2000731_ws.doc

DECISION MEMORANDUM

TO: COMMISSIONER HANSEN
COMMISSIONER SMITH
COMMISSIONER KJELLANDER
MYRNA WALTERS
RON LAW
LOU ANN WESTERFIELD
RANDY LOBB
DON HOWELL
TONYA CLARK
JOE CUSICK
CAROLEE HALL
WORKING FILE

FROM: WELDON STUTZMAN

DATE: JULY 31, 2000

RE: CASE NO. GTE-T-00-7
GTE’S APPLICATION FOR APPROVAL OF A COLLOCATION TARIFF

On April 28, 2000, GTE filed Tariff Advice No. 00-05 seeking approval of a collocation tariff effective May 29, 2000. The tariff provides the terms, conditions and prices for elements that make up GTE’s collocation services. The Commission issued Order No. 28378 on May 16, 2000, suspending the proposed effective date for up to 90 days and providing for a 45-day comment period, which terminated on July 17, 2000. Timely comments were provided by Staff, AT&T Communications of the Mountain States, Inc. (AT&T) and GTE.
Both AT&T and Staff recommend the Commission reject GTE’s proposed collocation tariff. AT&T recommends the Commission reject GTE’s tariff because it “does not include numerous provisions required by federal law, it contains provisions that are inconsistent with the federal law and it contains provisions that are simply discriminatory.” AT&T’s comments review specific collocation requirements that AT&T believes are not addressed or that are addressed improperly in GTE’s proposed tariff. For example, AT&T notes that GTE’s tariff is silent on what premises will be made available to competitive local exchange carriers for collocation. GTE’s tariff describes collocation as being in a newly constructed cage and that when multiple competitors share a collocation area, one competitor must agree to be a host, while the other competitor is to be a guest collocator. AT&T notes this arrangement would require one competitor to accept the full financial risk for the shared arrangement. AT&T also noted that the tariff allows GTE the right to remove or refuse use of a competitor’s equipment in the event the equipment does not comply with a specific safety standard. AT&T contends GTE may take reasonable security measures relating to safety standards, but there is no legal basis for GTE to unilaterally remove equipment. AT&T also contends GTE’s restriction on a competitor’s access to its facilities is unacceptable and contrary to law. These and other alleged violations of federal requirements for collocation result in AT&T’s conclusion “that there is no basis for this Commission to permit such an unlawful tariff to go into effect, even on an interim basis.”
Staff in its comments identified several reasons for the Commission to reject GTE’s proposed collocation tariff. First, Staff stated there is no legal authority for GTE to file a collocation tariff, nor did GTE attempt to identify any such authority. The federal Telecommunications Act of 1996 requires an incumbent local exchange carrier to provide interconnection, including collocation, to competing carriers. The Act provides a means for parties to arrive at interconnection agreements through negotiation, mediation or arbitration, but nothing in the Act authorizes the filing of a collocation tariff with state commissions. Staff also contends State law does not authorize the filing of a collocation tariff that merely sets forth optional terms for competitive carriers. State law authorizes the approval by the Commission of tariffs for retail services to individual end-user customers. Staff noted GTE’s collocation tariff was rejected by the Oregon Commission “because it does not meet the criteria of a tariff.” Finally, Staff argued that the approval of GTE’s collocation tariff would serve no legitimate purpose. GTE is free to provide its proposed terms at any time to a competitive carrier requesting interconnection and collocation. Staff stated that Commission approval of the collocation terms as a tariff “may cloak the terms with an appearance of formality that could hinder open negotiations between GTE and a competitor.”
In its comments, GTE argued that the Commission should approve its tariff because (1) no carrier would be harmed by allowing the tariff to go into effect, (2) the tariff provides an optional, expeditious means for carriers to obtain new types of physical collocation ordered by the Federal Communications Commission, (3) the tariff provides an alternative to the inter-company contract negotiation and arbitration process. GTE notes that its tariff would provide alternative choices to carriers without compelling them to accept the terms and conditions set forth in the tariff. GTE contends its tariff provides carriers with an option they do not now have – rather than negotiating for collocation, new entrants could choose to obtain collocation under the tariff. GTE contends the proposed tariff “reduces the administrative burden for GTE and the collocating carriers by clearly identifying the rates, terms and conditions under which physical collocation services are offered.” GTE urges the Commission to allow the tariff to go into effect or, “at a minimum, schedule an evidentiary hearing to address GTE’s tariff, if the Commission continues to have lingering concerns.”

COMMISSION DECISION
Should the proposed collocation tariff, Tariff Advice No. 00-05, of GTE be approved or rejected, or in the alternative, should the Commission schedule evidentiary hearings to determine whether specific terms of the proposed collocation tariff comply with the FCC’s collocation requirements?

Weldon B. Stutzman

bls/M:gtet007_ws
DECISION MEMORANDUM 2