5. Definitions
Definition Issue 3
Issue: Which party's definition of End User should be included in the Agreement?
Appendix Definition: "End User"
Positions
SBC-CA says the concept of end user is unique to wholesale telecommunications, with an industry-specific meaning as well as statutory importance. SBC-CA proposes a definition developed from Newton's Telecom Dictionary.
MCIm says SBC-CA's proposal places an unlawful restriction on MCIm's obligation to resell its services. MCIm proposes a broader definition which it says is consistent with FCC and Commission orders.
Discussion
MCIm's proposed definition is adopted.
The 2001 FAR and Decision (D.) 01-09-054 specifically addressed and decided the issue here in favor of MCIm. In particular, the Commission said: "We support the FAR's finding that MCIm should be permitted to purchase services from Pacific at wholesale prices for resale to other carriers." (D.01-09-054, page 15.) SBC-CA fails to convincingly show any change in fact or law that would merit a different outcome.
D.01-09-054 and the 2001 ICA addressed this in the context of the definition of "customer." Parties now use the term "end user" for essentially the same purpose. SBC-CA cannot undo the Commission's 2001 decision by using a different term for the same purpose.
SBC-CA argues that, from a policy perspective, TA 96 was intended to address competition in the markets for telecommunications services provided to end users. SBC-CA says that §§ 251(c)(3) and (d)(2) state that UNEs are to be used by "telecommunications carriers" to provide "telecommunications services," and that the Act defines a "telecommunications carrier" as an entity that is engaged in providing "telecommunications services."15 According to SBC-CA, the Act further defines the term "telecommunications services" as "the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used."16
Indeed, the Commission already addressed and rejected this exact argument, concluding "[w]e find Pacific's interpretation of the Act to be impermissibly narrow." (D.01-09-054, mimeo., page 15.) SBC-CA does not convincingly show that anything has changed, and that the Commission should reverse the outcome it reached in 2001.
SBC-CA argues that allowing a CLEC to resell UNEs to another carrier (such as an interexchange carrier (IXC)) would ultimately undermine the competitive market for access services and create the opportunity for unfair arbitrage. SBC-CA says the IXC (or other carrier) could circumvent ILEC Special Access tariffs and obtain (typically lower) regulated UNE prices which are intended solely to promote competition for end users. SBC-CA contends that the CLEC would be the "front" for the tariff evasion, potentially obtaining some share of the extra profit gained by the other carrier, and that the ILEC (and competing facilities-based access providers) would unfairly lose access business to the CLEC reseller. According to SBC-CA, this would undermine the mature, competitive special access market and devalue the assets of facilities-based CAPs.
Even if there is some truth in SBC-CA's concern, the fundamental purpose of the Act is to promote competition. The Commission has already weighed the arguments on both sides and rejected SBC-CA's position. According to the Commission, the FCC "never intended to create a distinction between wholesale and retail services, as Pacific attempts to do." (D.01-09-054, mimeo., page 16.) SBC-CA fails to clearly state any change in material fact or law that would merit a different outcome.
Therefore, MCIm's proposed language is adopted.
15 SBC-CA Opening Brief, page 49, citing 47 U.S.C. § 153(44).
16 SBC-CA Opening Brief, pages 49-50, citing 47 U.S.C. § 153(46) (emphasis added).
