9. Performance Measures

9.1. PM 1

SBC-CA says it is necessary and appropriate to reserve its rights to dispute any legal obligation to negotiate or arbitrate a self-executing performance remedy plan.

MCIm says it is neither necessary nor appropriate for SBC-CA to have a separate reservation of rights in this appendix, and that MCIm does not agree with SBC-CA's views regarding the obligations under §§ 251 and 252 of the Act for a performance remedy plan.

Discussion

SBC-CA's proposed language is adopted.

SBC-CA states that it has and will continue to abide by the Commission's performance incentive plan established in Investigation 97-10-017 and various decisions (e.g., D.03-07-035, D.02-03-023, D.01-05-087, and D.01-01-037). SBC-CA believes, however, that it has no legal obligation to negotiate or offer a performance remedy plan as part of the §§ 251 and 252 process. As such, SBC-CA proposes adding one sentence:

    "Moreover, the inclusion of the JPSA [Joint Partial Settlement Agreement] and performance incentives plan in this Agreement [ICA] shall not be construed as a waiver by SBC California of its right to assert in any forum that it is under no legal obligation under Sections 251 or 252 of the Act to offer, negotiate or arbitrate a self-executing performance remedy plan."

MCIm says "SBC-CA's proposed language is largely meaningless." (MCIm Opening Brief, page 133.) This seems to be the case. SBC-CA's proposed sentence neither places any obligations on, nor harms, MCIm. The sentence makes clear, however, that SBC-CA has reserved its rights, and cannot be said to have waived those rights. This clarifies more general reservation of rights language in the General Terms and Conditions, and may usefully prevent future conflicts. It does not prejudge the outcome should SBC-CA later seek legal review in an appropriate forum, and does no harm here.

Therefore, SBC-CA's proposed additional sentence is adopted.

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