II. Parties' Positions

On March 10, 2006, AT&T sent a notice to each CLEC that had been unable to complete the submission of its UNE-P transition orders. The notice, which is attached as Exhibit 1 to the CLECs' motion, indicates that AT&T plans to charge $37.24 for each UNE-P line. An e-mail message from AT&T regulatory attorney Ed Kolto to counsel for CLECs provided additional clarification as follows: "This resale rate incorporates the basic resale rates from the tariff, and includes a component for usage, three features, the EUCL [End User Common Line] charge, and an access charge."

According to the CLECs, the average usage on the CLECs' UNE-P lines is no more than 500 minutes, of which 125 are initial minutes and 375 additional minutes.⁷ Thus, a reasonable maximum assumption of monthly usage charges is $2.70. Added to the typical $8.59 line charge, this yields a typical rate of $11.29 per line per month. Even adding two features at their average resale rate of around $4, this brings a typical CLEC UNE-P user's resale rate to $19.29.

The CLECs assert that imposition of access charges on CLECs is entirely inappropriate, since most CLECs use another carrier to provide long distance service. In that case, AT&T collects access revenues from the long-distance provider, not from the CLEC. Further, the CLECs claim that AT&T has offered no indication of its assumptions regarding local usage, and has given no justification for assuming that each and every CLEC resale line carries three custom-calling features, nor has it revealed its assumption regarding the average price of such features.

The CLECs find it telling that the $37.24 that AT&T plans to impose on CLECs for each UNE-P line for which a CLEC has yet been unable to provide transition orders is "suspiciously" near the rate that AT&T would charge for each line purchased under its market-based Local Wholesale Complete (LWC) commercial agreement for the replacement of UNE-P service. The CLECs indicate that they have reviewed the rates for LWC service but were required to enter into a confidentiality agreement under which they are not permitted to reveal publicly the actual rates AT&T has proposed.

According to the CLECs, the rate AT&T proposes is almost double the resale rate calculated as line charge plus usage derived from AT&T's resale tariff, even assuming an average of two features per line. The CLECs indicate that the attached Declarations of CEOs and managers of the Movant CLECs demonstrate that it would be ruinous to their finances to have to pay the extra $17⁸ for each UNE-P line for which they have not yet been able to submit transition orders.

The CLECs state that if the Commission permits AT&T to charge a "proxy" rate for CLECs' resale lines, it should not be based on overblown assumptions regarding average CLEC usage of minutes and features, as well as the unjustifiable inclusion of access revenues.

The CLECs claim that limiting AT&T to $20 per line per month for resale service until CLECs are able to complete submission of their transition orders would not harm AT&T in any way, since the Movant CLECs agree to a true-up to their customers' actual usage in the first month of usage-based resale billing. The Movant CLECs indicate that they expect that this will result in higher charges for some lines, and lower for others, than the $20 cap sought in their motion.

The Movant CLECs urge the assigned Administrative Law Judge to grant relief in the nature of a temporary restraining order or preliminary injunction.

AT&T filed its opposition to the CLECs' motion on April 5, 2006. AT&T asserts that the $20.00 proxy rate proposed by the CLECs is not appropriate. AT&T proposes a blended proxy rate that consists of a proxy residential rate and a proxy business rate, weighted according to the relative number of unconverted UNE-P residential and business lines existing in California as of January 31, 2006. The components of both the residential and business proxy rates are the rates for the line itself (including unlimited usage), three vertical features, a EUCL charge, and an access charge.

⁷ This is based on attached Declarations of Jeffrey Buckingham, Anthony Zabit, David Lee, and Ron Ireland in Support of the instant Motion.

⁸ $17 represents the difference between the $20.00 proposed by CLECs and the $37.24 proposed by AT&T.