5. Elimination of "Asymmetric" Marketing, Disclosure, or Administrative Process Requirements in Ordering Paragraph 21

D.06-08-030 eliminated "all asymmetric requirements concerning marketing, disclosure, or administrative processes," with the exception of conditions relating to basic residential rates. (D.06-08-030, p. 282 [Ordering Paragraph 21]; see also, pp. 210, 251-252, 269 [Finding of Fact 83], 271 [Finding of Fact 110], 278 [Conclusion of Law 53].) The Decision further ordered that AT&T, Verizon, SureWest, and Frontier "shall be authorized to allow all tariffs to go into effect on a one-day filing," with the exception that any tariffs that impose price increases or service restrictions shall require a thirty-day advance notice to all affected customers. (D.06-08-030, p. 281 [Ordering Paragraph 9].)

TURN and DRA argue that that the language in the ordering paragraph eliminating asymmetric regulations is unlawfully vague; that the Commission failed to provide sufficient notice and prior opportunity to be heard to parties pursuant to section 1708 that it was considering changing prior orders implementing marketing, disclosure and administrative requirements; that the Decision unlawfully delegates the Commission's regulatory duties to staff; and that the Commission should provide further clarification as to which asymmetric requirements it is eliminating. (TURN/DRA Rhg. App., pp. 35-40.)

While we do not agree with all of TURN and DRA's allegations of legal error,³⁴ we do have concerns with Ordering Paragraph 21. We grant limited rehearing as to Ordering Paragraph 21, and the elimination of asymmetric marketing, disclosure, and administrative requirements. Rather than holding a separate proceeding, we note that many of the issues raised by TURN and DRA are already in Phase II. At the November 7, 2006, prehearing conference held in Phase II of this proceeding, the following issues were included for consideration:

· Whether there is a need for uniform customer disclosure rules that apply to all carriers on a going-forward basis in the competitive marketplace;

· Whether there are specific customer disclosures that the Commission should require all voice carriers to make and why;

· Whether company-specific marketing requirements imposed as a result of past behavior, that is, remedies imposed in a complaint or enforcement case, may be lifted by the filing of an advice letter or whether further Commission action is warranted;

· Any specific issues raised in the protest to AT&T's advice letter filings, Nos. 28800 and 28982, that parties wish to add to this proceeding;

· Clarifying the relationship between the one-day effectiveness of advice letters authorized in Phase I and the notice and protest requirements of General Order 96-A, including whether the protest process relating to a one-day effective advice letter requires more specificity for the staff to implement it without ambiguity.

(R.05-04-005, PHC Tr., pp. 3-5 (Nov. 7, 2006); see also Assigned Commissioner's Ruling and Scoping Memo in R.05-04-005, issued Dec. 11, 2006 (Phase II scoping memo.) As these issues are already being considered in Phase II, it makes sense to have the limited rehearing take place in Phase II, as provided in the Phase II scoping memo. However, we note that AT&T has already filed two advice letters (Nos. 28800 and 28982) in reliance on Ordering Paragraph 21. As noted above, we will be handling the issues raised in the protests to these advice letters in Phase II. We further note that on November 30, 2006, we issued Resolution L-339, which notified parties that we would be handling the protests to Advice Letters 28800 and 28982 in Phase II, and directed that AT&T's Advice Letters shall remain in effect pending the resolution of the issues raised in the protests in Phase II. We will accordingly suspend the effectiveness of Ordering Paragraph 21 on a prospective basis from the effective date of this Order, pending the outcome of rehearing in Phase II.

We also find that TURN and DRA correctly point out that the Decision does not provide any procedure for the suspension or handling protests of advice letters authorized to go into effect on one-day's notice.³⁵ We note that General Order 96-A, as recently revised by D.05-01-032, does not provide procedures for suspension and effectiveness of advice letters authorized to go into effect less than 30 days after they are filed. Instead, the procedures for suspension, if any, and effectiveness are those contained in the Commission order authorizing the shorter period. (See, D.05-01-032, Appendix § 4.7.) In Phase II, we are considering clarification of the relationship between one-day-effective advice letters, the notice and protest requirements of General Order 96-A and the Public Utilities Code, and specific provisions of prior Commission decisions. (See R.05-04-005, PHC Tr., p. 3 (Nov. 7, 2006); see also Phase II scoping memo, p. 3.) In the meantime, however, we shall modify D.06-08-030 in order to provide that the protests to advice letters to go into effect on a one-day filing may be filed within 20 days of the filing of the protest letter, as provided by General Order 96-A, as revised by D.05-01-032 (Appendix A, § 4, "Advice Letter Review and Disposition"). However, advice letters will remain in effect pending further action of the Commission.

³⁴ For example, we do not find that Ordering Paragraph 21 is impermissibly vague on its face with respect to the term "asymmetric." Although the Decision does not specifically define "asymmetric," it does provide guidance as to the meaning of this term: "If a more restrictive marketing, disclosure, or administrative requirement applies to an ILEC, then the ILEC can modify its tariffs to conform to those of a CLEC. Similarly, if a more restrictive marketing, disclosure, or administrative requirement applies to a CLEC, then the CLEC can modify its tariffs to conform to those of an ILEC." (D.06-08-030, p. 210.) In addition, Finding of Fact 110 provides: "There is no longer a need for company-specific or sector-specific regulation of marketing practices, disclosure rules or administrative procedures associated with the sale of voice communications services." (D.06-08-030, p. 271.) Thus the term "asymmetric" may reasonably be understood in the context of these passages as referring to regulations imposed on one class of communications providers (e.g., ILECs) but not their competitors (e.g., CLECs), or regulations that are imposed on one company but not other companies.

³⁵ Ordering Paragraph 9 provides: "AT&T, Verizon, SureWest, and Frontier shall be authorized to allow all tariffs to go into effect on a one-day filing, but any tariffs that impose price increases or service restrictions shall require a thirty-day advance notice to all affected customers."