4. Discussion

As this brief summary suggests, the CLECs have played a role in formulating the OSS testing process. 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 allowed some participation 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. 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 provided input into 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."

We recognize that at this stage the CLECs are concerned more about access to specific techniques used by the test generator to test the previously agreed-upon elements, as well as any problems the test generator has experienced in this process, than with the structure of the MTP. Nevertheless, we believe 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. As described earlier, the Commission has taken steps to ensure that CLECs have been provided an opportunity to participate in the test and are provided adequate information concerning the test.

The joint commenters contend that a myriad of potential flaws in the testing process may have been averted if we had adopted the New York model of OSS testing. However, we do not believe that there is a single model for an open approach in OSS testing. New York provides an example of one approach that, given our constrained staffing resources, was not workable for California. Nevertheless, the Commission has taken seriously the CLECs' concerns and requests for additional supporting documentation and inquiry. In the past several months, there has been a steady increase in the quantity of supporting OSS testing documentation provided to interested CLECs. We expect going forward that if further testing is needed, staff and the OSS Test Administrator will strive to deepen the involvement of participating CLECs in the testing process.

Moreover, following the release of the OSS test report, there will be ample opportunity for the CLECs and other interested parties to review and comment on the test results. Parties will be able to question the Test Administrator about the processes, mechanics, documentation and other aspects of the testing process. We concur with the joint commenters' assertion that a question-and-answer procedure would provide a more substantive understanding of the California test process as well as practical insights into the mechanics of the development of the test's interfaces. Once the OSS test report is issued, at the direction of the assigned Commissioner and the Administrative Law Judge, staff will convene workshops on the test and report. To assist the Commission in determing the schedule for the remainder of the proceeding, parties are invited to submit proposed timelines along with their comments on the alternate decision.

Joint Petitioners also request continued testing of DS1 loops. On December 4, 2000, Pacific will require¹ that all CLEC DS1 loop orders be processed through the two OSS ordering interfaces (Local Service Request Exchange (LEX) and Electronic Data Interchange (EDI) that are being examined in the OSS test. Then, Pacific will retire the Customer Enhanced System for Access Request (CESAR) interface that most CLECs have relied on to submit DS1 loop orders. As the test currently stands, there is not a statistically valid functionality test sample of CLEC DS1 loop orders submitted through the LEX and EDI. We believe that this Commission, and ultimately the Federal Communications Commission, have two options for determining whether Pacific can process DS1 loops on a nondiscriminatory basis. One option would be to fully test DS1 as we have tested other MTP elements. Our staff estimates that testing DS1 would take approximately eight to twelve weeks. The second option is to allow Pacific to rely upon the commercial data gained from the conversion from CESAR to LEX and EDI to demonstrate nondiscriminatory processing of DS1 loops. Given the significant delay that testing DS1 loops now would add to the proceeding, and considering that Pacific should be able to process DS1 loop orders beginning in December 2000, we can accept this second option. Pacific should submit its DS1 data on a monthly basis beginning with its December 2000 DS1 data. The examination and analysis of at least two months of the post-CESAR retirement commercial volumes, together with the limited results from capacity and functionality testing, should enable the relevant regulatory agencies and parties to determine whether Pacific is providing nondiscriminatory access to DS1 loops. However, because we are relying chiefly on commercial volumes, we want to be clear that Pacific takes the risk for the performance of its DS1 OSS systems during a limited timeframe in this analysis.

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. Interested parties filed reply comments on September 6, 2000.

Finally, Pacific argues that 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."

Although Pacific contends that Petitioners failed to provide citations to the record, we note that there is no formal evidentiary record on which the MTP is based. Consequently, the Petitioners have substantially complied with Rule 47 by citing, among other things, the MTP, correspondence from the staff, D.98-12-069 and its supporting material. In support of their factual claims, Petitioners attached the Affidavit of Becky Oliver, dated 9/11/00 to their reply comments. Petitioners are criticized for challenging "interlocutory rulings" in this proceeding. However, given the interrelation and complexity of the rulings challenged here, we do not fault Petitioners' action on that basis. Finally, Pacific alleges that the Joint Petitioners failed to seek Commission resolution of the matter at issue at an earlier stage of the OSS test. . We note that the Joint Petitioners sought to resolve the matter informally at the staff level, and after exhausting those avenues, filed a petition seeking modification of the decision ordering OSS testing before the conclusion of the test. The Joint Petition was properly filed. 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. Given the timing of the OSS test and the overall time period at issue, the Commission will exercise its discretion under Rule 87 to "secure just, speedy, and inexpensive determination of the issues presented" and accept the filing as of the date of submission.

We conclude that the CLECs had continual 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 completed, 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 now, and they have failed to make the case for applying their concept of openness to the test. It follows that the Petition for Modification should be, and is, denied.