PENNSYLVANIA PUBLIC UTILITY COMMISSION
Implementation of the Telecommunications Act of 1996; Doc. No. M-00960799
[26 Pa.B. 4588]
Commissioners Present: John M. Quain, Chairperson; Lisa Crutchfield, Vice Chairperson; John Hanger; David W. Rolka; Robert K. Bloom
Public meeting held
September 5, 1996
Order on Reconsideration
By the Commission:
In this Order, we address petitions for reconsideration and/or clarification of our June 3, 1996 Order implementing the Telecommunications Act of 1996 (1996 Act or act).1 The 1996 Act, like Chapter 30 of Title 66 of the Pennsylvania Consolidated Statutes, establishes a procompetitive, deregulatory telecommunications framework with significant implementation and overnight responsibilities for this Commission. Our actions today are once again designed to ensure that we meet all of our responsibilities under the 1996 Act in a timely manner and that the companies which we regulate have the benefit of established policies before they must act to meet the act's requirements.
In our June 3, 1996 Order at this Docket, we established new policies and procedures to comply with the act's provisions. Through our June 3, 1996 Order we, inter alia: promulgated new entry procedures for rural and nonrural service areas to comply with § 253 of the act; established new procedures governing mediation, arbitration and adjudication proceedings to fulfill our responsibilities under § 252 of the act; and modified policies relating to imputation of access charges, a carrier's obligation to serve, and intrastate collocation so as to ensure consistency with the act's provisions.
As discussed in detail below, we affirm, with some modification: (1) the new entry procedures established to comply with §§ 253(a) and (b) of the act; (2) the procedures established for Commission mediation, arbitration and approval of interconnection agreements under § 252 of the 1996 Act; and, (3) service by carriers upon the Commission of all FCC filings. We suspend the imputation requirement as applied to all LECs other than Bell Atlantic, subject to further comment and investigation at this Docket. We affirm our decision to establish a Task Force to assist us in carrying out our important responsibilities related to customer education and protecting the public safety and welfare. Finally, upon careful consideration of the comments of parties and the recent FCC Order at Docket 96-982 , we interpret our obligations under § 252(a) of the 1996 Act dealing with pre-enactment interconnection agreements. We also interpret the definition of ''rural telephone company'' contained in section 3(a)(47) of the 1996 Act, and make designations, where appropriate.
President Clinton signed the Telecommunications Act of 1996 into law on February 8, 1996. The 1996 Act contains a legion of requirements which this Commission must implement at the State level to ensure that the act's objectives are met in a timely manner.
In recognition of its new responsibilities under the act, this Commission issued on March 14, 1996, a Tentative Decision at this Docket which identified the act's provisions requiring our immediate attention and made tentative findings on how the Commission could fulfill its responsibilities in implementing those provisions of the act. Interested parties were given the opportunity to participate through the filing of comments, and through a public forum sponsored by the Commission on April 3, 1996.
On June 3, 1996, the Commission entered a final Order at this Docket. On June 18, 1996, Petitions for Reconsideration were filed by ALLTEL of Pennsylvania (ALLTEL), United Telephone Company (United), the Pennsylvania Telephone Association (PTA), Bell Atlantic-Pennsylvania (Bell Atlantic), and North Pittsburgh Telephone Company (North Pittsburgh). By Order entered June 20, 1996, the Commission granted the Petitions for Reconsideration filed by the PTA, North Pittsburgh and ALLTEL, pending further review on the merits. By Secretarial Letter dated July 3, 1996, the Commission advised parties that it would consider the Petitions for Reconsideration and/or Clarification also filed by United, Bell Atlantic and the Petition for Reconsideration filed by MCI Telecommunications Corporation (MCI) on June 21, 1996.3 Answers and/or Oppositions to the various petitions were filed on June 28, 1996, July 3, 1996, and July 11, 1996 by AT&T; on July 2, 1996 by the Pennsylvania Office of Consumer Advocate (OCA); on July 15, 1996 by the Office of Trial Staff (OTS); on July 15, 1996 by the Office of Small Business Advocate (OSBA); and on July 11, 1996 and August 18, 1996 by Bell Atlantic.
The issues raised in the Petitions can be broadly classified into six subject categories and we have structured our discussion of the issues accordingly: (1) new entry and application procedures applicable to non-rural telephone service areas, (2) designation of rural telephone company (RTC) status and entry procedures applicable to RTCs, (3) negotiation, mediation, arbitration and approval processes for interconnection agreements, (4) intraLATA toll imputation requirement, (5) the Commission's new consumer education Task Force, and (6) the requirement that jurisdictional carriers serve the Commission with copies of their FCC filings.
Section 703(g) of the Public Utility Code gives the Commission the authority to reconsider its orders under appropriate circumstances, 66 Pa.C.S. § 703(g). The standard for determining whether we should exercise that authority was articulated in Duick v. Pennsylvania Gas and Water Company, 56 Pa.P.U.C. 553 (1982) wherein the Commission stated:A petition for reconsideration, under the provisions of 66 Pa.C.S. § 703(g), may properly raise any matters designed to convince the Commission that it should exercise its discretion under this code section to rescind or amend a prior order in whole or in part. In this regard we agree with the Court in the Pennsylvania Railroad Company case, where it was said that ''[p]arties . . . . . cannot be permitted by a second motion to review and reconsider, to raise the same questions which were specifically considered and decided against them. . . . .'' What we expect to see raised in such petitions are new and novel arguments, not previously heard, or considerations which appear to have been overlooked or not addressed by the Commission. Absent such matters being presented, we consider it unlikely that a party will succeed in persuading us that our initial decision on a matter or issue is either unwise or in error.
The recent Commonwealth Court decision in AT&T v. Pennsylvania Public Utility Commission4 , clarified that while rehearing petitions must allege newly discovered evidence, this same requirement does not apply to petitions to amend or rescind.
As discussed in detail below, based upon the above standards, we grant in part and deny in part the Petitions for Reconsideration filed by Bell Atlantic, United, PTA, ALLTEL, MCI, GTE, North Pittsburgh and NEXTLINK.
1. New Entry and Application Procedures Applicable to Non-Rural Telephone Service Areas.
a. Background. In our June 3, 1996 Order we determined that the section 253(a) prohibition against entry barriers required some modification to our traditional entry analysis conducted under §§ 1101 and 1103(a) of the Public Utility Code, 66 Pa.C.S. §§ 1101 and 1103(a). To ensure that our procedures would not violate the provisions of section 253(a) of the act, we adopted streamlined entry procedures for nonrural service areas. Our Order required applicants desiring to commence either competitive local or interexchange service in Pennsylvania to henceforth file with the Commission's Secretary, an application, an interim proposed tariff, and a $250 filing fee. In streamlining our current entry procedures, we limited the scope of any protests to the application to the fitness of the applicant. Our Order established separate procedures for applications subject to legitimate protest and those that are not the subject of protest. Under our June 3 Order, a company's interim tariffs take effect immediately upon the company's filing of its application and tariffs with the Commission's Secretary.
b. Position of the Parties. Bell Atlantic seeks clarification that the ''streamlined procedures for review of applications to provide intrastate telecommunications service do not apply to requests for waivers of Commission rules and similar ancillary relief which may be part of those applications.''5 Bell Atlantic requests that we clarify that requests for waivers or other forms of affirmative relief must be set forth in separate petitions, and that we ''require applicants in pending dockets to refile their requests for ancillary relief in separate petitions.''6 Bell Atlantic and PTA both argue that because the June 3 Order establishes a shortened time-frame for protesting the fitness of new entrants, the Commission should require new entrants to serve copies of their applications upon the affected incumbent LEC (ILEC).7 PTA urges the Commission to require applicants for both ''local service rights and interexchange authority'' to serve the ILEC.8 PTA states that without direct notice being provided via service of the application on the ILEC, the ILEC will be unable to exercise its rights meaningfully. Bell Atlantic adds that any petitions for ancillary relief should also be served on both the ILEC and governmental parties.
c. Discussion. We agree with Bell Atlantic that our June 3, 1996 Order, in limiting protests to the fitness of the applicant, does contemplate that requests for waivers and ancillary relief be filed separately. To the extent this is unclear in our Order, we hereby clarify that requests for waivers or any other form of relief ancillary to the fitness of the applicant should be contained in a separate petition and filed with the Commission as a separate matter within the application docket and served upon all parties of record. Within 10 days from the entry date of this Order, existing applicants which have included a request for waiver or ancillary relief in their pending applications must refile those requests in a separate petition within the relevant A-docket with service upon all parties of record. To the extent any applicant does not comply with the 10-day refiling period established herein, it shall be deemed to have withdrawn any request(s) for ancillary relief contained in existing entry applications.
We grant PTA's and Bell Atlantic's request that the ILEC be served by the competitive local exchange provider (CLEC) with a copy of the CLEC's application. We recognize that modifications to our current procedures designed to accommodate § 253(a) of the act, for example, elimination of the publication requirement for applications, may make it more difficult for all parties to become aware of applications which have been filed and to, therefore, meet the 15-day protest period. We also recognize that other providers, in addition to the ILEC, have a legitimate interest in keeping abreast of such applications for protest purposes. Nonetheless, we cannot possibly require new applicants to serve all existing providers with a copy of their application because such a requirement could constitute an entry barrier in and of itself. We believe limited notice to the ILEC is appropriate at least in the interim, however, for network planning purposes, and particularly in the case of an ILEC which qualifies as an RTC under the act given the special protections afforded small rural telephone companies and the stringent timeliness for Commission determinations regarding competitive carrier entry into small LEC service territories. Therefore, at least in the interim, we will require all CLECs to serve a copy of their application upon the ILEC at the time they file their application with the Commission. We also require, at least for an interim period, the CLEC to serve any request for ancillary relief upon the ILEC. We do not, however, extend this requirement to competitive toll carriers as requested by PTA.
Since our new entry procedures have been in effect for approximately 2 months now, we have identified a few problem areas in need of refinement. Most notably, we are finding that the applications submitted by new service providers contain technical defects which require at times that the application be returned to the provider for refiling. For instance, some applicants are not aware of the Commission's new application form and the information required therein, while others forget to enclose the proper filing fee. For this reason, we find it necessary to modify paragraphs 4 and 6 of our June 3 Order so as to clarify that a new entrant may commence the provision of service specified in the application at the time its application has been accepted for filing by the Commission Prothonotary. Additionally, the 15-day protest period under paragraph 6 will commence on the date the application is accepted for filing. We believe this clarification is necessary to eliminate any ambiguity with respect to when the 15-day protest period commences and when the applicant's authority to provide service begins.
We also clarify paragraph 7 of June 3 Order to be consistent with current and past Commission practice in processing applications to provide either local or interexchange service in the Commonwealth. The Secretary's Bureau will initially assign all applications to the Office of Special Assistants (OSA) which has traditionally handled these matters. Where a valid protest is received, OSA will return the application for assignment by the Office of Prothonotary to the Office of Administrative Law Judge (OALJ) as is the normal procedure for Chapter 11 applications. The Commission reserves the right to make changes at any time to these or other of its internal operating procedures as necessary to ensure timely handling and processing of all applications in the future.
Finally, consistent with past practice, the Commission has modified its application form (following as Appendix A hereto) to require applicants to file, along with their application, a copy of their Articles of Incorporation. The existence of and information contained in the Articles of Incorporation is an important consideration in determining the fitness of any applicant.
2. Eligibility for Rural Telephone Company Status and Entry Procedures Applicable to Rural Telephone Company Service Areas.
a. Background. Under the discretion afforded to state commissions under § 252(g) of the act, and in keeping with the spirit of Chapter 30 and our prior decisions to streamline to the extent possible various regulatory proceedings involving small LECs, our June 3, 1996 Order established a consolidated procedure for applicants seeking to provide service in the service territory of a small LEC (one that is eligible for streamlined regulation under Chapter 30).9 Under those procedures, an applicant must submit to the small LEC a bona fide request for interconnection under § 251(f)(1)(A) of the act, and a request for universal service designation under section 214(e)(2) committing to provide service throughout the small LEC's service territory. The Commission's grant or denial of such applications will be subject to normal procedures under 66 Pa.C.S. §§ 1101 and 1103 and the traditional public interest standard, which is consistent with the standards contained in § 254 of the 1996 Act.
Our Order further recognized that the 32 smallest Pennsylvania independent telephone companies qualified for ''rural telephone company'' status under the act. The 32 smallest LECs each serve fewer than 50,000 access lines, are eligible for streamlined regulation under 66 Pa.C.S. § 3006, and fit readily within the definitions of an RTC set out at § 3(a)(47)(B) of the act. While our June 3, 1996 Order also designated North Pittsburgh as an RTC, it deferred a decision on ALLTEL, United and Commonwealth pending the submission of further comment on this issue by the parties and further consideration on our part.
b. Position of the Parties. North Pittsburgh states that while the Commission designated it as a ''rural telephone company'' under the 1996 Act, no entry procedures were established for companies of its size with over 50,000 access lines. North Pittsburgh asks that our June 3, 1996 Order be reconsidered and that the Commission establish identical procedures for entry into all RTC service territories. North Pittsburgh argues that from the standpoint of entry procedures, an RTC with 57,759 access lines is no different than a company with 49,999 access lines. Further, North Pittsburgh states that the applicability of Chapter 30's streamlined regulation to carriers with fewer than 50,000 access lines provides no basis for different treatment in entry procedures.10
United argues that it meets the RTC eligibility criteria under § 3(a)(47)(D) of the act which permits designation for a carrier having less than 15% of its access lines in communities of more than 50,000. United further argues that the clear and unambiguous language of § 3(a)(47) of the 1996 Act requires that it be read in the disjunctive because Congress used the word ''or'' rather than ''and'' in its enumeration of the criteria.11 United argues that to read the provision any other way would ignore the plain language of the act. Like North Pittsburgh, United states that if it is designated as an RTC, it should be subject to the same consolidated entry procedures as LEC's qualifying for streamlined regulation under Chapter 30, that two different procedures are arbitrary and such disparate treatment is not supported by the act. Finally, United argues that the § 1103 entry procedures should apply to LECs serving greater than 50,000 access lines since the same policy questions arise.12
ALLTEL argues that the criteria in § 3(a)(47) of the statute be read in the disjunctive.13 ALLTEL argues that it also meets the criteria for RTC status contained in § 3(a)(47)(D). ALLTEL states that it does not serve any communities with over 50,000 access lines, and therefore, it must meet this definition. ALLTEL advocates that the Commission define the term ''community'' as ''a group of people living in the same locality and having common interests.''14
Commonwealth also claims RTC status through Subpart (D) of § 3(a)(47). It states that it ''has less than 15 percent of its access lines in communities of more than 50,000 on the date of enactment of the legislation.''15 Commonwealth states that it serves no communities with a population exceeding 50,000, and therefore, must qualify. Commonwealth defines the term ''communities'' to include minor civil divisions or municipalities.
Arguing against reading the RTC provision in the disjunctive are the OCA, AT&T and MCI. OCA argues that the rules of statutory construction require that the statute must be interpreted to give rational meaning to all of its provisions. OCA further argues that allowing subsection 47(D) to stand alone as a criterion for RTC status would render subsection 47(A)(i) meaningless. OCA suggests that subsection 47(D) ''may have been intended to serve as a limited exception for companies which generally serve only customers who live in communities of less than 10,000 inhabitants [subsection 47(A)(i)], but which also happen to serve a small portion of a large city.''16
AT&T argues that while subsection 3(a)(47)(D) defines an RTC as one that ''has less than 15% of its access lines in communities of more than 50,000,'' a company asserting RTC status must necessarily have some of its access lines in communities where it serves more than 50,000 access lines. AT&T asserts that the ''less than 15 percent'' language must be read to require more than zero percent.
MCI cites to the House debate before passage of the act and argues that Congress did not intend to insulate RTCs from competition and, consequently, that the RTC criteria should be read narrowly. MCI suggests that the term ''community'' should be defined as synonymous to a LEC's local service area. Nonetheless, MCI stresses that the manner in which the Commission defines the various terms in § 3(a)(47) and an RTC is less important than how the Commission decides to administer the exemption, suspension or modification provisions of § 251.
Eastern TeleLogic Corporation supports the general position advanced by the ILECs, although it does not comment on whether any particular company actually qualifies for RTC status. Eastern TeleLogic urges the Commission to recognize that third parties have the right to seek termination of the RTC exemption on a going forward basis. Eastern TeleLogic argues that termination of the exemption should be considered if the technical and economic fortunes of the RTC have improved or otherwise changed, and that market position and market vulnerability of the RTC must be considered when contemplating termination of the exemption.
c. Discussion. Carrier Eligibility for Rural Telephone Company Status. We first address the issue of whether ALLTEL, Commonwealth and United meet the definition of a ''rural telephone company'' under § 3(a)(47)(D) of the 1996 Act. We note that since our June 3, 1996 Order was issued, GTE has also informed the Commission that it is entitled to ''rural telephone company'' status under the act for portions of its service territory under § 3(a)(47)(C)17 which we also address herein.
The primary issue before us is whether Congress intended that a company meet all four or only one of the criteria of § 3(a)(47) in order to be designated as an RTC under the 1996 Act. We find that the clear and unambiguous language of the act cannot be ignored. The criteria for meeting the definition of an RTC must be read as disjunctive. The use of the word ''or'' between subsections (C) and (D) manifests the intention of Congress to permit eligibility for RTC status so long as a company meets any one, not all, of the enumerated criteria.
The argument that reading the criteria as disjunctive renders subsection 3(a)(47)(A)(i) meaningless is not persuasive. In support of its argument to ignore the use of the word ''or'' in separating the eligibility criteria, the OCA suggests an alternate interpretation which provides a limited exception for companies which generally serve small communities but which also serve a small portion of a large city. Not only does this argument impose additional conditions on RTC status which are not set forth in the language of the act, but the argument also creates the same type of conflict it sought to rectify. Reading subsection (D) to allow a company to serve a small portion of a large city renders meaningless the prohibition found in subsection (A)(ii).
AT&T's argument that subsection (D) requires at least some access lines in communities of more than 50,000 is equally unpersuasive. The language of the act does not require some, but less than 15%; the act requires less than 15%.
We do not deny that there are ambiguities in the language of this provision; indeed, we expressly acknowledged these ambiguities in our June 3, 1996 Order. However, upon further examination of the statute, we are not persuaded by the arguments of OCA and AT&T that there is an actual conflict between the provisions of Subparts (A) and (D) of § 3(a)(47), such that a literal reading of Subpart (D) of the statute would render Subpart (A) meaningless. There are important distinctions in the terms used in Subparts (A) and (D) which lead us to now believe that the two subparts were meant to address different circumstances. For instance, subpart (A) applies to a company's ''study area'' while Subpart (D) presumably applies to a company's ''service area.'' Qualification under Subpart (A) is dependent upon the number of ''inhabitants,'' while qualification under Subpart (D) is based upon the percentage of total ''access lines.'' Another point of departure, and the one which all commentators focused upon, was Subpart (A)'s use of the term ''incorporated area'' versus the term ''communities'' used in Subpart (D). When these various points of departure in the language of each subpart are carefully reviewed, we believe that the two provisions are reconcilable.
It is conceivable that some companies will serve incorporated areas of greater than 10,000 access lines resulting in their disqualification under Subpart (A), but still qualify under Subpart (D), if less than 15% of its total access lines served are in ''communities'' of more than 50,000. This does not render Subpart (A) superfluous, it merely means that Congress established several alternative tests for determining whether a territory served by a company was rural in nature, and that if a company did not qualify under one prong of the test, it would have another opportunity to qualify under another prong or subsection.
Without dispute, the definition of the term ''community,'' which the 1996 Act does not expressly define, is of paramount importance in determining whether the three carriers qualify as RTCs under the 1996 Act. We find the argument of AT&T on this point to be the most persuasive. While AT&T notes that in most contexts under Pennsylvania law, the term ''community'' is defined broadly and should be for purposes of our determination here, we find the definitions proffered by some parties to be too broad. For instance, the definition suggested by ALLTEL that the term ''community'' be read to include ''[a] group of people living in the same locality and having common interests'' is so broad as to be unworkable and contains terms that would be subject to great dispute. Similarly, MCI argues that ''community'' be broadly defined to become synonymous with a company's local service area; however, if we were to accept this interpretation Subpart (B) of the act would be rendered superfluous.
AT&T points out that the term ''community'' is defined in the Community Economic Recovery Program Act as ''a municipality, including counties, cities, boroughs, incorporated towns, townships, home rule municipalities and councils of local government.''18 Similarly, Commonealth advocates that the Commission define the term to include ''minor civil divisions or municipalities.'' We agree that the term ''community'' as defined in the Community Economic Recovery Program Act is most appropriate for our use in determining whether companies qualify as ''rural telephone companies.'' We shall, therefore, define the term community to include ''a municipality including counties, cities, boroughs, incorporated towns, townships, home rule municipalities and councils of local government.''
Based upon the data submitted to-date by the three companies claiming RTC status under § 3(a)(47)(D), we find that Commonwealth qualifies as an RTC under § 3(a)(47)(D) of the 1996 Act. The Company defined the term ''community'' in an almost identical manner as the definition ultimately adopted herein and the Company avers that it served no ''communities'' with a population exceeding 50,000 within its service territory on the date of enactment of the 1996 Act.
It is unclear, however, whether either ALLTEL or United qualify as RTCs based upon the information the companies have provided to the Commission to-date. While ALLTEL states that it serves no ''communities'' with greater than 50,000 access lines, it defined the term ''community'' much differently than the definition we adopt herein. Additionally, the act requires that one make the necessary determination as of the date of enactment of the 1996 Act, and it is unclear whether ALLTEL based its claim upon the number of access lines served as the date of the act's enactment as required. United submitted no verifying statements or information in its comments. Therefore, we will once again defer our determination with respect to both ALLTEL and United until the companies submit additional information to definitively establish their eligibility under subpart 3(a)(47)(D) as of the date of enactment of the 1996 Act. Both ALLTEL and United will be required to submit this information within 20 days of the entry date of this Order.
Finally, we also address GTE's claim that it is entitled to partial RTC designation under § 3(a)(47)(C) of the 1996 Act. Under subsection (C), a LEC may qualify as an RTC if it ''provides telephone exchange service to any local exchange carrier study area with fewer than 100,000 access lines.'' GTE argues that it has approximately 60,000 access lines in the ''Contel'' study area and approximately 38,000 access lines in the ''Quaker State'' study area, and that therefore, it is entitled to partial RTC status for those portions of its service territory.19 We disagree. We believe that it was Congress' clear intent that in determining RTC status, a company's operations in a state be viewed as a whole. The plain language of this provision of the act simply does not support the concept of ''partial designations'' for portions of a LEC's service territory. Such an interpretation would stretch the statute's meaning beyond any logical or reasonable reading.
For instance, such an interpretation would exempt GTE, one of the largest telephone operating companies in the United States, from the interconnection provisions of the act for a large portion of its service territory in Pennsylvania and permit it to be treated similar to some of the smallest LECs in the country. We cannot accept that Congress would go to the trouble of enacting a very comprehensive procompetitive regulatory scheme and then turn around and exempt large portions of the service territory of one of the nation's largest LECs from its application. Consequently, we find that in order for a company to meet the criteria for designation as an RTC under § 3(a)(47)(C), its operations within a state must be viewed as a whole. Section 3(a)(47) does not contemplate partial designations for portions of a company's service territory. Accordingly, GTE does not meet the criteria for eligibility as an RTC under § 3(a)(47)(C) of the 1996 Act.
MCI's admonition that Congress did not intend to insulate rural telephone companies from competition is noted. We also agree that the 1996 Act, like Chapter 30 of Title 66 of the Pennsylvania Consolidated Statutes, establishes a pro-competitive, deregulatory telecommunications policy framework in rural and nonrural areas alike. Nonetheless, we cannot ignore Congress' clear dictates contained in the act that before additional competitive providers may enter RTC service areas, some very specific determinations must be made which ensure that the act's requirements would not impose an undue burden upon smaller companies and that competitive entry is consistent with the act's universal service objectives.
Application Procedures for RTCs Serving More Than 50,000 Access Lines. We agree with North Pittsburgh that our June 3, 1996 Order is in need of some clarification with respect to the entry procedures for RTCs serving more than 50,000 access lines. However, we first respond to the arguments of North Pittsburgh, ALLTEL and United that the Commission erred in using Chapter 30's 50,000 access line demarcation cutoff for consolidated proceedings. This Commission has the discretion under § 252(g) to consolidate proceedings under several provisions of the 1996 Act where it would be practical to do so and would reduce the administrative burdens of the parties. 66 Pa.C.S. § 3006 specifically requires the Commission, through its streamlined regulation provisions, to reduce the administrative burdens on small LECs to the extent possible, recognizing that smaller LECs do not have the resources to participate in proceedings to the same extent as the larger LECs. Chapter 30 defines small LECs, or those entitled to streamlined regulation, as ''local telecommunications companies serving less than 50,000 access lines within this Commonwealth.''20 There is nothing in § 252(g) of the 1996 Act, or any other provisions of the 1996 Act for that matter, which requires that if the Commission consolidates one proceeding or even a class proceedings under the act, that it must consolidate all others which come before it. We continue to believe that the 50,000 access line demarcation point established in Chapter 30 for purposes of defining those small LECs entitled to streamlined regulation in Pennsylvania, provides a sound basis for our initial determination regarding consolidated proceedings under § 252(g) of the 1996 Act. No party has convinced us otherwise in their Petitions for Reconsideration. Most of the issues raised by parties had already been considered and rejected by the Commission in its June 3, 1996 Order.
As we noted in our June 3, 1996 Order, this determination does not in any way prejudice the interests of RTCs serving greater than 50,000 access lines. At p. 16 of our Order, we noted that our decision not to immediately consolidate proceedings for a larger RTC:does not mean that any other rural telephone companies do not receive the general benefits of rural telephone company status as expressly set forth in Sections 251, 253 and 254. It merely means that we will not exercise the option provided state commissions under Section 252(g) for these carriers at this time.21
Since § 252(g) gives us the right to exercise our discretion to consolidate at any time, there is nothing that would prevent any of the larger LECs that qualify as RTCs, once they receive a bona fide request for interconnection under § 251 of the act, from petitioning the Commission at that time for consolidation under Section 252(g). Accordingly, we decline to extend application of the consolidated entry procedures to RTCs serving over 50,000 access lines at this time.
Carriers seeking to provide service in RTC service areas that exceed the 50,000 access line demarcation point must, like all other applicants, file an application with the Commission. The applicant is also required to submit to the RTC a request for interconnection under § 251(f)(1)(A) of the act, with a copy to the Commission. The actual provision of service by the applicant cannot occur until the Commission makes the required finding that the request for interconnection would not be ''unduly economically burdensome, is technically feasible, and is consistent with section 254 (other than subsections (b)(7) and (c)(1)(D) thereof).''22 The Commission will refer any cases involving contested issues of material fact to the OALJ for resolution within the time-frames contemplated by the act. We believe that this should sufficiently clarify the entry procedures applicable to areas of RTCs serving greater than 50,000 access lines.
3. Negotiation, Mediation, Arbitration and Adjudication Procedures for Interconnection Agreements.
a. Background. One of the primary areas of increased responsibility for this Commission under the Federal Act involves the review and approval of interconnection agreements between carriers. Our June 3, 1996 Order restricted the negotiations phase of the proceeding to the contracting parties. We adopted mediation procedures based in large part upon the AAA Commercial Mediation Rules. Under the procedures established in our Order, the Commission limited participation in any mediation proceedings to the contracting parties, their representatives and members of the Commission's advisory staff. We also adopted procedures to govern arbitration proceedings conducted by the Commission under § 252(b) of the act and permitted the OCA, OTS and OSBA to participate in any arbitration proceedings which come before the Commission. Our June 3 Order also established a procedure for adjudication of approved agreements and statements of generally available terms and conditions filed under § 252(f) which provides for full participation by interested parties. Finally, we required ILECs to file a list of all of pre-enactment interconnection agreements with the Commission to give us a greater appreciation of the administrative burden associated with the filing of these agreements under § 252(a) of the act.
b. Position of the Parties. United, PTA and GTE object to Commission staff being present during mediation sessions. PTA argues that ''this unorthodox procedure would violate the prohibition against ex parte communications.''23 United, on the other hand, argues that mediation sessions are deemed confidential under Paragraph 8, and that attendance of Commission advisory staff members at those confidential mediation sessions could ''taint subsequent review of the interconnection agreement by the Commission due to staff's receipt of ideas or facts at confidential mediation sessions.''24 United also raises the possibility of Lyness problems if Commission advisory staff members attend mediation sessions. GTE argues that the ''Commission advisory staff's presence at mediation may very well impair its ability to remain objective and impartial or at least create an undesired appearance of bias, thereby undermining its ability to properly arbitrate and/or adjudicate.''25
ALLTEL and GTE argue that the Commission has no authority to direct or allow participation in the negotiations by the OCA and OSBA and that the act in fact specifically preempts such participation.26 GTE states that the involvement of OCA, OTS and OSBA, would undoubtedly encumber the process and could be viewed as a violation of § 252 of the Act.27 PTA adds that ''interconnection agreements are basically business decisions between contracting parties and that the OCA, the OTS and the OSBA have no statutory right to participate in that process.''28 PTA also states that the arbitration process would be slowed considerably if the OCA, the OTS and OSBA are permitted to participate. PTA argues that only after the issues have been resolved in the arbitration phase and the agreements are filed with the Commission for approval should other parties be involved, and that this would provide adequate time for the OCA, the OTS and the OSBA to review the substantive terms and develop their positions.
OCA responds that it has a legal right to participate in matters before the Commission and that by statute it is authorized to represent the interest of consumers as a party, or otherwise participate on their behalf in any matter properly before the Commission.29 Moreover, OCA argues that there is nothing in the act to indicate that ''Congress meant to preempt every states' standards on participation in proceedings before its commission in arbitration proceedings.30
MCI, on the other hand, urges us to implement a process in which all interested parties have the right to participate in any arbitration.31 MCI further argues that the Commission ''should strive, wherever possible, to consolidate arbitrations and other proceedings that raise common issues.''32 MCI further argues that with a consolidated procedure for handling arbitrations, the Commission would not have to engage in repetitive, time-consuming litigation over the same issues. MCI also argues that ''more than a mere paper comment period should occur for the review of interconnection agreements if requested and for good cause shown.''33 Finally, MCI asks the Commission to require the filing of interconnection agreements as soon as they are executed by the parties.34
Bell Atlantic argues that there is no provision in the language of the act which would allow for participation by parties other than those negotiating the agreement at hand.35 AT&T also opposes full participation by nongovernmental third parties which it states could result in the ''same confusion and inefficiency that MCI hopes to avoid.''36 In support of its position, AT&T argues that mixing disparate objectives of individual applicants would permit the ILEC to pursue a ''lowest common denominator'' strategy which wouldn't serve anyone's interest.37
GTE objects to the process established by the Commission for approval of negotiated and/or arbitrated agreements. GTE argues that ''the process envisioned by the Commission is unduly burdensome, of limited value and inconsistent with Section 252(h).''38 GTE further argues that providing interested parties the opportunity to file comments is unwise and would only reflect parties' views which would necessarily be limited if not uninformed because of their nonparticipation in negotiation or mediation.
1 In Re: Implementation of the Telecommunications Act of 1996, Order entered June 3, 1996 at M-00960799.
2 In the Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996 et. al., CC Docket N. 96-98, First Report and Order, released August 8, 1996.
3 On July 8, 1996, GTE North Incorporated (GTE) filed a Petition for Reconsideration. On August 6, 1996, NEXTLINK also filed a Petition for Reconsideration with the Commission. We will consider the issues raised by both GTE and NEXTLINK herein since for the most part they raise issues already contained in the Petitions filed by other parties.
4 130 Pa. Commonwealth Ct. 595, 568 A.2d 1362, 1364 (1990).
5 Bell Atlantic Petition for Clarification at p. 1.
6 Bell Atlantic Petition for Clarification at p. 2.
7 Bell Atlantic Petition for Clarification at p. 3; PTA Petition at p. 4.
8 PTA Petition for Reconsideration at p. 4.
9 66 Pa.C.S. § 3006, provides that ''. . . local exchange telecommunications companies serving less than 50,000 access lines within this Commonwealth may petition the commission to establish a streamlined form of rate regulation to be applicable to their operations.''
10 North Pittsburgh Petition for Reconsideration at p. 4.
11 We incorporate herein the comments of parties filed on May 8, 1996 at this docket and responses thereto which addressed the proper interpretation of § 3(a)(47) of the act which sets forth the criteria for RTC status.
12 United Petition for Clarification and Reconsideration at p. 3.
13 ALLTEL Petition for Reconsideration at p. 7.
14 Letter dated May 10, 1996 from Patricia Armstrong to Secretary Alford.
15 See letter from Joseph J. Laffey of Commonwealth Telephone Company dated May 8, 1996 to Secretary Alford of the Commission.
16 OCA letter to Secretary Alford dated May 17, 1996.
17 See letter from Bruce Kazee of GTE to John G. Alford dated July 3, 1996.
18 See 73 Pa.C.S. § 399.2.
19 July 3, 1996 Letter from Bruce Kazee, Attorney for GTE, to Secretary John Alford of the Commission.
20 66 Pa.C.S. § 3006(a).
21 Implementation Order at p. 16.
22 See § 251(f)(1)(A).
23 Id. at p. 11.
24 Petition of United for Clarification and Reconsideration, p. 6.
25 GTE Petition for Reconsideration at p. 1.
26 ALLTEL Petition for Reconsideration at p. 9.
27 GTE Petition for Reconsideration at p. 4.
28 Petition for Reconsideration of the Pennsylvania Telephone Association, at p. 12.
29 Answer of the OCA at p. 10.
30 Id. at p. 10.
31 MCI Petition for Reconsideration at p. 6.
32 MCI Telecommunications Corporation's Petition for Reconsideration at p. 4.
33 MCI Petition for Reconsideration at p. 6.
34 MCI Telecommunications Corporation Petition for Reconsideration at p. 10.
35 Response of Bell Atlantic--Pennsylvania to MCI Telecommunications Corporation's Petition for Reconsideration, p. 2.
36 AT&T's Opposition to MCI's Petition for Reconsideration at p. 1.
37 Id. at p. 2.
38 GTE Petition for Reconsideration at p. 2.
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