BEFORE THE

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Pennsylvania Public Utility Commission / :
:
vs. / : / Docket No. / R-00994697
:
Verizon Pennsylvania, Inc. / :
Rhythms Links, Inc. / :
:
vs. / : / Docket No. / R-00994697C0001
:
Verizon Pennsylvania, Inc. / :

RECOMMENDED DECISION

Before

MARLANE R. CHESTNUT

Administrative Law Judge


I. HISTORY OF THE PROCEEDING

On May 28, 1999, Bell Atlantic-Pennsylvania, Inc.[1] (Verizon PA or respondent) filed with the Pennsylvania Public Utility Commission (Commission) Bell Atlantic-Pennsylvania P.U.C. Tariff No. 218 (Tariff 218) to be effective July 27, 1999. This filing was in response to an order issued by the Federal Communications Commission (FCC) on the subject of minimum standards for collocation and collocation alternatives. Deployment of Wireline Services Offering Advanced Telecommunications Capability, First Report and Order and Further Notice of Proposed Rulemaking, CC Docket No. 98-147, FCC 99-48 (released March 31, 1999) (Advanced Services Order).

On June 23, 1999, ACI Corp. d/b/a Accelerated Communications, Inc., now Rhythms Links, Inc. (Rhythms)[2] filed a formal Complaint (at Docket No. R-00994697C0001) against the proposed Tariff 218. An Answer to the Complaint was filed by Verizon PA on July 29, 1999. A Reply to and Motion to Strike Answer was filed by Rhythms on August 19, 1999. In this Motion, Rhythms alleged that Verizon PA’s Answer to its Complaint should be stricken as being untimely filed in violation of 52 Pa. Code §5.61. On August 24, 1999, Verizon PA filed a Response to the Motion to Strike.

The Commission in a separate proceeding at Joint Petition of Nextlink, Inc. et al., Docket Nos. P-00991648 and P-00991649[3] addressed a number of telecommunications issues, including collocation. In its Order (adopted August 26, 1999 and entered September 30, 1999, Global Order), the Commission opened an investigation into the proposed Tariff 218, consolidated the outstanding Rhythms Complaint with the investigation and referred the proceeding to the Office of Administrative Law Judge (OALJ) “to resolve the outstanding collocation matters raised in this proceeding.” Global Order at 105. The Commission in that Order made certain collocation determinations, which it directed Verizon PA to incorporate in a compliance tariff to be filed no later than November 1, 1999. Verizon PA filed this compliance tariff on November 1, 1999.[4] The Global Order was affirmed by the Pennsylvania Commonwealth Court by Order entered October 25, 2000, 763 A.2d 440, 2000 Pa. Commw. LEXIS 592 (Pa. Cmwlth. 2000).[5]

By Prehearing Order #1, dated October 12, 1999, I denied Rhythms’ Motion to Strike Verizon PA’s Answer, granted the Petition to Intervene which had been filed by Covad Communications Company (Covad) on September 22, 1999 and directed the parties to comply with various procedural requirements.

A prehearing conference was held on October 22, 1999. Present were Verizon PA, Rhythms, MCI WorldCom, Inc. (MCIW), Covad, AT&T Communications of Pennsylvania, Inc. (AT&T), ATX Telecommunications Services, Inc. (ATX) and Sprint Communications Company, L.P. (Sprint). The actions taken at that prehearing conference were incorporated in Prehearing Order #2, dated October 28, 1999, which (1) granted the Petitions to Intervene which had been filed by MCIW (July 16, 1999), AT&T (October 19, 1999), ATX (October 21, 1999), Sprint (October 26, 1999), Choice One Communications of Pennsylvania, Inc. (Choice One, October 26, 1999); (2) granted Motions for Admission Pro Hac Vice filed on behalf of Michelle Billand, Esq. (MCIW), Christy Kunin, Esq., Stephanie Joyce, Esq., and Labros Pilalis, Esq. (Rhythms), Robin Cohn, Esq., and Kemal Hawa, Esq. (Choice One); (3) adopted a litigation and briefing schedule; (4) set forth the various filing and briefing requirements; and (5) granted Verizon PA’s Motion for Protective Order dated October 21, 1999.

On December 7, 1999, Verizon PA filed a Motion to Compel requesting that MCIW and AT&T be compelled to respond to various interrogatories. On December8, 1999, Rhythms filed a similar motion, requesting that Verizon PA be compelled to answer certain of its interrogatories. On December 10, 1999, MCIW and AT&T filed a joint Answer to Verizon PA’s Motion. These various motions were resolved without the necessity of further orders.

In Prehearing Order #3, dated January 7, 2000, I granted a Petition to Intervene which had been filed by Competitive Telecommunications Association (CompTel) on December 15, 1999 and various Motions for Admission Pro Hac Vice which had been filed on behalf of Michael McRae, Esq. (AT&T), Catherine Kane Ronis, Esq. (Verizon PA), James Scheltema, Esq. (Rhythms) and Lee Lauridsen, Esq. (Sprint).

In Prehearing Order #4, dated January 18, 2000, I directed the parties to comply with various requirements in connection with the scheduled hearing.

Pursuant to the schedule contained in Prehearing Order #2, parties filed direct, rebuttal and surrebuttal testimony. Evidentiary hearings were held on February 8 and 9, 2000 in Philadelphia. On February 8, 2000 the witnesses who appeared were a panel which consisted of Verizon PA witnesses Dr. Timothy Tardiff, Robert Grenier and Lawrence Rath; MCIW witness Roy Lathrop; Rhythms witness Robert Williams; and AT&T witness Christopher Nurse. The witnesses who appeared at the February 9, 2000 hearing were John Mitus (Sprint); Mark Hall (Covad), a panel which consisted of Donald Albert and Louis Minion (Verizon PA); a panel which consisted of Michael Turner and Michael Baranowski (AT&T/MCIW); and a panel which consisted of Donald Albert and Amy Stern (Verizon PA). Attached to this Recommended Decision is a listing of the statements and exhibits which were admitted into the record. The record consists of those statements and exhibits (including several late-filed statements and exhibits) and a transcript of 531 pages.

Also at the hearing, I granted Motions for Admission Pro Hac Vice filed on behalf of Carl Gisey, Esq. (MCIW), and Linda Oliver, Esq. and Jennifer Purvis, Esq. (CompTel). Verizon PA withdrew Attachment D to Statement 6.0 and lines 13-14 of that statement (the surrebuttal statement of Amy Stern). See, Posthearing Order #1, dated February 10, 2000.

In Posthearing Order #2, dated March 1, 2000, I established a schedule which addressed the outstanding Motion of AT&T/MCIW to strike portions of the supplemental testimony which had been filed by Verizon PA (St. 5.2) and allowed the other parties to file testimony responsive to Verizon PA St. 5.2. The Motion was withdrawn upon Verizon PA’s agreement to revise St. 5.2.

By Posthearing Order #3, dated March 23, 2000, I extended the briefing schedule in order to allow the parties to address the opinion and order issued by the D.C. Circuit Court of Appeals in GTE Service Corp., et al. v. FCC, 205 F.3d 416 2000 U.S. App. LEXIS 4111 (D.C. Cir. 2000) which reviewed the FCC’s Advanced Services Order. I also admitted into the record revised Verizon PA St. 5.2, MCIW/AT&T St. 2.3 (including attached Exh. SET-1) and late-filed Verizon PA Exhs. 11, 12, and 13.

In accordance with the briefing schedule established by Posthearing Order #3, Main Briefs were filed by Verizon PA, Rhythms and Covad (jointly), AT&T, MCIW and Sprint.[6] Reply Briefs were filed by the same parties, as well as by CompTel. It should be noted that the Main Briefs filed by Verizon PA and AT&T contain proprietary material, as does the Reply Brief filed by AT&T.

On May 8, 2000 I issued an Order Striking Verizon PA’s Main Brief, because of the extensive extra-record material contained in it. This Order permitted Verizon PA to file a revised Main Brief on or before May 15, 2000 and other parties to file responsive briefs on or before May 21, 2000.

Verizon PA did file and serve a revised Main Brief on May 15, 2000, as directed. This Main Brief also contains proprietary material. No responsive briefs were filed.

After the filing of the Main and Reply Briefs in this proceeding, the various parties engaged in intensive settlement efforts. I was asked to delay issuing a recommended decision in order to allow the parties to address the various issues. See, Posthearing Orders dated October 12, 2000 and November 2, 2000, which set forth a schedule to address both the settled and non-settled issues.

On November 8, 2000 Verizon PA, AT&T and MCIW (petitioners or settling parties) filed with the Commission a Joint Petition for Approval of Settlement Agreement Addressing Collocation Rates, Terms and Conditions (Petition), along with the Settlement Agreement itself (attached to the Petition as Attachment A). Specifically, the Joint Petitioners include MCI WorldCom, Inc. and its Pennsylvania affiliates; AT&T Communications of Pennsylvania, Inc. and its affiliates TCG Delaware Valley, Inc. and TCG Pittsburgh; and Verizon PA Pennsylvania, Inc.

Sprint filed a Position Statement on November 8, 2000 stating that it was still in the process of evaluating the proposed settlement and was not opposing it.

On November 9, 2000 Supplemental Main Briefs addressing the unresolved issues were filed by AT&T and MCIW (jointly), Verizon PA and Sprint. Supplemental Reply Briefs were filed on November 21, 2000 by those same parties.

On December 7, 2000, Sprint filed an Updated Statement of Position indicating that it was joining in the proposed settlement.

On January 8, 2001 an Amended Settlement Agreement was filed. This amended agreement reflects the fact that Sprint signed the agreement, and it replaced the tariff contained in Exhibit 1 with a revised tariff.

By separate Recommended Decision dated February 2, 2001, I strongly recommended that the proposed settlement should be accepted without modification by the Commission. The disputed issues remaining are addressed below in conformance with the organization used by the parties in their supplemental briefs.

I wish to note that the delay in resolving this proceeding was not due to any lack of diligence on the part of the various party representatives. On the contrary, each of them exhibited the highest degree of professionalism, and the comprehensive nature of the proposed settlement and the excellent briefs make clear the tremendous effort that was expended by the counsel involved.


II. SCOPE OF THE PROCEEDING

The scope of this proceeding was established by the Commission in the Global Order at Docket Nos. P-00991648 and P-00991649. The Commission in Section VI (Interconnection and Alternatives Including Collocation) explained the relationship between collocation availability and telecommunications competition:

The capability of CLECs [competitive local exchange companies] to collocate efficiently and at a reasonable cost is a key component of meaningful local, facilities-based competition and the provision of advanced telecommunications services in the Commonwealth. The availability of a wide variety of collocations arrangements, at rates that reflect forward-looking long-run incremental costs, and without unnecessary delays will remove a significant barrier to competition. Through this order and an additional proceeding, the Commission expects to promote competition, particularly in the provision of advanced services, and reduce the costs and delays faced by CLECs that want to collocate equipment in or near the facilities of an ILEC [incumbent local exchange company].

Global Order at 93.

In that Order, the Commission expressly adopted the FCC’s Advanced Services Order “as a basis for Pennsylvania-specific collocation standards and requirements” and went on to discuss specific collocation issues. It recognized that “the record in this proceeding was not developed sufficiently for the Commission to issue an order that would resolve all of these matters.” Global Order at 94, 95.

The Commission made certain determinations relating to collocation issues in the Global Order. With respect to alternative arrangements, while it found that a further record needed to be developed to address some issues, it stated at 96 that “Remote terminal collocation must be permitted, even if that means that at some locations the CLECs would need to provide separate facilities that are interconnected at Verizon PA’s remote terminal. Technical impediments to such collocation, if any, must be resolved and the terms for such collocation must be established in the proceeding below.” [Footnotes omitted]

To “provide direction until [the further] proceeding is complete,” the Commission adopted the following collocation standards at 97-99:

(1) BA-PA has the burden to demonstrate that a particular application for any form of physical collocation is not technically feasible (47 C.F.R. §51.321(d) or that no space exists within or on a particular BA-PA premise for physical collocation (47 C.F.R. §51.321(e)).

(2) A requesting CLEC seeking a particular collocation arrangement is entitled to a presumption that such an arrangement is technically feasible if any CLEC has deployed such collocation arrangement in any Pennsylvania ILEC premises.

(3) Within 10 days of receipt of a request for physical collocation, BA-PA must inform a requesting CLEC that either vacant space is available or physical collocation is not practical because of space limitations. BA-PA must file a copy of the report with the Commission. If space is available, BA-PA must, within an additional 25 days, complete the planning and quote preparation process.

(4) Within 10 days102 after informing a requesting CLEC that space is not available, BA-PA shall submit to the Commission detailed floor plans or diagrams of any premises where BA-PA claims that physical collocation is not practical because of space limitations and notice of such submission to the requesting CLEC. In any such case, BA-PA must allow the requesting CLEC to tour the entire premises in question without charge, within 10 days of the Commission’s receipt of BA-PA’s floor plans. The CLEC may be accompanied by a staff member of the Public Utility Commission.

(5) For any case in which physical collocation is deemed by BA-PA to be impractical, the requesting CLEC may file a Petition for Dispute Resolution with the PUC to review BA-PA’s denial. Within 25 days after service of the Petition for Dispute Resolution, BA-PA must file a report with the Commission that includes information on the use of floor space, the amount of space used by collocators, the amount of space used by third parties for purposes other than collocation, a description of plans for office renovation or expansion, and a description of plans for the conversion of space to collocation space.

(6) BA-PA must maintain a publicly available document, posted for viewing on BA-PA’s Internet site, indicating all premises that are full, and must update such a document within 10 days of the date at which a premises runs out of physical collocation space. The document must provide the results of a BA-PA survey of all premises where collocation already exists or has been requested. The document must indicate the amount of space available for collocation, the number of current collocators, the amount of space being retained by Verizon PA for future specific uses, and the measures BA-PA is taking to make additional space available for any premises that is space constrained. Within 30 days of the effective date of the Commission’s order in this matter, BA-PA shall post the current availability of collocation sites and continue to post the updates on BA-PA’s Internet site.