ORDER NO. 96-206

ENTERED AUG 05 1996 

THIS IS AN ELECTRONIC COPY

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UM 189(1)

UM 751

DISPOSITION: U S WEST COMMUNICATIONS, INC.,

DIRECTED TO PURSUE LATA WAIVER

Introduction

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In Order No. 96-139, the Commission found that a community of interest exists between the Scio and Albany telephone exchanges, and that the interLATA EAS route is necessary to meet the critical needs of the customers in the Scio exchange. Based on those findings, the Commission concluded that U S WEST Communications, Inc., (USWC) should pursue a waiver of the LATA restriction to allow the interexchange route. However, the Commission recognized that uncertainty exists as to how the Federal Communications Commission (FCC) would process such waiver requests in light of the recently enacted Federal Telecommunications Act of 1996. Accordingly, the Commission reopened Docket UM 189(1), an investigation of interLATA EAS, for further input from the parties on this issue. The Commission asked the parties to address five issues relating to EAS-related LATA boundary modification procedures.

On June 27, 1996, USWC and the Commission Staff filed comments on the above issues. On July 3, 1996, USWC also filed a reply to Staff’s comments. Based on the comments and information contained in the Commission’s files, the Commission makes the following:

FINDINGS

1. Under the Telecommunications Act of 1996, do U S WEST and GTE need FCC approval to provide interLATA EAS services?

Both parties agree that USWC must obtain FCC approval to provide interLATA EAS services. Section 3(42) of the Act defines interLATA service to mean:

telecommunications between a point located in a local access and transport area and a point located outside such area.

 

Section 271(a) prohibits a Bell operating company, such as USWC, from providing interLATA services. Under section 271(b)(1), USWC may originate interLATA services only when it meets the requirements set out in section 271(c) and has received authorization from the FCC under section 271(d). Accordingly, until authorized by the FCC, USWC is prohibited from providing EAS services between Scio, which lies in the Portland LATA, and Albany, which lies in the Eugene LATA.

Section 601 of the Act supersedes the GTE Consent Decree. Unlike the Bell operating companies, however, nothing restricts GTE from providing interLATA services. Accordingly, no FCC approval is required to allow GTE to provide interLATA EAS.

2. Assuming U S WEST and GTE must obtain some form of FCC approval, are there FCC procedures currently in place that would allow the processing of a request for such approval?

Both Staff and USWC agree that the Act does not expressly provide any procedures for the waiver of interLATA restrictions to allow interLATA EAS. While Section 401 authorizes the FCC to forbear enforcement of certain regulations contained in the Act, that section is not currently applicable to the interLATA restrictions set forth in Section 271. See Section 401(10)(d).

3. If such FCC procedures exist, what are they?

While the Act does not expressly provide a waiver process for the interLATA restriction, both Staff and USWC note that it does allow Bell operating companies to seek FCC approval for "modified" LATA boundaries. See Section 153(r)(43)(B). However, a geographic modification of the LATA boundary would not resolve all issues presented in Scio’s request for EAS. In addition to requesting interLATA EAS to Albany, the residents of Scio also requested EAS to Salem, an intraLATA EAS route. (Docket UM 683). The Commission recently granted that interexchange route in Order No. 96-180. While a boundary modification might accommodate a Scio - Albany EAS route by converting it to an intraLATA route, the movement would also place Salem in a different LATA than Scio. While the Commission has recently approved the Scio - Salem EAS route under existing boundaries as an intraLATA EAS route, it would be prohibited under the Act as an interLATA route.

In order to accommodate the Scio customers’ request for EAS to both Albany and Salem, the FCC would have to interpret the concept of LATA boundary modifications broadly to include waivers or adjustments of the interLATA restriction of the limited purpose of allowing an interLATA EAS route. As Staff notes, such boundary modifications would have the same practical effect as the interLATA EAS waivers previously granted by Judge Greene discussed in Order No. 95-1168 at 5. It is unclear, however, whether the FCC will interpret "modified" LATA boundaries so broadly.

4. If no such FCC procedures currently exist, may they exist in the near future?

Staff indicates that the FCC is aware of the interLATA EAS issue, but is uncertain whether or not the FCC will conduct a rule-making or issue procedural guidelines to address the matter. Staff states that, while it believes that the FCC will develop some EAS-related boundary modification procedures, uncertainty exists as to the timing of such developments.

5. Assuming such FCC procedures do not currently exist, what would be the consequence of the Commission directing USWC immediately to seek any FCC approval necessary for providing services on the Scio - Albany EAS route proposed in UM 751?

USWC states that it is willing to seek FCC approval to provide interLATA EAS, but cautions that the FCC currently does not have the authority to grant the request. Notwithstanding such uncertainties, Staff believes that the Commission should direct USWC to immediately request such approval from the FCC for three primary reasons. First, it notes that the request would further demonstrate to the FCC the need for an EAS-related LATA boundary modification procedure. Second, Staff adds that the request would provide an example of the need for more than mere geographic LATA boundary changes, so that Scio could have EAS routes to both Salem and Albany. Finally, Staff points out that the request would be among the first in line for processing by the FCC once it adopts any specific interLATA EAS procedures.

CONCLUSIONS

After a review of the comments, the Commission concludes that USWC should promptly submit to the FCC a request for approval of a LATA boundary modification sufficient to allow the utility to provide EAS services both across the current LATA boundary between the Scio and Albany telephone exchanges and within the current Portland LATA between the Scio and Salem exchanges. While it is unclear whether the FCC will interpret the concept of LATA boundary modifications as broadly as contemplated above, the Commission agrees with Staff that a prompt request by USWC in docket UM 751 is reasonable and, in fact, may help facilitate the development of some EAS-related LATA boundary modification procedures.

ORDER

IT IS ORDERED that U S WEST Communications, Inc., shall promptly submit to the Federal Communications Commission a request for approval of a LATA boundary modification sufficient to allow the utility to provide EAS services both across the current LATA boundary between the Scio and Albany telephone exchanges and within the current Portland LATA between the Scio and Salem exchanges. With the request, U S WEST Communications, Inc., shall include a copy of Order No. 96-139, which contains this Commission’s community of interest and critical needs determinations with regard to the proposed Scio - Albany EAS route, as well as other supporting information.

Made, entered, and effective_______________________.

A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A request for rehearing or reconsideration must be filed with the Commission within 60 days of the date of this order. The request must comply with the requirements of OAR 860-14-095. A copy of any such request must also be served on each party to the proceeding as provided by OAR 860-13-070(2)(a). A party may appeal this order to a court pursuant to ORS 756.580.