4. Discussion

As this brief summary suggests, the CLECs have played a major role in formulating the OSS testing process. Indeed, the Joint Petitioners concede that "Each element of the MTP was developed after active collaboration between members of the industry." (Petition, at 23.) Moreover, the CLECs have been active participants in the testing. For example:

· The CLECs provided the Electronic Bonding interface for maintenance testing.

· The CLECs have provided collocation facilities for all types of loop products (basic, assured, DSL, and DS1).

· The CLECs have provided Service Provider Identifiers (Spuds) for Local Number Portability.

· The CLECs have provided "friendlies" (end user customers for the test) and building locations, and have engaged in acceptance testing where applicable.

In response to a letter from CLECs six months ago voicing the same complaints raised now in the Joint Petition, the Director of the Commission's Telecommunications Division on April 17, 2000, summarized various steps that the Commission has taken to include the CLECs in the testing process:

1. Extensive collaborative workshops were conducted whereby CLECs and Pacific were given the opportunity to participate in the development of the OSS testing plan.

2. CLECs subsequently provided comments on the Draft Master Test Plan.

3. CLECs have been openly and integrally involved in the development of the processes to be used during testing where CLEC facilities are utilized.

4. CLECs have an active voice in the Technical Advisory Board, which advises the test consultants on technical matters impacting the OSS test.

5. CLECs participate in twice monthly meetings with the staff and test consultants, and this schedule was changed to weekly meetings early in the year 2000.

In the same letter, the Telecommunications Division Director agreed to make additional documentation available to the CLECs and explained the basis for the Commission's position on these matters:

"The decision to provide the above information was based on criteria that was designed to balance the need to protect the integrity and blindness of the test with your desire for OSS testing information. These criteria will be utilized by Commission staff to address any remaining or future requests by CLCs for OSS testing data. These criteria are as follows:

"1. Information requested should not negatively impact the integrity of the test.

"2. Information requested should not negatively impact the blindness required in the test."

"3. Preparation of responses should not require substantial additional effort on behalf of the staff or consultants during OSS testing.

"The Commission's principal goal here is to have the test conducted efficiently in an independent and unbiased manner, protecting the integrity and blindness required of the test. [The Telecommunications Division] is concerned that sharing certain test information at this time may jeopardize this goal. Additionally, it is most productive for the Test Administrator and Test Generator to focus their attention on technical matters associated with the testing to ensure that the test is conducted as designed in the Master Test Plan. [The Telecommunications Division] does not want the Test Administrator and Test Generator to direct time and resources at this time to compile detailed information that we anticipate will be included in the OSS Test Report."

Independence and blindness are important aspects of third-party testing of OSS. In approving Southwestern Bell Telephone Company's Section 271 application to provide in-region long distance service in Texas, the FCC stated that if it finds that OSS testing is not sufficiently independent and blind, the FCC may accord the testing minimal weight. (Texas 271 Order, para. 98.)

This Commission has sought to balance the need to protect the integrity and blindness of the OSS test with the CLECs' desire for additional information. The Commission has taken steps to ensure that CLECs are provided an opportunity to participate in the test and are provided adequate information concerning the test. The Commission approved the creation of the TAB to ensure that CLECs remained involved in the test process and to ensure that issues were raised and addressed throughout the process and not just during the post-test comment cycle. The CLECs have had an active voice in advising third-party test experts on technical matters through the CLEC-specific meetings held by the Test Administrator.

With respect to the Joint Petitioners' request for expanded testing of DS1 loops, we believe that the Commission will have sufficient evidence to determine whether Pacific can process DS1 loops on a nondiscriminatory basis. Pacific has been processing commercial volumes of DS1 loops for business customers for more than two years. Those commercial volumes together with the results from capacity and functionality testing should enable us to determine whether Pacific is providing nondiscriminatory access to DS1 loops.

With respect to the new elements identified in the FCC's UNE Remand Order, the Commission already has created the appropriate vehicle for Pacific to demonstrate that it has complied with that order. On August 9, 2000, the Commission issued a ruling directing Pacific to make a supplemental compliance filing to demonstrate how it has complied with those portions of the FCC order that became effective on May 17, 2000. Pacific filed its showing on August 23, 2000.

Finally, as Pacific points out in its response, the Petition for Modification is procedurally defective. Rule 47 of the Rules of Practice and Procedure requires, among other things, that:

"A petition for modification must concisely state the justification for the requested relief and must propose specific wording to carry out all requested modifications to the decision. Any factual allegations must be supported with specific citations to the record in the proceeding or to matters that may be officially noticed (Rule 73). Allegations of new or changed facts must be supported by an appropriate declaration or affidavit."

Petitioners have failed to provide citations to the record, and they make numerous allegations without support through declarations or affidavits. There is no proposed wording of the changes sought in D.98-12-069. Indeed, much of the petition challenges interlocutory rulings in these proceedings, rather than D.98-12-069. The Commission generally will not entertain appeals of interlocutory rulings before the Commission has considered the entire merits of a proceeding because of the danger of piecemeal litigation. (In re Regulatory Frameworks for Local Exchange Carriers (1994) 55 CPUC2d 672, 676.)

Rule 47 also requires that a petition for modification be filed within one year of the effective date of the decision sought to be modified unless it can be shown that the petition could not have been filed earlier. Petitioners here have failed to justify a filing that has taken place more than 18 months after issuance of D.98-12-069.

We conclude that the CLECs continue to have frequent opportunities to examine and comment on the test process in the TAB sessions and in their meetings with the Test Administrator. The OSS testing is now nearing completion, and the CLECs and all other parties will have further opportunities to access supporting materials and documents, to comment and state objections after the final report is issued.

The Joint Petitioners have failed to show persuasively why D.98-12-069 should be modified at this late date, and they have failed to make the case for abandoning the concept of independence and blindness that has guided the testing to date. It follows that the Petition for Modification should be, and is, denied.