STATES ADDRESS VEXING PROCEDURAL QUESTIONS AS TRO CASES PROCEED
State regulators remain tangled with vexing procedural questions that must be settled before they can come to grips with the market impairment analysis cases required by the FCC’s Triennial Review Order (TRO), officials said. In actions in the last week, states were considering whether they had enough evidence to conduct cases, deciding on splitting cases into phases and ruling on discovery issues.
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SBC and Verizon told the Cal. PUC they planned to prove that the FCC triggers for dropping mass-market unbundled switching had been met in 7 Cal. metro markets, but CLECs said they wanted the PUC to stipulate that SBC must be prepared for a full competitive impairment analysis if it failed to prove the triggers had been met. The FCC in the TRO said unbundled mass-market switching from an incumbent wasn’t required for competition if CLECs in the market had at least 3 other retail or 2 other wholesale providers of switching services to choose. SBC (Case 95-04-043) said the FCC triggers had been met in the L.A., Riverside, Sacramento, San Diego, San Francisco-Oakland, San Jose and Santa Rosa Metropolitan Statistical Areas (MSAs).
Verizon (Case 95-04-044) told the PUC that the triggers had been met in the portions of the L.A., Riverside and San Francisco MSAs that it served. But 9 CLECs in a joint filing said they wanted SBC to tell the PUC whether it intended to make a case that market conditions still would permit competition to flourish in the event the PUC found the triggers hadn’t been met. The CLECs said evidentiary discovery required understanding the precise issues to be litigated. The issue didn’t arise with Verizon, because it said if the PUC didn’t agree the triggers had been met in its markets, it would drop its challenge to unbundled mass-market switching.
The N.H. PUC closed its 90-day TRO case on the need for unbundled enterprise switching. It ruled not germane the evidence provided by the 2 CLECs seeking to challenge the FCC’s conclusion that enterprise switching wasn’t necessary for competitive entry. The PUC said the filings by InfoHighway Communications and DSCI Corp. failed to support their claim that CLECs needed access to incumbents’ unbundled switching to enter the state’s enterprise market. The agency said they could enter easily but had problems transferring acquired customers. The CLECs said they faced “significant” loop transfer problems if they were forced to find alternative switching arrangements for their DS-1 customers by the March 30 termination date for enterprise switching. The PUC said the CLECs’ transfer problems weren’t germane to the TRO docket’s entry impairment standard, but their transfer problems merited consideration in a separate docket. The prehearing conference will be Dec. 5 and hearings will open Feb. 12.
The Wash. Utilities & Transportation Commission (WUTC) rejected a request of a group of CLECs asking to suppress the identities of CLECs that submitted confidential data in the agency’s TRO proceeding. Qwest opposed the motion, saying the CLECs had failed to show that existing protective procedures were insufficient. CLEC AT&T broke ranks in opposing the motion, saying the added layer of shielding would produce a cumbersome process. The WUTC refused to go along with blanket suppression of CLEC identities, agreeing it would make the process more difficult. But it said CLEC identities could be masked by a code for certain highly sensitive trade secrets, decided case by case.
The N.M. Public Regulation Commission (PRC) temporarily backed off a requirement that all local telecom providers must respond to all discovery requests in the 9-month TRO mass-market switching case. Valor Telecom and a group of small rural incumbents objected to the ruling (Case 03-00404- UT), saying they didn’t have any information relevant to whether CLEC entry would be impaired without access to incumbents’ unbundled mass-market switching. The PRC had wanted the responses by Dec. 4, but it told Valor and the rural telcos to file by Dec. 2 why they thought they didn’t have information relevant to the mass-market switching case. Responses from Qwest and PRC staff will be filed Dec. 9.
The S.C. PSC split its 9-month TRO case into 2 parts. The first (Case 2003-326-C) will address unbundled mass market switching, with hearings April 12-14. The 2nd docket (Case 2003-237-C) will address enterprise loops and high- capacity transport, with hearings April 15-16. But the Ark. PSC declined an SBC request to split mass-market switching and enterprise loop/transport cases. The PSC said there was no reason to believe the issues couldn’t be handled in a single docket. Direct testimony is to be filed Jan. 20 and hearings will open March 16. The PSC left open whether batch hot-cut issues might be split from the switching case at some point.
The Ohio PUC gave parties an extra week to file replay briefs in its unbundled mass-market switching TRO case, to Dec. 29 from Dec. 23. But it denied requests for an extension to Jan. 8, saying added delay could impair its ability to meet the FCC’s mandated decision deadline. The Ala. PSC staff will hold a workshop session Dec. 11 to address batch hot-cut costs and other issues. Parties wanting to demonstrate cost models for hot cuts at that workshop must file notice by Dec. 3.