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PA Bulletin, Doc. No. 04-1578

NOTICES

Order

[34 Pa.B. 4664]

Public Meeting held
August 5, 2004

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

Pennsylvania Public Utility Commission v. Verizon Pennsylvania Inc. Tariff No. 216 Revisions Regarding Switching, Transport and Platform for High Capacity Loops; Doc. No. R-00049525

Order

By the Commission:

   On June 8, 2004, Verizon Pennsylvania Inc. (Verizon) filed a tariff revision to its Services for Other Telephone Companies Tariff-Pa. PUC No. 216, effective August 7, 2004, to eliminate Unbundled Network Elements (UNE) for switching and transport, including UNE-Platforms (UNE-P) for high capacity loops1 for the enterprise market.

   Specifically, Verizon's instant filing adds language to Tariff No. 216 to cease provisioning new orders from Competitive Local Exchange Carriers (CLEC) after September 9, 2004, for the following UNEs:

   1)  ISDN-PRI Local Switching Port.

   2)  ISDN-PRI Local Switching Port Features.

   3)  Local Switching (End Office) Trunk Ports for use with ISDN-PRI Local Switching Port.

   4)  Common (Shared) Transport for use with ISDN-PRI Local Switching Port.

   5)  UNE Primary Rate Interface (PRI) ISDN Platform.

   6)  UNE Primary Rate Interface (PRI) ISDN Foreign Exchange Platform.

   7)  Switched DS1 Local Switching Port Features.

   8)  Switched DS1 Local Switching Port Features.

   9)  Local Switching (End Office) Trunk Ports for use with Switched DS1 Local Switching Port.

   10)  Common (Shared) Transport for use with Switched DS1 Local Switching Port.

   11)  UNE DS1 DID/DOD/PBX Platform.

   12)  UNE DS1 DID/DOD/PBX Foreign Exchange Platform.

   Verizon provided notice to CLECs under existing interconnection agreements that after September 9, 2004, Verizon will offer CLECs the option to receive these UNEs on a resale basis under 47 U.S.C.A. § 251(c)(4) or under commercially-negotiated agreements.

   Verizon claims its filing complies with the Federal Communications Commission's (FCC) Triennial Review Order (TRO)2 and in particular removes an existing conflict with Federal law. Verizon also refers to the Commission's May 28, 2004, Order: In re: Investigation into the Obligations of Incumbent Local Exchange Carriers to Unbundled Local Circuit Switching for the Enterprise Market, Doc. No. I-00030100 (May 28th Order).3 Verizon requests the instant tariff revision be considered as a request for the elimination of the current tariff provisions and rates for enterprise switching.

   On June 24, 2004, the Office of Small Business Advocate (OSBA) filed a complaint against Verizon's filing. The OSBA alleges that Verizon's tariff filing is misleading because they omit pertinent information putting into context procedural steps to be taken to resolve the alleged conflict with Federal law. The OSBA also states the tariff filing is contrary to the Commission's existing Orders and against Commission's latest mandate in the Reconsideration Order to maintain status quo established in its Global Order.

   The OSBA claims that the proper venue for contesting the alleged conflict between State and Federal law and the Commission's interpretation of Section 271 is in the Federal courts. Accordingly, the OSBA requests Verizon's tariff revisions be denied and to direct Verizon to seek relief from the Federal district court or, in the alternative, suspend the tariff revisions for an investigation.

   On July 12, 2004, the Pennsylvania Carriers Coalition (PCC) filed a Compliant and Request for Suspension Tariff Supplements (Compliant) and a Motion to Dismiss Tariff Supplements (Motion to Dismiss) Verizon's filing to eliminate Enterprise Switching. PCC claims the instant filings eliminate certain services or regulatory obligations and as indicated by Verizon that the revisions are filed in response to the Commission's Reconsideration Order of May 28, 2004. Further, according to PCC, the proper procedure for Verizon to seek relief from its unbundling obligations is an application to abandon service under 66 Pa.C.S. § 1102(a)(2).

   PCC's Complaint states that Verizon's filing to eliminate the availability of UNE-P to CLECs to serve various business customers in its territory is in disregard to recent Commission Orders that refused Verizon's request to relieve it of the Global Order requirements to continue to offer UNE-P to CLECs to serve all customers with under $80,000 in total billed revenue (TBR rule). PCC requests that Verizon's filing be summarily rejected, or at least suspended, for the conduct of hearings to apply the Global Order standard for modifying Verizon's unbundling requirements.

   PCC also claims the Commonwealth Court upheld the $80,000 TBR rule and specifically found that there was nothing to suggest that the classification was a ''mismatch'' or otherwise conflict with Federal law. PCC asserts that the Commission, in its December 18, 2003, Order, which was further reiterated in the May 27, 2004, Reconsideration Order, made legal determinations that under Federal law, local circuit switching must continue to be unbundled by Verizon under 47 U.S.C.A. § 271; that under State law and the Global Order UNE-P must continue to be offered to serve all customers at or below the $80,000 TBR threshold; and that Verizon must continue to offer network elements and UNE-P to CLECs at the current rates contained in Verizon Tariff 216.

   PCC also claims that Verizon continues to have an unbundling obligation pertaining to local switching and transport under 47 U.S.C.A. § 271 wherein its wholesale service to CLECs must be provided at just and reasonable rates and in a nondiscriminatory manner. Furthermore, that Verizon agreed to similar unbundling obligations as a condition of its merger with GTE Inc.

   Consistent with our decision in our July 8, 2004, Order at R-00038871C0001 (addressing the material the question as to whether this Commission lacks independent authority under section 271 of the act to relieve Verizon's line sharing requirement), we conclude that it is premature to eliminate the UNEs that are still required under Section 271. If the FCC makes a determination as to Verizon's ongoing obligation as part of its Section 271 commitment, Verizon may then petition the Commission for such further action as may be appropriate.4

   Meanwhile, we shall initiate a proceeding to provide an opportunity for Verizon to make its case as to why it should be relieved of its obligation to provide UNE-P to CLECs. In the Global Order we set the following requirements to eliminate UNE-P:

Thereafter UNE-P and EELs will continue to be offered to CLECS, except where BA-PA can demonstrate to the Commission, by a preponderance of the evidence, that collocation space is available that it can be provisioned in a timely manner, and that considerations of the number of customers and revenues from the customers served by the CLEC from a collocation in that central office represents a valid reasonable economic alternative to the provision of UNE-P and/or EELs to that CLEC.

   (Global Order Pg. 90)

   Accordingly, we shall treat Verizon's instant filing as its request for a proceeding to determine whether Verizon can meet its burden to demonstrate, consistent with our Global Order entered September 30, 1999, at Nos. P-00991648 and P-00991649, that collocation space is available, that it can be provisioned in a timely manner and that considerations of the number of customers and revenues from the customers served by the CLEC from a collocation in that central office represents a valid reasonable economic alternative to the provision of UNE-P to that CLEC.

   Our review of the proposed tariff filing indicates that it may be unlawful, unjust, unreasonable and contrary to the public interest. Further, the proceeding we are instituting today will provide Verizon with the opportunity to demonstrate whether there are valid reasonable economic alternatives for CLECs to the provisioning of UNE-P as was required in the Commission's Global Order. Verizon shall continue to offer UNEs for switching and transport, including UNE-P for high capacity loops, for the enterprise market at tariffed rates until otherwise ordered. Accordingly, we will suspend this filing for investigation and for the purposes of a Recommended Decision on the relevant factual and legal issues. To expedite resolution of this proceeding, the recommended decision should be issued by December 2, 2004, if practicable; Therefore,

It Is Ordered That:

   1.  An investigation on Commission motion be, and hereby is, instituted to determine the lawfulness, justness and reasonableness of the rates, rules and regulations contained in the revision to Verizon's Tariff-Telephone Pa. PUC No. 216, filed on June 8, 2004, to become effective on August 7, 2004.

   2.  The proposed revision to Verizon's Tariff-Telephone Pa. PUC No. 216, filed on June 8, 2004, to become effective on August 7, 2004, to eliminate enterprise switching including Platforms from the available UNEs in Pennsylvania, is suspended for a period not to exceed 6 months, or until February 6, 2005, under 66 Pa.C.S. § 1308(b), but without prejudice to PCC's Motion to Dismiss, pending the outcome of this investigation, unless otherwise directed by Order of the Commission.

   3.  This investigation shall include, inter alia, consideration of whether Verizon can meet its burden to demonstrate, consistent with our Global Order entered September 30, 1999, at Nos. P-00991648 and P-00991649, that collocation space is available, that it can be provisioned in a timely manner and that considerations of the number of customers and revenues from the customers served by the CLEC from a collocation in that central office represents a valid reasonable economic alternative to the provision of UNE-P to that CLEC.

   4.  Verizon shall file the appropriate tariff suspension supplements and shall continue to apply the existing rates, rules and regulations in Tariff-Telephone Pa. PUC No. 216 during the suspension period.

   5.  The Office of Administrative Law Judge (OALJ) shall assign this matter to an Administrative Law Judge for proceedings as shall be deemed necessary and the issuance of a Recommended Decision to be issued by December 2, 2004, if practicable. The OALJ shall coordinate, and if appropriate consolidate, this matter with the proceeding at Doc. No. R-00049524.

   6.  The Motion to Dismiss Tariff Revision filed by the PCC shall be addressed by the Administrative Law Judge in limine.

   7.  If it becomes clear that a final Commission order disposing of the proposed tariff revision will not be entered by the end of the 6-month suspension period established in Ordering Paragraph No. 2, the Administrative Law Judge assigned to this case shall issue an Interim Order suspending this filing for an additional 3 months or until May 6, 2005.

   8.  A copy of this Order be served upon Verizon, the PCC, the Office of Consumer Advocate, the OSBA, the Office of Trial Staff, the OALJ and published in the Pennsylvania Bulletin.

JAMES J. MCNULTY,   
Secretary

[Pa.B. Doc. No. 04-1578. Filed for public inspection August 20, 2004, 9:00 a.m.]

_______

1  ISDN-PRI, DS1

2  Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 18 FCC Rcd 16978, FCC 03-36, as corrected by FCC 03-227, CC Doc. No. 01-338, Report and Order (rel. Aug. 21, 2003), vacated-in-part, remanded-in-part and affirmed-in-part by USTA v. FCC, 359 F.3d 554 (D. C. Cir. 2004), petitions for cert. pending.

3  This Order disposed of Verizon's Petition for Reconsideration of that Section of Commission's December 18, 2003, Order distinguishing Verizon's distinct access obligation stemming from Global Order, the Pennsylvania 271 Order and the TRO.

4  As noted that on October 24, 2003, the Verizon telephone companies filed a petition asking the FCC to forebear from Section 271 obligations. See Petition for Forbearance of the Verizon Telephone Companies Pursuant to 47 U.S.C. § 160(c); CC Doc. No. 01-338. The matter is pending further FCC action from Federal court remand.


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