20050718final order no 29825.pdf

Office of the Secretary
Service Date
July 18 , 2005
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF
DIECA COMMUNICATIONS, INC. DBA
COY AD COMMUNICATIONS COMPANY
FOR ARBITRATION OF AN
INTERCONNECTION AGREEMENT WITH
QWEST CORPORATION ORDER NO. 29825
CASE NO. CVD-O5-
On February 28, 2005 Dieca Communications, Inc. dba Covad Communications
Company (Covad) filed a Petition asking the Commission to arbitrate terms of its
interconnection agreement with Qwest Corporation. Covad's Petition states that the parties
worked in good faith "to resolve the vast majority of issues raised during the negotiations.
Covad and Qwest were unable, however, to agree on terms "relating to Qwest's continuing
obligations to provide unbundled access to certain elements pursuant to Section 271 of the (1996
Telecommunications) Act and Idaho law.Covad Petition, p. 4. The parties notified the
Commission that the remaining unresolved issues could be processed by written briefs followed
by oral argument. Accordingly, on April 1 , 2005 , the Commission issued a Procedural Order
adopting the parties' briefing schedule , and on June 13 , 2005 , issued a Notice of Hearing for
Oral Argument, set for July 12 2005.
Covad's Petition for Arbitration was filed pursuant to Section 252 of the 1996 federal
Telecommunications Act (Act), codified in Title 47 of the United States Code as an amendment
to the Communications Act of 1934. A petition for arbitration of an interconnection agreement
must state the unresolved issues, the position of each of the parties with respect to those issues
and any other issue discussed and resolved by the parties. 47 U.C. 9 242(b)(2). The State
Commission is required to limit its consideration to the issues set forth in the petition and in the
response, if any. 47 U.9252(b)(4)(A). In resolving the issues submitted for arbitration, a
State Commission is required to "ensure that such resolution and conditions meet the
requirements of Section 251 , including the regulations prescribed by the (FCC) pursuant to
Section 251 , establish any rates for interconnection, services or network elements according to
Subsection (d), and provide a schedule for implementation of the terms and conditions by the
parties to the agreement." 47 U.C. 9252(c).
ORDER NO. 29825
Covad's Petition made clear that the difference between the parties involves an
overarching legal issue for the Commission s determination. The Petition states that the parties
disagree with respect to Qwest's continuing obligations to provide certain network elements
including certain unbundled loops
. .
. and dedicated transport." Covad Petition p. 5. Covad
maintains that an order issued by the Federal Communications Commission, in which the FCC
reduced the number of network elements an incumbent carrier must make available in
interconnection agreements, does not affect a state commission s ability to order that additional
elements be provided pursuant to a separate section of the Act. Specifically, Covad argues the
FCC intended network elements required from a Bell operating company (BOC) under Section
271 of the Act can be ordered as part of an interconnection agreement arbitrated by a state
commission pursuant to Section 251 and 252. Covad also states its belief that Qwest has an
obligation under Idaho law to provide unbundled access to network elements pursuant to Idaho
Code 99 61-503, 61-513, 61-514 and 62-602. Covad asserts that the Commission "can, and
should, use its authority to enforce the unbundling requirements of Section 271 of the Act."
Qwest filed a response to Covad's Petition on March 24, 2005 , making clear that the legal issue
identified by Covad is the sole determination for the Commission.
Covad's argument concerning Qwest's obligation to provide access to certain
unbundled network elements arises from two different sections of the Act, each containing
unbundling obligations for an incumbent local exchange carrier (ILEC).Section 251 ( c )(3)
requires an ILEC to provide "nondiscriminatory access to network elements on an unbundled
basis at any technically feasible point on rates, terms, and conditions that are just, reasonable
and nondiscriminatory." 47 U.C. 9 251 (c)(3). The FCC created a lengthy and detailed list of
unbundled network elements an ILEC must make available to carrier requesting
interconnection under Section 251.
The second unbundling requirement is contained in Section 271 of the Act. Section
271 provides the means for an ILEC that is also a bell operating company to obtain authority
enter the interLATA services market. A BOC, which includes Qwest, could begin providing
interLATA services only when approved by the FCC, upon determination that the BOC met the
specific requirements of Section 271. Section 271 (c )(B) contains a competitive checklist the
FCC must determine a BOC is satisfying, which includes network unbundling requirements. For
example, checklist item number four requires a BOC to provide "local loop transmission from
ORDER NO. 29825
the central office to the customer s premises, unbundled from local switching or other services.
47 U.C. 9 242(c)(2)(B)(iv).State commissions provide a consulting role in determining
whether a BOC meets the Section 271 requirements, but the determination is solely for the FCC.
Until recently, the FCC had interpreted the unbundling requirements in Sections 251
and 271 to be identical. When the FCC issued its Triennial Review Order (TRO),and later its
Triennial Review Remand Order (TRRO),it removed some key network elements from the list
required for unbundling under Section 251. Because the unbundling requirements of Section 271
have not changed, Covad asks the Commission to require Qwest to provide the Section 271
UNEs in the interconnection agreement submitted for arbitration.
Covad relies primarily on a decision from the Maine Public Utilities Commission to
support its position. The Maine PUC docket, however, was related to Verizon s Section 271
application for interLA T A services authority. The Maine Commission had explicitly
conditioned support of Verizon s 271 application on Verizon s agreement to fulfill a number of
additional requirements, including the filing of a wholesale tariff, and "Verizon committed to
meeting the Commission s conditions.The Maine docket to produce the wholesale tariff
including a list and prices for UNEs, was underway when the FCC issued the TRO. The Maine
Commission noted that
, "
at the time we conditioned our support ofVerizon s 271 Application on
Verizon filing a wholesale tariff, Verizon s unbundling obligations under sections 251/252 of the
TelAct were synonymous with its section 271 unbundling obligations " but since the TRO was
issued
, "
an ILEC's 251/252 obligations are narrower (in most respects) than its 271 obligations.
Verizon-Maine Proposed Schedules, Terms, Conditions and Rates for Unbundled Network
Elements and Interconnection (PUC 20) and Resold Services (PUC 21); Maine Public Utilities
Commission, Docket No. 2082-682, Order - Part II (September 3, 2004), p. 4. Verizon argued
that the FCC "has exclusive jurisdiction over matters relating to its 271 obligations and that (the
Maine) Commission has no authority to require Verizon to amend its wholesale tariff to include
1 Report and Order and Order on Remand and
Further Notice of Proposed Rulemaking, In the Matter of Review of
the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers; Implementation of the Local
Competition Provisions of the Telecommunications Act of 1996; Deployment of Wireline Services Offering
Advanced Telecommunications Capability, CC Docket Nos. 01-338 96-98-147 , FCC 03-36 (FCC reI. Aug. 21
2003) Triennial Review Order ), vacated in part, remanded in part, Us. Telecom Assn ' v. FCC 359 F.3d 554
(D.C. Cir. 2004).
2 Order on Remand In the Matter of Review of Unbundled Access to Network Elements, Review of the Section 251
Unbundling Obligations of Incumbent Local Exchange Carriers CC Docket Nos. 01-338, WC Docket No. 04-313
(FCC reI. Feb. 4, 2005) Triennial Review Remand Order
ORDER NO. 29825
its 271 obligations.Id. The Maine Commission concluded that "a reasonable interpretation of
the condition we placed upon Verizon during our 271 proceeding, and the condition it committed
to fulfill, requires Verizon to include both its section 251 and 271 unbundling obligations in its
wholesale tariff filed in Maine.Id.p. 12. Thus, the Maine decision is based on Verizon
commitment to file a wholesale tariff, not on a conclusion that Section 271 unbundling
requirements can be made part of an arbitrated interconnection agreement under Section 251 and
252.
The Act is clear that a state commission arbitrating an interconnection agreement is
required to ensure the ILEC is providing the network elements identified by the FCC under
Section 251 , not the elements identified in Section 271. When a state commission arbitrates an
interconnection agreement between an ILEC and a competitor, the state commission must
ensure that such resolution and conditions meet the requirements of section 251 , including the
regulations prescribed by the (FCC) pursuant to section 251." 47 U.C. 9 252(c)(I). At the
same time, enforcement authority for Section 271 obligations is granted exclusively to the FCC.
Section 271 (d)(6) states "if at any time after the approval of an application under paragraph (3),
the (FCC) determines that a bell operating company has ceased to meet any of the conditions
required for such approval, the (FCC) may, after notice and opportunity for a hearing (i) issue
an order to such company to correct the deficiency; (ii) impose a penalty on such company
pursuant to Title V; or (iii) suspend or revoke such approval." 47 U.C. 9 271 (d)(6)(A).
Paragraph B of the section requires the FCC to establish procedures for reviewing complaints
concerning failures by a BOC to meet the conditions of Section 271.
Covad quotes from the TRO where the FCC made clear "that the requirements of
Section 271(c)(2)(B) establish an independent obligation for BOCs to provide access to loops
switching, transport, and signaling regardless of any unbundling analysis under Section 251.
Covad Petition, p. 6, quoting paragraph 653 of the TRO. The FCC did not say, however, that the
independent unbundling requirements of Section 271 must be made part of an interconnection
agreement. Qwest asserted in this case, and Covad did not contest, that Qwest continues to make
the Section 271 network elements available to Covad apart from any interconnection agreement.
We conclude that the Commission does not have authority under Section 251 or
Section 271 of the Act to order the Section 271 unbundling obligations as part of an
interconnection agreement. Covad also argues the Commission has authority under state law to
ORDER NO. 29825
expand the FCC's Section 251 unbundling requirements, but the statutes identified by Covad do
not authorize what it requests. Section 61-503 authorizes the Commission to set retail rates for
utilities regulated under Title 61. Section 61-513 authorizes the Commission to order physical
connection of two regulated telephone companies so as to form a continuous line of
communication. Section 61-514 enables the Commission to require a utility to share its conduits
subways, tracks, wires, poles, pipes or other equipment with other utility companies. Section 62-
602 states the Legislature s intent in promulgating the Idaho Telecommunications Act of 1988
including a desire to encourage the development of competition, but that is not enough to
empower the Commission to expand Qwest's Section 251 unbundling requirements. Section 62-
614 gives the Commission authority to resolve telephone company disputes, and Section 62-615
authorizes the Commission to implement the 1996 Act. In short, none of the statutes identified
by Covad provide the specific grant of authority necessary to support a Commission Order for
Qwest to provide specific UNEs, apart from what the FCC has directed, in an arbitration
agreement.
Having concluded the Commission has no legal authority to require Qwest to include
its Section 271 unbundling obligations in an interconnection agreement, we approve the relevant
language proposed by Qwest, or similar language, for the parties' interconnection agreement.
The parties should complete their negotiations and submit their interconnection agreement for
approval as soon as practicable.
ORDER
IT IS HEREBY ORDERED that Qwest is not obligated to include its Section 271
unbundling obligations in an interconnection agreement with Covad. The parties should
conclude their negotiations for an interconnection agreement consistent with this Order and
submit it for approval as soon as practicable.
THIS IS A FINAL ORDER ON ARBITRATION. Any person interested in this
Order may petition for reconsideration within twenty-one (21) days of the service date of this
Order. Within seven (7) days after any person has petitioned for reconsideration, any other
person may cross-petition for reconsideration. See Idaho Code 9 61-626.
ORDER NO. 29825
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this ~+A
day of July 2005.
MARSHA H. SMITH, COMMISSIONER
SEN, COMMISSIONER
ATTEST:
Je D. Jewell
ission Se etary
bls/O:CYDT0501 ws2
ORDER NO. 29825