3. Discussion
3.1 Pacific's Petition for Modification
Pacific relies on D.97-08-059 in support of its petition. D.97-08-059, however, was modified by D.00-07-019.2 D.00-07-019 finds that Pacific failed to overcome the rebuttable presumption that its end-user toll aggregation restrictions are unreasonable, and orders removal of the restrictions.3 Thus, D.97-08-059 may no longer be relied upon for the purpose proposed by Pacific.
In the alternative, Pacific's seeks the opportunity to present evidence on its avoided costs. Pacific, however, was given that opportunity in 1999, during the rehearing of D.97-08-059. D.00-07-019 finds that Pacific failed to present evidence that the costs of selling aggregated toll services to competitive local exchange carriers for resale are greater than the costs of selling the same toll service to its retail customers. Thus, Pacific failed to rebut the presumption of the unreasonableness of toll aggregation restrictions. (Discussion at mimeo, pages 9 - 16, and Finding of Fact 5, page 21.) Pacific should not be given another opportunity to present such evidence.
D.00-07-019 removes the resale restriction going forward. There is no reason here, however, not to remove the resale restriction back to December 19, 1996, the effective date of the ICA.
The May 11, 1998 Court Order vacated D.96-12-034 with respect to the resale restriction, and reinstated the Arbitrator's decision on this provision within the ICA. The only reasonable reading of the Court Order is that the Commission's decision was vacated on this point, and the Arbitrator's determination was reinstated, effective the date the Commission decision was rendered. That is, there is no reasoning stated in the Court's Order which suggests that the Court found the resale restriction compatible with the Act and acceptable from December 19, 1996 through May 10, 1998, but incompatible with the Act and unacceptable only from May 11, 1998 forward.
Therefore, we decline to grant Pacific's petition for modification. To the extent not already accomplished by parties, the 1996 ICA should be brought into conformance with the Court's order, with compliance effective the day the ICA became effective. Parties should use the dispute resolution provisions of the ICA to the extent they are unable to mutually agree on the necessary changes to the ICA, including monetary effects, if any.
3.2 Pacific's Motion and AT&T's Request
Pacific moves for a memorandum account to track payments due Pacific for sales, if any, to AT&T of the switching UNE. The 1996 ICA, however, has now been replaced by a successor ICA. (See D.00-08-011.) No sales are pending and left to track under the 1996 ICA. Pacific's motion is now moot.
AT&T's request for a Commission order that Pacific calculate refunds due AT&T on the toll aggregation issue back to December 19, 1996 is addressed by our conclusion that the ICA must conform with the Court's Order back to the effective date of the ICA. That is, Pacific and AT&T must now bring the ICA into compliance with the Court's order, to the extent they have not already done so, including the calculation and payment of any funds due to either party. No additional order is necessary.
AT&T also requests a Commission order that Pacific immediately remove resale restrictions on toll aggregation. That request is similarly unnecessary given our statement here that parties comply with the Court's Order. It is also unnecessary since toll aggregation restrictions are no longer in place as a result of D.00-07-019, and are not included in the successor ICA pursuant to D.00-08-011.
The draft decision of ALJ Mattson in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules and Practice and Procedure. Comments were filed on __________________, and reply comments were filed on ____________________.
Findings of Fact
1. D.00-07-019 finds that Pacific failed to present evidence that the costs of selling aggregated toll services to competitive local exchange carriers for resale are greater than the costs of selling the same toll service to its retail customers.
2. D.00-07-019 modified D.97-08-059, finding Pacific failed to overcome the rebuttable presumption that Pacific's end-user toll aggregation restrictions are unreasonable, and ordering the removal of those restrictions.
3. The only reasonable reading of the May 11, 1998 Court Order vacating D.96-12-034 on the toll aggregation matter is that the Commission decision was vacated, and the Arbitrator's determination was reinstated, back to the effective date of the 1996 ICA.
4. The 1996 ICA was effective December 19, 1996.
5. The 1996 ICA between Pacific and AT&T has now been replaced by a successor ICA, and no sales of the switching UNE to AT&T under the 1996 ICA are pending and left to track in a memorandum account.
6. AT&T's requests for a Commission order that Pacific calculate refunds due AT&T back to December 19, 1996 on the toll aggregation issue, and remove resale restrictions immediately, are resolved by the Court's May 11, 1998 Order; modification of the 1996 ICA back to December 19, 1996; D.00-07-019; and the successor ICA.
1. The June 19, 1998 petition of Pacific to modify D.96-12-034 should be denied.
2. The June 12, 1998 motion of Pacific to establish a memorandum account to track payments due Pacific from AT&T for the switching UNE should be denied.
3. The June 18, 1998 request of AT&T that Pacific calculate refunds due AT&T for toll aggregation volume discounts back to the effective date of the 1996 ICA, and hold that sum in a memorandum account, should be denied.
4. The June 18, 1996 request of AT&T for an order directing Pacific to immediately remove toll aggregation restrictions for services AT&T purchases from Pacific for resale should be denied.
5. To the extent they have not yet done so, Pacific and AT&T should modify the 1996 ICA to comply with the May 11, 1998 Court Order, with modifications effective December 19, 1996.
6. This order should be effective immediately so that Pacific and AT&T may bring the 1996 ICA into conformance with the May 11, 1998 Court Order without further delay (to the extent they have not already done so), including calculation and payment of any funds that are due to either party.
IT IS ORDERED that:
1. The June 19, 1998 petition of Pacific Bell (Pacific) to modify Decision (D.) 96-12-034 is denied.
2. The June 12, 1998 motion of Pacific to establish a memorandum account to track payments due from AT&T Communications of California, Inc. (AT&T) for the switching unbundled network element is denied.
3. The June 18, 1998 request of AT&T that Pacific calculate refunds due AT&T for toll aggregation volume discounts back to the effective date of the 1996 interconnection agreement (ICA), and hold that sum in a memorandum account, is denied.
4. The June 18, 1996 request of AT&T for an order directing Pacific to immediately remove the toll aggregation restriction for services AT&T purchases from Pacific for resale is denied.
5. To the extent they have not yet done so, Pacific and AT&T shall modify the 1996 ICA to comply with the May 11, 1998 Order of the United States District Court for the Northern District of California, with modifications effective December 19, 1996.
6. This proceeding is closed.
This order is effective today.
Dated , at San Francisco, California.
2 Rehearing of D.97-08-059 was granted by D.99-04-072. The rehearing resulted in D.00-07-019. 3 D.00-07-072 also finds that GTE California Incorporated (GTE) failed to overcome the rebuttable presumption, and orders removal of GTE's toll aggregation restrictions.
