4.2.4 Abrogate Existing Contractual Rights

The FAR adopts Pacific's Appendix DSL, with modifications. Appendix DSL is a comprehensive appendix capable of being adopted by any CLC, even one without an existing DSL agreement. Joint Petitioners assert that this results in revising existing agreements by inserting different and unfavorable language. Specifically, Joint Petitioners say Appendix DSL inserts loop conditioning charges and spectrum management provisions into Rhythms' ICA where there were none before. This, according to Joint Petitioners, results in an unwarranted revision of existing ICAs in areas beyond the scope of this proceeding. We do not agree.

Joint Petitioners claim that at no time did the Commission notify parties that terms unrelated to line sharing in existing ICAs might be subject to modification. To the contrary, all elements adopted here are matters addressed in the FCC Line Sharing Order, and proposed in requests for arbitration filed March 27, 2000. Further, nothing about this interim arbitration requires CLCs to adopt interim results if they prefer their existing agreements. Moreover, Joint Petitioners do not convincingly show that they are limited in any way from "picking and choosing" to include or exclude elements of any other ICA (including any portion of an interim ICA), to their existing ICA pursuant to § 252(i) of the Act, thereby resulting in whatever final agreement they wish.

The only example given by Joint Petitioners is Rhythms' agreement with Pacific regarding conditioning and spectrum management. Nothing about conditioning or spectrum management exceed the scope of this proceeding, or abrogate existing contracts. For example, Rhythms joined with other CLCs in providing dueling clauses on May 18, 2000. CLCs did not propose dueling clauses, or suggested deletions, on conditioning or spectrum management relevant to Joint Petitioners' concern.

The FCC Line Sharing Order adopts rules that apply to spectrum compatibility and management. The FCC says "these rules will significantly benefit the rapid and efficient deployment of xDSL-based technologies." (FCC Line Sharing Order, ¶ 6.) Joint Petitioners fail to show that any language adopted in Appendix DSL conflicts with the FCC's rules. Further, CLCs do not present any convincing reason why inclusion in Appendix DSL of a section on spectrum management will not "significantly benefit the rapid and efficient deployment of xDSL-based technologies."