II. FACTS/BACKGROUND
On March 10, 2004, Verizon filed this petition for arbitration to implement the change-of-law provisions necessitated by Federal Communications Commission ("FCC") orders and court rulings. On August 21, 2003, the Federal Communication Commission ("FCC") released its Triennial Review Order ("TRO"), which revised the list of UNEs that ILECs must provide to requesting carriers.1 The TRO also reinterpreted the "impair" standard of Section 251(d)(2) of the Telecommunications Act of 1996.2
On March 2, 2004, the D.C. Circuit issued USTA II, which invalidated much of the TRO.3 In response to the court's remand in USTA II, the FCC released the Triennial Review Remand Order ("TRRO").4 USTA II held, among other things that unbundling criteria must take into account relevant market characteristics that capture significant variation, define relevant markets, connect those markets to the FCC's impairment findings, and consider whether the element is significantly deployed on a competitive basis. (USTA II, supra, at pp. 563-575.)
In December 2004, Verizon submitted an updated amendment to its petition for arbitration. After the TRRO was issued, this arbitration was re-started by Administrative Law Judge ("ALJ") Ruling in June 2005.
A Prehearing Conference was held on January 5, 2006, at which the parties agreed that the filings previously submitted would resolve the routine network modifications (RNM) issues without evidentiary hearings. Opening Briefs on the disputed issues were filed on December 23, 2005, and Reply Briefs, on January 13, 2006.
On February 21, 2006, the Commission issued D.06-02-035. It confirms the October 6, 2005 ALJ ruling that any carrier with an interconnection agreement with Verizon which has a dispute over the change-of-law provisions related to the FCC's TRO and TRRO will be subject to the outcome of this proceeding. This is a two-track proceeding. The first track involves disputed issues that do not require hearings, including issues relating RNMs, which are the subject of this decision. The Batch Hot Cut portion is the second track with a separate procedural schedule.
Two rehearing applications were filed in this proceeding. One of the rehearing applications was jointly filed on March 15, 2006 by A+ Wireless, Inc. and 15 other competitive local exchange carriers and commercial mobile radio service providers ("Joint CLECs").5 They challenge D.06-02-035 on the following grounds: (1) Paragraph 210 of the TRO does not support the argument that unbundling relief is "customer neutral"; (2) the adopted changes concerning Fiber-to-the-Home ("FTTH") and Fiber-to-the-Curb ("FTTC") conflict with FCC Rule §51.319; (3) the ruling that FTTH and FTTC relief is not limited to mass market customers is contrary to FCC intent; and (4) the decision to impose a DS1 transport cap on all routes erroneously relies on a decision issued by the federal court in the Western District of Texas and is contrary to D.06-01-043, which adopted an amendment to existing ICAs between SBC California and various CLECs.
On March 23, 2006, Verizon also filed an application for the rehearing of D.06-02-035 on numerous grounds: (1) requiring Verizon to provide entrance facilities to CLECs at Total Element Long Run Incremental Cost ("TELRIC") rates is inconsistent with Section 251(c)(3) of the 1996 Telecommunications Act; (2) the new tariff notice requirements to CLECs before eliminating a tariffed intrastate or interstate access service is discriminatory and inconsistent with the FCC's and the Commission's rules concerning notice of tariff changes; (3) the amendment language with respect of certification of orders for high-capacity facilities does not comply with Section 251(c)(3); (4) allowing a CLEC to certify its compliance with the FCC's Enhanced Extended Loop ("EEL") eligibility criteria by letter or email is contrary to FCC intent and would result in unnecessary delays in EEL provisioning; (5) permitting CLECs to pre-certify EELs is contrary to the TRO; (6) the Decision incorrectly defines the term "affiliate" and improperly treats MCI as an affiliate retroactively; and (7) omitting transition pricing language is inconsistent with the TRRO transition plan and the structure of the adopted amendment.
On April 7, 2006, the Joint CLECs collectively filed an Opposition to Verizon's rehearing application ("Joint CLECs' Response") generally opposing Verizon's arguments on all counts. Specifically, the Joint CLECs alleged the following: (1) the Commission correctly determined that entrance facilities are available to CLECs at TELRIC rates for use in interconnection; (2) the Commission should not eliminate the additional notice requirements associated with tariff changes that will affect the availability of commingling arrangement; (3) the Commission should uphold its determination that CLECs may submit written blanket certifications of eligibility for high-capacity facilities; (4) the Commission properly ruled on EEL certification procedures; (5) the Commission properly defined "affiliate" for purposes of defining fiber-based collocator; and (6) the Commission should reject Verizon's assertion that Section 3.6.3.1 should be revised to enable Verizon to increase the prices of newly-de-listed loop and transport UNEs.
We have reviewed each allegation of error set forth in both applications for rehearing. Except as to our ruling regard the application of the FCC's DS1 cap, we find no merit to the allegations. For the reasons stated below, we will grant a limited rehearing in order to modify our ruling on the DS1 cap. We also correct clerical errors. Thus, we deny rehearing of D.06-02-035, as modified, in all respects.
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 ("TRO") (2003) 18 FCC Rcd 16978, FCC 03-36.
2 Telecommunications Act of 1996 (the 1996 Act), Pub. L. 104-104, 110 Stat. 56, codified at 47 U.S.C. 151 et seq.
3 United States Telecom Ass'n v. FCC ("USTA II") (D.C. Cir. 2004) 359 F.3d 554, cert. denied, (2004) 125 S.Ct. 313.
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 ("TRRO") (Feb. 4, 2005) 20 F.C.C. Rcd. 2533, FCC 04-290.
5 The Joint CLECs are A+ Wireless, Inc., California Catalog & Technology, Inc., CBeyond Communications, LLC, CF Communications, LLC d/b/a Telekenex, Curatel, LLC, DMR Communications, Inc., Mpower Communications Corp., NII Communications, Ltd., North County Communications, Inc., TCast Communications, Inc., The Telephone Connection Local Services, Inc., Telscape Communications, Inc., U.S. TelePacific Corp., Utility Telephone, Inc., Wholesale Air-Time, Inc., and XO Communications Services, Inc.
