III. Discussion

A. Procedural Compliance

We conclude that Petitioners satisfy the procedural requirements of Rule 47 as a basis to have their Petition considered on its merits. Rule 47(d) requires that if a petition is filed more than one year after the effective date of the decision proposed to be modified, petitioners must explain why they couldn't file within the one-year period. Although the Petition was filed over one year after the effective date of D.98-01-022, Petitioners have provided an explanation why the Petition was not filed within that one-year period. As noted in their pleading, Petitioners explain that during that first year, it was not expected that the ultimate duration of delay in adopting final OANAD rates would exceed three years. Also, Petitioners point to the more recent issuance of the FCC Listing Order as having changed the relative positions among competitors, thereby claiming further reason to justify a modification to D.98-01-022.

We also find the Petitioners have met the requirements of Rule 47(b) in terms of providing citations to the record. Although Pacific challenges the accuracy of the DA rate cited by Petitioners, the Petition does nonetheless provide a citation from its filed comments for the claimed rate. To determine procedural compliance, we need not resolve what the correct rate actually is on a substantive basis. It is enough that we confirm that a citation was provided, albeit subject to challenge on a substantive basis.

Regarding the other disputed allegation, whether Petitioners are DA agents of CLCs, the Petitioners provided a relevant citation in their reply to the opposition of Pacific and Verizon, referencing their filed 1997 comments in this proceeding. In any event, the question of whether the Petitioners are DA agents of CLCs is not directly relevant to the proposed modification sought in their petition. Petitioners expressly state that they are not seeking relief under the federal rules. Therefore, it is not necessary to confirm whether or not the Petitioners are agents of CLCs in order to adjudicate the Petition. We shall therefore proceed to evaluate the petition for modification on its substantive merits.

B. Substantive Merits

Petitioners present two general arguments to support their claim that D.98-01-022 should be modified. One, Petitioners claim the continued passage of time with no final rates has led to a cumulative burden on DA providers that has become excessive. Two, Petitioners claim there are discriminatory effects on DA providers that are not covered by an agent/principal relationship with a CLC as prescribed in the FCC 's Directory Listing Order.

First, Petitioners point to the continuing passage of time since we first adopted the memorandum accounting requirement in January 1998, arguing that the Commission never anticipated that more than three years would elapse with no final rates in place. Yet, although the passage of time incrementally increases the potential build-up of funds in the memorandum accounts subject to ultimate true up, it does not change the fundamental circumstances that we relied upon at the time that we issued D.98-01-022. We originally adopted the requirement for memorandum accounting of revenues collected under the ILECs tariffed rates for DALIS subject to true up to address the uncertainty as to what rates would ultimately be adopted in the OANAD and as to when those rates would be established. By making the rates provisional and subject to true up, we provided protection to DA providers that they would be made whole for any charges that were subsequently determined to be excessive.

When we adopted the memorandum accounting requirement, however, we made no predictions concerning how long the interim rates would last or when final rates would be adopted. The uncertain duration of the interim arrangement was taken into account in adopting D.98-01-022, and we did not set any time limit on how long the interim arrangement would remain in effect. The passage of three years since the arrangement took effect does not change the rationale for continuing the status quo. We do not consider the interim arrangement to be discriminatory because it makes provision for a true up and refund of any overcharges to DA providers once final rates are established in OANAD.

Petitioners' proposed modification would merely replace one interim rate for another. Such a proposed change would further complicate the interim process by requiring two true ups--one now, and another once final OANAD rates are established. The modification sought by Petitioners would not resolve the uncertainty that continues to exist regarding the ultimate level of rates that will be adopted. Uncertainty still remains concerning what ultimate rates the Commission will establish for DA access. In its Unbundled Network Element (UNE) Remand Order,¹¹ the FCC relieved ILECs from the obligation to offer DA as a UNE and further ruled that the Act's cost-based UNE pricing standards do not apply to DA. These developments, if anything, create further uncertainty regarding what final levels of DA prices will be set, and how much they will differ from current interim rates. The Petitioners have failed to provide any alternative interim rate that would lessen the uncertainty as to what final rates will be. Therefore, the passage of three years since the issuance of D.98-01-022 does not provide a basis to justify changing interim rates in the manner proposed by Petitioners.

Moreover, the Petitioners' proposed change in the interim rate would not be consistent with the requirements of recent court decisions. Petitioners propose that the ILECs should establish a new interim rate equal to the lowest amounts that were charged to any other provider for DA access, including without limitation, an ILEC affiliate or a CLC during any period since January 1997 when the Commission issued D.97-01-042. Yet, such an approach would be inconsistent with recent court decisions interpreting the "pick-and-choose" provisions of interconnection agreements. Under recent court decisions, an ILEC is entitled to require a requesting carrier to accept all terms that are "legitimately related" to the desired term. (AT&T Corp. et al. V. Iowa Utilities Board, et al. 525 U.S. 366, 119 S.Ct. 721, 738 (1999).) Petitioners' proposed change, however, ignores the requirement to link lower rates to other "legitimately related" terms contained in the pertinent agreements with CLCs prescribing those rates. Instead the Petitioners seeks to obtain the lowest rates offered any provider "without limitation." Therefore, we cannot adopt the proposed modification in the interim rate since it would remove necessary limitations linking "legitimately related" terms to any rates that might be available to DA providers.

As a second basis underlying their claimed justification for modification, Petitioners point to a purported deficiency in the Federal Listing Order. Petitioners claim the Federal Order has "left out" competitors that operate on a "stand-alone" basis without an agent-principal relationship with a CLC. Petitioners claim such stand-alone DA providers are not yet able to obtain data under the federal rules applicable to carriers' "agents."

Even assuming that federal rules did not provide sufficient authority for stand-alone DA providers to obtain access to DA data, our own state-adopted rules already mandate that all third-party DA providers must be granted access to DA databases of the ILECs. Our rules have not "left out" any DA providers in their coverage under our rules. We adopted the requirement in D.97-01-042 for all third-party DA providers to be granted access to DA data on a nondiscriminatory basis, and no further modification to a Commission decision is necessary simply to reiterate a requirement that already exists.

Petitioners provide no basis to conclude that our current interim treatment results in unfair discriminatory treatment to DA providers merely because they are not agents of CLCs. As noted above, the FCC Directory Listing Order issued on January 23, 2001 held that a third-party DA provider who acts as an agent for a CLC is entitled to receive access to DA database listings under the same terms contracted by its CLC principal. Petitioners' proposed modification to D.98-01-022 would result in a direct conflict with the FCC Order in that the Order specifically limited a DA provider's rights to obtain the rate only of its CLC principal. Under the federal rules, a DA provider is not entitled to a lower rate that might be offered to any other DA provider with a different CLC principal. The Petitioners' proposed modification would ignore the relationship between the DA provider and its CLC principal, but instead would enable any DA provider to demand whatever rate was offered to any DA provider or CLEC, irrespective of whether there was any agent-principal relationship or not.

While we are not necessarily prevented by federal rules from adopting additional state rules, if warranted, it would not be proper to modify a Commission decision that would create a direct conflict with federal rules. Yet, this would be the result from granting the Petition for Modification. Moreover, independent of federal rules, we find no basis to conclude that granting the petition is the proper course of action to achieve nondiscriminatory access to DA listings. We have already concluded in D.98-01-022 that the provision for ultimate true-up of interim rates reasonably protects the interests of all parties involved. The changes proposed in the Petition for Modification do not offer an alternative that results in a better balance of interests than the status quo.

Also, there is no need to modify D.98-01-022 in order for DA agents to avail themselves of the contractual rate provisions of their CLC principal. The federal rules already provide for that. Petitioners have indicated that they are already DA agents of CLCs, and therefore already have rights to the same rate as their CLC principal. Petitioners expressly state they are not seeking any relief available to them under federal rules through the proposed modification of D.98-01-022. Accordingly, we find no basis justifying a modification of D.98-01-022. The Petition for Modification is therefore denied.

Although we do not find justification to modify D.98-01-022 in the manner requested by Petitioners, we do conclude that a more limited revision is justified with respect to the rates charged by Pacific under its DALIS tariff. As a basis for the more limited revision, we take note of the Final Arbitrator's Report in A.00-01-022 in the matter of the interconnection agreement between Pacific and AT&T Communications, Inc. (AT&T).

The Final Arbitrator's Report, issued June 13, 2000, noted that Pacific's DALIS tariff includes two elements: (1) a charge of two cents per listing for each separate listing that Pacific furnishes to the DA provider, plus (2) a charge of five cents per listing each time the provider gives out DA listing information to one of its customers. In the arbitration proceeding, AT&T stated that it had no mechanism in place to track the number of times that it gave out DA information from a listing provided through Pacific's DALIS tariff (which was one of hundreds of databases on which AT&T relied). AT&T stated that it had never paid the five-cents-per-query charge, and that the requirement for such a charge is entirely unworkable in practice. In its comments in the arbitration, Pacific offered nothing to refute AT&T's claim that it did not pay the five-cents-per-query charge. The Arbitrator adopted AT&T's position, excluding the five-cents-per-query charge in setting the amount that AT&T was to pay for access to Pacific's DA listings.

The exclusion of the five-cents-per-query charge in the arbitration was not based upon any offsetting tradeoffs or concessions by AT&T. The exclusion of the five cent charge was not linked to any other "legitimately related" terms that were required supporting conditions. Instead, the Arbitrator adopted the exclusion of the per-query charge based simply on the finding that this provision of the tariff was unenforceable.

Not only was AT&T unable to track DA queries that it accessed from Pacific's database listings, but Pacific was likewise found to be unable to enforce compliance based on the number of DA queries made by AT&T's customers from Pacific's database. Similarly, if Pacific is unable to independently enforce the per-query charge in the case of AT&T, there is no reason to believe that Pacific could independently track per-query transactions of all other DA providers utilizing listings under the terms of Pacific's DALIS tariff. Therefore, we conclude that it is not reasonable to continue to include a provision in the DALIS tariff for a five-cents-per-query charge that is not subject to independent tracking or enforcement.

We conclude that a similar rationale as was applied in the case of the AT&T arbitration has general applicability to other users of Pacific's DA listings. Other DA users should likewise be relieved of the obligation to pay the five cents per query charge in view of the unenforceability of Pacific's DALIS tariff provision.

We shall, therefore, require Pacific to amend its DALIS tariff to remove the five-cents per listing charge payable each time a DA provider gives out DA listing information using Pacific's database. We shall require that to the extent any DA provider can document that it has previously paid Pacific relating to the five-cents-per query charge, that Pacific shall rebate those charges to the DA provider. Documentation in the form of copies of past billing records would be acceptable evidence confirming such charges. On a going forward basis, we shall require that any interim rates paid to Pacific for DA access exclude any charge for access based on the number of customer DA queries that were provided through Pacific's DA database. Because we have no evidence that Verizon imposes any comparable usage charge based on the number of end-user customer DA queries that are made, we shall limit this directive to Pacific's DALIS tariff.

We shall modify D.98-01-022 to require that the provisional rates to be paid under Pacific's DALIS tariff be adjusted to exclude the five-cents-per query charge, and that rebates be made to DA providers to the extent, if any, that they have previously paid charges under this tariff provision. The provisional rates shall remain subject to a further true up once final DA access rates are adopted in the OANAD proceeding.