Recommendation

Changes in appearance and in display of formulas, tables, and text may have occurred during translation of this document into an electronic medium. This HTML document may not be an accurate version of the official document and should not be relied on.

For an official paper copy, contact the Florida Public Service Commission at contact@psc.state.fl.us or call (850) 413-6770. There may be a charge for the copy.

Issue 34:

Should CA be required to interconnect with AT&T Florida's E911 Selective Router? (E911 § 3.3.2)

Recommendation:

Yes, Staff recommends that CA should be required to interconnect with AT&T Florida’s E911 Selective Router where AT&T Florida is the primary provider. (Beard)

Position of the Parties

CA:

No. There are ample competitors for CLECs and Voice over Internet Protocol (VoIP) companies to choose from in the 911 Emergency Services marketplace with at least four large competitors to AT&T for statewide 911 service in Florida. Maintaining trunks to AT&T selective routers is unreasonably costly, inefficient and unnecessary.

AT&T Florida:

Yes. AT&T provides 911 service to certain PSAPs. All 911 calls to those PSAPs must be routed through AT&T. CA should be required to send those calls directly to AT&T, because routing the calls to AT&T through a 911 aggregator would introduce an additional, and unnecessary, point of failure.

Staff Analysis:

E911 customers contract with a service provider to provide their E911 network services, and all other carriers connect to that 911 service provider for purposes of routing their 911 calls to the PSAP. AT&T Florida is the designated 911/E911 service provider for many E911 customers. Other E911 customers in Florida contract with different service providers, such as Intrado or CenturyLink. If CA has end user customers located in the E911 service areas served by one of those carriers, then CA would presumably obtain those E911 services from that carrier. (TR 428)

A carrier that provides E911 network services, such as AT&T Florida, typically provides a complete service platform. Three integrated components provide the routing and transmission of an E911 call. The first is a Selective Router (SR), which is a specialized switch used to route a 911 call to the proper PSAP based upon the number and location of the call. Second, the Automatic Location Identification (ALI or E911) database contains end user information, such as the caller’s telephone number, the address/location of the telephone, and sometimes additional emergency services information that is automatically displayed at the PSAP during an emergency call. The third component is the network facilities used to connect the PSAP to the SR and to the ALI database. (TR 428-429)

AT&T Florida believes that CA wants to utilize an alternative provider for E911, which could potentially create a point of failure with the calls. (EXH 41 p. 1448) CA does not want to connect to AT&T Florida’s E911 selective router and/or trunks, and would rather connect directly to one of the competitors. (EXH 41 p. 1446)

Parties’ Arguments

CA does not want to connect to AT&T Florida’s E911 selective router and/or trunks, and would rather connect directly to one of the competitors. CA does not want to order and maintain 911 trunks if those trunks never pass any traffic and AT&T Florida states that CA will not have to. (EXH 41 p. 1446)

CA states there are ample competitors for CLECs and VoIP companies to choose from in the 911 Emergency Services marketplace and there are at least four large competitors to AT&T Florida for statewide 911 services in Florida. CA also states that the other competitors provide modern, superior features, and functionality compared with AT&T Florida’s, “antiquated, decades-old 911 infrastructure” that has not noticeably changed or been significantly updated over the last decade. CA says that it objects to AT&T Florida’s monopolistic position that it is entitled to be paid for its inferior 911 services even when CA does not need or intend to use those services. (TR 54)

CA states that AT&T Florida seems to be arguing that CA could send 911 traffic wherever it likes but must still maintain expensive 911 trunks to AT&T Florida anyway. (TR 107) CA argues that a middleman is being used whether the CLEC uses AT&T Florida or sends 911 calls directly to an alternate provider for completion. (TR 107)

AT&T Florida:

AT&T Florida believes the big issue is CA wanting to utilize an alternative provider for E911, which could potentially create a point of failure with the calls. (EXH 41 p. 1448) In addition, AT&T Florida is concerned about correct completion of the 911 call to the PSAP. AT&T Florida wants to be sure to have successful call testing of E911 routing prior to passing live traffic through. (EXH 41 p. 1448)

AT&T Florida states that if CA were to interconnect to AT&T Florida’s E911 Selective Router and also exchange traffic in areas that AT&T Florida is not the E911 provider, then CA must also interconnect with the Selective Router of the E911 service provider for that area. (EXH 36 p. 580) AT&T Florida uses the example of the PSAPs that are located within the serving areas of CenturyLink. (EXH 36 p. 580) AT&T Florida states that if the PSAP was served by an Alternate Emergency Service Provider (AESP), like the counties of Levy, Martin, and St. Lucie, that are served by Intrado, then CA would also have to interconnect with the AESP’s Selective Router. (EXH 36, p. 580)

Staff Analysis

It is possible for CA to use a third party aggregator to deliver its end user 911 calls to the appropriate PSAP. An aggregator for E911 traffic is a third-party middleman between CA’s network and AT&T Florida’s E911 tandem, which adds an additional layer of complexity to an E911 call destined to a PSAP. (TR 430) However, every time another carrier is introduced into a call sequence, another point of potential failure is introduced as well. The danger is that calls might be delivered to the wrong PSAP or without the caller’s location, which could delay the dispatch of emergency assistance. Additionally, there are no mechanisms by which to ensure that third party 911 aggregators (e.g., Intrado) have sufficient trunking capacity. Insufficient trunking capacity could result in call blockage (i.e., in 911 calls failing to complete). Finally, 911 aggregation increases the risk of call blockage due to a trunking maintenance problem of the trunking provider and/or intermediate carriers that switch and/or transport the 911 traffic for eventual connection to AT&T Florida’s selective router and the responsible PSAP. (TR 430-431)

While it is possible to mitigate the risks of 911 call aggregation, if an aggregator mixes different types of traffic on the same trunk group e.g., wireless, VoIP, and traditional landline, any default routing requested by the PSAP could be negated, resulting in misrouted 911 calls. In addition, call aggregation increases the difficulty of tracing a call to the originator in an emergency situation when call data is not available and/or not correct in the E911 database.

Staff agrees with AT&T Florida, that successful call testing of E911 routing should be done prior to passing live traffic through. (EXH 41, p. 1448) Additionally, staff agrees that each time another carrier is introduced into the call sequence, the potential of a failed call happens. (TR 430; AT&T Florida BR 109) That is not in the best interest of any end user and creates undue risk.

PSAPs contract with a service provider to provide their E911 network services, and all other carriers connect to that 911 service provider for purposes of routing their 911 calls to the public-safety answering point. AT&T Florida is the designated 911/E911 service provider for many PSAPs in Florida. Staff believes that the introduction of a third party aggregator to the 911 call sequence is not in the public interest. Based on staff’s analysis, staff believes that AT&T Florida’s proposed language is appropriate.

Conclusion

Staff recommends that CA should be required to interconnect with AT&T Florida’s E911 Selective Router where AT&T Florida is the primary provider.

Issue 35:

Should the definition of "Entrance Facilities" exclude interconnection arrangements where the POI is within an AT&T Florida serving wire center and CA provides its own transport on its side of that POI? (Net. Int. § 2.9)

Recommendation:

Yes. The definition of “Entrance Facilities” should exclude interconnection arrangements where the POI is within an AT&T Florida serving wire center and CA provides its own transport on its side of that POI. (Curry)

Position of the Parties

CA:

CA believes that as the party that initially paid for facilities which connect its collocation in an AT&T CO to AT&T’s Main Distribution Frame, and AT&T incurred no costs for them, AT&T has no right to charge CA for the use of those (or any) facilities for local interconnection.

AT&T Florida:

No. The parties’ agreed language appropriately defines Entrance Facilities. CA’s additional language is a clumsy attempt to inappropriately expand the definition to include intra-building facilities and then argue that CA should not have to pay for them–even though CA has elsewhere agreed to pay for intra-building facilities.

Staff Analysis:

This issue asks the Commission to determine if the definition of Entrance Facilities should exclude interconnection arrangements where the POI is within AT&T Florida’s CO. Entrance Facilities are the transmission facilities (typically wires or cables) that connect the CLEC’s network with the ILEC’s network for the mutual exchange of traffic. (EXH 2, p. 68) Entrance Facilities typically extend outside of the CO. (TR 302) However, this dispute essentially hinges on whether AT&T Florida should be able to charge CA for “intra-building facilities,” located within AT&T Florida’s CO, that connect CA’s collocation space with the POI.

Parties Arguments

The parties have agreed to AT&T Florida’s proposed language in Network Interconnection (Net. Int.) § 2.9 which defines “Entrance Facilities.” (EXH 2, p. 68) However, CA argues that AT&T Florida’s definition of Entrance Facilities implies that AT&T Florida can charge for Entrance Facilities regardless of where the POI is located. According to CA, Entrance Facilities should only apply if CA requests AT&T Florida to provide transport for interconnection trunks from AT&T Florida’s CO to another location. CA argues that AT&T Florida should not charge for Entrance Facilities in cases where the POI is within an AT&T Florida CO building and CA extends its network to meet AT&T Florida at the POI. (TR 55) Therefore, CA has proposed to include additional language in Network Interconnection § 2.9 that explicitly excludes from the definition of Entrance Facilities arrangements where the POI is within an AT&T Florida serving wire center and CA provides its own transport on its side of the POI.^{^[28]}

CA asserts that the POI is the ILEC’s CO building and not a specific location within the building. Hence, collocation within the CO is “at the point of interconnection.” (EXH 7, p. 307; EXH 26, Bates No. 10; TR 108) CA argues that its assertions are also supported by industry standards. Historically the industry, including AT&T Florida, has considered the ILEC’s CO building itself to be the POI and “on the ILEC’s network.” (EXH 27, Bates No. 52) Therefore, a collocation within the CO was considered at the POI. (TR 108)

However, CA claims that in recent years AT&T Florida has deviated from the industry’s standard by adopting the position that neither the CO building nor CA’s collocation space within the building is the POI because they are not located on AT&T Florida’s network. Instead, CA argues that AT&T Florida has designated specific areas, in which a CLEC is not permitted to establish collocation, within its CO as points on its network. Once the CLEC collocates inside of the CO building, AT&T Florida then charges the CLEC for the intra-building facilities to connect the CLEC’s collocation to the POI. (CA BR 133)

According to CA, AT&T Florida has referred to these intra-building facilities as “Entrance Facilities.” (EXH 46, Bates No. 1581) CA argues that because the collocation is also the POI, if CA collocates inside of AT&T Florida’s CO building, and provides the interconnection circuits to do so, CA has met its burden to “meet at the POI.” Therefore, CA should not be charged for the intra-building facilities that connect the collocation space to some other room within AT&T Florida’s CO building that AT&T Florida considers on its network or the POI. (TR 109; CA BR 133)

Further, CA argues that the intra-building facilities that connect the collocation space to AT&T Florida’s main distribution frame/ POI are paid for by CA because they are a part of CA’s cost to collocate. CA attests that by charging CA a monthly fee for these intra-building facilities, AT&T Florida is double billing CA. (EXH 46, Bates No. 1581) Therefore, CA’s proposed language seeks to clarify that if CA collocates within AT&T Florida’s CO building that AT&T Florida will not charge CA for the intra-building facilities/Entrance Facilities that connect CA’s collocation to the POI.

AT&T Florida

The parties’ agreed upon language is the appropriate definition of Entrance Facilities. AT&T Florida argues that CA’s proposed language contradicts the agreed upon language and could possibly lead to future disputes. CA’s additional proposed language also attempts to expand the definition of Entrance Facilities to include the intra-building facilities between CA’s collocation and the POI. AT&T Florida further argues that CA appears to misunderstand what Entrance Facilities are and the options that CA has to interconnect. (TR 238)

AT&T Florida argues that the agreed upon definition of Entrance Facilities does not imply that AT&T Florida could charge for Entrance Facilities regardless of where the POI is located. The definition does not indicate when AT&T Florida would or would not charge for Entrance Facilities; it merely defines the term. According to AT&T Florida, the terms and conditions for CA’s interconnection with AT&T Florida using Entrance Facilities are appropriately set forth in Network Interconnection § 3.3.2, and the associated rates are listed in the Pricing Sheets. (TR 301; EXH 2, p. 71)

AT&T Florida also argues that the agreed upon language in Network Interconnection § 3.3 provides CA with three methods of interconnection, collocation, leased Entrance Facilities, or fiber meet point. (TR 237; EXH 2, p. 71) AT&T Florida does not charge for Entrance Facilities when the CLEC chooses to collocate. Entrance Facilities would be provided (and AT&T Florida would bill) only when the POI is within an AT&T Florida CO and CA does not elect to collocate in that office. Entrance Facilities would not be provided (and AT&T Florida would not bill) when CA collocates transport terminating equipment or leases facilities from another carrier or self-provisions. (TR 240) Therefore, if CA elects to interconnect with AT&T Florida via collocation (Net. Int. § 3.3.1) and does not lease Entrance Facilities (§ 3.3.2), AT&T Florida would not charge CA for Entrance Facilities. (TR 301; EXH 2, p. 71)

AT&T Florida maintains that the parties agree that CA bears the responsibility for all transport facilities on its side of the POI, regardless of whether CA self-provides the facilities, leases facilities from another carrier, or leases facilities from AT&T Florida. However, AT&T Florida argues in the context of that responsibility, CA’s proposed additional language stating that “Entrance Facilities do not apply” when CA “provides its own transport” is confusing and could be interpreted to include when CA leases facilities from AT&T Florida. Further, CA’s proposed language contradicts other provisions within the ICA. (TR 241)

AT&T Florida argues that based on witness Ray’s testimony and CA’s responses to staff’s discovery requests, it is apparent that CA does not want to be charged for any facilities inside of AT&T Florida’s CO. This position is unrelated to Entrance Facilities because Entrance Facilities always extend outside of the CO and are always on the CLEC’s side of the POI. (TR 302; TR 389) However, CA’s proposed language aims to broaden the definition of Entrance Facilities to include these intra-building facilities. (TR 238)

Further, AT&T Florida argues that neither the CO building nor CA’s collocation space within the building is the POI because they are not located on AT&T Florida’s network. CA’s collocation space is on CA’s network. (TR 491; AT&T Florida BR 121) The parties have agreed to language in Net. Int. § 2.26 that the POI is a point on AT&T Florida’s network, which may be at an end office or tandem building. (TR 239; EXH 2, p. 69) However, this does not mean that the building itself is a technically feasible point of interconnection–it is a building that houses a part of the network, not a point on AT&T Florida’s network. (TR 491)

Rather, the POI would be at a physical piece of AT&T Florida’s equipment within the building to which both parties connect their respective facilities, such as at a cross-connect point on a distribution frame.^{^[29]} The parties have also agreed in Net. Int. § 3.3.1 that when CA collocates for the purpose of interconnection CA is responsible for the facilities to connect from the collocation space to the demarcation point designated by AT&T Florida. (AT&T Florida BR 121; EXH 2, p. 71) Therefore, CA is responsible for providing the facilities to connect with AT&T Florida’s network at the POI, even when CA is collocated within the same building where it has established the POI. (TR 239)

Analysis

The parties have agreed to the following definition of Entrance Facilities as proposed by AT&T Florida in Network Interconnection § 2.9:

“Entrance Facilities” are the transmission facilities (typically wires or cables) that connect CLEC’s network with AT&T-21STATE’s network for the mutual exchange of traffic. These Entrance Facilities connect CLEC’s network from CLEC’s Switch or point of presence (POP) within the Local Access Transport Area (LATA) [30] to the AT&T-21STATE Serving Wire Center of such Switch or POP for the transmission of telephone exchange service and/or exchange access service.

However, CA has proposed to add the following language:

Entrance Facilities do not apply to interconnection arrangements where the mutually-agreed Point of Interconnection (POI) is within an AT&T-21STATE Serving Wire Center, and CA provides its own transport on its side of that POI.

CA has indicated that its additional proposed language is meant to clarify that AT&T Florida will not charge CA for Entrance Facilities when CA collocates within an AT&T Florida CO building. However, based on the agreed upon language in the ICA, if CA chooses to collocate within an AT&T Florida CO, Entrance Facilities would not be applicable. Therefore, CA would not be charged for Entrance Facilities.

It appears that the “Entrance Facilities” that CA is referring to in this issue are actually intra-building facilities (which are totally unrelated to actual Entrance Facilities) that connect CA’s collocation space within AT&T Florida’s CO with the POI. Since Entrance Facilities always extend “outside” of the CO, by definition these intra-building facilities are not Entrance Facilities. (TR 302) In his deposition, witness Ray defined Entrance Facilities as a transport mechanism that AT&T Florida is required to provide to a CLEC in order to connect the two parties' networks on the CLEC’s side of an AT&T Florida’s CO. (EXH 46, Bates No. 1579) Witness Ray’s definition of Entrance Facilities is essentially the same as the parties agreed upon language in Net. Int. § 2.9.

Although CA often referred to the intra-building facilities that connect CA’s collocation with the POI within AT&T Florida’s CO as Entrance Facilities, witness Ray later testifies in his deposition that these intra-building facilities are in fact not Entrance Facilities. (EXH 46, Bates Nos. 1579-1580) However, CA still believes that a collocation within an AT&T Florida’s CO is at the point of interconnection. (TR 108) Therefore, CA should not be charged for intra-building facilities when it collocates inside of AT&T Florida’s CO and CA extends its network to meet AT&T Florida at the POI. (TR 55)

Staff notes that CA’s arguments regarding collocation being at the point of interconnection is not the subject of this issue and will be addressed in Issue 38. This issue asks the Commission to determine if the definition of “Entrance Facilities” should exclude interconnection arrangements where the POI is within AT&T Florida’s serving wire center and CA provides its own transport on its side of the POI. Based on staff’s review of the parties’ arguments, staff believes that the definition of Entrance Facilities should exclude interconnection arrangements where the POI is within AT&T Florida’s serving wire center and CA provides its own transport on its side of the POI.

Staff agrees with AT&T Florida’s assessment that CA’s additional proposed language attempts to expand the definition of Entrance Facilities, which are always on the CLEC’s side of the POI, to include the intra-building facilities between CA’s collocation and the POI. (TR 389) CA has even acknowledged that CA’s main issue is that it does not believe that CA should have to pay AT&T Florida a monthly recurring charge for intra-building facilities used for local interconnection. (CA BR 125) However, CA has admitted that these intra-building facilities are in fact not Entrance Facilities. (EXH 46, Bates Nos. 1579- 1580)

Further, Entrance Facilities are only provided and billed for when the POI is within an AT&T Florida CO and CA does not elect to collocate in that office. Entrance Facilities would not be provided nor would CA be billed for Entrance Facilities when CA collocates transport terminating equipment. (TR 240) When CA elects to use collocation as its method of interconnection (Net. Int. § 3.3.1), the parties have agreed to language stating that CA is responsible for the facilities to connect from the collocation space to the demarcation point designated by AT&T Florida. (TR 240, EXH 2, p.71)

Staff believes that agreed upon ICA language proposed by AT&T Florida is the appropriate definition of Entrance Facilities.

Conclusion

Staff recommends the definition of “Entrance Facilities” should exclude interconnection arrangements where the POI is within an AT&T Florida serving wire center and CA provides its own transport on its side of that POI.

Issue 36:

Should the network interconnection architecture plan section of the ICA provide that CA may lease TELRIC-priced facilities to link one POI to another? (Net. Int. § 3.2.4.6)

Recommendation:

No. The network interconnection architecture plan section of the ICA should not provide that CA may lease TELRIC-priced facilities to link one POI to another. (Curry)

Position of the Parties

CA:

Yes. If CA has an existing POI at an AT&T Tandem and AT&T requires CA to establish a new, secondary POI at another location due to excessive local interconnection traffic, CA should be entitled to lease AT&T dedicated interoffice transport between POIs at TELRIC prices.

AT&T Florida:

No. Section 3.2.4 addresses when and where CA shall establish POIs; it does not (and need not) address how. Section 3.3 provides the terms pursuant to which CA may establish interconnection, and Section 3.3.2 provides for CA’s use of leased facilities. CA’s additional language in Section 3.2.4.6 should be rejected.

Staff Analysis:

This dispute centers on whether it is appropriate to include language that addresses methods of interconnection and pricing in the network interconnection architecture plan section of the ICA. CA argues that language is needed to clarify that CA may purchase dedicated interoffice transports for local interconnection at TELRIC rates when AT&T Florida requires CA to establish an additional POI due to excessive transit traffic. (EXH 28, Bates No. 77; TR 56) AT&T Florida’s position is that CA’s additional language should be rejected because the network interconnection architecture plan section is not the appropriate place to address specific interconnection methods and pricing. Provisions for these issues are appropriately set forth in other sections of the ICA. (TR 241-242, AT&T Florida BR 125)

Parties’ Arguments

CA has agreed to AT&T Florida’s proposed language requiring CA to establish a second POI due to excessive traffic. However, CA argues that AT&T Florida is the only ILEC that has language in its ICA that requires a CLEC to do so. Other ILECs only require a CLEC to establish one POI per Local Access and Transport Area or LATA.[31] (EXH 46, Bates Nos. 1587-1588) Further, CA argues that AT&T Florida’s provision requiring CA to establish a secondary POI is inconsistent with the FCC’s single-point-of interconnection requirement. (CA BR 127)

CA attests that although it has agreed to establish additional POIs under certain circumstances CA only agrees to AT&T Florida’s proposal as a “matter of negotiation.” (EXH 46, Bates Nos. 1587-1588) CA is willing to establish additional POIs, although no other ILEC requires a CLEC to do so, but CA wants to make sure that it will be entitled to purchase transport facilities at TELRIC rates. (EXH 46, Bates No. 1587)

Therefore, CA’s proposed language seeks to clarify that if AT&T Florida requires CA to establish a secondary POI for local interconnection, CA will be entitled to lease the facilities, specifically dedicated interoffice transport, that connect the new POI with the original POI at TELRIC Entrance Facility rates. (EXH 28, Bates No. 77; TR 56) CA argues that its proposed language is necessary to ensure that AT&T Florida does not require CA to establish additional POIs then attempt to charge CA special access rates, which are much higher than TELRIC rates, for the facilities connecting the POIs. (EXH 28, Bates No. 77)

Further, CA argues that the network interconnection architecture plan section of the ICA is the appropriate section to include CA’s proposed language. CA’s language is directly relevant to local interconnection trunks that are connecting CA’s initial POI to a second POI required by AT&T Florida under the language in Network Interconnection §3.2.4.6. (EXH 46, Bates No. 1588; EXH 2, p. 70) However, CA believes that since the parties cannot agree upon the terms for TELRIC-based transport to the secondary POI, the Commission should strike both parties’ language so that CA would not be required to establish a secondary POI. In turn, AT&T Florida would have no specific obligation to provide transport facilities at TELRIC rates if CA elected to establish a secondary POI on its own. (CA BR 127)

AT&T Florida

AT&T Florida objects to CA’s proposed language which sets forth options for interconnecting at an additional POI in Network Interconnection § 3.2.4.6. (EXH 5, p. 70) AT&T Florida argues that CA’s proposed language should not be included in the network interconnection architecture plan because the language is unnecessary and introduces an ambiguity that could lead to future disputes. AT&T Florida asserts that the purpose of the network interconnection architecture plan section (Net. Int. § 3.2) is to set forth the overarching terms and conditions regarding how the parties will interconnect. It generally describes AT&T Florida’s network and provides that the parties will agree to and document a physical architecture plan for each area and states how the parties will handle changes to the plan (Section 3.2.1 and Section 3.2.5, respectively). (TR 241-242, AT&T Florida BR 125; EXH 2, pp. 70-71)

Further, the network interconnection architecture plan describes the parties’ respective physical and financial responsibilities associated with the interconnection arrangement CA selects (Sections 3.2.2 and 3.2.6), as well as how foreign exchange services will be handled (Section 3.2.3). Section 3.2.4 of the network interconnection architecture plan provides the terms for establishing one or more POIs in a LATA while Section 3.2.7 sets forth the technical interfaces that the parties will use. (TR 241-242, AT&T Florida BR 125; EXH 2, pp. 70-71)

AT&T Florida argues that the network interconnection architecture plan does not include specific methods of interconnection or the pricing options (as proposed by CA) that are available to the CLEC. Interconnection methods, to which the parties have agreed to, are set forth in Network Interconnection § 3.3. Pricing is listed in the Pricing Sheets and/or relevant tariffs. (TR 241-242, AT&T Florida BR 125; EXH 2, p. 72) AT&T Florida argues that CA’s proposed language includes provisions that include specific interconnection methods and pricing, that are appropriately included else where in the ICA, and therefore should not be included in the network interconnection architecture plan section.

AT&T Florida also argues that it is unclear as to what CA meant in its proposed language by the “Dedicated Transport-Interoffice Channel” CA may lease to establish an additional POI. (TR 244) A dedicated transport-interoffice channel is available as an unbundled network element (UNE) pursuant to Section 251(c)(3) and it is also a separate rate element for the purpose of interconnection pursuant to Section 251(c)(2). However, CA’s proposed language does not recognize this distinction. (TR 244) Because CA’s proposed language does not recognize that the distinction and the availability and use criteria for UNEs and interconnection are different, AT&T Florida believes that CA’s proposed language could lead to future disputes. (TR 244)

Further, AT&T Florida argues that based on CA’s proposed language and position statement, it appears that CA is confusing local interconnection with UNE. AT&T Florida will provide CA both UNEs and local interconnection at cost-based prices (i.e., based on TELRIC), but the criteria regarding availability and use are different for each. CA may use a UNE for any purpose (except for the sole provision of information services or to provide service to itself) including interconnection. However, UNE dedicated transport is only available when the requested route is impaired. For instance, if CA ordered UNE DS l transport between two AT&T Florida offices on a route that was not impaired, AT&T Florida would deny that request even if CA intended to use it for local interconnection. (EXH 36, Bates Nos. 582-583)

In contrast, while there is no impairment test for availability of local interconnection facilities, there are strict criteria regarding their use which are listed in Network Interconnection Sections 3.3.3.2 and 3.3.2.3. (EXH 2, p. 72) For example, CA would not be entitled to local interconnection DS1 transport to carry both local interconnection and backhaul traffic, because backhaul traffic is not eligible for carriage on TELRIC-priced facilities. The parties have also agreed to language in Network Interconnection § 3.3.2, and its subsections, that provides the relevant terms and conditions pursuant to which CA may lease TELRIC-priced Entrance Facilities for the sole purpose of local interconnection. Those terms apply when CA establishes additional POIs. (EXH 36, Bates Nos. 582-583; EXH 2, p. 71-72)

Analysis

Staff agrees with AT&T Florida that the network interconnection architecture plan section should not include CA’s proposed language. The network interconnection architecture plan is not the appropriate section to address CA leasing facilities from AT&T Florida. This section should generally lay out the terms and conditions in respect to how CA and AT&T Florida will interconnect and describe AT&T Florida’s network. This section should not include specific methods of interconnection and pricing options. (TR 241-242, AT&T Florida BR 125)

The parties have agreed that when CA has a single POI (or multiple POIs) in a LATA, CA will establish an additional POI at an AT&T Florida Tandem Servicing Area, separate from the existing POI arrangement, when there is excessive traffic through the existing POI to that AT&T Florida Tandem Servicing Area. The agreed upon language is located in the network interconnection architecture plan section of the ICA, specifically Network Interconnection Sections 3.2.4.5, 3.2.4.5.1, and 3.2.4.52. (EXH 2, p. 70) If additional POIs are required, CA should establish the POIs according to the agreed upon provisions listed in the applicable sections of the parties’ ICA. In regards to pricing, AT&T Florida will provide CA both UNEs and local interconnection at TELRIC rates when applicable. (EXH 36, Bates Nos. 582-583)

Further, staff disagrees with CA’s argument that the Commission should strike both parties’ language since the parties cannot agree upon the terms for TELRIC-based transport to the secondary POI. The parties have already agreed to language in Network Interconnection § 3.3.2 and its subsections that provides the terms and conditions pursuant to which CA may lease TELRIC-priced Entrance Facilities (which are applicable) when establishing additional POIs. (EXH 36, Bates No. 583; EXH 2, p. 71) Since the parties have already agreed to language that provides the terms and conditions pursuant to which CA may lease TELRIC-priced facilities when establishing additional POIs CA’s proposed language is unnecessary. Therefore, staff believes that the network interconnection architecture plan section of the ICA should not provide that CA may lease TELRIC-priced facilities to link one POI to another.

Conclusion

Staff recommends the network interconnection architecture plan section of the ICA should not provide that CA may lease TELRIC-priced facilities to link one POI to another.

Issue 37:

Should CA be solely responsible for the facilities that carry CA's OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups? (Net. Int. § 3.2.6)

Recommendation:

Yes. CA should be solely responsible for the facilities that carry CA’s OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups. (Curry)

Position of the Parties

CA:

No. CA believes that it is well established that each party is responsible only for facilities and costs on its side of the POI for local interconnection, which includes 911, choke trunks, and meet point trunks.

AT&T Florida:

Yes. Because OS/DA, E911, Mass Calling and Third Party Trunk Groups are used for ancillary services for the benefit of CA’s customers, and not for the mutual exchange of traffic between the parties, CA should be solely responsible for the facilities that carry those trunk groups.

Staff Analysis:

The parties both agree that CA is solely responsible for the cost of the facilities that carry the OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups on CA’s side of the point of interconnection. However, this issue does not limit each party’s responsibility to its own side of the POI, but asks whether CA should be responsible for the entire facility. (EXH 26, Bates No. 12; TR 245)

Parties’ Arguments

CA does not dispute that it is responsible for the cost of the facilities that carry CA’s OS/DA, E911, Mass Calling (also referred to as high volume call-in (HVCI) or choke trunks), Third Party and Meet Point trunk groups. (EXH 26, Bates No. 12) However, CA believes that, if it elects to order these facilities, it is only responsible for the facilities on CA’s side of the POI. CA objects to AT&T Florida’s proposed language because it believes that E911 is not an ancillary service. Instead it is a component of local interconnection. CA also believes that since HVCI trunks are also characterized as ancillary services, which imply that the trunks are optional, CA should not be required to order and pay AT&T Florida for HVCI trunks. Further, CA argues that it does not need high volume call-in trunks because they are antiquated and unnecessary in today’s telecommunications environment. (EXH 28, Bates No. 78; EXH 26, Bates No. 14)

CA asserts that it only intends to use E911 trunks. The company plans to connect facilities for the trunks directly at the POI for local interconnection. (EXH 27, Bates No. 51) CA acknowledges that CLECs do order 911 trunks to connect to AT&T Florida’s Selective Router, which is located on AT&T Florida’s side of the POI.[32] (EXH 26, Bates No. 12) However, since 911 trunks are generally accepted to be included as components of local interconnection and the financial responsibility for local interconnection is divided at the POI, CA argues that it should not be responsible for paying for 911 trunks on AT&T Florida’s side of the POI. (EXH 26, Bates No. 12; EXH 27, Bates No. 51)

Further, CA argues that AT&T Florida’s proposed language attempts to double bill CA for 911 trunks. In Florida, the county emergency management entities that manage each 911 system pay AT&T Florida for the 911 trunks that the CLECs order to connect to AT&T Florida’s Selective Router. CA argues that since the county emergency management already pays AT&T Florida for the 911 trunks on AT&T Florida’s side of the POI, CA should not be financially responsible for the trunks. (EXH 26, Bates No. 12)

CA acknowledges that the parties’ agreed upon language in Network Interconnection § 4.1.2 of the ICA lists OS/DA, E911, and the high-volume call-in trunk groups as ancillary services. (EXH 2, p. 74) However, CA argues that the language specifically states that the trunk groups “can” be established between the CLEC’s switch and the appropriate AT&T Florida switch as further provided. The language does not specify that the CLEC “must” establish the trunk groups. Therefore, CA contends that it did not object to the language characterizing the trunk groups as ancillary because the language indicates that establishing the trunk groups is optional and would only apply if the CLEC elected to order the trunks. (EXH 46, Bates No. 1590-1591)

CA argues that although it did not raise an issue regarding the classification of the 911 and HVCI trunk groups as ancillary services when it agreed to the language in Network Interconnection § 4.1.2., CA did raise the issue later that it believes that 911 is a part of local interconnection. (EXH 46, Bates No. 1590) CA argues that the AT&T Florida’s proposed ICA language poses some disparities, particularly because Network Interconnection § 4.1.2. characterizes HVCI trunks as ancillary services, which are optional. However, CA asserts that elsewhere in the ICA AT&T Florida attempts to require CA to order and purchase these trunks. (EXH 46, Bates Nos. 1590-1591)

CA also argues that AT&T Florida’s assertion that OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups are not used for the mutual exchange of traffic is “on its face” false. (EXH 46, Bates No. 1951) The mass calling trunks that AT&T Florida seeks to require CA to order are specifically designed for the parties to exchange traffic. CA contends that if mass calling trunks were only solely used to benefit CA’s customers then AT&T Florida would not be attempting to require CA to order these trunks.

In regards to E911 trunks, E911 is a component of emergency services where CA would have to send E911 calls to AT&T Florida’s Selective Router. Therefore, from this perspective CA agrees that 911 trunks are not used for the mutual exchange of traffic because it would be a one-way trunk. (EXH 46, Bates No. 1591-1592) Further, CA attests that it would not object to AT&T Florida’s proposed language if AT&T Florida would revise the language to properly classify 911 facilities as local interconnection and not require CA to purchase mass calling trunks. (EXH 28, Bates No. 78)

AT&T Florida

AT&T Florida argues that CA should be solely responsible for the facilities that carry OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups because these facilities are used by CA for the sole benefit of CA’s customers and not for the mutual exchange of traffic with AT&T Florida. (TR 245) In 47 C.F.R § 51.5, the FCC has defined interconnection as “the linking of two networks for the mutual exchange of traffic. This term does not include the transport and termination of traffic.” (TR 246) With the use of OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups, there is no mutual exchange of traffic. AT&T Florida argues that these trunk groups carry ancillary services, as identified in the agreed upon language in the Network Interconnection § 4.1.2, which are separate and apart from local interconnection trunks (Network Interconnection § 4.3.1 and 4.3.3). (TR 246; EXH 2, pp. 74-75) With ancillary services, unlike with local interconnection, the POI is not the demarcation point between the parties’ network. (TR 246) Therefore, the financial responsibility for these trunks groups is not divided at the POI.

Further, AT&T Florida argues that the parties have agreed to language in the ICA in Attachment 6, Customer Information Services (CIS) Sections 3.3.2 and 3.3.3 that makes it clear that the demarcation point for OS/DA need not coincide with the POI and identifies the AT&T Florida OS/DA switch as the demarcation point, not the POI. Also, CIS § 3.3.4 delegates the financial responsibility for the transport facilities to the CLEC. (EXH 36, Bates No. 584; EXH 2, p. 151) AT&T Florida argues that these provisions make it clear that the POI (which is the demarcation point for local interconnection facilities) is irrelevant when considering financial responsibility for the facilities that carry CA’s OS/DA traffic. (TR 246)

In regards to 911, AT&T Florida argues that its proposed language makes it clear that CA is responsible for the cost of the “facilities” that carry 911 traffic. The language does not mention anything regarding the 911 “trunks.” CA has objected to paying for 911 trunks because the public safety agencies pay AT&T Florida for these trunks. However, AT&T Florida argues that it is not proposing to charge CA for 911 trunks. The issue is about the facilities over which the trunks ride. The public safety agencies do not pay AT&T Florida for the 911 facilities between CA and AT&T Florida’s Selective Router. (TR 247)

AT&T Florida argues that the parties have both agreed to language in the ICA in Attachment 5, E911, Section 4.2.1 that CA is financially responsible for the transport facilities to each AT&T Florida E911 Selective Router in the areas in which CA is authorized to provide service. Further, the agreed upon language in Attachment 5, E911, Section 4.2.5 states that CA is responsible for maintaining the facility transport capacity sufficient to route 911 traffic over trunks dedicated to 911 interconnection between the CA switch and AT&T Florida’s E911 selective router. (EXH 2, p. 143; TR 247) The selective router is a switch that is equipped to route a 911 call to the proper PSAP based upon the number and location of the caller. The selective router is not the POI. However, AT&T Florida asserts that CA is still financially responsible for the transport facilities to each AT&T Florida Selective Router in each area in which CA is authorized to provide telephone exchange service. Therefore, CA’s proposed language indicating that it would only be responsible for the facilities on its side of the POI directly conflicts with the agreed upon language in the E911 Attachment. (TR 247)

AT&T Florida argues that CA has also agreed to language in the ICA that designates CA as the party solely responsible for all recurring and nonrecurring charges associated with Third Party Traffic trunks and facilities.[33] Therefore, AT&T Florida is not financially responsible (nor should it be) for any costs associated with third party traffic. (TR 248) In regards to CA’s arguments that it should not be required to order and purchase mass calling trunks, AT&T Florida’s proposed language requiring HVCI trunks is the subject of Issue 40. AT&T Florida contends that to the extent that AT&T Florida prevails on Issue 40 and CA establishes HVCI trunk groups, it is appropriate for CA to be solely responsible for the facilities that carry its HVCI traffic to the designated HVCI access tandem in each serving area.[34] (TR 247; EXH 2, pp. 77-78)

Analysis

Based on staff’s analysis, staff believes that CA should be solely responsible for the facilities that carry CA’s OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups. The parties both agree that CA is solely responsible for the cost of the facilities that carry the OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups on CA’s side of the point of interconnection. (EXH 26, Bates No. 12; TR 245) However, this dispute was mainly about whether CA is responsible for the facilities when they extend beyond CA’s side of the POI.

CA has objected to paying for 911 trunks because the public safety agencies pay AT&T Florida for the trunks. AT&T Florida acknowledged that the county public safety agencies do pay AT&T Florida for the 911 trunks. However, AT&T Florida argues that the public safety agencies do not pay AT&T Florida for the 911 facilities or for the facilities between CA and AT&T Florida’s Selective Router. Further, AT&T Florida argues that its proposed language does not mention that CA is responsible for 911 trunks. The language clearly states that CA would be solely responsible for the “facilities” that carry OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups for which CA does not dispute that it is responsible. (EXH 26, Bates No. 12)

The parties have also agreed to language that clearly characterizes the trunk groups as ancillary services. (EXH 46, Bates No. 1590-1591; TR 246-247) AT&T Florida argues that with ancillary services, unlike with local interconnection, the POI is not the demarcation point between the parties’ network. Therefore, the responsibility for these trunks groups is not divided at the POI. (TR 246) The parties have also agreed to ICA language, in various sections of the ICA, that clearly identify the demarcation point for the trunk groups and delegate the financial responsibility for the transport facilities to the CLEC. (EXH 36, Bates No. 584; TR 246-247)

Staff believes that if CA had an issue with the characterization of the trunk groups as ancillary and with being financially responsible for the facilities beyond CA’s POI, CA should have raised the issues prior to agreeing to language that classified the trunk groups as such and designated the financial responsibility to CA. The language that CA is proposing to add in this section contradicts the language that the parties have already agreed to in Network Interconnection § 4.1.2, CIS § 3.3.2, 3.3.3, and 3.3.4, and in E911 § 4.2.1 and 4.2.5, as discussed above. (EXH 2, pp. 74-75; EXH 2, p. 143; EXH 2, p. 151) Therefore, staff believes that AT&T Florida’s proposed language is appropriate and that CA should be solely responsible for the facilities that carry CA’s OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups.

Conclusion

Staff recommends CA should be solely responsible for the facilities that carry CA’s OS/DA, E911, Mass Calling, Third Party and Meet Point trunk groups.

Issue 38:

May CA designate its collocation as the POI? (Net. Int. § 3.4.4)

Recommendation:

Yes. CA may designate its collocation as the POI. (Curry)

Position of the Parties

CA:

Yes. CA believes that it is clear that the Telecom Act of 1996 intended for each party to bear its own costs on its side of the POI, and that AT&T must interconnect at any point proposed by a CLEC or prove that the CLEC-proposed POI is technically unfeasible.

AT&T Florida:

No. Under controlling federal law, the point of interconnection (POI) must be on AT&T’s network. CA’s collocation cannot be the POI, because CA’s collocation is not on AT&T’s network.

Staff Analysis:

The parties’ dispute stems on whether CA’s collocation space can be designated as the POI/demarcation point. The POI is where the carrier’s networks meet and interconnect for the mutual exchange of traffic. The POI generally serves as the demarcation point between the carriers’ networks. Each carrier is financially responsible for the facilities on its side of the POI.

CA argues that an ILEC’s Central Office building is the POI. Therefore, collocation within the office is at the POI. (EXH 27, Bates No. 52, TR 109, CA BR 133) AT&T Florida argues that Section 251(c)(2)(B), requires the POI to be a technically feasible point on AT&T Florida’s network. AT&T Florida asserts that its Central Office building and CA’s collocation are not located on AT&T Florida’s network, as required by federal law. Therefore AT&T Florida believes that CA cannot designate its collocation as the POI. (AT&T Florida BR 130, AT&T Florida BR 133-134)

Parties’ Arguments

CA contends that the ILEC’s CO building is the POI. Therefore, if a CLEC collocates within the building the CLEC’s collocation is “at the point of interconnection.” (TR 108) CA argues that its proposed language is intended to make it clear that if CA incurs the expense to build collocation in an AT&T Florida CO and delivers local interconnection there, that CA has met its burden to meet at the POI and is therefore exempt from any additional charges that AT&T Florida may charge for local interconnection circuits delivered by the collocation to some other room within AT&T Florida’s CO building. (TR 109)

CA argues that the industry’s standard has been that the ILEC’s CO was a point on that ILEC’s network and thus a collocation within that CO is “at the POI.” However, in recent years AT&T Florida has taken the position that the CO building is not a point on its network, and therefore cannot be the point of interconnection.[35] (EXH 27, Bates No. 52; TR 109; CA BR 133) Instead, CA argues that AT&T Florida has designated certain restricted rooms within its CO, in which a CLEC is not permitted to establish collocation, as points on its network. Once the CLEC collocates inside of the CO building, AT&T Florida then charges the CLEC for local interconnection circuits to connect the CLEC’s collocation to the POI, which is located in one of the restricted areas within the CO building that AT&T Florida has designated as a point on its network. CA believes that AT&T Florida has changed its position to gain an additional revenue source by charging the CLECs for the circuits that connect the CLECs’ collocation to the POI. (CA BR 133)

CA argues that the collocation is the only location within AT&T Florida’s CO building that CA is legally permitted to enter. It is also the only location within the building where CA is permitted to present interconnection circuits to AT&T Florida. (CA BR 133) CA asserts that AT&T Florida’s proposed language makes it impossible for CA or any other CLEC to actually meet AT&T Florida at the POI. (TR 57) Further, CA believes the language would allow for AT&T Florida to charge every CLEC who collocates inside the CO building for intra-building circuits to connect the CLEC’s collocation to the POI. (CA BR 133-134)

CA argues that its collocation is a technically feasible point for interconnection. Therefore, it should be allowed to designate the collocation as the POI. CA contends that 47 C.F.R. § 51.321(e) requires an ILEC to prove to the state commission that an interconnection point is not technically feasible when the ILEC denies a request for interconnection at a particular point. CA attests that AT&T Florida has denied its collocation as a point of interconnection because AT&T Florida has insisted that the collocation is not on its network.

However, CA believes AT&T Florida has failed to prove to this Commission that CA’s collocation is not a technically feasible point of interconnection. CA argues that AT&T Florida has also not shown that designating CA’s collocation as the POI will cause any harm to AT&T Florida or its network. Therefore, CA believes that it should be allowed to designate its collocation as the POI. (CA BR 134-135, TR 109-110)

AT&T Florida

AT&T Florida argues that CA cannot designate the collocation as the POI because the collocation arrangement is not a point on AT&T Florida’s network. Section 251(c)(2)(B) of the federal Act requires that interconnection be “at any technically feasible point within the [incumbent] carrier’s network” 47 U.S.C. § 251(c)(2)(B). (AT&T Florida BR 130) The space in which CA is collocated, the caged area that CA leases and places its equipment in, is not on AT&T Florida’s network. The collocation and CA’s equipment are parts of CA’s network. Therefore, AT&T Florida argues that FCC Rule 51.305(a)(2) does not allow CA to designate its collocation as the POI. (TR 491)

AT&T Florida further argues that its CO building is also not the POI, and neither are the floors, spaces, or rooms within the building. (TR 491; AT&T Florida BR 135) The CO is the building that houses a part of AT&T Florida’s network. However, it is not a point on AT&T Florida’s network. (TR 491) When a CLEC collocates with AT&T Florida for the purpose of establishing interconnection, the POI is routinely at the AT&T Florida cross-connect equipment as depicted in Figure 1 below.[36] (TR 503)

In Figure 1, the AT&T Florida switch, the AT&T Florida local interconnection trunks, and the AT&T Florida cross-connect equipment, depicted as DS3-1 Mux, are all parts of AT&T Florida’s network. The POI is at the point where the cable running from CA’s equipment in its collocation space meets AT&T Florida’s network. In other words, the POI is at the cross-connect equipment. (AT&T Florida BR 132, TR 491-492)

AT&T Florida contends that after stating that the POI must be at any technically feasible point “within the incumbent LEC’s network,” FCC Rule 51.305(a)(2), lists six technically feasible points. (AT&T Florida BR 132-133) The FCC’s minimum list of technically feasible points of interconnection within the ILEC’s network is:

(i) The line-side of a local switch

(ii) The trunk-side of a local switch

(iii) The trunk interconnection points for a tandem switch

(iv) CO cross-connect points

(v) Out-of-band signaling transfer points necessary to exchange traffic at these points and access call-related databases and

(vi) The points of access to unbundled network elements as described in § 51.319.

AT&T Florida argues that its position is consistent with the FCC’s list. (AT&T Florida BR 132-133) For instance, item (iv) on that list (the cross connect point) is where the POI would be in AT&T Florida’s CO. In addition, all of the other points listed on the FCC’s list are “clearly and indisputably” within and “on” AT&T Florida’s network. Further, AT&T Florida argues that the FCC’s list does not include a collocation arrangement or anything like a collocation arrangement as a technically feasible point of interconnection. (AT&T Florida BR 133) The list also does not include the ILEC’s CO, floor space within the office, or a collocating carrier’s equipment. (AT&T Florida BR 133)

AT&T Florida disagrees with CA’s argument that AT&T Florida’s proposed language would make it impossible for CA to actually meet at the POI. (TR 57; AT&T Florida BR 134) AT&T Florida argues that when a CLEC collocates with AT&T Florida, for the purpose of establishing interconnection, the POI is routinely at the AT&T Florida cross-connect. The CLEC also routinely pays for the intra-building fiber that runs from the CLEC’s collocation space to AT&T Florida’s equipment.

Therefore, AT&T Florida argues that if CA collocates it will meet AT&T Florida at the POI by means of a cable, paid for by CA, that runs from CA’s collocated equipment to AT&T Florida’s cross-connect. (AT&T Florida BR 134) Further, each party is financially responsible for the equipment on its side of the POI. AT&T Florida argues that since the POI is on AT&T Florida’s network, CA is responsible for the cost of all the equipment on its side of the POI. Therefore, CA is financially responsible for the cost of the cable that connects CA’s equipment in the collocation space to the POI/AT&T Florida’s cross-connect. (AT&T Florida BR 133-134)

Analysis

This Commission has addressed the issue of the demarcation point between the CLEC’s and ILEC’s networks in a previous docket.[37] Typically the demarcation point is the POI. In the initial generic collocation dockets, the Commission addressed “the appropriate demarcation point between the ALEC[38] and ILEC equipment in situations where the ALEC’s equipment is connected directly to the ILEC’s network, without an intermediate point of interconnection.”[39] In the generic collocation dockets proceeding, the Commission decided:

We are persuaded that the ALEC’s collocation site is the appropriate demarcation point. The demarcation point is the point at which each carrier is responsible for all activities on its side. The evidence of record clearly shows that, currently, ALECs are not allowed to manage or control the area outside of their collocation space. Moreover, establishing a demarcation point outside of an ALEC’s collocation space could prohibit ALECs from managing or maintaining their cabling on their side of the demarcation point without a BellSouth Certified Contractor. Therefore, we find that the ALEC’s collocation space is the appropriate demarcation point.

Furthermore, we agree that because the ILECs manage the cabling and cable racking in the common area, the ILEC should designate the location of such a point at the perimeter of an ALEC’s space; however, ILECs shall not be required to terminate the cabling onto any ALEC device or equipment because we agree with witness Levy that the ILEC may not reach the ALEC end. The ALEC shall be responsible for terminating the cable to its own equipment and notifying the ILEC when completed. Also, ILECs shall be required to provide an ALEC-specified cable extension from the demarcation point at the same costs at which ILECs provide cable to itself.[40]

The Commission also addressed other points of interconnection by stating:

ILECs and ALECs may negotiate other demarcation points up to the (conventional distribution frame). However, if terms cannot be reached between the carriers, the ALEC’s collocation site shall be the default demarcation point.[41]

A federal appellate court has similarly addressed AT&T Florida’s argument that all interconnection must occur on its network pursuant to Section 251(c)(2) of the Act. On March 28, 2013, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) affirmed the United States District Court for the Southern District of Ohio’s (court) ruling regarding the Public Utilities Commission of Ohio’s (PUCO) arbitration award between AT&T Ohio and Intrado Communications, Inc. In the arbitration, AT&T Ohio insisted that all points of interconnection be on its network, relying upon Section 251(c)(2), a provision only applicable to incumbent carriers like AT&T Ohio. That argument was identical to AT&T Florida’s argument in the instant case. PUCO rejected this argument and instead relied on the general provisions of Section 251(a) and ordered the carriers to establish interconnection points on each other’s networks. Both the court and the Sixth Circuit affirmed PUCO’s decision.[42]

The courts reasoned that PUCO properly based its decision “on Section 251(a) of the Act, which generally ‘establishes the duty of a telecommunications carrier to interconnect directly or indirectly with the facilities of other telecommunications carriers’ not on the incumbent carrier-specific provisions of Section 251(c).”[43] Both the court and the Sixth Circuit further clarified the hierarchical nature of the Act:

The court recognized that there was “no clear answer” to AT&T’s argument regarding Section 251(c)(2) and the location of the points of interconnection. It explained that Section 251 provides a tiered hierarchy of interconnection requirements, designed to foster competition in telecommunications markets. While Section 251(a) imposes a general duty for all carriers to provide for interconnection, subsection (c) provides additional obligations specific to incumbent carriers. These additional obligations include allowing for interconnection “at any technically feasible point within the [incumbent] carrier’s network.” The court concluded that, based on this hierarchy, the Commission could compel AT&T to interconnect on Intrado’s network under 251(a), regardless of 251(c)(2)’s requirement that AT&T offer a point on its own network: “If a competitor [non-incumbent carrier] can compel interconnection to another competitor [non-incumbent carrier] under Section 251(a) . . . it follows that an [incumbent carrier] can be compelled to interconnect with a competitor [non-incumbent carrier] under Section 251(a) as well. [Incumbent carriers], after all, have greater obligations to interconnect than competitor [non-incumbent carriers], not the other way around, as is well-established under the requirements of Section 251.”[44]

The Sixth Circuit summarized its decision regarding the Act and the FCC as follows:

Admittedly, the text of the Act is not always clear. However, we are persuaded that the district court’s interpretation, that incumbent carriers are subject to Section 251(a)’s general interconnection duties, is the correct one. Simply stated, it makes little sense to read the Act in a way that imposes fewer duties on incumbent carriers than on less-established, nondominant carriers. As we have previously recognized, the Act is designed to encourage competition by imposing the greatest interconnection duties on incumbent carriers like AT&T. Here, were AT&T not an incumbent carrier subject to Section 251(c) and, instead, were a less-established carrier, the issue would be easy: the Commission clearly would have the authority under Section 251(a) to order interconnection on Intrado’s network. There is no limiting language in the statute stating that interconnection must occur on the incumbent carrier’s network and, based on the hierarchical structure of the Act, it logically follows that the Commission has the authority to impose this same duty on an incumbent carrier.[45]

The FCC also previously concluded that all telecommunications carriers have the right to interconnect under Section 251(a), and has gone further to affirm that state commissions which deny carriers that right are inconsistent with the Act.

. . .we reaffirm that wholesale providers of telecommunications services are telecommunications carriers for the purposes of Sections 251(a) and (b) of the Act, and are entitled to the rights of telecommunications carriers under that provision. We conclude that state commission decisions denying wholesale telecommunications service providers the right to interconnect with incumbent LECs pursuant to Sections 251(a) and (b) of the Act are inconsistent with the Act and Commission precedent and would frustrate the development of competition and broadband deployment.[46]

We clarify that LECs are obligated to fulfill all of the duties set forth in Sections 251(a) and (b) of the Act, including the duty to interconnect and exchange traffic. . .[47]

Staff is persuaded that CA’s position is correct. It is impossible for CA to bring its facilities to meet AT&T Florida’s network at the central distribution frame because CLECs are not allowed to work outside their collocation space. CA would have to hire an AIS to perform this work. This condition has not changed since the Commission’s initial decision on this matter over 15 years ago. Staff is also persuaded that AT&T Florida’s argument that Section 251(c)(2) supersedes Section 251(a) is sufficiently parallel to AT&T Ohio’s position on the same issue that the Sixth Circuit’s rationale for rejecting it in that case is also appropriate for the instant case.

Conclusion

Staff recommends that CA may designate its collocation as the POI.

Issue 40:

Should the ICA obligate CA to establish a dedicated trunk group to carry mass calling traffic? (Net. Int. § 4.3.9)

Recommendation:

No. The ICA should not obligate CA to establish a dedicated trunk group to carry mass calling traffic. (Curry)

Position of the Parties

CA:

No. Through this provision, AT&T seeks to force CA to purchase unnecessary services from AT&T in order to obtain local interconnection. Mass calling trunk groups are simply not necessary in a modern SS7 telecommunications network.

AT&T Florida:

Yes. Mass calling trunks are necessary to minimize the risk that a mass calling event will cause an outage or otherwise harm the network. AT&T itself establishes segregated trunk groups for mass calling and reasonably expects all carriers with which it interconnects (including its affiliates) to do the same.

Staff Analysis:

This dispute hinges on whether CA should be required to purchase high volume call-in (HVCI) trunks, also known as mass calling trunks or choke trunks. A mass calling event (e.g., calling a radio station for free tickets) can trigger an extremely high volume of traffic flowing to a single number, or several numbers served by a given end office switch. As a result, the network can become overwhelmed which can lead to calls being blocked, including 911 calls, as well as damage to the network. AT&T Florida argues that mass calling trunks are necessary to minimize the risk of harming the network and to ensure that no emergency 911 calls are blocked due to avoidable network situations. (TR 495; TR 507) CA argues that mass calling trunks are no longer used to prevent mass calling outages and network damage because they are antiquated and unnecessary. Mass calling trunks have been replaced by SS7.[48] Therefore, CA should not be required to incur the additional cost of purchasing these trunks. (EXH 26, Bates No. 16; TR 58)

Parties’ Arguments

CA objects to AT&T Florida’s purposed language regarding the establishment of mass calling trunk groups. CA argues that AT&T Florida is seeking to force CA to purchase unnecessary HVCI trunks from AT&T Florida in order to obtain local interconnection. (TR 58) CA argues that CLECs no longer use HVCI trunks to prevent outages, network damage, and blocked calls caused by mass calling events because HVCI trunks are antiquated and have been replaced with the use of SS7 for the exchange of call traffic between carriers.

CA explains that in a pre-SS7 network, if a radio station with 24 telephone lines or trunks provided by an ILEC had a call-in contest and 200 callers attempted to call the station, only the first 24 callers would get through. The ILEC’s switch would transmit a busy tone to the remaining 176 callers trying to get through. As a result, a total of 200 interconnection trunks between the CLEC and ILEC would potentially be tied up during the call-in event due to callers repeatedly dialing the radio station trying to get through to win the contest. (EXH 26, Bates Nos. 15-16)

However, CA explains that in the same scenario with modern SS7 only 24 calls would be completed. Therefore, only 24 interconnection trunks between the CLEC and the ILEC would be tied up. This is because with SS7 when a CLEC switch tries to place each call to the radio station an SS7 setup message is sent to the ILEC’s switch to check if the call can be completed. Once the first 24 calls to the radio station have been completed, the ILEC’s switch sends back a SS7 response message to the CLEC’s switch indicating that the call cannot be completed. The CLEC’s switch then plays a busy tone for the caller. With SS7 the call is never sent across the interconnection trunks from the CLEC to the ILEC unless the line is free and the call can be completed. As a result, there is no choke event to mitigate when SS7 is used. (EXH 26 Bate Nos. 15-16)

CA argues that the parties’ ICA already requires that all interconnection trunks be SS7. Therefore, CA believes that requiring the use of HVCI trunks is entirely unnecessary and will increase the CLEC's overall network costs. (EXH 26, Bates No. 16; TR 58) CA argues that AT&T Florida requiring CA to purchase the unneeded trunks is also anti-competitive and discriminatory because this requirement is not imposed uniformly by AT&T Florida upon all CLECs and Commercial Mobile Radio Service carriers. (TR 58) Further, CA argues that other CLECs operating in Florida do not have choke trunks and no harm has been demonstrated as a result. (TR 112)

CA asserts that AT&T Florida’s proposed language also lacks parity because it does not impose any requirements upon AT&T Florida to order choke trunks to CA. (TR 58; TR 111; EXH 46, Bates No. 1596) CA believes that neither party should have to order or pay for choke trunks because they are not necessary, but to the extent that AT&T Florida argues that choke trunks are absolutely required for interconnection, CA believes that the requirement, including the financial obligations, should be equally imposed on both parties. (EXH 46, Bates No. 1957; TR 111-112)

Further, AT&T Florida’s witness Neinast cited three mass calling events in his testimony. (TR 494; TR 503-504) These events were cited as examples of what could happen during a mass calling event and to demonstrate why mass calling trunks are necessary. However, CA contends that these events are not persuasive at demonstrating the need for the trunks. (TR 111) First, CA argues that AT&T Florida only cited three mass calling events and the most recent event occurred in 2002, over ten years ago. Second, CA argues that citing three events nationwide, none of which occurred in Florida, “over the entire history of the telephone network” is “not indicative of an overall problem.” In addition, CA argues that none of the events involved a CLEC, but instead were all internal network issues within AT&T Florida’s network. (TR 111)

CA further argues that CLECs like CA typically provide service to business customers as opposed to residential customers like ILECs. Mass calling events typically involve residential customers calling a single number. Therefore, during a radio call-in contest, if CA were involved, the radio station would most likely be CA’s customer not the residential customers who would typically call the station. (EXH 46 Bates No. 1598) Because AT&T Florida has the vast majority of the residential customers who would be making the calls during a mass calling event, CA argues that AT&T Florida is more likely to need mass calling trunks than CA. (EXH 46, Bates Nos. 1596-1597)

CA also argues that a CLEC is in control of its own call routing. (EXH 26, Bates No. 16) Therefore, if a mass calling event did occur, CA could simply redirect the overflow traffic to its long distance trunks to prevent block calls or an outage. (EXH 26, Bates No.16) CA insists that how a CLEC completes calls made by its subscribers should be that carrier's prerogative and that AT&T Florida has no authority to demand that a CLEC use HVCI trunks. Especially, when the ICA already requires SS7 and when a CLEC can redirect its overflowing calls to an IXC which completes the calls to the ILEC at the CLEC's added expense. (EXH 26, Bates No. 16)

AT&T Florida

AT&T Florida argues that public safety demands that it take precautions to guard against the risk of potential damage to the Public Switched Telephone Network (PSTN). (TR 507) A mass calling event can overwhelm an end office switch and potentially cause network failure. A network failure caused by a mass calling event could trigger a delay or prevent end users from contacting 911 or other emergency services. (TR 494-495) Since mass calling trunks are designed to limit the number of calls allowed at one time to a particular mass calling number, AT&T Florida argues that these trunks are necessary to protect the PSTN from damage and to minimize the risk of a mass calling event causing an outage or blocked calls to emergency services. (TR 494-495)

As a 911 provider, AT&T Florida argues that it is responsible for ensuring that no emergency 911 calls are blocked due to avoidable network situations. AT&T Florida asserts that while the likelihood of a mass calling event occurring and resulting in a network impairment that would impede callers from reaching 911 or other emergency services is relatively low, it could certainly happen. AT&T Florida argues that it cannot afford to run this risk (TR 494-495). Therefore, reasonable preventative measures must be taken, like establishing mass calling trunks on AT&T Florida’s network and requiring all carriers who interconnect with AT&T Florida to do the same. (AT&T Florida BR 139)

Further, AT&T Florida attests that there is a sound basis for its concern about the possible dire consequences of a mass calling event. (AT&T Florida BR 137-138) In his testimony, AT&T Florida’s witness Neinast cited three mass calling events that occurred in 1992, 1993, and 2002. (TR 494; TR 503-504) During the 1992 mass calling event, a caller made numerous attempts to call 911 after his wife suffered a heart attack. Each of his call attempts resulted in a busy signal. The caller eventually dialed 0 for the operator, however; his wife died before the ambulance could respond. (AT&T Florida BR 137; TR 494) During the 2002 mass calling event two AT&T California Access Tandems experienced significant degradation during the event (both switching machines went into “machine congestion,” call register capacity was exceeded; billing records were lost; and control, visibility and diagnostic capability were lost).[49] (AT&T Florida BR 137-138; TR 494)

AT&T Florida acknowledges that none of the mass calling events cited occurred in Florida or involved CLECs, as CA pointed out. However, AT&T Florida argues that just because the mass calling events that were cited did not occur in Florida, there is nothing distinctive about Florida that would make such an event less likely to occur here than somewhere else. (AT&T Florida BR 139) AT&T Florida also states that the same thing could happen in Florida, in cities like Miami, Tampa Bay, Jacksonville, or any other metropolitan area in Florida where there is a community of carriers that do not have mass calling trunks when a mass calling event occurs. (EXH 49, Bates No. 1870) Further, although no CLECs were involved in the cited events, AT&T Florida argues that these events were important to point out because they each involved other carriers that were interconnected with AT&T’s local network and where mass calling trunks were not used. (EXH 49, Bates No.1869)

AT&T Florida argues that the use of SS7 does not obviate the need for mass calling trunks nor are mass calling trunks a relic of pre-SS7 as CA has argued. In fact, all of the AT&T ILECs involved in the mass calling events referenced in witness Neinast’s testimony all used SS7. (TR 494; TR 496; TR 503-504) Further, CA asserts that with SS7 trunks will not get tied up or choked during mass calling events because if the number called is busy the call will not be completed. However, AT&T Florida contends that this assertion is incorrect.

Witness Neinast further testifies that while SS7 signaling in some networks can look ahead to determine if the called party’s line is on-hook or off-hook, AT&T Florida’s SS7 does not have this feature; nor does the SS7 of any other Regional Bell Operating Company. (TR 503-504) AT&T Florida also asserts that if CA’s argument regarding the usage of SS7 as a means to prevent damages to the network and blocked calls was correct, the damages that occurred as a result of the mass calling events cited in witness Neinast’s testimony would not have occurred. Further, the calamities described in these events prove that using SS7 does not preclude the need for mass calling trunks. (AT&T Florida BR 140)

AT&T Florida realizes that there is a cost to the CLEC to establish HVCI trunks, similar to the cost for establishing trunks for access to the 911 network. However, public safety demands that AT&T Florida guard against the risk of damaging the PSTN. Therefore, to guard against these risks AT&T ILECs, including AT&T Florida, have establish separate mass calling trunks to protect the PSTN and AT&T’s own network. As an added precaution, AT&T ILECs, including AT&T Florida, also require interconnecting carriers to do the same. (EXH 36, Bates No. 587; AT&T Florida BR 139) Further, AT&T Florida asserts that it has been a policy and practice of AT&T for years to insist on including mass calling provisions in their ICAs (TR 504, AT&T Florida BR 141)

AT&T Florida argues that the use of mass calling trunks is not just an AT&T policy. Other carriers throughout the nation also use choke trunks. In fact, the use of choke trunks was voted on by the entire industry as the preferred methodology for preventing mass calling events from causing network outages. (TR 510) This practice is also supported by the Network Interconnection Inoperability Forum (NIIF), an industry standards group that establishes best practices for the telecommunications industry. (AT&T Florida BR 139, EXH 49, Bates Nos.1878-1880)

AT&T Florida disagrees with CA’s argument that if a mass calling event did occur that CA could redirect the overflow traffic to its long distance trunks to prevent block calls or an outage. (EXH 26, Bates No.16) AT&T Florida argues that CA’s contention mistakenly assumes that if calls from CA’s customers cause the blockage that only CA’s customers would be affected. However, AT&T Florida argues this is not the case; rather as described in the 2002 mass calling event cited in witness Neinast’s testimony, the whole network can be affected. Furthermore, AT&T Florida argues if CA were to direct its overflow calls to its long distance trunks, this could subject the network to further blocked calls because the choke network is a local network and does not contemplate IXC traffic being pumped into the local area. (AT&T BR 141, TR 496)

AT&T Florida asserts that CA’s argument that mass call-in events are caused by residential customers rather than business customers, and that CLECs typically do not serve large numbers of residential customers misses the point. AT&T Florida argues that CLECs “typically” serving a smaller residential customer base is irrelevant. CA has not indicated that it will not serve a larger residential customer base and there are no guarantees that other carriers adopting CA’s ICA will not do so either. Further, in any event, AT&T Florida argues that employees at a place of business are just as likely as anyone else to make calls during mass calling events. (TR 496)

Analysis

This issue disputes whether CA should be required to install HVCI MF[50] trunks to mitigate mass calling events. Staff believes that it is extremely unlikely that a mass calling event causing network congestion will occur, and that existing provisions encompass mass calling mitigation.

Staff agrees that AT&T Florida, as a 911 provider, is also responsible for ensuring that no emergency 911 calls are blocked due to avoidable network issues. (TR 493) However, staff agrees with AT&T Florida’s assertion that the likelihood of a mass calling event occurring and resulting in a network impairment that would impede callers from reaching 911 or other emergency services is relatively low. (TR 494-495) Staff goes further and believes that such an event is extremely unlikely. AT&T Florida’s witness Neinast cited three mass calling events that resulted in blocked calls and network damages. However, AT&T Florida acknowledged that none of these events involved CLECs or occurred in Florida. (AT&T Florida BR 139) In fact, staff notes that the events that occurred in 1992 and 1993 were before CLECs existed. Further, AT&T Florida was unable cite any recent events, including those involving CLECs, that have occurred in Florida or anywhere else. (EXH 49, Bates No. 1869-1873)

CA argued that CLECs no longer use HVCI trunks because they are outdated and have been replaced with SS7. (EXH 26, Bates No. 16, TR 58) On the other hand, AT&T Florida argued that the use of HVCI trunks to manage mass calling events is a well established practice that is supported by industry standards groups. (AT&T Florida BR 139, EXH 49, Bates Nos. 1878-1880) AT&T Florida’s witness Neinast states that the industry voted that dedicated mass calling trunks are the preferred option. (EXH 49, Bates No. 1868) Upon staff’s request, witness Neinast produced a document he described in his deposition that supported this claim. The document provided is titled NIIF Issue Identification Form, Issue Title: Network Management SS7 Controls for High Volume Call In (HVCI) Events. Witness Neinast described the group that issued this document:

NIIF is the Network Interconnection Interoperability Forum, and it is a subset of ATIS, which I'm going to try to remember that acronym, Alliance for Telecommunications Industry Solutions. And it's an interindustry forum where carriers–I believe there's a fee, they pay to be a part of and they establish best practices for the telecommunications industry.

And there's a series of subjects that they tackle and present to both the FCC and to other industries. They create standards for the telecommunications industry and various other things. In fact, the study I referenced earlier, the NIIF, I believe was a part of that comparison between the call gapping model. And the Mass Calling Trunk Group Model won out within that forum.

(EXH 49, Bates Nos. 1878-1879)

The NIIF had HVCI calling as an open issue from January 15, 2003 until September 5, 2005, with the following issue statement:

The current NIIF Reference Document Part VI Network Management Guidelines primarily addresses Network Management controls for MF trunking of HVCI events. MF trunking was retained to handle HVCI as companies migrated their networks to SS7. Some new technologies (e.g., Softswitches) do not support MF trunking. The NIIF needs to look at HVCI via SS7 defensive mechanisms and preventive measures to mitigate switch overload and network congestion situations.

(EXH 49, Bates No. 1888)

Staff interprets from the title and issue statement that this issue involved finding the preferred solution via SS7 defensive control mechanisms for mitigating network congestion situations. While older-generation MF trunking was maintained for HVCI calling as carriers migrated to SS7, MF trunking was not compatible with newer SS7 technologies, so a solution needed to be found to mitigate congestion for non-MF, SS7-based trunking.

After at least a dozen bi-monthly meetings and several conference calls, the following was entered as a point noted:

10. Ms. Meier stated that based on the participation on this call, the Far End Busy solution seems to be the best solution at this time and participants should come to the June meeting ready to make a final decision.

(EXH 49, Bates No. 1896)

The solution passed in June 2005:

It was agreed that Issue #0224, Network Management SS7 Controls for High Volume Call In Events (HVCI), will be placed in Initial Closure with the following resolution statement.

The NIIF agrees that the "Far end busy" solution has been shown as a successful method to reduce call attempt rates for HVCI calls over SS7 trunks to approximate volumes traditionally achieved using MF choke trunks. With appropriate implementation of a "far end busy" configuration at a choke tandem, the impact of using SS7 trunks for HVCI calls can be reduced to an acceptable level.

It should be noted that the use of separate dedicated trunk groups can be a key factor in limiting the impact on the signaling network of calls to HVCI codes.

This solution does not address the impacts of mass calling to non-HVCI codes, such as 8XX numbers. Solutions for mass calling to non-HVCI codes may still need to be considered.

The NIIF agreed to place the new text in Part VI, Network Management Guidelines, of the NIIF Reference Document, to become a new Section 6, Network Management SS7 Controls for High Volume Call In (HVCI) Events.

(EXH 49, Bates Nos. 1897-1898)

As staff understands this resolution, it offers a solution for SS7 trunking, and not MF trunking. While this resolution does state that the use of separate dedicated trunk groups can be a key factor, staff believes that this resolution only applies to SS7 trunks.

Staff notes that AT&T Florida’s proposed language requires CA to use MF trunks for mass calling. Even if the NIIF’s resolution can be construed to apply to MF trunks, its primary recommendation is the implementation of a “far end busy” SS7-based defense control configuration at an ILEC’s choke tandem, not the use of dedicated trunk groups.

This appears to staff as very similar to witness Ray’s testimony explaining how the SS7 network handles far end busy situations. As explained in witness Ray’s testimony, SS7 is designed to prevent trunks from choking. Choking is avoided because with SS7 a call is not completed unless the called party’s line is free. During a mass calling event, with SS7 when the called party’s number is dialed, a signal is sent to determine if the party’s line is on or off-hook. If the line is off-hook, the caller hears a busy signal. If the line is free or on-hook the call can be completed by sending it across the interconnection trunks from the CLEC’s switch to the ILEC’s switch. Because the call is only completed when the called party’s line is free, the trunks do not get tied up or choked. (EXH 26, Bates Nos. 15-16) While AT&T Florida acknowledges that networks with SS7 do have the capability to look ahead to determine if the called party’s line is on-hook or off-hook, AT&T Florida argues that its SS7 network does not have the capability to do so. (TR 503-504) AT&T witness Neinast offered no explanation as to why.

Staff believes that aside from each party’s arguments regarding the applicability and capability of SS7, additional language mitigating mass calling events such as AT&T Florida proposes here is not necessary. Planning for and mitigating the effects from mass calling events is already covered in agreed-to sections of the proposed General Terms and Conditions:

39.3 Each Party maintains the right to implement protective network traffic management controls, such as “cancel to”, “call gapping” or seven (7)-digit and ten (10)-digit code gaps, to selectively cancel the completion of traffic over its network, including traffic destined for the other Party’s network, when required to protect the public-switched network from congestion as a result of occurrences such as facility failures, switch congestion or failure or focused overload. Each Party shall immediately notify the other Party of any protective control action planned or executed.

39.4 Where the capability exists, originating or terminating traffic reroutes may be implemented by either Party to temporarily relieve network congestion due to facility failures or abnormal calling patterns. Reroutes shall not be used to circumvent normal trunk servicing. Expansive controls shall be used only when mutually agreed to by the Parties.

39.5 The Parties shall cooperate and share pre-planning information regarding cross-network call-ins expected to generate large or focused temporary increases in call volumes to prevent or mitigate the impact of these events on the public-switched network, including any disruption or loss of service to the other Party’s End Users. Facsimile (FAX) numbers must be exchanged by the Parties to facilitate event notifications for planned mass calling events.

(EXH 2, General Terms and Conditions § 39.3-39.5)

Staff believes this proposed language adequately covers both parties’ obligations concerning mass calling events.

Staff also believes that just like AT&T Florida, CA also has a duty to protect the PSTN and its customer base. Knowing the potential damage that can occur as a result of a mass calling event, staff believes there is no incentive for CA to allow circumstances to trigger network congestion at any time, as it will negatively affect CA’s customers to an equal degree. Further, staff agrees that because of the customer base that CA will serve, CA is unlikely to receive call surges of the type that HVCI trunks are designed to handle. Staff agrees that using SS7 is sufficient to prevent trunks from choking and causing damage to the network and blocked calls.

Further, the parties’ ICA already requires all interconnection trunks to be SS7. (EXH 26, Bates No. 16, TR 58) Staff agrees with CA’s assertion that AT&T Florida requiring CLECs to establish HVCI trunks, in addition to SS7, will increase the CLEC’s overall costs. (EXH 26, Bates No. 16, TR 58) In addition, there are other methods, as described by CA that can be used, such as redirecting call traffic, to further prevent blocked calls and outages. (EXH 26, Bates No.16) Finally, mass calling events are already covered in another section of the proposed agreement.

Therefore, based on the discussion above, and staff’s analysis of this issue, staff believes that the parties’ ICA should not include the language that AT&T Florida has proposed for Network Interconnection Section 4.3.9 that requires CA to establish a dedicated trunk group to carry mass calling traffic.

Conclusion

Staff recommends the parties’ ICA should not obligate CA to establish a dedicated trunk group to carry mass calling traffic.

Issue 41:

Should the ICA include CA's language providing for SIP Voice-over-IP trunk groups? (Net. Int. § 4.3.11)

Recommendation:

No. The ICA should not include CA’s language providing for SIP Voice-over-IP trunk groups. (Curry)

Position of the Parties

CA:

Yes. CA believes that if, subsequent to a conforming ICA being filed in this docket, AT&T later offers more modern, cost effective local interconnection to others that CA should have an equal ability to order the same interconnection services offered to others without the need to re-negotiate/re-arbitrate this entire agreement.

AT&T Florida:

No. CA’s language is objectionable for several reasons, including that it is directly at odds with the FCC’s “All-or-Nothing Rule.” Under that rule, a carrier cannot adopt just part of an existing ICA, which is what CA is asking the Commission to allow it to do.

Staff Analysis:

This issue seeks to determine if the parties’ ICA should include CA’s proposed language regarding SIP Voice-over-IP trunk groups. Internet Protocol (IP) is alternatively called SIP, which is an acronym for Session Initiation Protocol. (AT&T Florida BR 143) SIP is responsible for connecting, monitoring and disconnecting voice and video calls over IP networks. It is a communications protocol that uses an IP telephony signaling protocol for Voice over Internet Protocol (VoIP) calls.

Trunks are communications pathways from one point to another. The term “SIP Voice-over-IP trunk groups” refers to trunk groups that carry, or that are capable of carrying, traffic in IP format, as opposed to Time Division Multiplexing (TDM). (AT&T Florida BR 143, TR 440-441) TDM is the format in which voice traffic has been transported for many years on the public switched telephone network. When traffic is in TDM format, it is transported over dedicated circuits using SS7 signaling. (TR 441) When traffic is in IP format, in contrast, a given message is not sent over a dedicated circuit using SS7 signaling. Instead, the signals are divided into packets and each packet is sent over the fastest available route in a packet switched network. The packets are then reassembled at the receiving end. (TR 441)

Parties’ Arguments

CA argues that in the future, after the parties’ ICA has been established, if AT&T Florida begins offering IP interconnection to other carriers that CA should be entitled to obtain the same interconnection services under the same terms and conditions as the other carriers. (TR 59) CA contends that adding its proposed language to the parties’ ICA is the only way to ensure that it receives equal and fair treatment. (TR 59) However, CA argues that AT&T Florida has refused CA’s proposed language, which would provide SIP local interconnection as an option to CA instead of TDM local interconnection, under claims of technical infeasibility. (TR 146) CA contends that AT&T Florida has an anti-competitive motive for keeping CLECs interconnected using legacy technology because legacy TDM trunks are less scalable and more expensive for CLECs. (TR 59, CA BR 146)

Despite AT&T Florida’s claims that it is not technically capable of offering SIP interconnection for the purpose of local interconnection, CA believes that AT&T Florida is capable because another AT&T Florida entity currently offers the service on a commercial basis under the name AT&T Voice over IP Connect Service (AVOICS). Therefore, CA argues if some version of AT&T Florida is offering IP interconnection now (whether under an ICA, contract, or by tariff), then IP interconnection must be technically feasible and CA should be entitled to obtain services. (TR 113)

Further, CA argues that AT&T Florida’s AVOICS service is not technically distinct from local interconnection service. (CA BR 146, TR 112) CA asserts that AT&T Florida has also not shown that the technology that AT&T Florida already uses to offer its commercial SIP interconnection service could not be employed to provide interconnection to CA. (CA BR 147) CA argues that regardless of which AT&T Florida entity operates the service, AT&T Florida’s AVOICS product is interconnected with AT&T Florida’s network for the exchange of telecommunications traffic. Therefore, CA believes that AT&T Florida’s assertion that it is not technically capable of IP interconnection is false. (CA BR 148) Further, CA contends despite AT&T Florida’s claims that it is not technically capable of SIP interconnection, AT&T Florida was ordered by another Public Service Commission to file its SIP ICA with that Commission as an ICA under § 251 and § 252.[51] (TR 113, CA BR 146)

CA argues that pursuant to the requirements of 47 C.F.R. § 51.305, it is entitled to have IP interconnection terms included in the parties’ ICA. However, as a compromise CA has instead proposed that in the event that AT&T Florida offers SIP Interconnection to other carriers in the future, that CA be afforded its rights under 47 C.F.R. § 51.305 to obtain the same terms from AT&T Florida that it offers any other carrier for IP interconnection. (CA BR 148) CA argues that its proposed language does not require AT&T Florida to develop or invent anything new; it simply prohibits AT&T Florida from offering more modern IP services selectively to others and not to CA. (CA BR 146)

CA asserts that the plain reading of 47 C.F.R. § 51.305 does not seem consistent with AT&T Florida’s argument that if AT&T Florida does offer IP interconnection at a later date and CA wishes to obtain IP interconnection, that the parties’ ICA must be discarded and renegotiated. (CA BR 148) Further, CA contends that AT&T Florida’s argument that CA’s proposed language is contrary to the FCC’s All-or-Nothing rule (47 C.F.R. § 51.809(a)) is misplaced. CA argues that the All-or-Nothing rule governs ICA adoptions and CA has not proposed to adopt all or part of any other ICA. (CA BR 148-149) Nor is CA attempting to pick and chose other ICA provisions. (TR 114) CA argues that it has simply asserted its rights under 47 C.F.R. § 51.305(4), which stands distinct from its ability to adopt another carrier’s ICA. (CA BR 148-149)

CA contends that it is merely seeking to include a reasonable provision in its arbitrated agreement which is solely at issue because of AT&T Florida’s claim that it is currently not technically capable of SIP interconnection. CA does not believe that AT&T Florida’s claim is true, and believes that it is entitled to SIP interconnection but for AT&T Florida’s claim that it is not feasible. (TR 114) CA acknowledges that the FCC is currently considering the issue of whether the interconnection requirement in Section 251(c)(2) of the Act applies to IP interconnection. (EXH 27, Bates No. 55)

However, CA argues that absent the FCC’s ruling, states have the authority to determine in an arbitration proceeding whether 251 and 252 are technology neutral. (EXH 27, Bates No. 55) Therefore, CA argues that this Commission has the authority to require interconnection in any technically feasible manner between an ILEC and CLECs, which is what CA is seeking. (EXH 27, Bates No. 55) To the extent that it is proven at some point that AT&T Florida is technically capable of providing SIP interconnection, CA asserts that it is entitled to obtain the more modern, cost effective interconnection so that CA can more cost-effectively compete without discrimination. (TR 114; EXH 27, Bates No. 55) CA also believes that it is entitled to SIP interconnection in parity with what AT&T Florida offers other carriers. (TR 114)

AT&T Florida

AT&T Florida argues that it currently does not offer, install or provide interconnection trunking using SIP Voice-over IP or Voice-using IP to any entity. (TR 462) AT&T Florida’s network is a TDM network. All traffic on its network is in TDM format, and AT&T Florida only exchanges traffic with other carriers, including its affiliates, in TDM format. (AT&T Florida BR 143, TR 441) Further, AT&T Florida argues that its network does not include any IP-capable equipment and AT&T Florida is not interconnected with any carrier in IP format. (AT&T Florida BR 143, TR 441)

AT&T Florida contends that it does not have the capability to provide interconnection trunking using SIP Voice-over IP or Voice-using IP. Therefore, it cannot provide SIP interconnection to CA. AT&T Florida also asserts that it has no intention to provide interconnection trunking using SIP Voice-over IP or Voice-using IP unless there is a change in the existing law. (TR 462) However, if the law changes, AT&T Florida argues that CA would be entitled to amend the parties’ ICA accordingly. (TR 462)

AT&T Florida argues that the Act does not require IP interconnection. Other carriers within the industry are divided on this issue. However, AT&T Florida asserts that whether the interconnection requirement in Section 251(c)(2) of the Act applies to IP interconnection (in the case of an ILEC with IP capability) is an open question that is currently pending at the FCC.[52] (AT&T Florida BR 143-144, TR 441-442) In any event, AT&T Florida argues that this Commission does need to decide whether the Act requires IP interconnection to resolve the current issue.

CA’s proposed language for Network Interconnection §4.3.11, to which AT&T Florida objects, states in pertinent part:

In the event that AT&T-21STATE offers, installs, or provides any interconnection trunking using SIP Voice-over-IP or Voice-using-IP to any entity including its affiliates, CA shall be entitled to order the same type of interconnection trunking in the same areas and under the same terms where it has been offered, installed or provided for others under this agreement. The parties may mutually agree to complete a contract amendment to codify additional terms and conditions, but such an amendment shall not be required in order for CA to obtain the service under nondiscriminatory terms and pricing. . . .

AT&T Florida argues that if in the future AT&T Florida provides SIP interconnection to another carrier, CA’s proposed language would allow CA to adopt the rates, terms and conditions governing IP interconnection of that carrier’s agreement without adopting the remaining provisions in the agreement. (AT&T Florida BR 145) Therefore, CA’s proposed language is unlawful and directly contrary to the FCC’s “All-or-Nothing Rule” (47 C.F.R. § 51.809(a)) implementing Section 251(i) of the Act. (AT&T Florida BR 144) Under 47 C.F.R. § 51.809(a), a carrier cannot adopt part of an existing ICA. The carrier must adopt the ICA in its entirety. (TR 448; TR 450; AT&T Florida BR 145)

AT&T Florida argues that this principle recognizes that when the ICA was negotiated, there may have been gives and takes that resulted in some provisions being more favorable to the CLEC, and other provisions being less favorable to the CLEC, than the law otherwise requires. AT&T Florida asserts that CA’s proposed language clearly violates the FCC’s All-or-Nothing Rule, because it would allow CA to adopt the IP interconnection provisions in another carrier’s ICA (a hypothetical future ICA) without accepting the remainder of that carrier’s ICA. (TR 448; TR 450) AT&T Florida argues that if the Commission were to adopt CA’s proposed language that it would be giving CA advanced permission to violate the All-or-Nothing Rule in the future. (AT&T Florida BR 145)

AT&T Florida further argues that aside from CA’s proposed language being unlawful, the language is also problematic because it is contrary to the fundamental principle, which this Commission has recognized, that the parties’ relations with respect to the matters covered by the ICA are governed solely by the ICA. If something happens during the term of the ICA that warrants a change in those relations, that change must be reflected in an amendment to the ICA before it goes into effect. AT&T Florida believes that CA’s proposed language stating: “The parties may mutually agree to complete a contract amendment to codify additional terms and conditions, but such an amendment shall not be required in order for CA to obtain the service under nondiscriminatory terms and pricing,” directly conflicts with this fundamental principle. (TR 448-449)

Section 252(i) of the Act provides, “A local exchange carrier shall make available any interconnection, service, 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.” AT&T Florida argues that the FCC has interpreted Section 252(i) to mean that an incumbent LEC, such as AT&T Florida, must permit a requesting carrier, like CA, to adopt as its own any other carrier’s ICA that has been approved by the state commission. (TR 444)

AT&T Florida asserts that under certain conditions CA may have the right to obtain the same terms and conditions for IP interconnection in the future, if AT&T Florida enters into an IP ICA with another carrier. (TR 442-446, AT&T Florida BR 145) For instance, if AT&T Florida were to establish an IP network, the FCC were to rule that Section 251(c)(2) requires interconnection in IP format, and AT&T Florida entered into an ICA with a CLEC that includes rates, terms, and conditions for IP interconnection, CA could adopt that CLEC’s ICA as its own. By doing so, CA would obtain the same rates, terms, and conditions for IP interconnection that AT&T Florida agrees to with the other CLEC. Therefore, AT&T Florida argues that including language in the parties’ current ICA authorizing CA to do so is not needed because the law already allows for it. (TR 442-446, AT&T Florida BR 145-146)

Further, AT&T Florida argues that apart from adopting another carrier’s ICA, if the FCC were to determine that Section 251(c)(2) requires ILECs to provide IP interconnection during the term of the parties’ ICA, regardless of what AT&T Florida did with any other carrier, CA could assert its rights pursuant to the agreed upon “Intervening Law” provisions in Section 24 of the General Terms and Conditions of the ICA that the parties are currently arbitrating now. (TR 445, EXH 2, p. 49) Under the Intervening Law provision, a change in law would entitle CA to amend the ICA to provide for IP interconnection. AT&T Florida attests that in this scenario CA would not necessarily obtain the same rates, terms and conditions for IP Interconnection as another CLEC (though it might). However, assuming that if the FCC requiring ILEC’s to provide IP interconnection qualified as a change of law event under Section 24 of the General Terms and Conditions, CA would be entitled to rates, terms and conditions for IP interconnection that conform with whatever rules the FCC might establish for IP interconnection. Therefore, AT&T Florida argues since CA is entitled to the change of laws rights under Section 24 of the General Terms and Conditions, there is no need to include additional provisions covering a change of law with respect to IP interconnection in the parties’ ICA.[53] (TR 442-446, AT&T Florida BR 145-146)

AT&T Florida also argues that this Commission’s previous decisions support AT&T Florida’s position regarding the change in law provision. In an arbitration between Global NAPs (GNAPs) and Verizon, Docket No. 011666-TP, GNAPs proposed to include in the ICA a provision, in addition to the general change-in-law provision on which the parties agreed, specifically entitling GNAPs to renegotiate the reciprocal compensation provisions in the ICA if the FCC’s then recently-issued Internet Service Provider (ISP) Remand Order was overturned or modified. (The 2001 ISP Remand Order addressed intercarrier compensation on ISP-bound traffic, which was a hot topic at the time.) The Commission rejected GNAPs’ proposal in Order No. PSC-03-0805-FOF-TP, issued July 9, 2003, at 43 which states:

We believe there are few industries more dynamic than telecommunications. The possibility of a change in the law affecting any provision of any interconnection agreement is ever present; thus, the general change-in-law provision. It is not apparent to us that the general change-in-law provision is inadequate in the event of a change in the law affecting the ISP issue. Additionally, it would be inconsistent to include a specific provision for ISP issues and not for other issues which may also see change in the foreseeable future.

(TR 450-451, AT&T Florida BR 146-147)

Further, in an arbitration proceeding between Verizon and Bright House Networks (Bright House), Docket No. 090501-TP, Bright House asked the Commission to address a future interconnection issue. However, the Commission decided that it should not make a decision regarding the future issue. Order No. PSC-10-0711-FOF-TP, issued December 3, 2010, at 11, states in pertinent part:

Bright House is asking this Commission to address future interconnections without reference to any specific network configuration. Upon review, we are persuaded by Verizon that we should not make decisions at this time regarding such future interconnections . . . . Brighthouse has not presented sufficient justification to warrant a ruling on issues that may exist at some time in the future.

(TR 451, AT&T Florida BR 147)

AT&T Florida argues that CA’s proposed language is unnecessary. There are circumstances under which the Act would allow CA to obtain IP interconnection from AT&T Florida in the future (e.g., lawful adoption of another carrier’s ICA; change of law amendment to this ICA), and there are circumstances under which it would not (e.g., FCC rules IP interconnection not subject to Act and AT&T Florida enters into a commercial agreement for IP interconnection). Therefore, AT&T Florida argues that the ICA the parties are arbitrating now need not and should not try to anticipate those circumstances. Further, CA’s proposed language violates the FCC’s All-or-Nothing Rule. Therefore, AT&T Florida believes that this Commission should reject the ICA language that CA has proposed for section Network Interconnection § 4.3.11.

In regards to the Michigan Public Service Commission (MPSC) Order that CA referenced wherein the MPSC ordered AT&T Michigan and Sprint Spectrum L.P. to file an ICA that included provisions for IP interconnection, AT&T Florida argues that the Michigan Order has no bearing on the issue in this proceeding. Further, the Order arose from circumstances that were not presented in this arbitration.[54] (AT&T Florida BR 144, EXH 38, Bates No. 729) The question presented in this issue is whether the parties' ICA should include CA's proposed language providing that if AT&T Florida provides interconnection trunking using SIP Voice-over-IP or Voice-using-IP to any entity, CA shall be entitled to order the same type of interconnection trunking in the same areas and under the same terms. AT&T Florida argues that no issue remotely resembling the present issue was ever presented to the MPSC and that no such issue was addressed in the Michigan Commission’s Order. (EXH 38, Bates No. 729) However, AT&T Florida argues that the MPSC order is unlawful and is currently being appealed in the United States District Court for the Western District of Michigan.[55] (AT&T Florida BR 144, EXH 38, Bates No. 729)

Analysis

Both parties agree that the FCC has not made a decision on whether the Act applies to IP interconnection. (TR 441, AT&T Florida BR 143, EXH 27, Bates No. 55) However, CA contends that absent the FCC’s rulings, states have the authority to determine in an arbitration proceeding whether 47 U.S. Code § 251 and 252 are technology neutral. (EXH 27, Bates No. 55) Therefore, CA argues that this Commission has the authority to require interconnection in any technically feasible manner between an ILEC and a CLEC. (EXH 27, Bates No. 55)

CA also argues that it believes that AT&T Florida is technically capable of providing SIP interconnection because another AT&T Florida entity currently offers the service, on a commercial basis, and is interconnected with AT&T Florida’s network. (CA BR 148, TR 113) However, AT&T Florida has indicated that it currently does not offer interconnection trunking using SIP Voice-over IP or Voice-using IP and it does not have the capability to do so. AT&T Florida also argues that its network does not include any IP-capable equipment and that AT&T Florida is not interconnected with any carrier in IP format. (TR 441)

Despite CA’s claims that AT&T Florida does have the technical capability to provide CA with IP interconnection, CA has not presented anything in the record that definitively confirms its assertions. In fact, the record suggests that AT&T Florida currently does not offer the service and is technically incapable of IP interconnection. However, staff believes that whether or not AT&T Florida is technically capable of providing SIP interconnection does not matter in this instance.

In this issue the parties have asked this Commission to determine whether the parties’ ICA should include language that would require AT&T Florida to provide CA with interconnection trunking using SIP Voice-over-IP or Voice-using-IP in the future, if AT&T Florida begins offering the service to other carriers. The parties have not requested that the Commission determine whether AT&T Florida is technically capable of offering SIP interconnection to CA. Also, the parties have not asked this Commission to determined if § 251 and § 252 give the Commission the authority to require AT&T Florida to provide IP interconnection to CA.

Therefore, staff agrees with AT&T Florida’s assertion that the Commission does not need to decide whether the Act requires IP interconnection to resolve this issue. (TR 442) Staff further agrees with AT&T Florida that since AT&T Florida does not currently offer interconnection trunking using SIP Voice-over-IP or Voice-using IP for local interconnection and is not planning on offering the service in the foreseeable future, CA’s proposed language is not needed. If AT&T Florida does begin offering SIP interconnection at a later date, at that time CA could contact AT&T Florida to obtain the service.

Staff notes that AT&T Florida will likely offer SIP interconnection, when available, via one of two methods. The service would be offered voluntarily via a commercial agreement, which this Commission does not regulate, or it would be offered via an ICA. If AT&T Florida is ordered at some point in the future to provide SIP interconnection via an ICA, CA already has the right to avail itself of the service in two ways. First, if AT&T Florida provided SIP interconnection to another CLEC, CA may be able to adopt that carrier’s ICA to obtain the same rates and terms. CA would also be able to assert its rights, pursuant to the parties’ agreed upon Intervening Law provisions within the parties’ ICA, to acquire SIP interconnection from AT&T Florida. Section 24 of the General Terms and Conditions states in pertinent part:

In entering into this Agreement and any Amendments to such Agreement and carrying out the provisions herein, neither Party waives, but instead expressly reserves, all of its rights, remedies and arguments with respect to any orders, decisions, legislation or proceedings and any remands thereof and any other federal or state regulatory, legislative or judicial action(s) which the Parties have not yet fully incorporated into this Agreement…or which may be the subject of further review. If any action by any state or federal regulatory or legislative body or court of competent jurisdiction invalidates, modifies, or stays the enforcement of laws or regulations that were the basis or rationale for any rate(s), term(s) and/or condition(s) (Provisions) of the Agreement and/or otherwise affects the rights or obligations of either Party that are addressed by this Agreement, the Affected Provision(s) shall be immediately invalidated, modified or stayed consistent with the action of the regulatory or legislative body or court of competent jurisdiction upon the written request of either Party in accordance with Section 20.0 above (Written Notice)

(Emphasis added) (EXH 2, p. 49)

AT&T Florida notes that this Commission determined in a previous arbitration proceeding (Order No. PSC-03-0805-FOF-TP, issued July 9, 2003, in Docket No. 011666-TP) that the parties’ general change-in-law provision was adequate and that additional provisions within the ICA were not needed to address issues that may change in the foreseeable future. (TR 450-451, AT&T Florida BR 146-147) Currently, the FCC has not required ILECs to provide IP interconnection under Section 251. Nor has this Commission addressed the issue. However, if there were a change in law that required ILECs to provide IP interconnection to CLECs, staff agrees with AT&T Florida’s argument that the parties Intervening Law provision is sufficient enough to ensure that CA would be able to obtain SIP interconnection from AT&T Florida. Staff also believes that the Commission’s previous decision in the above mentioned Order further supports AT&T Florida’s position regarding the change in law provision. Therefore, staff concludes that the parties’ ICA should not include CA’s language for SIP Voice-over-IP trunk groups.

Conclusion

Staff recommends ICA should not include CA’s language providing for SIP Voice-over-IP trunk groups.

Issue 55:

To designate a wire center as unimpaired, should AT&T Florida be required to provide written notice to CA? (UNE § 15.1)

Recommendation:

No. Staff recommends AT&T Florida should not be required to provide written notice to CA to designate a wire center as unimpaired. However, AT&T Florida should be directed to provide CA with any email address(es) it intends to use to distribute impairment notifications so CA can mitigate concerns regarding spam filters. (Fogleman)

Position of the Parties

CA:

Yes. AT&T should provide actual written notice to CA for such major changes affecting CA. Simply posting a notice to a website or sending an email without sending notice under the ICA’s notices provision is unlawful, unreasonable and could harm CA’s customers without adequate warning to prevent disruption of services.

AT&T Florida:

No. AT&T provides notice of network changes via an Accessible Letter that is posted to CLEC Online, a website accessible to all CLECs. In addition, any CLEC that wants to receive individual notices may subscribe to direct notices of Accessible Letters and email notices of wire center nonimpairment designations.

Staff Analysis:

This issue deals with the means by which AT&T Florida should notify CA of a wire center non-impairment finding. CA proposes it should receive a certified letter from AT&T Florida. AT&T Florida proposes to use its current system of posting impairment letters online and sending email notifications to those carriers that want them.

Parties’ Arguments

CA argues that posting a notice to the web to designate a wire center as unimpaired with no further notice is unreasonable and could harm CA and CA’s customers without adequate warning for CA to prevent any disruption of services. (TR 67) CA notes that all other ILECs in Florida send non-impairment notices via certified mail, which is what CA is requesting AT&T Florida to do. (TR 67)

Regarding the email notice, CA expressed skepticism that such a notice would be sufficient because once AT&T Florida sends the email it can deflect responsibility regarding its receipt by CA. (TR 128) CA contends that emailed notices are often lost for various reasons, including getting caught in spam filters, typographical errors in the address, and notices sent as an email attachment with an unknown password. (EXH 26, Bates No. 26) A written notice delivered via certified mail is reasonable according to CA because a wire center nonimpairment notice is often a potential extinction event for a CLEC. (EXH 26, Bates No. 26) CA also notes that this agreement requires CA to provide written notices to AT&T Florida via US Mail and argues that there is no reason why AT&T Florida should be excused from providing the same notice to CA. (EXH 26, Bates No. 26)

AT&T Florida

According to AT&T Florida, there are two ways that AT&T Florida notifies CLECs of network related changes. First, network information is posted on CLEC Online in the form of an Accessible Letter. As defined in the General Terms and Conditions section of the ICA, Accessible Letter(s) means “the correspondence used to communicate pertinent information regarding AT&T Florida to the CLEC community and is (are) provided via posting to the AT&T Florida CLEC Online website.” (TR 586-587)

Second, AT&T Florida argues that the Accessible Letters are sent via email to CLECs that subscribe to the process. The Accessible Letter process, with the option of direct notice, is used by all AT&T ILECs and is accepted by the CLEC community according to AT&T Florida. (TR 587) A CLEC that elects this option specifies the recipient to whom AT&T Florida is to send the Accessible Letters. CLECs can designate multiple recipients. (TR 623)

AT&T Florida further argues that CA’s proposal to provide individualized notices for CA would be costly, inefficient, unreasonable, and discriminatory to other CLECs. (TR 587) AT&T Florida does not require CA or other CLECs to provide correspondence via certified mail. (EXH 38, Bates No. 750)

Analysis

AT&T Florida estimates that the cost to send a single notice is about $12.00 based on approximately $5 for labor and $7.17 for US Postal Service (certified mail, return receipt requested). Within the last 12 months, there were no wire centers in Florida that were moved from impaired to non-impaired. (EXH 38, Bates No. 751)

CA asserts that AT&T Florida requires CA to provide written notices to AT&T Florida via US Mail but does not provide any support for its assertion. (EXH 26, Bates No. 26) AT&T Florida states that it does not have such a requirement. (EXH 38, Bates No. 750p.54) Section 21.0 of the ICA addresses notice given by one party to the other party, unless specifically provided otherwise within the ICA. It provides for three general methods of communication: 1) by physical document, 2) by fax, or 3) by email. Physical documents can be delivered either personally, express delivery service, certified mail, or first class U.S. Postal Service. (EXH 2, p.39)

CA provides for a number of reasons why email notices are unreliable. Regarding CA’s concern about typographical errors in the address, AT&T Florida notes that it is CA that enters the address. (EXH 50, Bates No. 1948) Thus, any typographical error would be a result of CA mistyping an email address. Regarding attachments with unknown passwords, AT&T Florida maintains that it does not password protect such notifications. (EXH 50, Bates No. 1948) Regarding CA’s spam filter, staff believes CA should be responsible for setting up its spam filter to accept AT&T Florida’s email. For these reasons, staff believes that AT&T Florida’s proposed contract language is appropriate.

Conclusion

Staff recommends AT&T Florida should not be required to provide written notice to CA to designate a wire center as unimpaired. However, AT&T Florida should be directed to provide CA with any email address(es) it intends to use to distribute impairment notifications so CA can mitigate concerns regarding spam filters.

Issue 56:

Should the ICA include CA's proposed language broadly prohibiting AT&T Florida from taking certain measures with respect to elements of AT&T Florida's network? (UNE § 4.6.4)

Recommendation:

Yes. Staff recommends that the ICA should include CA’s proposed language prohibiting AT&T Florida from taking in use circuits for its own benefit or business purposes or for its own customers; however staff believes that the inclusion of the phrase “and/or substitute another UNE in its place.” (Fogleman)

Position of the Parties

CA:

Yes. CA believes that in-service UNE facilities are a part of its network and are not subject to tampering or taking by AT&T for the purpose of serving AT&T customers.

AT&T Florida:

No. CA’s proposed language is overly broad and could inhibit AT&T from maintaining its network in an efficient fashion.

Staff Analysis:

This issue addresses a dispute regarding contract language that would limit AT&T Florida’s ability to take CA’s in-service circuits. CA proposes the following language that it contends places reasonable limits on AT&T Florida:

AT&T-21STATE shall not tamper with or convert an in-service UNE provided to CLEC for its own benefit or business purposes or for its own customers and/or substitute another UNE in its place.

AT&T Florida contends that CA’s language is overly broad and could affect maintenance and repair of AT&T Florida’s network. As an alternative, AT&T Florida has proposed the following language:

If AT&T Florida converts an in-service UNE provided to CA, it will replace the UNE with a UNE with the ability to provide the level of service ordered by CA.

Parties’ Arguments

CA contends that AT&T Florida has taken in-service loops from CLECs for its own customers and leaves CLECs with inferior loops. (EXH 31, Bates Nos. 231-232) AT&T Florida’s position is that it would never take in-service loops for its own customers, so CA does not understand AT&T Florida’s reluctance to commit not to take in-service loops for AT&T Florida’s own customers. (TR 67) If AT&T Florida takes a CLEC’s working, conditioned, tested loop for its own customers and substitutes an inferior unconditioned, untested one, the CLEC’s customers suffer for the benefit of AT&T Florida and its customer. CA believes this would be unfair and does not represent parity. (CA BR 172)

CA disagrees with AT&T Florida’s characterization that its proposed language is overly broad and would interfere with the course of maintaining and repairing its network. CA’s proposed language clearly states that AT&T Florida shall not tamper with or convert an in-service UNE for its own benefit or business purposes or for its own customers. This situation is easily distinct from a repair issue, where the repair would not be for AT&T Florida’s benefit or for AT&T Florida’s customer’s benefit. (EXH 28, Bates No. 104)

AT&T Florida

AT&T Florida denies that it “tampers” with any CLEC’s UNEs or services. The language proposed by CA, according to AT&T Florida, is overly broad and could inhibit AT&T Florida from maintaining its network in an efficient fashion. AT&T Florida states in the course of maintaining and repairing its network, that it may be necessary for it to switch CA’s UNE from one facility to another to ensure the integrity of the UNE being provided to CA or to another CLEC. For example, if a cable serving CA is cut, it could be necessary for AT&T Florida to transfer CA’s UNE circuit to a different cable to place it back in service. This would not be tampering, but AT&T Florida believes the vague unqualified language proposed by CA opens AT&T Florida to such a claim. (TR 588)

AT&T Florida would condition a new loop, if a spare is available, rather than swap a loop with one serving CA’s customer. If AT&T Florida were to change a condition loop to an unconditioned one, it would not be providing the product or service that had been requested and CA would have remedies. (TR 624) As an alternative to CA’s proposed language, AT&T Florida indicated that it would agree to the following language: “If AT&T Florida converts an in-service UNE provided to CA, it will replace the UNE with a UNE with the ability to provide the level of service ordered by CA.” (EXH 38, Bates No. 752)

Analysis

AT&T Florida objects to CA’s proposed ICA language in this issue asserting that it is too broad and could interfere with network maintenance and repairs. However, AT&T Florida only provides one example, a cable cut affecting a CA customer, where AT&T Florida may have to transfer CA’s UNE circuit to a different cable to place it back in service. AT&T Florida contends that CA’s “vague unqualified language” could open AT&T Florida to claim that it had violated the terms of the ICA if this language is approved. (TR 588)

Yet the language proposed by CA is qualified. Specially, the prohibition included in CA’s proposed language would not allow AT&T Florida to make such network modifications to CA’s in-service UNEs for AT&T Florida’s “own benefit or business purposes or for its own customers.” The example proposed by AT&T Florida would not be affected because it is the result of necessary network maintenance as a result of a loop being cut, not a deliberate action intended to benefit AT&T Florida’s business purposes or customer(s). (EXH 28, Bates No. 104) CA’s proposed language however, concludes by broadening these conditions to include “and/or substitute another UNE in its place.”

AT&T Florida had proposed alternative language that would have the effect of requiring AT&T Florida to replace a disconnected UNE with a UNE that can provide the level of service ordered by CA. (EXH 38, Bates No. 752) However, AT&T Florida witness Kemp noted that there may be technical characteristics that are different. Specifically, if a loop was replaced with another loop, the replacement loop could operate differently than the loop CA had originally received from AT&T Florida. (TR 677) CA’s language would only prohibit such a change if it were for AT&T Florida’s benefit, whereas AT&T Florida language would have no similar prohibition.

Staff believes that CA’s proposed language, after removing the phrase “and/or substitute another UNE in its place,” is not overly broad as contended by AT&T Florida, but is a condition to prohibit AT&T Florida from making such network modifications to CA’s in-service UNEs for AT&T Florida’s “own benefit or business purposes or for its own customers.”

Conclusion

Staff recommends that the ICA should include CA’s proposed language prohibiting AT&T Florida from taking in use circuits for its own benefit or business purposes or for its own customers; however, staff believes that the inclusion of the phrase “and/or substitute another UNE in its place.”

Issue 57:

May CA use a UNE to provide service to itself or for other administrative purposes? (UNE § 4.7.1)

Recommendation:

No. Staff recommends that CA may not use a UNE to provide service to itself or for other administrative purposes. (Fogleman)

Position of the Parties

CA:

Yes. It is well settled that CLECs are permitted to order and use UNEs as a part of a CLEC’s network for any lawful purpose, subject to certifications and impairment restrictions contained elsewhere in this Agreement. AT&T may not specify the manner in which CA may use UNEs to which it is entitled.

AT&T Florida:

No. FCC rules require AT&T to provide UNEs to CLECs only for the provision of telecommunications services to the CLEC’s end-user customers. AT&T’s language appropriately prohibits CA from using UNEs to provide service solely to itself or for administrative purposes.

Staff Analysis:

At issue is whether federal rules allow, prohibit or are silent regarding the ability of CA to use UNEs to provide service to itself or for administrative purposes. AT&T Florida points to the Act’s definition of a telecommunications service, while CA addresses the issue in terms of how a network is constructed.

Parties’ Arguments

Unlike resale service, UNEs often do not serve a specific end user subscriber but instead are part of a CLEC’s overall network infrastructure which is used to serve its subscribers according to CA. CA believes that as a practical matter, such non-customer-specific UNEs could be interpreted to be used to provide service to CA itself. CA does not believe that AT&T Florida is entitled to specify exactly what CA may do or not do with UNEs to which CA is entitled. (TR 68, EXH 41, Bates No. 262) CA cites 47 C.F.R. § 51.309(a) which states:

Except as provided in 51.318, an incumbent LEC shall not impose limitations, restrictions or requirements on requests for, or the use of, unbundled network elements for the service a requesting telecommunications carrier seeks to offer.

CA is concerned that AT&T Florida’s language would unlawfully restrict CA’s ability to purchase UNEs to only those which serve specific subscribers, which would be a severe limitation upon CA. This limitation would prevent the ordering or use of UNEs such as dark fiber transport, DS3 transport, Synchronized Timing, CLEC-to-CLEC cross-connects and more, according to CA. (CA BR 175) CA opposes AT&T Florida’s language, and suggests that no language is necessary.

AT&T Florida

AT&T Florida argues that the Act and the FCC’s rules define a “telecommunications service” as “the offering of telecommunications for a fee directly to the public, or to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.”[76] (TR 589, TR 625-626) AT&T Florida also notes the duty of an incumbent carrier to provide UNEs is found in 47 C.F.R. § 51.307(a):

An incumbent LEC shall provide, to a requesting telecommunications carrier for the provision of a telecommunications service, nondiscriminatory access to network elements on an unbundled basis at any technically feasible point on terms and conditions that are just, reasonable, and nondiscriminatory in accordance with the terms and conditions of any agreement, the requirements of Sections 251 and 252 of the Act, and the Commission’s rules.

AT&T Florida states that a CLEC that uses a UNE to provide service to itself for its own administrative purposes would not be using that UNE to provide service “to the public” or “for a fee,” and therefore would not be using the UNE to provide a telecommunications service. (TR 589) To that end, AT&T Florida has proposed the following ICA language:

CLEC cannot use a UNE (whether on a stand-alone basis, in combination with other UNEs, or otherwise), with a network element possessed by CLEC (or otherwise) to provide service to itself, or for other administrative purpose(s).

AT&T Florida acknowledges that there are some UNEs, such as dedicated interoffice transport, that would not be used by CA to serve a specific customer, but rather would be part of its overall network. CA can still obtain available UNEs, provided they are used to provide telecommunications service and to provide service to CA’s customers in general (e.g., by connecting to the local loops that serve CA’s customers). The only effect of AT&T Florida’s proposed language is to make clear that CA cannot obtain a UNE and then use that UNE solely to provide service to itself or for administrative purposes rather than using it as part of its overall network to service end-user customers. (TR 625-626)

Analysis

The requirement to provide UNEs is limited to the provision of telecommunications services pursuant to 47 C.F.R. § 51.307(a). The Act defined a telecommunications service as “the offering of telecommunications for a fee directly to the public, or to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used” pursuant to 47 C.F.R. § 51.5.

CA attempts to apply 47 C.F.R. § 51.309 regarding how UNEs are used, yet this presupposes that the UNEs are provisioned pursuant to the requirement of 47 C.F.R. § 51.307. The limitations within 47 C.F.R. § 51.307 precede the protection offered within 47 C.F.R. § 51.309. As a result, staff believes CA may not use a UNE to provide service to itself or for other administrative purposes because it would not be to the public or for a fee.

Furthermore, the rule that CA relies on (47 C.F.R. § 51.309) addresses the use of UNEs “. . . for the service a requesting telecommunications carrier seeks to offer.” Staff believes the provision of a service to itself is inconsistent with offering a service.

Finally, if CA believes AT&T Florida is not applying its unbundling obligations correctly for a non-customer-specific UNE for the provision of a telecommunications service and that such action is an anticompetitive act, CA may file a complaint with this Commission pursuant to Section 364.16(2), F.S.

AT&T Florida has clarified that there are some UNEs, such as dedicated interoffice transport, that would not be used by CA to serve a specific customer, but rather would be part of its overall network. CA can still obtain available UNEs, provided they are used to provide telecommunications service and to provide service to CA’s customers in general. For these reasons, staff believes that AT&T Florida’s proposed contract language is appropriate.

Conclusion

Staff recommends that CA may not use a UNE to provide service to itself or for other administrative purposes.

Issue 58:

Is multiplexing available as a stand-alone UNE independent of loops and transport? (UNE § 6.4.2 and § 9.6.1)

Recommendation:

No. Staff recommends that multiplexing should not be available as a stand-alone UNE independent of loops and transport; however, AT&T Florida’s language in Section 6.4.2 of the ICA should be modified to more closely mirror the FCC’s rule language by removing the phrase “or higher.” While multiplexing is not a stand-alone UNE, staff believes that multiplexing is a routine network modification and recommends that Section 9.6.1 of the ICA be blank. (Fogleman)

Position of the Parties

CA:

Yes. CA believes that multiplexing is a Routine Network Modification and as such it should be available in any technically feasible combination to a CLEC, even if not ordered as part of an EEL which includes transport service. An example of a non-EEL multiplexing arrangement would be a loop+multiplexing combination.

AT&T Florida:

Affected contract language: UNE 6.4.2: No. 47 C.F.R. § 51.319 is the exclusive list of UNEs, and multiplexing is not on the list. Consequently, multiplexing is not available as a stand-alone UNE. Multiplexing is available when ordered in conjunction with unbundled dedicated transport to provide an enhanced extended loop.

Affected contract language: UNE 9.6.1: No. Multiplexing is available under the ICA only as part of an enhanced extended loop. AT&T Florida’s proposed language in UNE § 9.6.1 makes clear that when CA orders DS1 or DS3 unbundled dedicated transport, this service will include multiplexing.

Staff Analysis:

While the issue was framed to address the availability of multiplexing as a stand-alone UNE independent of loops and transport, the parties also address the availability of multiplexing as a requirement related to routine network modifications that are addressed in the FCC’s rules. AT&T Florida defines multiplexing as a conversion of a circuit from either a higher bandwidth to lower bandwidth or from digital to voice grade. (TR 591)

Parties’ Arguments

CA is not arguing that multiplexing must be offered as a standalone UNE. Multiplexing is a routine network modification which is used to further divide a circuit such as a DS3 into what CA calls tails. Thus, you could take a circuit and divide it into smaller subdivided circuits which are used for various purposes. (TR 155)

CA is arguing that multiplexing should be offered/combined with: 1) UNE loops, 2) UNE transport, and 3) UNE loops that are combined with UNE transport (i.e., multiplexed enhanced extended loops or EELs). CA defines an EEL as a type of circuit that a CLEC can order when it needs to serve a customer that is served from a CO where the CLEC does not have a collocation. (TR 154-155) CA further states that an EEL contains two components: loop and transport. The loop serves the customer premise, and the transport component is connected to that loop. The loop carries their circuit back to the collocation that the CLEC has in a different CO. (TR 155) CA contends that AT&T Florida does all of the above for itself and should be required to do this for CLECs as well at cost-based rates. (TR 68)

CA’s specific objection is that UNE multiplexing should not automatically be considered an EEL, and subject to the restrictions and additional cost imposed upon EELs. (TR 68) CA argues multiplexing/loop combinations should be permitted. However, it would not be an EEL if the multiplexer is fed from a CLEC collocation and no UNE transport is part of the arrangement. (TR 68-69) CA believes multiplexing should be considered a routine network modification as noted in 47 C.F.R. § 51.319(d)(4). (TR 155-156)

AT&T Florida

AT&T Florida contends that multiplexing is not available as a standalone UNE because it is not listed in 47 C.F.R. § 51.139. AT&T Florida states FCC Rule 51.319 is the sole and exclusive list of UNEs. AT&T Florida believes states cannot expand the list to include additional UNEs. Multiplexing is not on the list and, therefore, does not have to be provided on a stand-alone basis. (TR 590)

A CLEC may order stand-alone multiplexing from AT&T Florida’s special access tariff. Additionally, multiplexing may be ordered in conjunction with Unbundled Dedicated Transport (UDT) at the time UDT is ordered; in this instance it will be provided at the rates contained in the pricing schedule. (TR 590) AT&T Florida is proposing language in Section 6.4.2 of the ICA that essentially mirrors the language used in 47 C.F.R. 51.318(b) and argues that there is no reasonable basis for CA to oppose that language. (TR 590-591)

AT&T Florida also proposes a definition of multiplexing that is used in Section 9.6.1 of the ICA that is objected to by CA. AT&T Florida defines multiplexing as an item ordered in conjunction with DS1 or DS3 UDT that converts a circuit from higher to lower bandwidth or from digital to voice grade. AT&T Florida argues multiplexing is only available when ordered at the same time as DS1 or DS3 UDT at the rates set forth in the Pricing Schedule. (TR 591) Because the definition conflicts with CA’s desire to order standalone multiplexing, it has omitted the definition from the ICA. Because it does not appear elsewhere in the ICA, AT&T Florida states that Section 9.6.1 is the appropriate location for the definition of multiplexing. (TR 592)

Regarding the assertion that multiplexing is a routine network modification, AT&T Florida concedes that the FCC rules address network modifications and multiplexing, but it is only in the context of deploying a new multiplexer or reconfiguring an existing multiplexer for an active circuit that has already been constructed. (TR 698-699) AT&T Florida further states that in the case where a circuit that was already multiplexed had an issue that required AT&T Florida to install a new multiplexer or reconfigure one that is already there to make sure the circuit is good, that would be a routine network modification. (TR 699) By comparison, multiplexing, which changes the bandwidth of a circuit, is not a routine network modification according to AT&T Florida. (TR 698)

Analysis

First, AT&T Florida is proposing the following language (bold) in Section 6.4.2. CA’s proposed language would exclude this text:

6.4.2 AT&T-21STATE is not obligated, and shall not, provide access to (1) an unbundled DS1 UNE Loop in combination, or Commingled, with a DS1 UDT facility or service or a DS3 or higher UDT facility or service, or an unbundled DS3 UNE Loop in combination, or Commingled, with a DS3 or higher UDT facility or service, or (2) an unbundled DS1 UDT facility in combination, or Commingled, with an unbundled DS1 UNE Loop or a DS1 channel termination service, or to an unbundled DS3 UDT facility in combination, or Commingled, with an unbundled DS1 UNE Loop or a DS1 channel termination service, or to an unbundled DS3 UNE Loop or a DS3 or higher channel termination service (collectively, the “Included Arrangements”), unless CLEC certifies that all of the following conditions are met with respect to the arrangement being sought. . . .

AT&T Florida’s witness Kemp states that the contract language should mirror the FCC’s rule. (TR 591) While AT&T Florida’s language closely tracks that of the 47 C.F.R. 51.318(b) listed below, it is not an exact match. AT&T Florida’s proposed language includes the phrase “or higher” in two places in its proposed language. The “or higher” phrase does not appear in the FCC’s rule. Staff has emphasized the corresponding text below to highlight the differences between the rule and AT&T Florida’s proposed contract language.

47 C.F.R. §51.318(b) An incumbent LEC need not provide access to an unbundled DS1 loop in combination, or commingled, with a dedicated DS1 transport or dedicated DS3 transport facility or service, or to an unbundled DS3 loop in combination, or commingled, with a dedicated DS3 transport facility or service, or an unbundled dedicated DS1 transport facility in combination, or commingled, with an unbundled DS1 loop or a DS1 channel termination service, or to an unbundled dedicated DS3 transport facility in combination, or commingled, with an unbundled DS1 loop or a DS1 channel termination service, or to an unbundled DS3 loop or a DS3 channel termination service, unless the requesting telecommunications carrier certifies that all of the following conditions are met. . . .

CA provides no compelling reason why the language in the ICA should not reflect that of the FCC rule. Furthermore, CA does not argue that multiplexing is an UNE, but argues that it is a routine network modification. (TR 155-156)

Second, AT&T Florida seeks to include a definition of multiplexing in the UNE DS1 and DS3 Dedicated Transport section of the ICA. AT&T Florida’s proposed language below would have the effect of limiting the availability of multiplexing to only when it is ordered at the same time as DS1 or DS3 unbundled dedicated transport:

Multiplexing–an option ordered in conjunction with DS1 or DS3 UDT that converts a circuit from higher to lower bandwidth, or from digital to voice grade. Multiplexing is only available when ordered at the same time as DS1 or DS3 UDT and at the rates set forth in the Pricing Schedule.

CA asserts that 47 C.F.R. § 51.319(d)(4) requires AT&T Florida provide multiplexing as a routine network modification. CA objects to AT&T Florida’s definition and proposes that it be left blank. CA seeks to avail itself to multiplexing in a multiplexing/loop combination where CA supplies its own transport. However, 47 C.F.R. § 51.319(d)(4) is a subsection addressing routine network modifications in instances where the ILEC provides the dedicated transport. Yet there is a corresponding rule regarding routine network modification for unbundled loop facilities (47 C.F.R. § 51.319(a)(7)). Thus, the FCC rules appear to address the requirements regarding routine network modifications that are necessary for transport loop facilities ordered independently from other UNEs. Both rules are listed below:

47 C.F.R. § 51.319 Specific unbundling requirements

(a) Local loops

. . .

(7) Routine network modifications.

(i) An incumbent LEC shall make all routine network modifications to unbundled loop facilities used by requesting telecommunications carriers where the requested loop facility has already been constructed. An incumbent LEC shall perform these routine network modifications to unbundled loop facilities in a nondiscriminatory fashion, without regard to whether the loop facility being accessed was constructed on behalf, or in accordance with the specifications, of any carrier.

(ii) A routine network modification is an activity that the incumbent LEC regularly undertakes for its own customers. Routine network modifications include, but are not limited to, rearranging or splicing of cable; adding an equipment case; adding a doubler or repeater; adding a smart jack; installing a repeater shelf; adding a line card; deploying a new multiplexer or reconfiguring an existing multiplexer; and attaching electronic and other equipment that the incumbent LEC ordinarily attaches to a DS1 loop to activate such loop for its own customer. Routine network modifications may entail activities such as accessing manholes, deploying bucket trucks to reach aerial cable, and installing equipment casings. Routine network modifications do not include the construction of a new loop, or the installation of new aerial or buried cable for a requesting telecommunications carrier.

(emphasis added)

. . .

(d) Dedicated transport

. . .

(4) Routine network modifications.

(i) An incumbent LEC shall make all routine network modifications to unbundled dedicated transport facilities used by requesting telecommunications carriers where the requested dedicated transport facilities have already been constructed. An incumbent LEC shall perform all routine network modifications to unbundled dedicated transport facilities in a nondiscriminatory fashion, without regard to whether the facility being accessed was constructed on behalf, or in accordance with the specifications, of any carrier.

(ii) A routine network modification is an activity that the incumbent LEC regularly undertakes for its own customers. Routine network modifications include, but are not limited to, rearranging or splicing of cable; adding an equipment case; adding a doubler or repeater; installing a repeater shelf; and deploying a new multiplexer or reconfiguring an existing multiplexer. They also include activities needed to enable a requesting telecommunications carrier to light a dark fiber transport facility. Routine network modifications may entail activities such as accessing manholes, deploying bucket trucks to reach aerial cable, and installing equipment casings. Routine network modifications do not include the installation of new aerial or buried cable for a requesting telecommunications carrier. (emphasis added)

AT&T Florida witness Kemp argues that routine network modifications relate only to a circuit that is already constructed. For example, in the case where a circuit was already multiplexed and something happened, AT&T Florida would either install a new multiplexer or reconfigure the one that is already there. (TR 699)

While the FCC’s TRO order did limit the ILEC’s requirement to perform network modification on existing facilities, its limitation was on existing wires and does not appear to be related to multiplexer equipment. The FCC noted that “These routine modifications include deploying multiplexers to existing loop facilities and undertaking the other activities that incumbent LECs make for their own retail customers.”[77] The TRO order also noted that “attaching routine electronics, such as multiplexers . . . is already standard practice . . . ” and “. . . performing such functions is easily accomplished.”[78]

This issue addresses contract language in two Sections of the ICA: 6.4.2 and 9.6.1. AT&T Florida’s contract language in Section 6.4.2 is similar to the FCC’s rule language. Despite testimony by AT&T Florida’s witness Kemp that the language should mirror the rule, some language (i.e. “or higher”) is not in the FCC’s rule. While CA states it does not argue that multiplexing must be offered as a standalone UNE, it did contest language found in AT&T’s proposed contract language that, for the most part, is parallel to the FCC’s rules. CA’s argument is focused on the availability of multiplexing as a routine network modification. Staff believes that AT&T Florida’s language in Section 6.4.2 is reasonable within the context of the FCC’s rule; however, the phrase “or higher” should be removed to correspond to the language found in the FCC’s rule.

In Section of the ICA 9.6.1, AT&T Florida has proposed language that would restrict multiplexing to when it is ordered at the same time as DS1 or DS3 unbundled dedicated transport. By comparison, CA proposes to leave this section blank, arguing that such a restriction is inconsistent with the FCC rules regarding routine network modification. After reviewing the FCC’s rules and the TRO, staff believes multiplexing is a routine network modification that is found within the requirements of unbundled loop facilities[79] and unbundled dedicated transport.[80]

Conclusion

Staff recommends that multiplexing should not be available as a stand-alone UNE independent of loops and transport; however, AT&T Florida’s language in Section 6.4.2 of the ICA should be modified to more closely mirror the FCC’s rule language by removing the phrase “or higher.” While multiplexing is not a stand-alone UNE, staff believes that multiplexing is a routine network modification and recommends that Section 9.6.1 of the ICA be blank.

Issue 64:

What time interval should be required for submission of directory listing information for installation, disconnection, or change in service? (CIS § 6.1.5)

Recommendation:

Staff recommends that the time interval for submission of directory listing information for installation, disconnection, or change in service should be one business day. (Williams)

Position of the Parties

CA:

None. CA believes that the timing of or decision to order directory listings rests solely with the End User Subscriber, and not with CA or AT&T.

AT&T Florida:

AT&T must receive listing information from CA within one (1) business day of installation or other change in service to ensure that the listed customer’s information is timely and accurately reflected in the listing database.

Staff Analysis:

Issue 64 concerns how long CA should be given to submit directory listing information to AT&T Florida’s Directory Assistance (DA) database following the installation, disconnection, or change in service to a customer line. This new listing information might include new subscriber listings, changes to existing listings or disconnection of existing listings. The applicable contract language is CIS 6.1.5.

Parties Arguments

CA argues that AT&T Florida’s retail subscribers are not required to order directory listings when they order local service. (CA BR 185) AT&T Florida also no longer publishes white pages directories at all, and it has offered no reason for this proposed requirement. (CA BR 185) Further, CA argues that AT&T Florida admits that there is no legal basis for this requirement. Therefore, CA believes that AT&T Florida’s language is discriminatory and unreasonable. (TR 679)

AT&T Florida

AT&T Florida argues that CA should be required to submit directory listing change information within one (1) business day of the installation, disconnection or change in service, as reflected in AT&T Florida’s proposed language for CIS §6.1.5. (AT&T Florida BR 185) This timeline ensures that the directory information is up-to-date and that callers are able to reach a customer whose service has recently changed. AT&T Florida further argues that, by contrast, CA takes the position that the ICA should not provide any timeframe in which CA must submit necessary directory assistance changes. (AT&T Florida BR 185)

AT&T Florida believes CA’s position is unreasonable, would negatively impact CA’s customers and any consumers trying to reach CA’s customers, as well as AT&T Florida, and should be rejected. AT&T Florida contends that it works diligently to maintain the accuracy of the DA database. This requires that information be updated as soon as possible to ensure that customers seeking directory assistance have the most accurate information available. The sooner the database is updated the better, because it is unlikely the new customer will provide updated information to all those who may wish to reach the customer. Those wishing to reach the customer can obtain directory listing information only if it is in the DA database. AT&T Florida set the one business day requirement to ensure the same level of quality for accurate directory listings that AT&T Florida provides for itself and for other CLECs. In order to provide consistent service to CA, it is necessary for AT&T Florida to obtain listing information from CA within one business day of installation. It takes up to 72 hours to process the listings and AT&T Florida requests submission within one business day from all CLECs. (TR 599, TR 630)

If CA delays submitting customer directory information, CA’s end users may be harmed by the inability of others to find the CA customer’s current number. (TR 599, TR 600) CA’s delay would also cause additional administrative burdens to AT&T Florida. For delayed submissions, AT&T Florida would place the directory listing service orders in pending status. If the pending service orders are not resolved timely by CA, AT&T Florida would have to contact CA in an attempt to resolve the issue. This effort could be avoided if CA submits the directory listing information within the timeframe set out in the ICA. (TR 600)

CA suggests in its Response to Staff Interrogatory 27 (EXH 26, p. 29), that neither CA nor AT&T Florida should have the right to force an end user to place a listing. CA states that AT&T Florida witness Kemp proposes language that would not have this effect. Witness Kemp testified that the contract language only applies where there is a change “affecting the [directory assistance] database or the directory listing of a CLEC End User.” If the CA end user does not want a listing, there is nothing for CA to submit and the deadline in CIS §6.1.5 does not apply. (TR 629)

AT&T Florida concludes that for these reasons, the Commission should reject CA’s proposal that it have no specific timelines for submission of DA listing information and adopt AT&T Florida’s language in CIS §6.1.

Analysis

This issue addresses the length of time CA should have to submit directory listing information to AT&T Florida for input into the database following the installation, disconnection, or change in service. Having the information forwarded to AT&T Florida within one business day would assist in assuring that the directory information is accurate.

AT&T Florida’s internal company procedures and practice requires the one day change for customer service quality purposes. Further, AT&T Florida has the same requirement for all CLECs it has entered agreements with.

AT&T Florida argues that it must receive listing information from CA within one business day of installation or other change in service to ensure that the listed customer’s information is timely and accurately reflected in the listing database. (AT&T Florida BR 185) AT&T Florida further argues that AT&T Florida and other CLECs in Florida comply with this requirement and to allow CA to provide information at random intervals would disrupt and degrade the accuracy of OS/DA and directory listing database information for AT&T Florida as well as CLECs. (AT&T Florida BR 186)

Staff is persuaded by AT&T Florida’s argument that to allow CA to provide information at random intervals would disrupt and degrade the accuracy of OS/DA and directory listing database information for AT&T Florida as well as CLECs. (TR 599, 630, EXH 26, p. 29) It would also be inconsistent and unfair to CA’s customers to allow submittal beyond one business day. Based on staff’s analysis, AT&T Florida’s proposed language is appropriate.

Conclusion

Staff recommends that the time interval for submission of directory listing information for installation, disconnection, or change in-service should be one business day be adopted.

Issue 65:

Should the ICA include CA's proposed language identifying specific circumstances under which AT&T Florida or its affiliates may or may not use CA's subscriber information for marketing or winback efforts? (CIS § 6.1.9.1)

Recommendation:

No. Staff recommends that the ICA not include CA’s proposed language identifying specific circumstances under which AT&T Florida or its affiliates may or may not use CA’s subscriber information for marketing or winback efforts. (Williams)

Position of the Parties

CA:

Yes. CA believes that its language is consistent with FCC regulations regarding CPNI and slamming. AT&T has cited no legal or regulatory decision to support its position, and has not stated what it intends to use CA’s subscriber information for which would be prevented by CA’s language.

AT&T Florida:

No. Section 222 of the Communications Act governs the uses to which AT&T and its affiliates may put customer information. AT&T’s language appropriately requires compliance with Section 222; CA’s language goes beyond that and attempts to impose obligations and limitations on AT&T that are not consistent with Section 222.

Staff Analysis:

This issue addresses whether Section 222 of the Act should govern the uses to which AT&T Florida and its affiliates may use customer information obtained from CA or CA’s proposed language identifying specific circumstances under which AT&T Florida or its affiliates may or may not use CA’s subscriber information for marketing or winback efforts. The applicable contract language is CIS 6.1.9.1. AT&T Florida’s language specifically states that subscriber listing information received from CA will be cared for in accordance with the provisions of Section 222 of the Act. Section 222, in part, clearly states that a telecommunications carrier that receives or obtains proprietary information from another carrier for purposes of providing telecommunications service shall not use the information for its own marketing efforts. Staff believes Section 222 is clear and addresses CA’s concern. Further, staff believes it is more appropriate to reference adherence to Section 222’s applicable language, instead of adding language to restate the Act’s intent. CA’s proposed language, as presented in CIS 6.1.9.1 states:

Neither AT&T-21STATE nor any of its affiliates shall use CLEC subscriber information for any marketing or “winback” efforts or campaigns, unless 1. the subscriber information is provided in the aggregate form along with all AT&T-21STATE subscriber information and 2. CLEC subscribers cannot be identified and separated from the information provided.

Parties Arguments

CA states that AT&T Florida has cited no legal or regulatory decision to support its position, and has not stated what it intends to use CA’s subscriber information for which would be prevented by CA’s language.

AT&T Florida

AT&T Florida argues that its proposed language appropriately points to 47 U.S.C. §222, which is the federal law that governs the uses to which AT&T Florida and its affiliates may use customer proprietary network information (CPNI). Section 222 includes specific requirements imposed on telecommunications carriers regarding the protection and disclosure of CPNI and sets forth specific exceptions to the general prohibitions against its disclosure. (AT&T Florida BR 187)

AT&T Florida further argues that CA’s proposed language attempts to add additional criteria that must be met to enable AT&T Florida or its affiliates to use CA subscriber information. AT&T Florida states that this additional language is not appropriate or necessary because the three sections of the Act referenced in CIS §6.1.9.1 (Sections 251 and 271 as agreed by the parties, and Section 222 as proposed by AT&T Florida) sufficiently address the parties’ rights and obligations; therefore, no additional details regarding scenarios or criteria are necessary. (AT&T Florida BR 187)

AT&T Florida presents that CA claims that its position complies with current FCC orders regarding CPNI as well as Section 222 of the Act. (TR 72). AT&T Florida argues, however, that CA makes AT&T Florida’s point by acknowledging that the language of the agreement ought to comply with Section 222 of the Act (and the FCC orders regarding CPNI that are promulgated pursuant to Section 222). AT&T Florida further argues that is precisely what AT&T Florida’s language achieves, because it points directly to 47 U.S.C. §222; no additional language or criteria are necessary or proper. (AT&T Florida BR 187)

Further, AT&T Florida points out that CA states that it “believes” its language complies with “current” FCC orders. AT&T Florida argues that even if that is true, that is not sufficient. The language of the agreement should comply with Section 222 and FCC orders as they may exist now or may exist in the future. (AT&T Florida BR 187)

Analysis

Staff agrees with AT&T Florida’s argument that Section 222 of the Act governs the uses to which AT&T Florida and its affiliates may or may not use customer information. AT&T Florida’s language appropriately requires compliance with Section 222. In contrast, CA’s language introduces specifics that are not necessary and that may conflict with and unnecessarily complicate the intent of Section 222.

Consistent with AT&T Florida, CA agrees that Section 222 governs the use of customer information by AT&T Florida. However, CA believes it is necessary to add additional language it developed to govern the use of customer information.

Staff is concerned that adding such language may inadvertently create confusion on the requirements. Further, staff does not believe additional language, beyond what is presented in Section 222, is necessary considering that the FCC developed the language for the specific purpose of preventing abuses pertaining to the use of customer information by the ILEC.

In response to staff’s First Set of Interrogatories, AT&T Florida provided an analysis of how subscriber listing information received from a CLEC is to be handled and cared for in accordance with Section 222 and any other application federal or state regulations and orders. (EXH 36, p. 621) AT&T Florida explains that Section 222 defines subscriber list information as a carrier’s subscriber’s name, telephone number, address, or primary advertising classification that carrier has published. AT&T Florida also points out that Section 251 and Section 271 of the Act requires it to provide nondiscriminatory access to telephone numbers and directory listing, among other things. To ensure the directory listing is provided in a nondiscriminatory manner, AT&T Florida provides the subscriber information intermingled with AT&T Florida and other CLEC subscriber list information. The intermingled data provides the list of subscribers, but the recipient is unable to identify the subscriber’s provider. AT&T Florida further reiterates that it does not use the information for marketing purposes. (EXH 36, p. 621)

Staff does not believe CA presents a sound argument as to why reference to adherence to Section 222 is not sufficient. If AT&T Florida’s language complies with Section 222 as CA acknowledges, there is no reason for additional language.

Further, the Commission has formally acknowledged the applicability of Section 222 related to AT&T Florida’s sharing wholesale information received from CLECs with its retail division. Specifically, the Commission has affirmed that AT&T Florida cannot share carrier-to-carrier information acquired from its wholesale division with its retail division.[97]

Lastly, in response to a staff interrogatory, AT&T Florida represents that it has not been found in violation of applicable laws, orders, or rules relating to marketing or winback campaigns. These incudes matters before the FCC, the Commission, and other public utility commissions. (EXH 36, Bates No. 622)

Staff is persuaded by AT&T Florida’s argument that Section 222 of the Act governs how AT&T Florida and its affiliates may or may not use customer information. (TR 72) Based on staff’s analysis, AT&T Florida’s proposed language is appropriate.

Conclusion

Staff recommends that the ICA not include CA’s proposed language identifying specific circumstances under which AT&T Florida or its affiliates may or may not use CA’s subscriber information for marketing or winback efforts.

Issue 66:

For each rate that CA has asked the Commission to arbitrate, what rate should be included in the ICA? (Pricing Sheet)

Recommendation:

For each rate that CA has asked the Commission to arbitrate, staff recommends the rate that should be included in the ICA is the rate proposed by AT&T Florida. (Long)

Position of the Parties

CA:

The Commission last reviewed the instant rates over ten years ago, at which time the ILEC was BellSouth, a much smaller entity. To the extent any of CA’s proposed rates are subject to an AT&T TELRIC cost study, the Commission should order a new proceeding to investigate those rates.

AT&T Florida:

The AT&T rates that CA disputes are the standard rates that AT&T charges CLECs in Florida. They are (1) TELRIC-based rates that the Commission has approved; (2) resale prices that reflect the Commission-established wholesale discount; or (3) market-based prices for products that are not subject to regulation.

Staff Analysis:

This issue addresses the rates disputed between the parties. In its Petition, CA disputes the rates for 217 separate elements from the proposed ICA. CA lists these as Issues 92 through 309. CA also lists AT&T Florida’s and CA’s proposed rates for each element in Exhibit C to its Petition. These rate disputes were subsequently consolidated into the instant issue. CA relies primarily on its estimate of reasonableness and Verizon Florida’s prices in selected ICAs as the basis for its proposed rates. AT&T Florida bases its proposed rates on previous Commission orders for UNEs and resale, and its own market rates for elements that are not on the FCC’s UNE list.

Parties’ Arguments

CA presents three primary arguments regarding this issue. First, CA witness Ray offers what he considers more reasonable rates than those proposed by AT&T Florida. In particular, witness Ray “suggested alternate rates that are similar to those charged in Florida by Verizon for the same rate element. For other charges, particularly those that are not found in Verizon’s ICAs or do not appear to be cost-based, CA has suggested rates that are more commercially reasonable than those suggested by AT&T.” (TR 72)

Witness Ray’s second argument is that UNE and collocation rates should be updated through a new generic cost proceeding. Witness Ray agrees that UNE rates are appropriately determined in generic proceedings. (TR 157, EXH 46, Bates Nos. 1628-1629) Witness Ray states that “CA would accept this as a suitable remedy for all TELRIC-based charges raised by its petition and drop them from the case.” (TR 132)

Witness Ray’s final argument concerning this issue is “(t)o the extent that the Commission decides that it does not have authority over any given rate element, CA believes that the rate should not be included in this agreement and is more appropriately placed in a separate commercial agreement between the parties.” (TR 133)

AT&T Florida

AT&T Florida’s witnesses Kemp and Pellerin also offer three main arguments in support of their rate proposals. Witness Kemp testifies on the rates for UNEs, commingling, EELs, collocation, and branding for directory assistance and operator services. (TR 601) Witness Pellerin testifies on the rates for local interconnection. (TR 264)

First, witnesses Kemp and Pellerin argue that most of the rates they propose are ones established in previous generic Commission proceedings. Witness Kemp states that “(t)he Commission previously approved AT&T Florida’s UNE rates in Docket No. 990649-TP, Order No. PSC-01-2051-FOF-TP and Docket No. 990649A-TP, Order No. PSC-02-1311-FOF-TP. Collocation rates were previously approved in Dockets Nos. 981834-TP and 990321-TP, Orders Nos. PSC-04-0895-FOF-TP and PSC-04-0895A-FOF-TP.” (TR 601-602) Witness Pellerin argues that Docket No. 990649-TP, Order No. PSC-01-2051-FOF-TP was also the basis for AT&T Florida’s proposed local interconnection rates. (TR 264) Witnesses Kemp and Pellerin provide a spreadsheet including the basis for each of AT&T Florida’s proposed rates. (EXH 36, Bates Nos. 645-655)

Witness Pellerin offers one exception to her argument that the local interconnection rates were all set in the aforementioned Commission order: DS0 Trunk Installation Charges. Witness Pellerin explains these charges as follows:

AT&T Florida’s switches are equipped with dedicated DS1 trunk ports for interconnection trunking. DS1 trunk ports can accommodate up to 24 individual DS0 trunks, and AT&T Florida charges for installation of trunks on an individual basis. Thus, if a CLEC requires only 12 trunks, AT&T Florida assesses nonrecurring charges to install 12 trunks on a single order (one initial at $21.73, plus 11 additional at $8.19) rather than for the entire DS1 trunk port. The installation trunk charges per DS0 on the Pricing Sheets are based on an April 2000 cost study for DS1 trunk ports, divided by 24. AT&T Florida was unable to identify the Commission order number approving these charges. The DS0 interconnection trunk installation charges AT&T Florida proposes for CA’s ICA are the same charges AT&T Florida assesses to all CLECs in Florida.

(TR 264-265)

Witnesses Kemp and Pellerin also argue that for elements that are not UNEs and therefore not subject to TELRIC-based rates, AT&T Florida proposed market based rates. These rates include operator services and branding for directory assistance. (TR 602, EXH 36, Bates No. 623)

Finally, witnesses Kemp and Pellerin testify that CA should not be entitled to arbitrate rates in this proceeding. (TR 266, TR 602) Witness Pellerin supports this argument by stating that the Commission previously refused a similar request by Florida Digital Networks, Inc. in an arbitration with Sprint Florida. (TR 266) At hearing, both AT&T Florida witnesses testified that rates should be set in a generic proceeding. (TR 397, TR 699) Neither witness proposes that such a proceeding be conducted at this time. (TR 397, TR 700)

Analysis

This issue addresses the rates at issue in this proceeding, specifically the 217 rate elements CA contested in its Petition. Staff believes the evidence in the record supports AT&T Florida’s proposed rates.

CA witness Ray offers rates based on one or more of the following: rates based on Verizon Florida’s or other ILECs’ rates in other ICAs, Verizon Florida’s rates actually charged to other CLECs but not in an ICA, “parity” with 2-wire rates (for some 4-wire rate elements), local interconnection elements that should not be charged at all, or a subjective “reasonableness” standard. Staff does not believe these arguments sufficiently support CA’s proposed rates. (EXH 31, Bates Nos. 233-254)

While Verizon Florida has rates different from AT&T Florida’s rates in its ICAs, and some rates are lower, staff does not believe that Verizon’s UNE rates have any bearing on AT&T Florida’s rates. The rates in this proceeding, with the exception of custom branding for directory assistance and operator services, are required to be based on TELRIC per federal statutes and FCC rules.[98] Since the rates are required to be cost-based, substituting Verizon Florida’s rates for AT&T Florida’s will not satisfy the federal requirements. CA witness Ray admits that cost-based rates for interconnection and network elements are not necessarily equal for two ILECs in the same state. (EXH 34, Bates No. 488) AT&T Florida witness Kemp argues that “Verizon’s rates are based on Verizon’s costs, which have nothing to do with AT&T Florida’s costs.” (TR 631) AT&T Florida witness Pellerin makes a similar statement. (TR 308) Staff agrees that AT&T Florida’s and Verizon Florida’s wholesale costs are not related.

Similarly, staff believes witness Ray’s other grounds for CA’s proposed rates do not properly reflect AT&T Florida’s costs to provide the services. Staff believes the record supports the argument that cutting the 4-wire rates in half for 2-wire elements does not accurately reflect the 2-wire costs. (EXH 38, Bates No. 759) Staff also believes that CA witness Ray provides no evidentiary support for his statement that some of CA’s suggested rates are “more commercially reasonable.” (TR 72)

CA witness Ray also argues for a new TELRIC cost study to be performed. (TR 132) Witness Ray further argues that retail costs have “plummeted” since the last cost study was performed and that AT&T Florida’s wholesale costs are likely lower now. (EXH 27, Bates No. 60) Witness Ray further supports his request for a new cost study by stating that the existing costs are based on a cost study by AT&T Florida’s predecessor, BellSouth, and that AT&T Florida is much bigger now and has increased purchasing power. (EXH 46, Bates Nos. 1629-1630)

AT&T Florida’s witness Pellerin counters that AT&T Florida is not advocating a generic cost proceeding be conducted. Such a proceeding would likely be lengthy and resource-intensive. (EXH 47, Bates Nos. 1799-1803) Also, witness Pellerin states that there is no way to determine whether prices would go up or down as a result of such a proceeding. (EXH 47, TR 397, TR 400)

Staff believes that a new generic TELRIC cost docket would likely be lengthy and resource intensive. While CLECs could petition the Commission to conduct such a proceeding, a generic cost study is not appropriate in a two-party arbitration. AT&T Florida witness Pellerin argues that the Commission has previously declined to arbitrate rates it already set in a generic proceeding.[99]

CA witness Ray also argues that rates not subject to TELRIC price regulation should not be in the ICA at all. (TR 133) AT&T Florida witness Pellerin argues that while some agreements do not have these prices in them, it is more efficient to include them in an ICA both because it makes it clearer to the CLEC what AT&T Florida’s rates are for the services, and it is “a lot of trouble to draft and administer a commercial agreement for something that could be a single entry in an ICA.” (EXH 47, Bates No. 1798)

Staff is persuaded by witness Pellerin that the rates for custom branding of directory assistance and operator services can be included in the proposed ICA. Although these elements are not UNEs and are not directly regulated by this Commission, staff is persuaded by AT&T Florida’s argument that it is more expedient to include them in this agreement than to execute a separate commercial agreement for just this purpose.

Staff notes that CA reiterates in its brief a concern over a possible typographical error in AT&T Florida’s Pricing Sheet. (CA BR 188) CA witness Ray contends that the UNE element Dark Fiber–Interoffice Transport, USOC code UDF14, appeared to have a per-mile charge instead of a per-termination charge. (TR 132) The Pricing Sheet attached to witness Pellerin’s testimony listed USOC UDF14 on line 286 with “Per Four Fiber Strands, Per Termination.” It appears AT&T Florida’s proposed Pricing Sheet now lists the charge as applying per termination, which is consistent with CA’s expectation for this element. (EXH 2)

Conclusion

Staff recommends for each rate that CA has asked the Commission to arbitrate, the rate that should be included in the ICA is the rate proposed by AT&T Florida.

Attachment A

Proposed Parties’ Language Related to Issues

[1]Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (1996) (codified at 47 U.S.C. §§ 151, et seq. (1996)).

[2] 47 C.F.R. § 51.5 defines an “information service” as the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operations of a telecommunications system or the management of a telecommunications service. By comparison, a “telecommunications service” is defined as the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

[3] FCC 05-150, CC Docket No. 02-33, Appropriate Framework for Broadband Access to Internet over Wireline Facilities, Report and Order and Notice of Proposed Rulemaking, released September 23, 2005, ¶ 127.

[5]While the FCC’s Open Internet Order has recently reclassified broadband Internet access service as a telecommunications service under Title II of the Communications Act, the Order expressly forbore from any regulatory unbundling obligations. This point was agreed on by both parties. (EXH 38, Bates No. 701; EXH 46, Bates No. 1529) Furthermore, the rules from the Open Internet Order, while public, had not taken effect at the time of the hearing and are currently being challenged in court. (EXH 38, Bates No. 701)

[6] A central office is the building that houses the ILEC’s local switching facilities for a local calling area.

[7] TELRIC = Total Element Long Run Incremental Cost, the cost standard required by 47 U.S.C. § 252(d)(1) and used by the FCC in 47 C.F.R. § 51.505 for states to set rates for Unbundled Network Elements (UNEs) and collocation.

[8] NEBS = Network Equipment-Building System, a set of safety, spatial and environmental design guidelines applied to telecommunications equipment in the United States.

[9] AT&T Florida qualified its addition of the word “material” as applicable only if CA’s proposed language for Issues 4A and 4B is rejected. (BR 14)

[10] Order No. PSC-04-0895-FOF-TP, Issued September 14, 2004, in Docket No. 981834-TP, In re: Petition of Competitive Carriers for Commission action to support local competition in BellSouth Telecommunications, Inc.'s service territory.

[11] Order No. PSC-00-0941-FOF-TP, Issued May 11, 2000, in Docket No. 981834-TP, In re: Petition of Competitive Carriers for Commission action to support local competition in BellSouth Telecommunications, Inc.’s service territory.

[12] Collocation § 3.18.1 also allows for equipment “having been installed in any ILEC structure. . .prior to January 1, 1998 with no known history of safety problems.”

[13] The application of Late Payment Charges is addressed in Issues 13A, 13B, 13C, 13D, and 23.

[15] Effective date 11/5/2006, expiration date 11/4/2012, evergreen month to month until renegotiated.

[16] Effective date 10/14/2006, expiration date 8/31/2009. The ICA was adopted by Opextel LLC d/b/a Alodiga.

[17] Effective date 1/1/2001, expiration date 3/19/2010, evergreen month to month until renegotiated.

[18] Docket No. 050419-TP, Attachment 7, Section 1.16, Page 8.

[19] Docket No. 000828-TP, Attachment 7, Section 1.10, Page 4.

[20] Docket No. 060720-TP, Attachment 7, Section 1.3, Page 5.

[21] Dispute information should include: the date of the bill in question; the account number or other identification (CLEC must provide the CBA/ESBA/ASBS or BAN number) of the bill in question; telephone number, circuit ID number or trunk number in question; any Universal Service Ordering Code (USOC) information relating to the item questioned; amount billed; amount in question; and the reason that the Disputing Party disputes the billed amount. (EXH 2, pg. 40)

[22] The Effective Date of this Agreement shall be no later than ten (10) days after either (i) approval of this Agreement by the Commission or, absent such Commission approval, (ii) this Agreement is deemed approved under Section 252(e)(4) of the 1996 Act. (EXH 2, p. 29)

[23] Black’s Law Dictionary, http://thelawdictionary.org/material-breach/ accessed on May 28, 2015.

[24] Covelli Family L.P. v. ABG5, L.L.C., 977 So. 2d 749, 752 (Fla. App. 2008).

[26] Resale under Section 251 (c)(4) of the 1996 Act is an ILEC duty “to offer for resale at wholesale rates any telecommunications service that the carrier provides at retail to subscribers who are not telecommunications carriers.” Resale services are AT&T Florida’s retail telecommunications services that AT&T Florida sells to CA for resale to CA’s end users. (TR 416)

[27] A number that is within a block of numbers (NPA-NXX) that AT&T Florida obtained from the numbering authority.

[28] The CO is sometimes referred to as a wire center.

[29] See Figure 1: Typical Collocation Interconnection presented in witness Nienast Direct Testimony. This diagram illustrates how CA and AT&T Florida would physically collocate at an AT&T Florida CO building. (TR 490)

[30] The LATA (local access and transport area) is a term used to describe the geographic region or service area where a local exchange carrier provides service.

[31] The LATA (local access and transport area) is a term used to describe the geographic region or service area where a local exchange carrier provides service.

[32] E911 section 2.13 of the parties ICA defines AT&T Florida’s selective router as “the equipment used to route a call to 911 to the proper PSAP based upon the number and location of the caller.” It is a switch specially equipped to handle the proper routing of E911 calls. (TR 247; EXH 2, p. 141))

[33] Network Interconnection section 4.3.6. (EXH 2, p. 76)

[34] See AT&T Florida’s proposed language in Network Interconnection sections 4.3.9, 4.3.9.1, 4.3.9.2, 4.3.9.3, and 4.3.9.4. (EXH 2, pp. 77-78)

[35] CA argues that no other ILECs in Florida have taken AT&T Florida’s position that the CO building is not on the ILEC’s network. (TR 110)

[36] See Figure 1: Typical Collocation Interconnection presented in witness Nienast Direct Testimony. This diagram illustrates how CA and AT&T Florida would physically collocate at an AT&T Florida CO building. (TR 490)

[37] The parties ICA does not define the demarcation point. However, the point of interconnection, as described in the agreed upon language in Network Interconnection § 2.26, serves as the demarcation point. (EXH 2, 69; EXH 36, Bates No.. 566)

[38] ALEC = Alternative Local Exchange Carrier, a term synonymous with and superseded by Competitive Local Exchange Carrier (CLEC).

[39] Order No. PSC-00-0941-FOF-TP, issued May 11, 2000, in Docket Nos. 981834-TP, In re: Petition of Competitive Carriers for Commission action to support local competition in BellSouth Telecommunications, Inc.’s service territory, and 990321-TP, In re: Petition of ACI Corpg. d/b/a Accelerated Connections, Inc. for generic investigation to ensure that BellSouth Telecommunications, Inc., Sprint-Florida, Incorporated, and GTE Florida Incorporated comply with obligation to provide alternative local exchange carriers with flexible, timely, and cost-efficient physical collocation. page 51.

[42] Ohio Bell Tel. Co. v. PUC of Ohio, 711 F.3d 637 (6th Cir. Ohio 2013).

[46] Time Warner Cable Request for Declaratory Ruling that Competitive Local Exchange Carriers May Obtain Interconnection Under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers, WC Docket No. 06-55, Memorandum Opinion and Order, 22 FCC Rcd 3513 (WCB 2007).

[47] Petition of CRC Communications of Maine, Inc. and Time Warner Cable Inc. for Preemption Pursuant to Section 253 of the Communications Act, as Amended, WC Docket No. 10-143, Declaratory Ruling, 26 FCC Rcd 8259 (2011).

[48] SS7=Common Channel Signaling System 7. According to AT&T Florida witness Neinast, SS7 is “a set of telephony signaling protocols, developed in the mid-1970s, that are used to set up and take down telephone calls.” (TR 495)

[49] Witness Neinast also testified that during the 1993 mass calling event the Dallas/Fort Worth area experienced a similar “machine congestion.” (AT&T Florida BR 137-138; TR 494)

[50] MF = Multi Frequency, an in-band signaling system pre-dating SS7.

[51] In Case No. U-17349, issued December 6, 2013, “In the matter of the petition of Sprint Spectrum L.P. for arbitration pursuant to Section 252(b) of the Telecommunications Act of 1996 to establish interconnection agreements with Michigan Bell Telephone Company d/b/a AT&T Michigan,” the Michigan Public Service Commission overturned a decision by an arbitration panel that said carriers should wait for the FCC to negotiate interconnection terms. In its decision, the Michigan PSC ruled that AT&T Michigan was required to provide Sprint IP interconnection for the transmission of telephone calls that "AT&T provides to itself, affiliates or third parties pursuant to Section 251(c)(2) of the Act." (CA BR 146; TR 113)

[52] AT&T Florida noted that CA acknowledged that the FCC is considering the issue as well as other states in EXH 27, Bates No. 55. (AT&T Florida BR 143)

[53] AT&T Florida noted that if the FCC determined that section 251(c)(2) does not require IP interconnection and AT&T Florida were to enter into a commercial agreement with a CLEC that includes rates, terms, and conditions for IP interconnection that AT&T Florida is not required under the 1996 Telecom Act to provide CA or any other CLEC with the same rates, terms, and conditions. However, the commercial agreement may be available to CA under certain circumstances. Commercial agreements, meaning a voluntary negotiated agreement, are not compelled by or subject to sections 251 and 252. (AT&T BR 146; TR 446)

[54] Staff notes that the parties in the Michigan PSC arbitration case (Case No. U-17349) asked the MPSC to determine whether or not mandatory IP-to-IP interconnection should be included in the parties’ ICA. The parties in the present arbitration have not asked this Commission to decide on that issue.

[55] AT&T Michigan filed a Complaint for Declaratory, Injunctive and other Relief (Case No. 1:14-cv-00416) with the United States District Court for the Western District of Michigan on April 15, 2014.

[56] The Triennial Remand Order or TRRO was a response to the decision in USTA v. FCC in which the D.C. Circuit Court vacated many of the provisions set forth in the original Triennial Review Order created in 2003. In general, the TRRO addressed network unbundling obligations of incumbent local exchange carriers. FCC 04-290, WC Docket No. 04-313, Unbundled Access to Network Elements, Order on Remand, released February 4, 2005.

[60] Tier 1 wire centers are those incumbent LEC wire centers that contain at least four fiber-based collocators, at least 38,000 business lines, or both. Tier 1 wire centers also are those incumbent LEC tandem switching locations that have no line side switching facilities, but nevertheless serve as a point of traffic aggregation accessible by competitive LECs. 47 C.F.R. 51.319(d)(3)(i)

[61] A special access line is a dedicated line provided by a LEC to a customer for the customer’s exclusive use.

[62] Order No. PSC-06-0299-FOF-TP, Issued April 17, 2006, in Docket No. 04-1269-TP, In re: Petition to establish generic docket to consider amendments to interconnection agreements resulting from changes in law, by BellSouth Telecommunications, Inc., Issue 5)

[64] BellSouth identified the following unbundled loop facilities that will support DS1 service that would be available in areas where unbundling relief is granted: (1) 2-wire or 4-wire High Bit Rate Digital Subscriber Line (HDSL) Compatible Loops; (2) Asymmetrical Digital Subscriber Loops; (3) 2-wire Unbundled Copper Loops-Designed; or (4) Unbundled Copper Loop Non-Designed.

[65] FCC 04-290, WC Docket No. 04-313, Unbundled Access to Network Elements, Order on Remand, released February 4, 2005, ¶ 163 and footnote 454.

[66] Blumberg v. USAA Cas. Ins. Co., 790So. 2d 1061, 1066 (Fla. 2001) (quoting Smith v. Avatar Properties, Inc., 714 So. 2d 1103, 1107 (Fla. 5th DCA 1998). In Blumberg, the Florida Supreme Court found that while judicial estoppel normally requires mutuality of parties, there are exceptions to the identity of parties when special fairness and policy considerations compel it. Staff believes that there are no special fairness or policy considerations that would warrant making an exception to this requirement

[67] The North American Numbering Council (NANC) is a Federal Advisory Committee that was created to advise the Federal Communications Commission on numbering issues and to make recommendations that foster efficient and impartial number administration.

[68] Aging numbers are disconnected numbers that are not available for assignment to another end user or customer for a specified period of time. Numbers previously assigned to residential customers may be aged for no more than 90 days. Numbers previously assigned to business customers may be aged for no more than 365 days.

[69] FCC 04-164, CC Docket No. 01-338, Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Second Report and Order, released July 13, 2004.

[73] FCC 04-164, CC Docket No. 01-338, Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Second Report and Order, released July 13, 2004.

[74] The Commission previously approved AT&T Florida’s UNE rates in Docket No. 990649-TP, Order No. PSC-01-2051-FOF-TP and Docket No. 990649A-TP, Order No. PSC-02-1311-FOF-TP. Collocation rates were previously approved in Dockets Nos. 981834-TP and 990321-TP, Orders Nos. PSC-04-0895-FOF-TP and PSC-04-0895A-FOF-TP.

[75] Order No. PSC-13-0185-FOF-TP, Issued May 1, 2013, in Docket No. 090538-TP, In re: Amended Complaint of Qwest Communications Company, LLC against MCimetro Access Transmission Services ( d/b/a Verizon Access Transmission Services); XO Communications Services, Inc.; tw telecom of florida; Granite Telecommunications, LLC; Broadwing Communications, LLC; Access Point, Inc.; Birch Communications, Inc.; Budget Prepay, Inc.; Bullseye Telecom, Inc.; DeltaCom, Inc.; Ernest Communications, Inc.; Flatel, Inc.; Navigator Telecommunications, LLC; PaeTec Communications, Inc.; STS Telecom, LLC; US LEC of Florida, LLC; Windstream Nuvox, Inc.; and John Does 1 through 50, for unlawful discrimination,. p. 7.

[77] FCC 03-36, CC Docket No. 01-338, Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, released August 21, 2003, p. 7.

[81] The abbreviation, DS1, stands for Digital Signal, Level 1, and represents a digital local loop having a total digital signal speed of 1.544 megabytes per second. 47 C.F.R. § 51.319(a)(4)(i) A DS1 is the equivalent of 24 DS0 or 24 voice grade channels. A loop is the transmission facilities between a central office and the customer’s premises, i.e., “the last mile” of a carrier’s network that enables the end-user to originate and receive communications.

[82] The abbreviation, DS3, stands for Digital Signal, Level 3 and represents a digital local loop having a total digital signal speed of 44.736 megabytes per second. 47 C.F.R. § 51.319(a)(5)(i) A DS3 is the equivalent of 28 DS1s.

[83] Dedicated interoffice transmission facilities (dedicated transport circuit) are facilities dedicated to a particular customer or CLEC that it uses for transmission among ILEC central offices and tandem offices. CLECs generally use interoffice transport as a means to aggregate end-user traffic to achieve economies of scale. They do so by using dedicated transport to carry traffic from their end users’ loops, often terminating at ILEC central offices, through other central offices to a point of aggregation. Ultimately, the traffic is carried to the competitor’s switch or other equipment, often from an ILEC central office along a circuit generally known as an entrance facility. FCC 03-36, CC Docket No. 01-338, Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, released August 21, 2003, p. 224.

[87] FCC 03-36, CC Docket No. 01-338, Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Report and Order on Remand, and Further Notice of Proposed Rulemaking, released August 21, 2003, ¶ 361.

[89] Decision of the Arbitration Panel, Docket No. 6055-MA-100, Petition of Sprint Communications Company per § 252(b) of the Telecommunications Act of 1996 to Establish an Interconnection Agreement with Wisconsin Bell, Inc. (Wisc. Pub. Serv. Comm’n Jan. 15, 1997).

[90] Arbitration Decision, Cause No. 40625-INT-01, Sprint Communications Company L.P.’s Petition for Arbitration for Arbitration of Interconnection Rates, Terms, Conditions and Related Arrangements with Indiana Bell Telephone Co. (Ind. Util. Reg. Comm’n Jan. 9, 1997).

[91] Decision of Arbitration Panel, Case No. U-11203, Petition for Arbitration of Interconnection Rates, Terms, Conditions and Related Arrangements with Michigan Bell Tel. Co. (Mich. Pub. Serv. Comm’n Dec. 12, 1996).

[92] Decision of the Arbitration Panel, Docket No. 6055-MA-100, Petition of Sprint Communications Company per § 252(b) of the Telecommunications Act of 1996 to Establish an Interconnection Agreement with Wisconsin Bell, Inc. (Wisc. Pub. Serv. Comm’n Jan. 15, 1997).

[93] Arbitration Decision, Cause No. 40625-INT-01, Sprint Communications Company L.P.’s Petition for Arbitration for Arbitration of Interconnection Rates, Terms, Conditions and Related Arrangements with Indiana Bell Telephone Co. (Ind. Util. Reg. Comm’n Jan. 9, 1997).

[94] Decision of Arbitration Panel, Case No. U-11203, Petition for Arbitration of Interconnection Rates, Terms, Conditions and Related Arrangements with Michigan Bell Tel. Co. (Mich. Pub. Serv. Comm’n Dec. 12, 1996).

[95] http://wholesale.att.com/reference_library/guides/html/understanding_bill.html.

[96] The first sentence of FCC Order 99-72 states, “In this Order, we undertake common-sense steps to ensure that consumers are provided with basic information they need to make informed choices in a competitive telecommunications marketplace . . . .”

[97] Docket No. 020119-TP, In re: Petition for expedited review and cancellation of BellSouth Telecommunications, Inc.’s Key Customer Promotional tariffs and for investigation of BellSouth’s promotional pricing and marketing practices, by Florida Digital Network, Inc., p. 18, issued June 28, 2002.

[98] 47 U.S.C. § 252(d)(1) and 47 C.F.R. § 51.505

[99] Order No. PSC-06-0027-FOF-TP, January 10, 2006, in Docket No.041464-TP, In re: Petition for arbitration of certain unresolved issues associated with negotiations for interconnection, collocation, and resale agreement with Florida Digital Network, Inc. d/b/a FDN Communications, by Sprint-Florida, Incorporated.


DATE:	October 1, 2015
TO:	Office of Commission Clerk (Stauffer)
FROM:	Office of Telecommunications (Curry, Bates, Beard, Casey, Deas, Flores, Fogleman, Hawkins, Long, Salak, Williams) Office of the General Counsel (Tan, Ames)
RE:	Docket No. 140156-TP – Petition by Communications Authority, Inc. for arbitration of Section 252(b) interconnection agreement with BellSouth Telecommunications, LLC d/b/a AT&T Florida.
AGENDA:	10/13/15 – Regular Agenda – Post-Hearing Decision–Participation is Limited to Commissioners and Staff
COMMISSIONERS ASSIGNED:		Brisé, Brown, Patronis
PREHEARING OFFICER:		Brisé
CRITICAL DATES:		None
SPECIAL INSTRUCTIONS:		None

Act	Telecommunications Act of 1996
ACNA	Access Customer Name Abbreviation
AEL	All Equipment List
AIS	Approved Installation Supplier
ASR	Access Service Request
AT&T Florida	BellSouth Telecommunications, LLC d/b/a AT&T Florida d/b/a AT&T Southeast
BFFO	Bona Fide Firm Order
CA	Communications Authority, Inc.
C.F.R.	Code of Federal Regulations
CIC	Carrier Information Code
CLEC	Competitive Local Exchange Carrier
CO	Central Office
CPNI	Customer Proprietary Network Information
DA	Directory Assistance
DS0	Digital Signal, level Zero. DS0 is 64,000 bits per second.
DS1	Digital Signal, level One. A 1.544 million bits per second digital signal carried on a T-1 transmission facility.
DS3	Digital Signal, level Three. The data rate for this type of signal is 44.736 million bits per second.
E911	Enhanced 911
EEL	Enhanced Extended Link
FCC	Federal Communications Commission
GT&C	General Terms and Conditions
HDSL	High Bit Rate Digital Subscriber Line
HVCI	High Volume Call-In
ICA	Interconnection Agreement
ILEC	Incumbent Local Exchange Carrier
IP	Internet Protocol
ISP	Internet Service Provider
IXC	Interexchange Carrier
LATA	Local Access Transport Area
LEC	Local Exchange Carrier
LERG	Local Exchange Routing Guide
LMU	Loop Makeup
LNP	Local Number Portability
Mux	Multiplexing
NEBS	Network Equipment Building Systems
NXX	Central Office Code/Prefix
OCN	Operating Company Number
OS	Operator Services
OSS	Operational Support Systems
POI	Point of Interconnection
PSAP	Public Safety Answering Position a/k/a Public Safety Answer Point
PSTN	Public Switched Telephone Network
SQM	Service Quality Measurement Plan
SR	Selective Router
SS7	Signaling System 7
TDM	Time Division Multiplexing
TELRIC	Total Element Long-Run Incremental Cost
TP	Technical Publication
TRO	Triennial Review Order, FCC 03-36
TRRO	Triennial Review Remand Order, FCC 04-290
UCL	Unbundled Copper Loop
UDT	Unbundled Dedicated Transport
UNE	Unbundled Network Element
USOC	Universal Service Order Code
VoIP	Voice over Internet Protocol

Coverage Provision	AT&T Florida	CA
General Aggregate Limit	$10,000,000	$2,000,000
Each Occurrence	$5,000,000	$2,000,000
Personal Injury and Advertising Injury	$5,000,000	$2,000,000
Products/Completed Operations Aggregate limit	$10,000,000	$2,000,000
Damage to Premises Rented to you (Fire Legal Liability)	$2,000,000	$500,000