5.2.1 Application of TRO/TRRO Amendment

MCIm seeks Commission confirmation that the TRO/TRRO Amendment resulting from D.06-01-043 in A.05-07-024 governs the parties' relationship under the conformed ICA approved here. MCIm asserts this clarification is needed to ensure that the ICA complies with the relevant standards for approval, including D.06-01-043 and the FCC's TRO and TRRO.

We decline to grant MCIm's request. MCIm does not identify the specific standards which MCIm believes may be violated. Nor does MCIm attempt to show the violation. Rather, we affirm the June 2, 2006 ruling of the Arbitrator. We do so because, upon directing SBC-CA to file an arbitration application to address TRRO implementation issues, we also ordered:

"The Assigned Commissioner and ALJ in any currently pending individual Section 252 arbitration proceeding, such as for MCI or XO, shall determine whether [to] continue to use the existing arbitration to resolve previously raised change-of-law issues, or whether any pending issues should be transferred to one of the consolidated arbitration dockets." (D.05-07-043, Ordering Paragraph 4.)

That is, we specifically recognized this arbitration proceeding, and directed that a determination be made regarding the transfer of pending issues to the consolidated proceeding. That was done. Parties identified and agreed to transfer 31 issues. Two issues were transferred upon the grant of an opposed motion. As a result, 33 issues were transferred. All other items (including negotiated language not in dispute and dueling clause language relative to issues subject to arbitration here) remained in this proceeding.

MCIm's request is overly broad and unreasonable. It does not recognize the division of issues between the two proceedings. It would likely lead to confusion and dispute. It is untimely to now seek clarification regarding the issues transferred or not transferred to A.05-07-024.

Moreover, MCIm does not identify which if any standards for review are potentially violated by failing to grant its request. We are aware of none.

Finally, MCIm asserts D.06-01-043 applies to all carriers with an ICA with SBC, including MCIm. MCIm is only partly correct. In describing the purpose of the consolidated TRO/TRRO arbitration we said:

"We reiterate the September 23, 2005 Ruling by the Administrative Law Judge (ALJ) that any carrier with an interconnection agreement with SBC that has a dispute over the change-of-law provisions related to the FCC's TRO and TRRO orders will be subject to the outcome of this proceeding. The Commission does not intend to conduct individual arbitrations to implement change-of-law provisions relating to the two FCC orders. SBC was required to send a copy of the Ruling to each carrier with whom it has an interconnection agreement so that any carrier that wanted to could take an active role in the proceeding." (D.06-01-043, page 3.)

MCIm overlooks that the Commission's July 2005 order had already separated out pending individual § 252 arbitrations, specifically noting this proceeding with MCI. (See D.05-07-043, Ordering Paragraph 4, quoted above.) MCIm also overlooks that the September 2005 ALJ ruling clearly states there are exceptions to the consolidated proceeding covering all carriers (specifically quoting Ordering Paragraph 4 of D.05-07-043, citing this arbitration with MCI as an exception). (September 23, 2005 ALJ Ruling, page 2, footnote 2.)

Moreover, the purpose of the ALJ ruling was to make a service list and notify carriers of the consolidated proceeding. In particular, the ruling says: "Carriers are not required to be parties to this proceeding, but they need to understand that they will be bound by the outcome of this proceeding." (Ruling, page 2.) That is, the focus of the ruling was making sure carriers without pending arbitrations were notified of the consolidated proceeding, clarifying that the Commission would not later entertain individual proceedings with each carrier on these general matters, alerting carriers that they would be subject to the outcome whether or not they actively participated, and giving carriers an opportunity to participate. The focus was not on limiting what could be heard in the individual pending arbitrations on TRO/TRRO matters. The ruling specifically noted there were exceptions to the consolidated proceeding, such as the arbitration here with MCIm.

Thus, we affirm the June 2, 2006 ruling of the Arbitrator, and deny MCIm's requested relief.