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PA Bulletin, Doc. No. 00-1693

NOTICES

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Implementation of the Telecommunication Act of 1996; Doc. No. M-00960799

[30 Pa.B. 5098]

Public meeting held
September 13, 2000

Commissioners Present:   John M. Quain, Chairperson; Robert K. Bloom, Vice Chairperson; Nora Mead Brownell; Aaron Wilson, Jr.; Terrance J. Fitzpatrick

By the Commission:

Introduction

   Before the Commission for consideration is the impact upon our prior orders at this docket concerning the filing of pre-enactment interconnection agreements, by the recent decision of the U.S. Court of Appeals for the 8th Circuit, Iowa Util. Bd. v. F.C.C., No. 96-3321 (July 18, 2000). The 8th Circuit case represents the consolidation of multiple state challenges to the Federal Communication Commission's (FCC's) First Report and Order In re Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 11 FCC Rcd 15499 (1996). By its order, the 8th Circuit invalidates certain regulations promulgated by the FCC pertaining to Section 252(a) of the Telecommunications Act of 1996 (TA-96), 47 U.S.C. § 252(a).

Background

   At this docket, the Commission's Order entered June 3, 1996 (Implementation Order) directed all telecommunications carriers potentially subject to the filing of pre-enactment interconnection agreements under Section 252(a) of TA-96, to file a list of all pre-enactment agreements (including but not limited to EAS agreements, collocation agreements, cellular and mobile carrier agreements, and shared network facilities agreements), but did not require the filing of the actual agreements.1 It was our intent at that time to first obtain an idea of how many pre-enactment interconnection agreements may exist in light of the fact that ''there may be hundreds of interconnection agreements between ILECs and between ILECs and wireless carriers in the Commonwealth.''2 We were further concerned that requiring the filing of these contracts, would result in cancellation of the contracts (particularly EAS contracts), which, in turn, would impact negatively on the provision of telecommunication service in EAS situations.

   Consequently, in addition to a list of interconnection agreements, we required all telecommunications carriers to file comments on various issues such as the types of agreements that should be filed, proposals for scheduling or planning the filing and review of pre-enactment agreements, identification of the types of pre-enactment agreements that carriers may consider canceling, potential ramifications resulting from cancellation of pre-enactment agreements, and issues that may arise if the Commission did not evaluate and review pre-enactment agreements.3

   By our Order entered September 9, 1996 (Order on Reconsideration) we noted that the FCC concluded that TA-96 requires all interconnection agreements, including any interconnection agreement negotiated before the enactment date of TA-96 and those between non-competing carriers, to be submitted to the state commission for approval pursuant to § 252(e).4 For this reason, we viewed the issue of whether we are required to review all preenactment interconnection agreements as moot since the FCC made it clear at that time that all such preenactment agreements must be submitted to state commissions for review5 .

   We also noted in our Order on Reconsideration that, although the FCC required that pre-existing interconnection agreements between Class A carriers6 be filed no later than June 30, 1997 with the appropriate state commissions, the state commissions were authorized to require an earlier filing date. Therefore, we directed all telecommunications carriers that had not complied with our Implementation Order to file a statement of all of their preenactment interconnection agreements on or before October 10, 1996. We again declined to establish a schedule for the submission of those agreements until the number and type of interconnection agreement involved was first determined in order that we could establish an orderly and manageable timetable for the submission of these agreements.7 To date, we have not required the filing of the actual interconnection agreements.

   As a result of the recent action of the U.S. Court of Appeals for the 8th Circuit invalidating certain regulations promulgated by the FCC which impact upon our prior determinations in the Implementation Order and Order on Reconsideration, it is now necessary to clarify the duty of telecommunications carriers operating in the Commonwealth of Pennsylvania to file interconnection agreements pursuant to § 252 of TA-96.

Discussion

   Among several significant challenges to TA-96 in Iowa Util. Bd. v. F.C.C, the 8th Circuit reviewed the statutory language pertaining to interconnection found at 47 U.S.C. § 252(a)(1) which requires that all interconnection agreements ''including any interconnection agreement negotiated before February 8, 1996, shall be submitted to the State commission'' (emphasis added). In response to § 252(a)'s statutory mandate, the FCC had promulgated 47 C.F.R. § 51.303, which requires that all interconnection agreements, including those predating TA-96, be submitted to the state commissions for approval. The FCC had concluded, as did this Commission, that the intent of § 252(a) of TA-96 was to require the filing of all interconnection agreements without regard to the effective date of TA-96. However, the 8th Circuit disagreed.

   The 8th Circuit analyzed the language of § 252(a) and concluded the intent of the section was to require filing of only those interconnection agreements entered pursuant to § 251 of TA-96. Therefore, agreements, which predate TA-96's enactment, February 8, 1996, should not be governed by § 252(a). So concluding, the 8th Circuit vacated the FCC's rule 51.303. As a result, it has now been judicially determined that the filing of agreements pre-dating TA-96 is not required. The 8th Circuit's order expressly requires the filing of ''any agreement which was either (1) both negotiated and entered into pursuant to § 251 after [TA-96] went into effect or (2) is an interconnection agreement that was negotiated before, but not yet entered into when, [TA-96] went into effect.''8 Accordingly, no interconnection agreements pre-dating TA-96 need be filed with the Commission.

   Regarding this Commission's duty to approve or reject the interconnection agreements filed, 47 U.S.C. § 252(e)(4) provides that if the state commission does not act to approve or reject the agreement within 90 days after submission by the parties to an agreement adopted by negotiation the agreement shall be deemed approved. Accordingly, a copy of all agreements filed as a result of this order shall be on file with the Secretary's Bureau and be available for public inspection to permit new entrants a legitimate opportunity to know of and review agreements relevant to their own negotiations for interconnection. In the absence of Commission action, such agreements shall then become approved by operation of law after 90 days; Therefore,

It Is Ordered:

   1.  All telecommunications carriers operating in the Commonwealth of Pennsylvania are required to file, within 30 days from the date of publication of this Order in the Pennsylvania Bulletin, two copies each of any interconnection agreement which was either (1) both negotiated and entered pursuant to § 251 after February 8, 1996, or (2) negotiated before, but not yet entered into on February 8, 1996. However, neither interconnection agreements already filed in compliance with this Commission's Order entered June 3, 1996 at this docket nor any interconnection agreement that has been terminated need be filed.

   2.  All interconnection agreements filed pursuant to Ordering Paragraph No. 1, above, will be maintained at this docket and available for public inspection. Filings should note this docket number (Docket No. M-00960799)and should be addressed to:

      James J. McNulty, Secretary
      Pennsylvania Public Utility Commission
      P. O. Box 3265
      Harrisburg, Pennsylvania 17105-3265.

Overnight mailings should note this docket number (Docket No. M-00960799) and should be addressed to:

      James J. McNulty, Secretary
      Pennsylvania Public Utility Commission
      Commonwealth Avenue & North Street
      Room B-20 North Office Building
      Harrisburg, PA 17120.

   3.  The Secretary's Bureau is directed to publish a copy of this Order in the Pennsylvania Bulletin.

   4.  Following expiration of the 30-day period under Ordering Paragraph No. 1, above, the Secretary's Bureau shall compile a list of all interconnection agreements filed pursuant to this Order and publish the list in the Pennsylvania Bulletin.

By the Commission:

JAMES J. MCNULTY,   
Secretary

[Pa.B. Doc. No. 00-1693. Filed for public inspection September 29, 2000, 9:00 a.m.]

_______

1  Implementation Order, p. 39.

2  Id, at p. 38.

3  Id, at pp. 39-40.

4  FCC First Report and order entered August 8, 1996, at pp. 87-88.

5 Order on Reconsideration, p. 19.

6  Class A carriers are defined as companies ''having annual revenues from regulated telecommunications operations of $100,000,000 or more.'' 47 C.F.R. § 32.11(a)(1). We note that in a filing dated June 30, 1997, in response to our Implementation Order, Bell Atlantic submitted various interconnection agreements that were negotiated before February 8, 1996, the effective date of TA-96, with (1) GTE North, Inc., (2) The United Telephone Company of Pennsylvania, and (3) Commonwealth Telephone Company. In accordance with 47 U.S.C. § 252(e)(4), since more than 90 days have passed from June 30, 1997, without Commission action to approve or reject the interconnection agreements, these interconnection agreements were deemed approved by operation of law.

7  Order on Reconsideration, p. 20.

8  Iowa Util. Bd. v. F.C.C., at 36.


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