5.1.5 Purchase from Tariff or ICA (Issue Nos.: GT&C 10, UNE 7, Physical Collocation 1, Virtual Collocation 1)

These issues essentially involve the extent to which MCIm may purchase a service from either an approved tariff or the ICA. The FAR finds for MCIm. As such, MCIm may purchase from either an approved tariff or the ICA. SBC-CA submits that the ICA must be treated as a "package deal," that "pick and choose" is not lawful under the rulings of the FCC, and that the FAR must be reversed on these four issues. We do not agree.

SBC-CA argues that the FCC's policy determinations are controlling, and the Commission may not thwart the FCC by adopting contrary policy. In particular, SBC-CA asserts the holding in the FAR that MCIm may "pick and choose" between the SBC-CA/MCIm 2006 ICA and SBC-CA's tariffs must be reversed because it obstructs the pro-competitive policy encouraging "give and take" in ICA negotiations that the FCC has held to be required to accomplish the purposes of the Act.

To the contrary, the FCC's rejection of "pick and choose" was in the context of § 252(i) of the Act (sometimes called the "most favored nations" (MFN) provision). SBC-CA fails to show that this same policy applies with respect to generally available, approved tariffs.

Other points asserted in its June 14, 2006 statement were also raised in SBC-CA's comments on the DAR. They are largely all part of the same general theme, but are succinctly addressed in the FAR as follows:

"...SBC-CA reargues [in comments on the DAR] that the FCC rejected pick and choose and the Commission must do so here. To the contrary, the FCC was considering the matter with respect to a CLEC selecting individual elements of an ICA versus the entire ICA. The matter here is between an item in an ICA and the same item in a generally available tariff.

"SBC-CA asserts that the FCC found its prior `erroneous conclusion' (in favor of pick and choose) was based on `inaccurate presumptions.' SBC-CA contends that the same `inaccurate presumptions' are at issue here. To the contrary, SBC-CA fails to show that the FCC was considering the matter in the same context as here (i.e., having a choice between an item in an ICA and the same item in a generally available tariff). Nor does SBC-CA show that the FCC intended its conclusion to apply to such case.

"SBC-CA contends that the FCC's decision rejecting pick and choose must apply here since `the only potential distinction is the number of choices available to the CLEC. This is a distinction without a difference.' (SBC-CA Comments, page 7, emphasis in original.) In further explanation, SBC-CA says the issue here, at least in theory, is a choice between two sources, while the matter before the FCC was a choice between many sources. SBC-CA argues that there is no relevant distinction because `in all cases, as a matter of law, the relevant choices have been found by the California Commission to be nondiscriminatory-this is true as to tariffs and it is true as to ICAs.' (Id.)

"Even if accurate, SBC-CA's contention is irrelevant. The determination that two or more choices are nondiscriminatory is no reason not to increase choice and competition when it is reasonable to do so, as it is here.

"SBC-CA repeats its argument that the decision here prevents SBC-CA from being able to enforce a negotiated compromise, thereby thwarting the FCC's public policy determination that the pro-competitive purposes of TA 96 are best achieved by promoting rather than obstructing the `give and take' in ICA negotiations. To the contrary, SBC-CA fails to cite to any authority to show that the ICA negotiation process automatically nullifies a party's rights under generally available tariffs.

"Moreover, the public policy considerations of allowing a company to pick and choose individual elements within an otherwise fully negotiated ICA package are not comparable to those in allowing choice between an item in an ICA and a generally available tariff. Tariffs are, and should continue to be, available to all eligible customers. This is not true of individual elements of an ICA for the policy reasons found by the FCC." (FAR, pages 36-37.)

Thus, we are not persuaded by SBC-CA to reverse the FAR. Rather, we affirm the outcomes in the FAR.