II. BACKGROUND/FACTS
On July 28, 2005, Pacific Bell Telephone Company, dba SBC California (SBC), filed its application to initiate a generic proceeding to amend the existing interconnection agreements (ICAs) between SBC and various competitive local exchange carriers (CLECs).1 This proceeding implements orders issued by the Federal Communications Commission (FCC) in 2003 and 2005. The first order, the Triennial Review Order (TRO), was released on August 21, 2003.2 The TRO re-interpreted the "impair" standard of Section 251(d)(2) and revised the list of unbundled network elements (UNEs) that ILECs must provide to requesting carriers. 3 Various parties appealed the TRO, and on March 2, 2004, the D.C. Circuit decided United States Telecom Ass'n v. FCC (D.C. Cir. 2004) 359 F.3d 554 (USTA II) cert. denied, (2004) 125 S.Ct. 313. In response to the court's directives in USTA II, the FCC issued the Triennial Review Remand Order (TRRO) in 2005.4 Among other things, the TRRO established a nationwide bar on unbundled switching.
On July 22, 2005, this Commission issued D.05-07-043, its TRO Closure Order, closing its TRO proceeding.5 SBC was directed to negotiate amendments to its ICAs with CLECs in order to implement the TRRO and to initiate a consolidated proceeding to resolve any disputed issues. Accordingly, SBC filed this application, A.05-07-024.
On September 16, 2005, the CLECs filed a consolidated response to SBC's application. Administrative Law Judge (ALJ) Ruling of September 23, 2005 directed that any carrier with an interconnection agreement with SBC that has a dispute concerning the change-of-law provisions related to the FCC's TRO and TRRO orders will be subject to the outcome of this proceeding. On October 6, 2005, the ALJ issued a ruling establishing a procedural schedule for the proceeding. The proceeding was set to operate on three separate tracks: (1) first track does not require evidentiary hearings; (2) track for batch hot cut portion; and (3) evidentiary hearings for disputed issues of fact. This decision proceeded under the first track.
On January 27, 2006, the Commission issued D.06-01-043 (Decision), which resolved 44 disputed issues. On February 27, 2006, SBC timely filed an application for rehearing of the Decision on numerous grounds: (1) the Decision should follow the clear text of the FCC's Rules on fiber-to-the-home (FTTH) and Hybrid Loop, which found that these loop apply to all customers; (2) the Commission should reverse its holding that the CLECs may get entrance facilities at total element long run incremental cost (TELRIC) rates pursuant to Section 251(c)(2), in consideration of the fact that the Decision does not make any sense in light of the FCC's "no impairment" holding; (3) the Decision incorrectly reads Section 251(c) to require the provision of facilities; (4) the DS1 cap applies to all routes; (5) the Decision is inconsistent and incorrect in its treatment of conversion charges; (6) the Decision incorrectly mandates resale pricing after March 11, 2006; (7) the Decision incorrectly resolves wire center certification issues; (8) the Commission cannot change tariff requirements here; and (9) the Commission should clarify that it has made no determination regarding whether it has jurisdiction over Section 271 rates.
On March 14, 2006, approximately 22 CLECs filed their Joint Response to AT&T's rehearing application.6 The CLECs disagreed with AT&T on essentially all points made in the rehearing application. They asserted that the Commission correctly determined the following: (1) the FCC's Rules for FTTH, FTTC, and Hybrid Loops apply only to mass market customers; (2) entrance facilities are available to CLECS at TELRIC rates for use in interconnection; (3) the cap on DS1 transport should apply only on circuits where DS3 transport is not available as a UNE; (4) correctly applied the requirements of the TRO in determining when and how much SBC should be permitted to charge for conversions; and (5) that the Decision correctly resolved wire center certification issues. They argue further that the Commission should not alter its decision that UNE-P lines "default" to resale rates if CLECs could not submit orders by March 10, 2006; that it should maintain its notice and grandfathering requirements regarding SBC's access services upon which CLECs rely for commingling arrangements; and AT&T's "clarifications" set forth in Issue 7 are unnecessary.
We have reviewed each and every allegation of error asserted by the rehearing applicant, and are of the opinion that legal error was not demonstrated. Therefore, for the reasons stated, we deny in all respects the rehearing of D.06-01-043, as modified herein.
1 Pacific Bell Telephone Company was doing business as SBC California (SBC-CA). After its merger with AT&T Corporation on November 21, 2005, it now does business as AT&T California. References to SBC, SBC-CA, or AT&T are to the same company.
2 In the Matter of Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Report and Order and Order on Remand and Further Notice of Proposed Rulemaking (2003) 18 F.C.C. Rcd. 16978, FCC 03-36 (TRO). Prior to the TRO, the FCC issued its Local Competition Order which established a list of seven UNEs that the ILECs were required to provide and established the TELRIC methodology. (Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, CC Docket Nos. 96-98, 95-185, First Report and Order (1996) 11 F.C.C. Rcd 15499, 15846-50 (subsequent history omitted). At the Eighth Circuit Court of Appeals, the Court affirmed some parts of the order and reversed others. (Iowa Utils. Bd. v. FCC (8th Cir. 1997) 120 F.3d 753. The FCC and various other parties appealed to the U.S. Supreme Court. In January 1999, the Supreme Court held that the FCC had not adequately considered the "necessary" and "impair" standards of §251(d)(2) in establishing the seven network elements. (AT&T Corp. v. Iowa Utils. Bd. (1999) 525 U.S. 366. In November 1999, the FCC responded to the Supreme Court's remand by issuing the UNE Remand Order (1999)15 F.C.C. Rcd 3696), which reevaluated the unbundling obligations of the ILECs and promulgated new unbundling rules. The D.C. Circuit granted petitions for review and vacated and remanded those portions of the UNE Remand Order interpreting the "impair" standard and establishing a nationwide list of mandatory UNEs. (United States Telecom Ass'n v. FCC (D.C.Cir. 2002)290 F.3d 415 (USTA I).
3 All section references are to U.S. Code, unless otherwise specified.
4 In the Matter of Unbundled Access to Network Elements; Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Order on Remand , (Feb. 4, 2005) 20 F.C.C. Rcd. 2533, FCC 04-290 (TRRO).
5 Order Closing the Triennial Review Nine-Month Phase (TRO Closure Order) [ D.05-07-043] (2005) ___ Cal.P.U.C.3d ___, in R.95-04-043 & I.95-04-044.
6 The Joint Response was filed by A+ Wireless, Inc., Advanced TelCom, Inc., Arrival Communications, Inc., California Catalog & Technology, Inc., CBeyond Communications, LLC, CF Communications, LLC d/b/a Telekenex, Covad Communications Company, Curatel, LLC, DMR Communications, Inc., Eschelon Telecom, Inc., Lightyear Network Solutions, LLC, Mpower Communications Corp., NII Communications, Ltd., North County Communications, Inc., PNG Telecommunications, Inc., RCN Telecom Services, Inc., TCast Communications, Inc., The Telephone Connection Local Services, Inc., Telscape Communications, Inc., U.S. TelePacific Corp., Utility Telephone, Inc., and Wholesale Air-Time, Inc.
