IV. The Revised JPSA is Reasonable, Consistent with the Law, and in the Public Interest

A. Summary

Rule 51.1 of the Commission's "Compiled Rules of Practice and Procedure" governs the proposal of settlements. Rule 51.1(e) requires that a settlement be "reasonable in light of the whole record, consistent with law, and in the public interest" before it is approved. Based on the discussion here, we find that the JPSA is reasonable in light of the whole record, consistent with law, and in the public interest. Therefore, we will adopt the agreement.

B. Discussion

The JPSA is the result of lengthy negotiations among Pacific, Verizon, and several CLECs. The Settling Parties reviewed all of the measurements and standards that were adopted by the Commission in D.99-08-020. They also reviewed those issues that the Commission specifically required parties to re-negotiate in the August 1999 decision.

The "open issues" on which the Settling Parties cannot agree have been discussed extensively in the motions and replies submitted by the parties. Because some of the open issues involve further modifications to the measurements and standards that we adopted in D.99-08-020, the JPSA should be received as a partial statement of OSS performance standards and measurements. We have indicated in Appendix B which elements are subject to revision, pending our resolution of the open issues.

As a threshold matter, the Settling Parties seek to limit the application of the JPSA. "By seeking approval of the JPSA, the Settling Parties make no representation that the JPSA constitutes a definitive or a conclusive standard for Pacific's or GTE's compliance with the Telecommunications Act of 1996." Furthermore, AT&T reserves its rights to argue that "parity, not benchmarks, are the appropriate performance measures under applicable law." Still further, by agreeing to the terms of the JPSA, Pacific and Verizon make no commitments or admissions regarding the "propriety or reasonableness of establishing performance remedies."

The limitation the Settling Parties place on the JPSA are consistent with the evolving process the Commission is using to develop and implement OSS performance measurements. The JPSA before us today is more comprehensive than the JPSA we approved in D.99-08-020. As the Settling Parties observe, the JPSA "embodies the best efforts of the CLECs, Pacific, and GTE to modify, as necessary or appropriate, the performance measurements approved by the Commission in D.99-08-020." We will be refining the measurements when we decide the open issues and the Settling Parties themselves propose reviewing the measurements again in March 2001. Therefore, we find it reasonable to conclude that by approving the JPSA we are not concluding that it represents a definitive or conclusive standard for Pacific's or Verizon's compliance with TA 96.

The Settling Parties have submitted a document clearly outlining the specific elements of their proposed changes along with the rationale for their modifications to the measurements, standards, and business rules we adopted in D.99-08-020. While we adopt the revised JPSA based on our own independent analysis, we note that the JPSA represents the consensus among fiercely competitive parties that normally agree on very little.

We find that the JPSA is a proposal that provides a comprehensive update to the OSS performance measurements and standards we adopted in D.99-08-020. The JPSA adds new services, service levels, and products, includes two new measurements, deletes one service measurement because a quicker alternative is available, and clarifies existing business rules. The proposal reflects the experience that industry participants have gained since our earlier proceeding and provides substantial progress toward fully achieving our goal to provide competitors nondiscriminatory access to Pacific's and Verizon's OSS. The JPSA articulates in a detailed manner the very categories by which the Commission, the industry, and consumer advocates can measure, analyze, and review the success of Pacific and Verizon in providing nondiscriminatory access to OSS.

Promoting competition in California's local exchange telephone market, as required by TA 96 and California Pub. Util. Code §§ 709.5 and 709.7 is a significant public policy goal of this Commission. To achieve our goal, competitors must have access to pre-ordering, ordering, provisioning, maintenance and network performance, database updates, collocation, and interface information (the OSS subfunctions) from Pacific and Verizon that is equal to the level of access in terms of quality, accuracy, and timeliness that Pacific and Verizon provide themselves, their customers, and their affiliates. Without this nondiscriminatory access, competitors that need to use Pacific and Verizon's network to provide local exchange service cannot provide their customers quality service. Therefore, the revised JPSA is reasonable and in the public interest.

The JPSA is consistent with applicable law because it offers a system of objective terms by which the Commission can measure, discuss, and analyze the success of Pacific and Verizon in meeting their legal duties under TA 96 and the FCC rules implementing the 1996 Act. The measurements and standards contained in the JPSA will greatly assist the Commission in making legal and factual judgments about OSS subfunctions both when we review any current or future Section 271 applications by Pacific and also when we review facts in connection with OSS performance incentives.

NorthPoint and Rhythms request the Commission change the review procedures contained in Section VI of the JPSA. In Section VI, the Settling Parties agree to reconvene on or around March 1, 2001 to review the effectiveness of and modifications to the performance measurements approved by the Commission in this proceeding. The parties agree to conclude this review within 90 days of its commencement and to submit their revisions to the Commission, together with any disputed issues, within the 90-day review period. NorthPoint and Rhythms request we shorten this review period to 30 days in order to ensure that smaller CLECs can fully participate in the process.

The Settling Parties spent six months in reviewing and negotiating the proposed JPSA. Their agreement to limit the review period in 2001 appears to be an accommodation to NorthPoint's and Rhythm's concern. We have found it very beneficial for the parties to spend considerable time and effort identifying and discussing the very detailed and technically complex OSS issues involved in setting OSS performance measurements and standards. Without the parties doing this work, the Commission would not have the comprehensive OSS measurements and standards it has today. Both NorthPoint and Rhythms were able to participate in portions of this review process and other DLECs can also identify specific areas of interest and participate in those areas of review. We find the JPSA's three-month review period to be reasonable and, therefore, adopt it.

A final issue that the Settling Parties bring before us in the JPSA is their objection to the inclusion of Commission ordered language in the actual settlement document. In D.99-08-020, the Commission decided the disputed issues before it and inserted our requirements directly into the proposed JPSA format, making Appendix B of the decision a complete list of all adopted OSS measurements, standards, auditing, reporting, implementation, and review procedures. In the proposed JPSA before us today, the Settling Parties have deleted the Commission-added language from the statement of OSS measurements and standards because they believe inclusion in the proposed JPSA of this language creates an invalid impression that the parties themselves have reached an agreement on these measurements.

The Settling Parties "expressly agree" that any language added by the Commission in its D.99-08-020 decision which obligates Pacific or Verizon "to provide certain types of OSS access or to perform certain auditing or reporting requirements remains enforceable as part of that decision and is not rendered unenforceable as a result of having been removed by the parties." Nevertheless, the Settling Parties request that, in the future, the Commission avoid adding such language to the JPSA. The Settling Parties propose that the Commission include such language with the ordering paragraphs of the decision by which the Commission adopts the JPSA.

We should accommodate the Settling Parties request to not include our modifications directly in their signed settlement document. However, we do not agree with the Settling Parties that the Commission's modifications should only be contained in the ordering paragraphs of its decisions. We find it beneficial to have all OSS performance measurements and standards available in one place for ease of reference and to ensure the public and all interested parties are fully informed.

Therefore, we should include at Appendix C a separate listing of the Commission modifications in D.99-08-020 together with the JPSA we adopt today. The Settling Parties have facilitated this process by placing the Commission's D.99-08-020 adopted language at the front of their revised JPSA. This addition is clearly identified as the work of the Commission. This supplement and the revised JPSA, together, will serve as a single statement of our adopted OSS performance measurements and standards.

C. Next Steps

The Commission will schedule a prehearing conference to begin the 2001-review process by separate ruling. This review process should go forward in a timely manner even if the Commission has not fully resolved all open issues.