hand, and, on the other hand, one CLEC and one CMRS provider, and the ICA contains a bill-and-keep provision for the transport and termination of local traffic, that was predicated on the balance of traffic between those carriers. AT&T asserts that if the applicants here, which consistent of a CLEC and multiple CMRS providers--whose traffic does not balance with AT&T's in the same manner--were permitted jointly to port the ICA, they would reap a potentially enormous windfall.
AT&T states that the application must be dismissed because the lone issue presented in the application-whether the applicants can jointly port the Kentucky ICA to California-is not subject to this Commission's jurisdiction. According to AT&T, applicants have cited no California statute that authorizes the Commission to resolve the issue presented by the application, and the federal statute they cite does not provide jurisdiction either. Furthermore, the merger commitment that is the subject of the application is a commitment that AT&T made to the FCC, and the FCC, in its order approving the AT&T/BellSouth merger, expressly retained jurisdiction to enforce the merger commitments.
On January 23, 2008, the same date that AT&T filed its protest, AT&T filed a motion to dismiss the application. Sprint Nextel filed its response to AT&T's motion to dismiss on February 7, 2008, and AT&T filed its reply on February 19, 2008. Appended to AT&T's reply as Attachment 1 was AT&T's February 5, 2008 filing at the FCC, entitled, "Petition of the AT&T ILECs for a Declaratory Ruling." In its Petition, AT&T asks the FCC to declare the following:
(1) Bill-and-keep arrangements for the transport and termination of telecommunications and facility pricing arrangements are "state-specific pricing" terms, not subject to porting under Commitment 7.1 to other states;
(2) Commitment 7.1 does not give a carrier the right to port an agreement from one state to another if the carrier would be barred by Commission rules implementing Section 252(i) of the Telecommunications Act of 1996 from adopting that agreement within the same state; and
(3) Commitment 7.1 does not apply to in-state adoptions of ICAs or in any way supersede Commission rules governing such adoptions.
The FCC granted the AT&T ILECs' request for expedited resolution, and set up a schedule for opening and reply briefs. Since the matter had been referred to the FCC, the assigned Administrative Law Judge (ALJ) issued a ruling on March 26, 2008 saying that she intended to wait for the FCC's ruling before acting on AT&T's motion to dismiss. On April 1, 2008, Sprint Nextel filed a motion that the Ruling be modified to take account of the possibility that the FCC may not soon, or ever, issue a decision regarding the Petition. The assigned ALJ issued a ruling on July 21, 2008 granting Sprint Nextel's motion and saying that, since the FCC has not yet acted on the Petition, she intended to move forward with the proceeding.
On July 28, 2008, AT&T filed a motion requesting official notice of recent decisions relating to AT&T's motion to dismiss.
1 In the Matter of AT&T Inc. and BellSouth Corporation Application for Transfer of Control, WC Docket No. 06-74, Memorandum Opinion and Order, FCC 06-189, Appendix F.
