SBC Issue 14: Performance Measures

SBC proposes that if a particular UNE is "declassified" by the FCC, then "SBC California will have no obligation to report on or pay remedies for any measures associated with such network element." (Cover Amendment, Section 7.) SBC contends that if it no longer has to provision a UNE, the "practical consequence is that the performance plan established to govern the provision of UNEs cannot, by definition, apply to network elements that are no longer UNEs." (SBC Brief, 12/15/04, p. 93.) In SBC's view, it has never agreed to pay remedies related to performance measures for network elements that are not Section 251 UNEs.

XO contends SBC has an ongoing obligation to provide nondiscriminatory service and to comply with Section 271 and performance measure plans and penalties, regardless of whether a UNE is required under Section 251(c)(3). As support for its view, XO asserts that neither the TRO nor Commission orders support SBC's position. Indeed, the FCC found, "[Bell Operating Company] obligations under section 271 are not necessarily relieved based on any determination we make under the section 251 unbundling analysis." (TRO, para. 655, footnotes omitted.) This Commission's Performance Incentive Plan (PIP), established during our review of SBC's Section 271 entry, imposes an ongoing obligation on SBC that is unchanged until the Commission reviews and revises the plan. (D.02-09-050, Ordering Paragraph 7.)

I agree with XO that even if SBC has no obligation to provide a UNE under Section 251, it still has an obligation to comply with Section 271 and the Commission adopted performance measure plan and penalties. There has been no change to the Commission's PIP. Where network elements are provided pursuant to Section 271, SBC must still comply with the Commission adopted performance measurement plan. This is consistent with statements by the FCC in the TRO. If SBC wishes to be relieved of any performance obligations, it should seek relief through a petition to modify the decision establishing the PIP, rather than through this arbitration.

ORDER

IT IS ORDERED that:

1. Parties are to file and serve comments on the Draft Arbitrator's Report, as provided by Rule 3.19 of the Commission's Arbitration Rules set forth in Resolution ALJ-181, on or before June 1, 2005, and file and serve reply comments on or before June 15, 2005.

2. On _______, the parties shall file and serve an entire Interconnection Agreement, for Commission approval, that conforms with the decisions of the Final Arbitrator's Report; and a statement which (a) identifies the criteria in the Act and the Commission's Rules (e.g., Rule 4.3.1, Rule 2.18, and Rule 4.2.3 of Resolution ALJ-181), by which the negotiated and arbitrated portions should be assessed; (b) states whether the negotiated and arbitrated portions pass or fail those tests; and (c) states whether or not the Agreement should be approved or rejected by the Commission.

Dated May 4, 2005, at San Francisco, California.

		/s/ DOROTHY DUDA
		Dorothy Duda, Arbitrator Administrative Law Judge

CERTIFICATE OF SERVICE

I certify that I have by mail this day served a true copy of the original attached Draft Arbitrator's Report on all parties of record in this proceeding or their attorneys of record.

Dated May 4, 2005, at San Francisco, California.

/s/ KE HUANG

Ke Huang

NOTICE

Parties should notify the Process Office, Public Utilities Commission, 505 Van Ness Avenue, Room 2000, San Francisco, CA 94102, of any change of address to ensure that they continue to receive documents. You must indicate the proceeding number on the service list on which your name appears.

Duda Notice of Availability to Draft Arbitrator's Report 46060