4.1 Negotiated Portions of Appendices and Amendments

Section 252(e)(2) of the Act provides that the CPUC may only reject an agreement (or any portion thereof) adopted by negotiation if we find that the agreement (or portion thereof) discriminates against a telecommunications carrier not a party to the agreement, or implementation of such agreement (or portion thereof) is not consistent with the public interest, convenience, and necessity. CPUC rules provide that the CPUC may reject a negotiated agreement (or portion thereof) if it discriminates against a telecommunications carrier not a party to the agreement; its implementation would be inconsistent with the public interest, convenience, or necessity; or the agreement would not meet other rules, regulations, and orders of the CPUC, including service quality standards. (Resolution ALJ-178, Rules 4.3.1, 4.3.2, 4.1.4, and 2.18.)

No party or member of the public alleges that any negotiated portion of the appendices or amendments should be rejected. We find nothing in any negotiated portion which results in discrimination against a telecommunications carrier not a party to the appendices or amendments; is inconsistent with the public interest, convenience and necessity; or does not meet other CPUC rules, regulations and orders, including service quality standards.

Some parties argue that the CPUC should adopt the zero monthly rate for access to the high frequency portion of GTE's loop recommended by CLCs and GTE, and reject the arbitrated rate of $3.00. That issue is discussed in the arbitrated issues below.

Covad asserts that it arbitrated only basic operational issues and cost-based rates. Covad says the CPUC should not assume that if a term or condition was not actively arbitrated it was negotiated. Rather, according to Covad, the emphasis on expedited proceedings forced Covad and others to pick and choose the more critical terms and conditions for the interim arbitration, while relying on the final proceeding to address other terms and conditions.

We understand that parties had to select the important issues to address in the interim arbitration. No party, however, and no member of the public, point to specific items in the negotiated portions of the appendices and amendments which they now challenge, or will later seek to challenge. Moreover, parties were under orders of the Assigned Commissioner and ALJ to actively negotiate complete agreements. We believe parties did their best to do so.

The DAR identified the issues for the final portion of the line sharing phase of this proceeding. (DAR, page 89.) Neither Covad, nor any other party or member of the public, commented on these issues. These issues are stated in the FAR. (FAR, page 109.) As a result, we adopt the statement of issues in the FAR for the final portion of the line sharing phase. These issues are:

(a) prices;

(b) number of tie cables in an efficient configuration; and

(c) whether or not to continue the limitation on decommissioning of copper loop plant pending resolution of line sharing or transport over fiber.

We decline to adopt a position where essentially everything is open for further consideration in the final portion of the line sharing phase. At the same time, we note that the February 25, 2000, ruling provides that a prehearing conference (PHC) will be held to determine the scope and schedule to address final prices, and other line sharing issues. We also note that the February 25, 2000, ruling states that parties should come to the PHC prepared to address the issue of double recovery of loop costs.¹¹ (Ruling, page 12.)

We leave to the judgment of the ALJ in the final portion of the line sharing phase whether or not to add issues other than those stated in the FAR, and the double recovery of loop costs. The burden for including any issues beyond those identified in the FAR, or added by the ALJ at her initiative, however, is on the party seeking to raise any additional issues.