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PA Bulletin, Doc. No. 03-2431

NOTICES

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Order

[33 Pa.B. 6381]

Public Meeting held
December 4, 2003

Commissioners Present: Terrance J. Fitzpatrick, Chairperson; Robert K. Bloom, Vice Chairperson; Glen R. Thomas; Kim Pizzingrilli; Wendell F. Holland

Pennsylvania Public Utility Commission v. Verizon Pennsylvania Inc.; Doc. No. R-00038871

Order

By the Commission:

   On October 2, 2003, Verizon Pennsylvania Inc. (Verizon or the Company) filed tariff revisions to its Services for Other Telephone Companies Tariff--Pa. PUC No. 216 to remove certain Unbundled Network Elements (UNE) and to revise terms and conditions for line sharing. The filing was said to be in compliance with the Federal Communications Commission's (FCC) Triennial Review Order (TRO).1 The filing was made on 30 day's notice to become effective on November 1, 2003.

   Verizon proposes to make the following revisions to its Tariff Pa. PUC No. 216:

   1)  Eliminate OC3 (Optical Carrier level-3)2 and OC12 (Optical Carrier level-12) interoffice transport from the list of available UNEs.

   2)  Eliminate STS-1 (Synchronous Transport Signal-1)3 interoffice transport from the list of available UNEs.

   3)  Discontinue provisioning IOF (Inter Office Facility) Dark Fiber between a TC (Telephone Company) Collocation arrangement in a Telephone Company Central Office and the TC's central office (Dark Fiber Channel Termination).

   4)  Discontinue provisioning of new Line Sharing arrangements over copper loops or sub-loops.

   The filing, which makes material changes to Verizon's tariff rules, terms and conditions, does not comply withthe Commission's filing requirements under 52 Pa. Code § 53.31 mandating 60 days notice for filings. Verizon's UNE Tariff 216 consists of service offerings that cannot be added, modified or withdrawn without further action by the Commission.4

   On October 23, 2003, the Commission, by way of a Secretarial letter, extended the review period for consideration of the previous revisions until further action of the Commission to facilitate an accurate review of this filing. In addition, Verizon also filed responses to the following staff data requests:

   1)  Whether all the UNEs involved in this filing are made in accordance with FCC's TRO released on August 21, 2003, which became effective October 2, 2003.

   2)  To clarify the Pennsylvania regulation under which the Company has made this filing effective on 30 days notice, and the reason for not providing the statutorily required 60 days notice provision including documentary support.

   3)  To provide the paragraph numbers of the TRO that Verizon relies upon for each of the changes previously listed.

   4)  To provide citation to any relevant portion of Federal rule § 51.3195 in this regard, which requires dark fiber transport to be offered as a UNE; whether the proposed changes conflict with this rule.

   In response to No. 1, Verizon claims that all of the revisions in the above filing were in accordance with the FCC's TRO.

   In response to No. 2, Verizon maintains that the regulation in 52 Pa. Code § 53.59(f)(4) provides that ministerial filings for noncompetitive services may be effective on 1 day notice. Verizon considers the instant filing to be administrative in nature and argues that it could have been effective on 1 day notice, but was submitted with 30 days notice to allow sufficient time for Commission review.

   In its response to No. 3, the Company indicates that paragraph 359 and paragraph 264--269 of the TRO applies for OCn (Optical Carrier-number) dedicated transport and interoffice dark fiber and line sharing respectively.

   In response to No. 4, Verizon contends that the proposed changes comply with FCC rule 37 CFR 319(e), as revised by the FCC's TRO.

   Regarding the filing regulations, we have always maintained that Verizon's UNE Tariff 216 consists of service offerings that cannot be added, modified or withdrawn without Commission approval. (See Commission's Global Order at p. 64.) We do not agree with Verizon's contention that this filing is administrative in nature and hence requires only one day's notice. Our regulation in § 53.59(f)(4) addressing ministerial changes applies only to those revisions that do not make material changes to the tariff rules, terms and conditions. In the instant filing, certain services will be removed or will no longer be available for competitive carriers, and are therefore considered material.

   Our regulations in 52 Pa. Code § 53.31, requirement of notice, provides that unless the Commission otherwise orders, a company may not change an existing and duly established tariff except after notice of 60 days to the public. This general rule has been modified by 52 Pa. Code §§ 53.57--53.60 for certain telephone tariff filings related to ''end-user consumers.'' The intention was to revise and streamline existing filing requirements, lessen the regulatory burdens, and achieve regulatory parity as applied to CLECs and ILECs.

   The competitive carriers affected by this filing and the public advocates should have the opportunity to intervene or file complaints. This filing requires a comprehensive review before a determination can be made of its compliance. As such, we require Verizon to comply with our standard filing regulation in 52 Pa. Code § 53.31 which requires 60 days notice for this type of filing.

   On October 28, 2003, Covad Communications Company (Covad) filed a complaint against Verizon's proposed tariff revisions. In its complaint, Covad alleges that the Verizon's proposed tariff amendment to Tariff 216 is in violation of the Telecommunications Act of 1996 and the provisions of the Public Utility Code. Further, Covad alleges that Verizon incorrectly interpreted the FCC's grandfathering rules for existing line sharing arrangements and unilaterally imposes additional limitations on CLECs beyond the FCC's TRO. Covad claims that it raises factual issues, that Verizon's proposed tariff will negatively impact competition for telecommunication services in Pennsylvania and that it requires a trial-type hearing.

   Our review of the proposed tariff filing indicates that it may be unlawful, unjust, unreasonable and contrary to the public interest. Further, a legal determination is needed as to whether all the revisions made by Verizon in the instant filing beyond the complaint filed by Covad, fully comply with the FCC's TRO. Accordingly, we will suspend this filing for investigation and the purposes of a Recommended Decision on the relevant factual and legal issues; Therefore,

It Is Ordered That:

   1.  The revision to Verizon Pennsylvania Inc.'s Tariff-Telephone Pa. PUC No. 216, which was filed on October 3, 2003, to become effective on November 1, 2003, the effective date of which was postponed until further action of the Commission to remove certain UNEs, is suspended for a period not to exceed 6 months, or until June 4, 2004, under 66 Pa.C.S. § 1308(b).

   2.  Unless specifically ordered by the Commission to file revisions on less than statutory notice, Verizon shall provide 60 days notice for this type of filing in any future revision to its Tariff-Telephone Pa. PUC No. 216.

   3.  Verizon shall file the appropriate tariff suspension supplements.

   4.  In conjunction with Covad's complaint at R-00038871C0001, the Office of Administrative Law Judge shall assign this matter to an Administrative Law Judge for proceedings as shall be deemed necessary and the issuance of a Recommended Decision.

   5.  A copy of this Order be served upon Verizon, the Office of Consumer Advocate, the Office of Small Business Advocate, the Office of Trial Staff, the Office of Adminis-trative Law Judge and published in the Pennsylvania Bulletin.

JAMES J. MCNULTY,   
Secretary

______

1 In the Matter of Section 251 Unbundling Obligation of Incumbent Local Exchange carrier, CC Docket No. 01-338, Implementation of Local Competition Provisions of the Telecommunications Capacity, CC Docket No. 98-147 (FCC 03-36), rel. August 21, 2003, as corrected.

2 Optical Carrier level-1 is 51.840 million bits per second. All higher levels are direct multiples of OC-1 (for example, OC-3 equals three times OC-1).

3 The optical counterpart of STS-1 is fundamental signaling rate of 51.840 Mbps on which the SONET (Synchronous Optical Network) hierarchy is based.

4 See Commission Order at Docket No. R-00963759, R-000973942 and the Global Order at page 64 at Docket No. P-00991648.

5 47 U.S.C. § 51.319 imposes several specific unbundling requirements including Interoffice Transmission Facilities, High Frequency Portion of the Loop etc.

[Pa.B. Doc. No. 03-2431. Filed for public inspection December 19, 2003, 9:00 a.m.]


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