II. Background
Verizon filed this petition for arbitration in March 2003 in an effort to implement change-of-law provisions emanating from the Federal Communications Commission's (FCC) Triennial Review Order (TRO)1 and the subsequent Circuit Court of Appeals Decision addressing it (USTA II).2
The USTA II decision created a number of uncertainties. The decision found significant problems with major portions of the TRO, particularly with respect to the role given to states in undertaking an unbundled network element (UNE) impairment analysis, and the court remanded the proceeding back to the FCC.
On December 2, 2004, Verizon requested that this arbitration move forward based on what was then anticipated to be the content of the expected FCC order addressing the Circuit Court remand. Verizon's "Updated Amendment to Petition for Arbitration and Request for Resumption" (Updated Amendment) included a modification to its arbitration request that it represented would totally replace its earlier arbitration request in all particulars.
On December 15, 2004, the FCC announced its response to the remand directive. However, consistent with common FCC practice, announcement of a decision is not the same as release of the decision. It was not until February 4, 2005, nearly two months after Verizon's resumption request, that the FCC order was released. This order has come to be known as the Triennial Review Remand Order3 (TRRO).
Following issuance of the TRRO, the assigned Administrative Law Judge (ALJ) issued a ruling in June 2005 to "restart" the arbitration. Within 15 days from the issuance date of the ruling, Verizon was to file an addendum to its "Updated Amendment" to indicate any changes in its arbitration request or that it had no changes. Within 30 days of the issuance of the ruling, all CLECs that had interconnection agreements with Verizon were to indicate their intention to participate in the arbitration. Within 45 days of the issuance of the ruling, all carriers intending to participate in the arbitration filed and served responses to the Verizon arbitration request. That filing included a markup of the disputed issues in the amendment.
We confirm the terms of the October 6, 2005 Ruling by the assigned ALJ that any carrier with an interconnection agreement with Verizon that has a dispute over the change-of-law provisions related to the FCC's TRO and TRRO orders will be subject to the outcome of this proceeding. The Commission does not intend to conduct individual arbitrations to implement change-of-law provisions related to the two FCC orders.
The proceeding will proceed in two separate tracks. The first track involves disputed issues that do not require hearings, including issues relating to routine network modifications (RNMs). At a Prehearing Conference in this docket on January 5, 2006, the parties agreed that they believed the briefs they had previously submitted would resolve all the RNM issues currently before us in this arbitration, without the need for hearings. We concur with that conclusion. Parties filed Opening Briefs on the disputed issues on December 23, 2005, and Reply Briefs, on January 13, 2006. Those issues are the subject of this decision.
A separate procedural schedule was adopted for the Batch Hot Cut portion of the proceeding.
1 Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, In the Matter of Review of the § 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 18 FCC Rcd 16978 (2003).
2 United States Telecom Ass'n v. FCC, 359 F.3d 554 (D.C. Cir. 2004), cert. Denied, NARUC v. United States Telecom Ass'n, Nos. 04-12, 04-15 and 04-18 (U.S. Oct. 12, 2004).
3 Order on Remand, In the Matter of Unbundled Access to Network Elements, WC Docket No. 04-313, CC Docket No. 01-338, adopted December 15, 2004, released February 4, 2005.
