13. Unbundled Network Elements

13.1. UNE 1

SBC-CA proposes language it says clarifies that SBC-CA's unbundling obligations arise only within SBC-CA's incumbent territory. Failure to do so in a manner consistent with the Act risks a subsequent contract interpretation dispute, according to SBC-CA.

MCIm asserts that the appropriate limitations are set forth in agreed to language in General Terms and Conditions § 2.12.1. MCIm contends that SBC-CA's additional language is unclear and unnecessary, and is likely to create confusion and future disputes.

Discussion

MCIm's proposed language is adopted.

MCIm correctly states that the appropriate limitations on the scope of SBC-CA's service obligations are already set forth in agreed to language in General Terms and Conditions § 2.12.1. That section states in part: SBC-CA's obligations shall apply only to the area "in which SBC California is deemed to be the ILEC under the Act." (Emphasis added.) 49

SBC-CA contends its additional language is necessary for areas where SBC-CA is a CLEC. According to SBC-CA, an example is Verizon's ILEC territory, where both SBC-CA and MCIm (at least at the moment) are CLECs, and neither "have § 251(c) obligations in Verizon's ILEC territory." (SBC-CA Opening Brief, page 187, emphasis added.) SBC-CA does not convincingly explain how it might be "deemed to be the ILEC" in Verizon's ILEC territory. Therefore, SBC-CA's concern is adequately addressed in GT&C § 2.12.1, and SBC-CA's additional language is unnecessary.

13.2. UNE 2

SBC-CA proposes a definition tied to lawful and effective FCC rules and orders. Under its definition, SBC-CA would be allowed to decline to provide UNEs to the extent not required by lawful and effective FCC rules and orders.

MCIm proposes a definition tied to UNEs as described in the ICA and applicable law.

Discussion

MCIm's proposed language is adopted.

This dispute focuses on when a declassified UNE is no longer required to be offered by SBC-CA. MCIm's proposed language is clear, stated simply, and less likely to lead to disputes. Moreover, MCIm's proposed language is likely to permit a smoother transition when a UNE is declassified. For example, under MCIm's propose language a UNE will include those as described in the ICA, and will be subject to change of law and dispute resolution procedures. Thereby, more continuity and certainty will be provided while still maintaining each party's rights should a dispute occur.

On the other hand, SBC-CA proposes a definition that is tied to effective rules and orders, but permits SBC-CA to decline to offer a UNE under certain terms. This is likely to lead to disputes and more uncertainty should a UNE be discontinued by SBC-CA at SBC-CA's option.

SBC-CA asserts that it proposes the same or similar concepts here as already found in the 2001 ICA. While partially correct, the 2001 ICA language does not include the option of SBC-CA declining to offer UNEs. On the other hand, the 2001 language is reasonably similar in concept to that proposed by MCIm.

In fact, however, the difference between parties' proposed language is not as substantial as parties contend. For example, orders from the FCC, Commission or court are very likely to include the dates, terms and conditions for ending a UNE, or transitioning to another service. As such, it is extremely unlikely that the worst fears of either party will materialize: that SBC-CA may unilaterally decide to end the offering of a UNE, or that MCIm may force the continued offering of a UNE for the duration of the 2006 ICA (even after an agency or court order finds that a UNE is no longer required). This is because the declassification of a UNE will certainly involve the issue of what happens to existing UNEs, and the continued offering of UNEs during any transition. It is inconceivable that parties will fail to bring that matter to the attention of the FCC, Commission or court. If deemed relevant, it will be addressed in the agency or court decision.50

SBC-CA seeks to reduce its risk of having to offer a UNE any longer than absolutely required, but proposes an assurance here that essentially prejudges an agency or court outcome. On balance, MCIm's proposed language is superior since it is more likely to permit consistency with agency or court decisions, promote smoother transitions, and produce fewer disputes.

Comments and Replies on DAR

SBC-CA reargues in comments on the DAR that MCIm seeks here to confuse UNEs that are mandatory under § 251(c)(3) with those that might be voluntarily agreed to by parties and subject to contract law. SBC-CA contends MCIm wants to create this ambiguity for its benefit in future disptues, while SBC-CA seeks by its language to avoid such disputes. SBC-CA asserts a future decisionmaker needs a clear and specific contractual standard to apply in resolving such disagreement. SBC-CA contends its language is essential for that purpose, and the outcome in the DAR must be reversed.

To the contrary, the adopted language requires the UNE to be both (1) "described in this Agreement" and (2) "required by Applicable Law." (UNE Appendix § 1.5.) While "Applicable Law" is defined broadly (see General Definitions Appendix, page 2), it is not credible that applicable law as it specifically relates to UNEs can be interpreted as broadly as SBC-CA claims. Rather, UNE is a specific term in TA 96, as well as implementing decisions and regulations. No credible dispute can be reasonably foreseen. SBC-CA does not identify any UNE which it believes may be subject to such dispute. Moreover, SBC-CA's proposed language fails for other reasons as discussed above and, on balance, MCIm's proposal is superior. Thus, SBC-CA's comments do not result in any change in outcome.

13.3. UNE 3

SBC-CA proposes language making the transition procedure for declassified elements in § 5.0 of the UNE Appendix self-effectuating, thus requiring no further amendment to the ICA to implement or make that change effective. As proposed by SBC-CA, this would include where a UNE is declassified or otherwise no longer a lawful UNE pursuant to a lawful and effective FCC or court order. SBC-CA proposes specifying the events that trigger the declassification of a UNE, such as the issuance of a legally effective finding that requesting carriers are not impaired without access to a UNE.

MCIm proposes language requiring parties to continue to comply with all obligations under the ICA until amended in accordance with General Terms and Conditions § 23, even when an agency or court issues a decision that materially affects any provision under the UNE Appendix.

Discussion

MCIm's proposed language is adopted.

MCIm's proposed language preserves the parties' obligations related to the availability of UNEs until a particular obligation is made effective through the parties' negotiation of an appropriate amendment to reflect a change in law. As discussed with UNE 2 above, this is more likely to promote smoother transitions and produce fewer disputes.

SBC-CA is concerned that MCIm may use this provision to indefinitely delay a change or unilaterally impose its will on SBC-CA. For example, SBC-CA argues that MCIm's proposed language should be rejected because neither party should be permitted to ignore dates that an agency or court have "hard-coded" into their rulings for the discontinuance of UNEs.

SBC-CA's concern is without merit. Each agency or court decision will almost certainly contain language regarding the transition. The transition will be specific if it is "hard-coded" into the ruling. Once the agency or court decision is effective, the transition date in that decision-if directed to include existing ICAs-will necessarily implement a change in the ICA. MCIm cannot delay indefinitely, or unilaterally force an outcome against SBC-CA's will. As SBC-CA itself says:

    "...the FCC has been very capable of specifying when negotiation of ICA amendments is required and when a change in law is automatic, as well as specifying applicable timeframes and effective dates. [footnote deleted.] There is no reason to expect the FCC not to do so in the future." (SBC-CA Reply Brief, page 14.)

Moreover, this ICA will be subject to the "Transition Procedure for Elements that are Declassified During the Term of the Agreement." This was UNE Issue 9 in this proceeding (involving UNE Appendix § 5.0), and has been transferred to the TRO/TRRO proceeding (A.05-07-024, the "generic proceeding"). To the extent appropriate, the Commission will determine the transition procedure there. In fact, SBC-CA says the arbitrator here "should assume that proper and lawful `Transition Procedure' language is adopted for Section 5 by the Commission in the Generic Proceeding." (Opening Brief, page 192.)

SBC-CA is correct. As a result, there is no serious concern that MCIm's proposed language here can be used to cause indefinite and unreasonable delay.51 At the same time, if there is a case where there is doubt (e.g., in the very unlikely case of an agency or court order failing to address the transition, or where § 5.0 of the UNE Appendix does not apply), MCIm's proposed language is more likely to promote smoother transitions and produce fewer disputes by making clear that parties must honor this ICA until an amendment is made effective.

13.4. UNE 5

SBC-CA proposes language stating that SBC-CA shall not, except at MCIm's request, separate MCIm requested UNEs that are currently combined. SBC-CA's also proposes language stating that SBC-CA is not prohibited from separating lawful UNEs not requested by MCIm.

MCIm proposes language stating that SBC-CA shall provide combinations of UNEs in accordance with law, may not require MCIm to own local exchange facilities as a condition of offering MCIm a UNE, may not require MCIm to combine UNEs, and shall not separate MCIm requested UNEs that are already combined unless requested by MCIm.

Discussion

MCIm's proposed language is adopted.

Unlike SBC-CA's proposal, MCIm's proposed language more nearly mirrors FCC rules in 47 CFR §51.315, and does a better job of stating SBC-CA's obligations to combine elements. MCIm's proposal goes beyond this FCC rule in two ways: (a) that SBC-CA may not require MCIm to own or control any local exchange facilities as a condition of offering to MCIm any network element or combination, and (b) that SBC-CA may not require MCIm to combine network elements. SBC-CA complains that, with limited exception, MCIm's proposed language "does not comply with or track any language contained in the FCC's combination rule referenced above" (i.e., 47 CFR § 51.315). (SBC-CA Opening Brief, page 195). SBC-CA raises no specific objection to MCIm's two additions, however, and the two additions are compatible with FCC rules, MCIm's rights, and SBC-CA's obligations. Moreover, they are compatible with the FCC's clarification on ILEC UNE duties. (See MCIm Opening Brief, page 209, citing FCC TRO ¶ 573, including the FCC's comments on the Supreme Court's Verizon decision.) In other respects, MCIm's proposed language, contrary to SBC-CA's claim, complies with and tracks the FCC's rules, and does a better job than SBC-CA's proposed language of complying with and tracking those rules.

SBC-CA's proposed language apparently seeks to clarify that it may separate lawful UNEs not requested by MCIm, but does not convincingly show that such clarification is appropriate or necessary (e.g., due to past or current disputes). For example, SBC-CA contends if MCIm does not request such UNEs the ICA must make clear that:

    "SBC-CA is not prohibited from separating UNEs in order to provide such UNEs (i.e., to another CLEC upon that CLEC's request) or to provide other SBC-CA's offerings. This is simply a statement of the `first come, first served' principle." (SBC-CA Opening Brief, page 195.)

SBC-CA fails to show, however, that absent this language in its ICA with MCIm that SBC-CA is prohibited from separating UNEs in order to provide them to another CLEC, or another SBC-CA offering. Further, there is no known dispute or claim regarding a `first come, first served' principle that requires the remedy proposed by SBC-CA.

Thus, on balance, MCIm's proposed language is superior and is adopted, with the following two minor corrections. The first sentence should be corrected (a) from "Section 21" to "Section 2" and (b) from "47 CFR Section 315" to "47 CFR Section 51.315." As corrected it should read:

    "At MCIm's request, SBC California shall provide combinations of unbundled Network Elements in accordance with the requirements of this Section 2, other applicable requirements of this Agreement and Applicable Law, including 47 CFR Section 51.315."

13.5. UNE 6

SBC-CA says no.

MCIm says yes.

Discussion

MCIm's proposed language is adopted.

Both parties refer back to Definition Issue 3, and recommend a parallel outcome here as there. MCIm prevailed on Definition Issue 3. As a result, and for the same reasons as stated there, MCIm's proposed language is also adopted here.

SBC-CA further argues for its proposed language here, and against MCIm's proposed language, saying that:

    "In the TRO Remand Order (FCC 04-290), the FCC clarified that Rule 309(b) does not permit IXCs and Wireless providers to obtain UNEs exclusively for long distance and wireless traffic." (SBC-CA Opening Brief, page 196.)

This argument does not support rejecting MCIm's proposed language, however, because MCIm's language already includes the following statement:

    "provided, however, that MCIm may not use a Network Element or combination... to provide exclusively mobile wireless telecommunications service or interexchange service..." (MCIm proposed language for UNE Appendix § 2.3.)

Moreover, MCIm is not limited by the FCC's rule from accessing a UNE or combination to provide mobile wireless services or interexchange services, only that of accessing a UNE or combination for the exclusive provision of mobile wireless services or interexchange services. The adopted language is consistent with this rule.

Thus, MCIm's proposed language is adopted.

13.6. UNE 7

Positions

SBC-CA's proposed language limits MCIm's obtaining UNEs to the UNE Appendix in this 2006 ICA, and not simultaneously from tariffs.

MCIm proposes that SBC-CA's language here be omitted, with the result that MCIm be permitted to obtain UNEs either from this ICA or tariff.

Discussion

MCIm's proposed language is adopted (i.e.., "Intentionally Omitted.")

The substance of this issue is the same as General Terms and Conditions (GT&C) Issue 10 and Physical Collocation (P.Collo) Issue 1. Parties raise nothing substantially different here. For the same reasons that MCIm prevails on GT&C 10 and P.Collo 1, MCIm similarly prevails here. That is, for example, permitting purchases from either the ICA or tariff promotes the pro-competitive goals of the Act. Also, nothing in this option conflicts with the FCC's limitation on "pick and choose." Rather, using the tariff as a "baseline" that is generally always available enhances the opportunities for "give and take" in negotiations. Finally, the incremental administrative burden, if any, is not unreasonable in light of the larger goal of promoting competition.

MCIm claims the issue here is broader than in GT&C 10. For example, MCIm contends that SBC-CA's language here would prohibit MCIm from purchasing a UNE from a tariff even if the ICA does not include the offering.

In response, SBC-CA asserts that Appendix UNE requires SBC-CA to provide MCIm with all UNEs required by the law, and there are no UNEs other than UNEs required by the law. As a result, SBC-CA contends that MCIm's argument (that there might be a UNE offered by tariff that is not offered by the ICA) is meritless. SBC-CA says that to the extent a change in law creates a new UNE, the Change in Law provision of the ICA is triggered and, therefore, the current ICA is broad enough to cover all present and future UNEs. (SBC-CA Reply Brief, page 15.)

If SBC-CA's contention is true, SBC-CA's proposed language for UNE § 2.15 is unnecessary, and the reasons for SBC-CA's proposal are all the less clear. That is, for a UNE there is no need to limit purchases to the ICA that might otherwise be from tariff because there can be no such conflict. This is further reason to reject SBC-CA's proposal, and adopt MCIm's proposal (i.e., that the language here be "intentionally omitted").

13.7. UNE 19

Positions

This issue involves commingling tariffs.

SBC-CA proposes referring to FCC Tariff No. 1, Section 5.1.1.

MCIm proposes that SBC-CA be required to not impair or impede MCIm's commingling arrangements. Further, MCIm proposes that SBC-CA not change its tariffs in any fashion that impacts commingling without first amending this ICA.

Discussion

SBC-CA's proposed language is adopted.

SBC-CA's language is clear and direct, and will minimize disputes. It refers to an FCC tariff, which itself states commingling eligibility criteria from 47 CFR 51.318(b) through (d). This addresses what is necessary for this ICA.

MCIm's primary concern is that SBC-CA's reference to an FCC tariff "would allow SBC CA to alter or propose to alter the obligations in the ICA unilaterally, in violation of orders of the FCC and this Commission." Rather, MCIm wants changes to the ICA "to be implemented through negotiation and amendment of the contract..." (MCIm Opening Brief, page 214.) This concern is without merit.

For the reasons stated above (see xDSL Issue 3), SBC-CA cannot unilaterally alter an FCC tariff. Moreover, tariff changes require regulatory approval. That regulatory approval will provide MCIm the protection is desires against unilateral change, uncertainty, and unreasonable outcomes.

MCIm argues that SBC-CA has already made modifications to its federal tariff that have the effect of precluding MCIm from commingling. Even if true, MCIm does not persuasively explain why it did not, or could not, obtain the protection it believes necessary or desirable from the FCC before the change was made effective.

Moreover, as a general proposition, it is efficient and reasonable for portions of the ICA to refer to, and rely on, tariffs and other documents. In fact, MCIm seeks that approach in several contexts, and it is generally adopted in this arbitration. (See GT&C Issue 10, UNE Issue 7, and P.Collo Issue 1.) It is similarly reasonable here.

On the other hand, MCIm's proposed language fails on several counts. First, it creates a vague and undefined contractual obligation on SBC-CA not to do things that "impair or impede" MCIm's ability to implement commingling arrangements. What does and does not "impair or impede" is sure to engender disputes. Second, it requires SBC-CA to "acknowledge and agree" to things SBC-CA does not acknowledge and with which SBC-CA disagrees. Third, it requires the ICA to be amended before certain tariffs can be amended. This provision conflicts with SBC-CA's right to seek amendment to its tariffs as necessary consistent with law. It is also bad public policy to effectively make this portion of the ICA paramount over more generally available tariffs, particularly when MCIm may exercise all its legal rights before the FCC.

Therefore, SBC-CA's proposed language is adopted.

13.8. UNE 24

Positions

SBC-CA proposes that MCIm have access to copper loops, if available (§ 9.2); MCIm have access to dedicated transport only where such facilities exist at the time of MCIm's request (§ 15.2); and SBC-CA not be required to provide UNEs where facilities are not available, but MCIm may request provision of a UNE through a Bona Fide Request (§ 20.1.19).

MCIm proposes that, where facilities are not available, SBC-CA be required to make modifications and engage in construction to provide MCIm with access to UNEs on a nondiscriminatory basis and at parity with what SBC-CA does for itself and its own customers.

Discussion

SBC-CA's proposed language is adopted for §§ 9.2 and 15.2, while MCIm's proposed language is adopted for § 20.1.19.

The issue here is the degree of modification and/or construction that may be required for (a) UNE copper loops (§ 9.2), (b) DS1 And DS3 UNE dedicated transport facilities (§ 15.2), and (c) other UNE facilities (§ 20.1.19). The FCC has determined that some modification or construction is required of ILECs, but not to the point of placing new cables or creating a superior network.

In particular, as quoted by MCIm, the FCC has found that:

    "639. We reject Verizon's argument that the Commission lacks authority to compel incumbent LECs to deploy new equipment to meet the demands of a competitive carrier. Verizon contends that the Commission cannot require incumbent LECs to add capacity or circuits, including constructing and modifying loops by adding electronics, where these facilities do not already exist. That is, Verizon argues that these modifications are not necessary to provide access to existing UNEs, they are the `creation of new or improved UNEs' that would unlawfully force an incumbent LEC to provide superior quality access. In particular, Verizon claims that the Commission is barred from requiring incumbent LECs to build a new loop, place new line cards or electronics on a circuit, and provide line conditioning, because these are all `substantial alterations to an ILEC's existing network.' We disagree and, with the exception of constructing an altogether new local loop, we find that requiring an incumbent LEC to modify an existing transmission facility in the same manner it does so for its own customers provides competitors access only to a functionally equivalent network, rather than one of superior quality. Indeed, incumbent LECs routinely add a drop for a second line without objection. We conclude that with the exception of building a loop from scratch by trenching or pulling cable, because incumbent LECs are able to provide routine modifications to their customers with relatively low expense and minimal delays, requesting carriers are entitled to the same attachment of electronics. Lastly, to the extent that certain routine network modifications to existing loop facilities affect loop provisioning intervals, contained in, for example, section 271 performance metrics, we expect that states will address the impact of these modifications as part of their recurring reviews of incumbent LEC performance." 52

This FCC statement is in a section of the TRO on "Routine Network Modifications to Existing Facilities." In that context, the FCC disagrees with Verizon and concludes that the FCC may compel ILECs to deploy new equipment for a CLEC. In particular, the FCC may require ILECs "to add capacity or circuits, including constructing...where these facilities do not already exist." With the exception of constructing an altogether new local loop, the FCC finds that it may require ILECs to modify facilities in the same manner an ILEC does for its own customers.

At the same time, the FCC makes clear that:

    "We do not find, however, that incumbent LECs are required to trench or place new cables for a requesting carrier." (TRO, ¶ 636.)

    "...with the exception of constructing an altogether new local loop, we find that...[the FCC may require] an incumbent LEC to modify an existing transmission facility in the same manner it does so for its own customers..." (TRO, ¶ 639.)

    "We do not require incumbent LECs to construct transmission facilities so that requesting carriers can access them as UNEs at cost-based rates." (TRO, ¶ 645.)

    " `...we do not require incumbent LECs to construct new transport facilities to meet specific competitive LEC point-to-point demand requirements for facilities that the incumbent LEC has not deployed for its own use.' " (TRO, ¶ 645, quoting from UNE Remand Order, 15 FCC Rcd at 3843, para. 324.)

Given this balance in the FCC's requirements, it is reasonable to adopt SBC-CA's proposal for the first sentence of § 9.2, including "if available:" Otherwise, § 9.2 could be misinterpreted to require construction of UNE copper loops. As adopted, it shall read:

    "9.2 Lawful UNE Copper Loops. SBC California shall provide to MCIm, upon MCIm's request, Lawful UNE copper Loops on an unbundled basis, if available."

Similarly, for § 15.2 it should include "only where facilities exist at the time of MCIm's request." Otherwise, § 15.2 could be misinterpreted to require construction of DS1 and DS3 UNE dedicated transport. Therefore, it shall read:

    "15.2 Subject to the limitations set forth in Section 5 ("Transition") of this Appendix Lawful UNE, SBC CALIFORNIA shall provide MCIm with nondiscriminatory access to DS1 and DS3 Lawful UNE Dedicated Transport on an unbundled basis in accordance with the requirements of this Agreement only where such facilities exist at the time of MCIm's request and only over routes that have not been Declassified."

Finally, given this balance, it is reasonable to adopt MCIm's proposal for the § 20.1.19. This is consistent with FCC's requirement for ILECs to make modifications and engage in construction on a nondiscriminatory basis "in the same manner it does so for its own customers." (TRO, ¶639.) Therefore, as adopted, it shall read:

    "20.1.19. Access to Lawful unbundled Network Elements is provided under this Agreement over such routes, technologies, and facilities as SBC CALIFORNIA may elect at its own discretion, but also at parity and on a nondiscriminatory basis. SBC CALIFORNIA will provide access to Lawful unbundled Network Elements where technically feasible. Where facilities are not available, SBC CALIFORNIA will make modifications and engage in construction to provide unbundled Network Elements on a nondiscriminatory basis as it does for itself, its subsidiaries, its affiliates, and third parties.

MCIm complains that SBC-CA's language for §§ 9.2 and 15.2 "conflicts with the FCC's rules because it ignores its routine network modification (`RNM') obligations." (MCIm's Reply Brief, page 18.) To the contrary, RNM for UNE local loops was covered in UNE Issue 29 (UNE Appendix § 9.9). UNE Issue 29 was transferred to the TRO/TRRO proceeding (A.05-07-024). The outcome there shall govern, in the context of RNM, other aspects of the modification and construction of such facilities. Here, SBC-CA's proposed language in §§ 9.2 and 15.2 properly recognizes the balance struck by the FCC.

SBC-CA complains that MCIm's language for § 20.1.19 is an unlimited and unqualified affirmative requirement to engage in construction where facilities are not available. To the contrary, MCIm's language reasonably models the FCC language in TRO ¶639, and reflects the balance struck by the FCC.

13.9. UNE 40

Positions

SBC-CA proposes that the prices for network reconfiguration service be those in Access Tariff FCC No. 73, and be subject to revision as the tariff is modified over the life of the 2006 ICA.

MCIm seeks to have the prices fixed in Appendix Pricing and not be subject to revision except by negotiation of, and amendment to, the 2006 ICA.

Discussion

SBC-CA's proposed language is adopted.

As explained above (see xDSL 3 and UNE 19), the price certainty and protection sought by MCIm is provided here by use of SBC-CA's FCC tariff. For example, SBC-CA cannot unilaterally alter an FCC tariff. Tariff changes require regulatory approval. That regulatory approval provides MCIm the protection it desires against unilateral change, uncertainty, and unreasonable outcomes.

Portions of the 2001 ICA referred to tariffs. No new facts or law compel a change from that approach. As a general proposition, it is efficient and reasonable for portions of the ICA to refer to, and rely on, tariffs and other documents. In fact, MCIm seeks that approach in several contexts, and it is generally adopted in this arbitration. (See GT&C Issue 10, UNE Issue 7, and P.Collo Issue 1.) It is similarly reasonable here. The incremental cost, if any, of referencing another document outside the ICA is not shown by MCIm to be unreasonably burdensome, particularly when compared to the cost and complexity of negotiation of, and amendment to, the 2006 ICA, which would be in addition to costs incurred to change the tariff.

49 The agreed upon language in GT&C § 2.12.1 should be corrected to state (addition underlined): "SBC's obligations under this Agreement to provide Lawful unbundled Network Elements and Resale shall apply only to the portions of California in which SBC CALIFORNIA is deemed to be the ILEC under the Act."

50 In fact, SBC-CA says: "the FCC and the Courts have proven themselves to be perfectly capable of mandating transition periods for the discontinuance of UNEs where they deem them to be appropriate..." (Opening Brief, page 193.)

51 SBC-CA argues its language must be adopted here because its language refers to § 5.0. This argument is not persuasive. Whether or not specific language in § 1.1.1 refers to § 5.0, a transition procedure for declassified UNE will be included in ICAs if the Commission determines in A.05-07-024 that a transition procedure is necessary and/or appropriate. That outcome will control, and will not be dependent on language considered here for § 1.1.1.

52 MCIm Opening Brief, pages 218-19, citing TRO ¶ 639 (emphasis in bold added; emphasis in italics in original).

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