ORDER NO. 97-149

ENTERED APR 23 1997

This is an electronic copy.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

ARB 5

DISPOSITION: APPLICATION FOR RECONSIDERATION

GRANTED IN PART

On March 14, 1997, AT&T Communications of the Pacific Northwest, Inc., (AT&T), filed an application for reconsideration of Commission Order No. 97-021 entered in this proceeding.

On March 28, 1997, GTE Northwest Incorporated (GTE) filed a response to AT&T’s application for reconsideration. GTE argues that AT&T’s application is procedurally improper and invalid on its merits.

Commission Authority to Reconsider Order No. 97-021.

GTE maintains that AT&T’s application for reconsideration is improper from a procedural standpoint. It observes that (a) section 252(b)(4)(C) of the Telecommunications Act of 1996 (the Act) requires the Commission to conclude resolution of any unresolved issues within nine months, and; (b) the statutory deadline has already passed. GTE further argues that neither the Commission’s arbitration guidelines nor Order No. 97-021 provide for reconsideration.

The Commission is not persuaded by GTE’s argument. Order No. 97-021 was issued within the time period prescribed by §252(b)(4)(c) and resolved all outstanding issues. We do not interpret the Act to preclude the Commission from reexamining those decisions for legal sufficiency. Although GTE correctly observes that our arbitration guidelines do not mention applications for reconsideration, Order No. 97-021 clearly states that the parties may make such filings. See Order No. 97-021 at 10.

AT&T Application for Reconsideration

Issue 24—Authorization for Disclosure of CPNI. Order No. 97-021 provides that, pending the issuance of FCC rules regarding the disclosure of customer proprietary network information (CPNI), AT&T must provide GTE with written authorization from a customer prior to disclosing relevant CPNI. AT&T argues that this requirement will burden competition by making it more difficult and time consuming for customers to select among competing local service providers. AT&T also contends that the requirement places it at a competitive disadvantage vis a vis GTE.

GTE responds that the Commission has no authority to consider issues relating to the disclosure of CPNI, and that §222(c)(2) of the Act requires disclosure of customer information only upon prior written authorization. GTE also disputes AT&T’s claim that prior authorization will impair competition.

The Commission finds that the prior written authorization requirement in Order No. 97-021 should remain in effect pending the issuance of FCC rules in FCC docket No. 96-115. As we have emphasized, it is prudent to strictly protect customer privacy until appropriate safeguards are established to prevent misuse of such information. See, Order No. 97-021, Appendix A at 22; Order No. 97-053, Appendix A at 10.

Issue 27—Services to be made available. AT&T recommends that the Commission amend Order No. 97-021 to eliminate potential confusion regarding the treatment of promotional offerings of less than 90 days duration made by an incumbent LEC. AT&T notes that, while the wholesale discount does not apply to such offerings, it should still be allowed to purchase such services for resale at the promotional rate consistent with 47 C.F.R.§51.613(a)(2).

GTE responds that the wholesale discount "will continue to apply--for AT&T--to GTE’s normal tariff rate for the service during any period of time when GTE makes a "promotional discount" available to its end users for that same service." GTE states that the issue is "a detail to be covered in the parties’ agreement," and that Order No. 97-021 should not be modified.

The Commission agrees that Order No. 97-021 need not be modified. However, we clarify that AT&T should be permitted to purchase for resale any service that GTE offers to retail telecommunications customers, including services offered at a promotional discounts of less than 90 days duration. The wholesale discount does not apply to promotional discounts of less than 90 days duration. Order 97-021 is consistent with the approach taken by the FCC in 47 C.F.R.§51.613(a)(2).

Issue 66—Reciprocal Access. In Order No. 97-021 at 10, we agreed with the Arbitrator that §251(b)(4) of the Act requires all LECs, including AT&T, to provide access to poles, ducts, and rights-of-way. This determination is contrary to the FCC position on this issue. FCC Order 96-325 at ¶1231. However, the Commission is persuaded by new arguments presented in AT&T’s application that the Act does not mandate non-incumbent carriers such as AT&T to provide reciprocal access to incumbent LECs.

Our decision in Order No. 97-021 was based on Section §251(b)(4) and the Joint Explanatory Statement of the Act, both of which suggest that that all local exchange carriers, including new entrants, have the duty to provide access to poles, ducts, conduits, and rights-of-way. However, §251(b)(4) also specifies that access be provided on "rates, terms, and conditions that are consistent with section 224."

Section 703 of the Act amends Section 224. Section 224(f)(1) provides that

"[a] utility shall provide a cable television system or any telecommunications carrier with non-discriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it." (Emphasis added.) The definition of "utility" in §224(a)(1) is amended to include "any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications." Section 703 further amends §224(a)(5) to provide that "[f]or purposes of this section, the term "telecommunications carrier" (as defined in section 3 of this Act) does not include any incumbent local exchange carrier as defined in section 251(h)." (Emphasis added.)

The Commission agrees with AT&T that the amendments to §224 establish different access rights for incumbents and new entrants. Although all local exchange carriers must provide access under the Act, the right to obtain access does not extend to incumbent local exchange carriers. Accordingly, AT&T is not required to provide GTE with access to poles, ducts, conduit or rights of way owned or controlled by AT&T. Order No. 97-021 and the interconnection contract should be revised to conform with this decision.

Issue 77—Pricing of Unbundled Elements (CCLC). Order No. 97-021 provides that unbundled network element prices should be based on the prices established by the Commission in Order No. 96-283 in docket UM 351. Order No. 96-283, in turn, provides that GTE may continue to assess the Carrier Common Line Charge (CCLC) on all intrastate originating and terminating toll/access minutes of use associated with the unbundled switching network element purchased by a telecommunications carrier. Since neither order places a time limit on the applicability of such charges, AT&T recommends that Order No. 97-021 be amended to conform with 47 C.F.R. §51.515(b)(2), which provides that the CCLC may not be imposed after June 30, 1997. GTE opposes AT&T’s proposal.

As we recently noted in Order No. 97-071 in docket UM 351, the FCC’s pricing rules, including 47 C.F.R. §51.515, have been stayed by the Eighth Circuit Court of Appeals. Until the appeals process has concluded, it is impossible to determine whether the FCC decision to preempt the intrastate CCLC will be upheld. In addition, the FCC is also considering major changes to the current access charge structure in CC docket 96-262. In view of these circumstances, we do not believe that Order No. 97-021 should be amended as AT&T recommends.

ORDER

IT IS ORDERED that:

1. The application for reconsideration filed by AT&T Communications of the Pacific Northwest, Inc., is granted to the extent set forth herein.

2. AT&T Communications of the Pacific Northwest, Inc., and GTE Northwest Incorporated shall submit for Commission approval an executed interconnection agreement consistent with the terms of this order. The interconnection agreement shall become effective five business days after the Commission issues an order approving the agreement.

Made, entered, and effective ________________________. 

A party may appeal this order to a court pursuant to applicable law.