PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held June 2, 2000
Commissioners Present:
John M. Quain, Chairman
Robert K. Bloom, Vice Chairman
Nora Mead Brownell
Aaron Wilson, Jr.
Terrance J. Fitzpatrick
Adoption by TCG Delaware Valley, Inc. of an A-310258F0002
Interconnection Agreement between GTE North,
Incorporated and AT&T Communications
Company of Pennsylvania, Inc. under
Section 252(i) of the Telecommunications
Act of 1996
OPINION AND ORDER
BY THE COMMISSION:
Before the Commission for consideration is a Petition filed by GTE North, Incorporated (GTE) and TCG Delaware Valley, Inc. (TCG-DV), for the “Adoption of Interconnection Agreement” (Petition) between GTE and TCG-DV, pursuant to Section252(i) of the Telecommunications Act of 1996, 47U.S.C.§§201, et seq. (TA-96 or the Act).
History of the Proceeding
On March 14, 2000, GTE and TCG-DV filed the instant Petition seeking approval of an underlying Interconnection Agreement which sets forth the terms, conditions, and price of interconnection, resale, and unbundled network elements provided by GTE to TCG-DV. The underlying Interconnection Agreement which GTE and TCG-DV seek to adopt encompasses the Interconnection Agreement between GTE and AT&T Communications Company of Pennsylvania, Inc. (AT&T) which was approved by the October 1, 1999 Opinion and Order at Docket No. A-310125F0002.
The Commission published notice of the Petition and the Interconnection Agreement in the Pennsylvania Bulletin on April 1, 2000, advising that any interested parties could file comments within ten (10) days. To date, no comments have been received.
Discussion
A.Standard of Review
The Commission's standard for review of a negotiated interconnection agreement is set forth at 47 U.S.C. §252(e)(2), which provides, in pertinent part, that:
The state Commission may only reject -- (A) an agreement (or any portion thereof) adopted by negotiation under subsection(a) if it finds -- (i) the agreement (or portion thereof) discriminates against a telecommunications carrier not a party to the agreement; or (ii) the implementation of such agreement or portion is not consistent with the public interest, convenience and necessity . . . .
Regarding the availability of interconnection agreements to other telecommunications carriers, Section 252(i) of the Act states:
A local exchange carrier shall make available any interconnection services, or network element provided under an agreement approved under this section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement.
With these criteria in mind, we shall review the Interconnection Agreement submitted by GTE and TCGDV.
B.Summary of Terms
In the Joint Petition, GTE and TCG-DV agree that TCG-DV will exercise its right under Section 252(i) of the Act to adopt the Interconnection Agreement between GTE and AT&T, which was approved by the Commission, at Docket No.A310125F0002 on September 30, 1999 (Order entered October 1, 1999). The Interconnection Agreement between GTE and TCG-DV is based on that approved Agreement.
In the Petition, GTE and TCG-DV aver that:
Pursuant to Section 252(i) of the Telecommunications Act of 1996 (the “Federal Act”), TCG Pittsburgh and TCG Delaware Valley, Inc. (“TCG”) notified GTE that it desired to adopt the terms (the “Terms”) of the Interconnection Agreement between GTE and AT&T Communications (“AT&T”) that was approved by the Pennsylvania Public Utility Commission (“Commission”) in Docket No. A-3101250F0002 [Sic] (the “Agreement”). Subsequent to this, GTE and TCG exchanged letters relating to TCG’s adoption of the Terms. A copy of said letter is attached as Exhibit 1.
The key provisions of the Interconnection Agreement between GTE and AT&T at Docket No. A-310125F0002, approved by the Order entered on October 1, 1999, are as follows:
The rates for the Unbundled Loops in the Interconnection Agreement are as follows:
Rate Per Line
Unbundled Loop Per Month
Density Cell 1 $ 7.45
Density Cell 2 $ 8.60
Density Cell 3 $11.76
Density Cell 4 $15.10
The End Office Call Completion rate will be charged at a rate of $0.003per minute for all Density Cells. The Common Transport rate for all Density Cells will be the ceiling of GTE’s interstate rate for Common Transport, based on the weighted average of the interstate DS1 and DS3 rates of GTE. The Dedicated Transport rate and Signaling rate for all Density Cells will be the ceiling of GTE’s interstate rates for Dedicated Transport and Signaling, respectively. The Tandem Switching rate in all Density Cells will be charged at $0.0045 per minute and the Network Interface Device charge will be $0.59 per line per month. Finally, the Interconnection Agreement states that there will be no charge initially for all Non-Recurring Charges, but AT&T will be subject to reimbursement to GTE for the Non-Recurring Charges upon establishment of permanent rates in this Interconnection Agreement.
In addition to the above rates and charges for unbundled network elements (UNEs), the Interconnection Agreement contains a Wholesale Discount rate of 22.80%, exclusive of the Gross Receipts Tax Promotional Offerings less than ninety(90) days old and public payphones lines, semi-public payphone lines, and Customer-Owned Coin-Operated Telephone) COCOT coin and coinless lines are not subject to the wholesale discount.
The Interconnection Agreement also sets forth a rate of $.003 per minute of use for Switching and notes that GTE will not impose separate charges for each and every function, feature, and capability of the unbundled switches.
In summary, the prices for reciprocal compensation in the Interconnection Agreement are as follows:
Dedicated TransportGTE Interstate Rate Ceiling
Common TransportGTE Interstate Rate Ceiling - Based on
DS1 and DS3 Weighted Average
End Office Switching$0.003 per minute
Tandem Switching$0.0045 per minute
Transiting Service Charge$0.0045 per minute
The above reciprocal compensation rates do not apply to Enhanced Service Provider (ESP) and Internet Service Provider (ISP) traffic because the Parties could not agree on how this traffic should be exchanged and to what extent compensation would be due to either Party for exchange of such traffic. Therefore, each Party agreed that, until the Federal Communications Commission (FCC) enters a final, binding, and nonappealable order (Final FCC Order), the Parties shall exchange and each Party may track ESP/ISP traffic, but no compensation shall be owed for ESP/ISP traffic exchanged between the Parties, and neither Party shall bill the other for such traffic. After a Final FCC Order becomes applicable, the Parties will meet to discuss implementation of the Order and shall make adjustments to reflect the impact of the Order. We believe this is a reasonable solution and we shall, therefore, approve this methodology with regard to ESP/ISP reciprocal compensation.
The Interconnection Agreement authorized AT&T, and thus TCG-DV, to utilize the existing GTE 911/E911 infrastructure to provide all 911/E911 capabilities to its end users. If TCG-DV desires to obtain transport from its end office to the GTE 911 selective routers, TCG-DV may purchase such transport from GTE at the rates set forth in GTE’s intrastate switched access tariff or in GTE’s intrastate special access tariff.
Before concluding, we note that the discussion above by no means encompasses a detailed analysis of the entire Interconnection Agreement. In addition, GTE stated in its response (Exhibit 1) to TCG-DV’s letter adopting the Interconnection Agreement between AT&T and GTE that the Terms in the Interconnection Agreement do not reflect the Supreme Court of the United States, January 25, 1999 decision on appeal of the Eighth Circuit’s decision in AT&T Corp.v. Iowa Utilities Board, No. 97-826, 1999 U.S. LEXIS 903 (1999). (Iowa Utilities Board). Specifically, the Court vacated Rule 51.319 of the FCC’s First Report and Order, FCC 96-325, 61 Fed. Reg. 45476 (1996), and modified several of the FCC’s and the Eighth Circuit’s rulings regarding UNEs and pricing requirements under the Act.
GTE anticipates that, after the FCC issues new final rules on UNEs, this matter may be resolved. In the interim, GTE would prefer not to engage in the arduous task of reforming agreements to properly reflect the current status of the law and then to repeat the same process later after the new FFC rules are in place. Without waiving any rights, GTE proposes that the Parties agree to hold off amending (or incorporating the impact of the decision into) the Terms and let Section 252(i) adoption proceed by maintaining the status quo until final new FCC rules are implemented, subject to the following package of interdependent terms:
1.GTE will continue to provide all UNEs called for under the Terms until the FCC issues the New Rules even though it is not legally obligated to do so.
2.Likewise, TCG agrees not to seek UNE “platforms,” or “already bundled” combinations of UNEs.
3.If the FCC does not issue New Rules prior to the expiration of the initial term of the Terms, GTE will agree to extend any new interconnection arrangement between the parties to the terms of this proposal until the FCC issues its New Rules.
4.By making this proposal (and by agreeing to any settlement or contract modifications that reflect this proposal), GTE does not waive any of its rights, including its rights to seek recovery of its actual costs and a sufficient, explicit universal service fund. Nor does GTE waive its position that, under the Court’s decision, it is not required to provide UNEs unconditionally. Moreover, GTE does not agree that the UNE rates set forth in any agreement are just and reasonable and in accordance with the requirements of sections 251 and 252 of Title 47 of the United States Code.
5.The provisions of the contract that might be interpreted to require reciprocal compensation or payment as local traffic from GTE to the telecommunications carrier for the delivery of traffic to the Internet are not available for adoption and are not a part of the 252(i) agreement pursuant to FCC Rule 809 and paragraphs 1317 and 1318 of the First Report and Order.
GTE notes that, as a result, the portion of the contract pertaining to reciprocal compensation is not available under this Section252(i) adoption. In its place are provisions that exclude ESP and ISP Traffic from reciprocal compensation.
GTE and TCG-DV aver that, pursuant to Section 252(i) of the Act, supra, TCG-DV has a right to adopt the Terms of the GTE and AT&T Interconnection
Agreement which was approved by the Commission Order entered on October1, 1999, at Docket No. A-310125F0002. (Joint Petition, pp.1-2).[1]
The Interconnection Agreement will be in effect until October 12, 2002. (Joint Petition, Exhibit 1, p. 3).
C.Disposition
As stated above, we will grant the Petition of GTE and TCG-DV to permit TCG-DV to adopt the Interconnection Agreement between GTE and AT&T at Docket No.A310125F0002, approved by our Order entered on October1,1999, finding it to be consistent with Section 252(i) of the Act. We further find that it satisfies the two-pronged criteria of Section 252(e) of the Act. We shall minimize the potential for discrimination against other carriers not a party to the Interconnection Agreement by providing here that our conditional approval of this Interconnection Agreement shall not serve as precedent for agreements to be negotiated or arbitrated by other parties. This is consistent with our policy of encouraging settlements. (52 Pa. Code §5.231; seealso, 52 Pa. Code §69.401, etseq., relating to settlement guidelines, and our Statement of Policy relating to the Alternative Dispute Resolution Process, 52 Pa. Code §69.391, et seq.). On the basis of the foregoing, we find that the Interconnection Agreement does not discriminate against any telecommunications carrier not a party to the negotiations.
The Act requires that the terms of the Interconnection Agreement be made available for other parties to review (§252(h)). However, this availability is only for the purpose of full disclosure of the terms and arrangements contained therein. The accessibility of the Interconnection Agreement and its terms to other parties does not connote any intent that our approval will affect the status of negotiations between other parties. In this context, we will not require GTE or TCG-DV to embody the terms of the Interconnection Agreement in a filed tariff, but we will require that the Parties file the Interconnection Agreement with this Commission. It shall be retained in the public file for inspection and copying consistent with the procedures relating to public access to documents.
With regard to the public interest element of this matter, we note that no negotiated Interconnection Agreement may affect those obligations of the telecommunications carrier in the areas of protection of public safety and welfare, service quality, and the rights of consumers. (See, e.g., Section 253(b) of the Act). This is consistent with the Act and with Chapter 30 of the Public Utility Code, wherein service quality and standards, e.g., universal service, 911, Enhanced 911, and Telecommunications Relay Service, are inherent obligations of the local exchange company and continue unaffected by a negotiated agreement. We have reviewed the Agreement’s terms relating to 911 and E911 services and conclude that these provisions of the Agreement are consistent with the public interest.
Conclusion
Based on the foregoing and pursuant to Sections 252(e) and 252(i) of the Act, supra, and our June3, 1996 Opinion and Order in In Re:Implementation of the Telecommunications Act of 1996, Docket No.M00960799,we determine that the Interconnection Agreement between GTE and TCG-DV is non-discriminatory to other telecommunications companies not a party to it and that it is consistent with the public interest; THEREFORE,
IT IS ORDERED:
1.That the Joint Petition of GTE North, Incorporated and TCG Delaware Valley, Inc. filed on March 14, 2000, seeking permission for TCG Delaware Valley, Inc. to adopt an Interconnection Agreement between GTE North, Incorporated and AT&T Communications Company of Pennsylvania, Inc. which was approved by the Commission at Docket No. A310125F0002 on October1, 1999, is granted, pursuant to the Telecommunications Act of 1996 and the Commission’s June 3, 1996 Opinion and Order in In Re: Implementation of the Telecommunications Act of 1996, Docket No.M00960799, consistent with this Opinion and Order.
2.That approval of the Interconnection Agreement shall not serve as binding precedent for negotiated or arbitrated agreements between non-parties to the instant Interconnection Agreement.
3.That the Parties shall file a true and correct copy of the Interconnection Agreement, with appropriate amendment, with this Commission within thirty(30) days of the date of entry of this Opinion and Order.
BY THE COMMISSION,
James J. McNulty
Secretary
(SEAL)
ORDER ADOPTED: June 2, 2000
ORDER ENTERED:
1
[1]It is noted that, regardless of the types of services covered by this Interconnection Agreement, it would be a violation of the Public Utility Code if the Applicant began offering services or assessing surcharges, to end users, for which it has not been authorized to provide and for which tariffs have not been authorized.