DE 97-229
                               BELL ATLANTIC
                    Arbitration Regarding Request for 
             Recognition of Dark Fiber as an Unbundled Network
                   Order Finding Dark Fiber Subject to 
             the Unbundling Requirement of Section 251 of the
                      Telecommunications Act of 1996
                         O R D E R   N O.  22,942
                               May 19, 1998
         APPEARANCES: Sulloway & Hollis, P.L.L.C. by Martin
     L. Gross, Esq. and Gregory R. Kirsch, Esq. for Vitts
     Corporation; Victor D. DelVecchio for New England Telephone
     and Telegraph d/b/a Bell Atlantic - New Hampshire; the
     Office of the Consumer Advocate by William H. Homeyer for
     residential ratepayers of the State of New Hampshire; and E.
     Barclay Jackson, Esq. for the Staff of the New Hampshire
     Public Utilities Commission.
               On October 30, 1997, Vitts Corporation (Vitts) and
     New England Telephone & Telegraph Company d/b/a Bell
     Atlantic - New Hampshire (Bell Atlantic) jointly filed with
     the New Hampshire Public Utilities Commission (Commission) a
     request for arbitration, pursuant to 252 of the
     Telecommunications Act of 1996 (hereinafter referred to as
     the TAct), of Vitts' bona fide request for provision of Dark
     Fiber as an unbundled network element under 251 (c)(3) of
     the Tact.  Vitts and Bell Atlantic are parties to an
     Interconnection Agreement previously approved by the
               After a duly noticed prehearing conference, the
     New Hampshire Public Utilities Commission approved an
     expedited procedural schedule which permitted testimony,
     discovery, hearings, and submission of proposed contract
     language to be considered within the time constraints
     contained in  252.  The Office of the Consumer Advocate
     (OCA) participated in all phases of the process.
               On February 9, 1998, Vitts filed a Motion to
     Compel Further Responses to a Data Request submitted to Bell
     Atlantic.  Bell Atlantic responded in opposition to the
     motion on February 11, 1998.  The motion was resolved at
     hearing by agreement of the Parties and the Commission Staff
               On February 12, 1998, the first day of hearings,
     the Commission revised the procedural schedule pursuant to
     Vitts' request and, with the acquiescence of Staff, the OCA,
     and Bell Atlantic, added a requirement for the filing of
     written briefs.  Vitts filed its initial brief at the close
     of hearings on March 10, 1998.  Staff, the OCA and Bell
     Atlantic filed briefs on March 27, 1998.  With the
     Commission's permission, Vitts filed a supplemental brief on
     that date.
               The purpose of the 1996 Telecommunications Act
     (TAct), as stated in its title, is "to promote competition
     and reduce regulation in order to secure lower prices and
     higher quality services for American telecommunications
     consumers and encourage  rapid development of new
     telecommunications technologies."  To achieve that purpose,
     as part of its interconnection provisions, the TAct requires
     Incumbent Local Exchange Carriers (ILECs) to offer unbundled
     access to their existing network elements to requesting
     carriers. 47 U.S.C. 251(c)(3).  The Federal Communications
     Commission (FCC), in its First Report and Order,
     Implementation of the Local Competition in the
     Telecommunications Act of 1996, CC Docket No. 96-98, FCC
     96-325, adopted August 1, 1996, released August 8, 1996
     (hereinafter referred to as the Local Competition Order)
     provided regulations to implement these interconnection
     provisions, including unbundling network elements.  The FCC
     specified particular network elements which must be
     unbundled, but refrained from addressing Dark Fiber,
     concluding that the record was insufficient for making a
     decision (450) and leaving that decision to state
               In order to determine whether Dark Fiber should be
     unbundled,  251(c)(3) and 251(d)(2)(b) require us to
     resolve three questions:
          (1)  Is Dark Fiber a network element?
          (2)  Will failure to provide access to Dark Fiber
     impair         Vitts' ability to compete? and
          (3)  Is provision of unbundled Dark Fiber technically       feasible?
     Bell Atlantic does not dispute that unbundling Dark Fiber is
     technically feasible where capacity exists.  Therefore, the
     focus of this docket is on the first two questions:  whether
     Dark Fiber is a network element and how Vitts will be
     affected by not obtaining Dark Fiber on an unbundled basis.
               The Parties and Staff also addressed the issue of
     how to provide unbundled Dark Fiber if the Commission
     answers the two questions affirmatively.
          A.   Vitts
          1.  Definition  
               Vitts argues that Dark Fiber comes within the
     definition of "network element" provided in the TAct at
     Section 153(2)(45): "a facility or equipment used in the
     provision of a telecommunications service."  Vitts urges the
     Commission to interpret "used in" as meaning "intended for
     and capable of use" in the provision of telecommunications
               This broad interpretation, focusing on the
     capacity for use rather than the current use of the element,
     is required, according to Vitts, because it furthers the
     TAct's objective of fostering competition.  Vitts argues
     that the narrower interpretation allows an ILEC to keep
     spare capacity for its sole use, frustrating the intent of
     the TAct.  In support of the broader interpretation, Vitts
     points to the plain language of the definition, which does
     not specify that the facility be currently in use. 
     Furthermore, Vitts argues, Bell Atlantic itself classifies
     its Dark Fiber as used and useful for ratemaking purposes. 
     Bell Atlantic placed all of its investment in deployed fiber
     into the New Hampshire rate base and is earning a return on
     both lit and dark fiber.  According to Vitts, Bell Atlantic
     cannot logically have it both ways, using Dark Fiber for
     ratemaking but not for competitive interconnection purposes.
               Vitts cited a number of other state utility
     commission orders ruling that Dark Fiber is a network
     element.  Ohio, Arizona, Arkansas, Georgia, Illinois,
     Massachusetts, Minnesota, Missouri, Oregon, Rhode Island,
     and Tennessee expressly rejected the "currently in use"
          2.  Impairment  
               Having argued that Dark Fiber is a network
     element, Vitts goes on to contend that the standard by which
     the Commission should judge whether Dark Fiber must be
     unbundled is set out in Section 251(d)(2)(B).  That test,
     according to Vitts,  is whether failure to provide access to
     the network element would impair the ability of a CLEC to
     provide the service it seeks to offer.  Vitts argues that
     the impairment standard is met if the quality of service
     which the CLEC can offer declines or the cost of providing
     the service increases when the CLEC is deprived of access to
     the network element, citing the FCC's ruling in its Local
     Competition Order,  285 and Iowa Util. Bd v. FCC, 120 F.3d
     753, 812 (8th Cir. 1997). Vitts claims that its ability to
     offer services and the costs of providing service will be
     impaired without access to Dark Fiber.
               Without Dark Fiber, Vitts argues, it will not be
     able to monitor its own network and will necessarily have to
     rely on Bell Atlantic, its competitor, to troubleshoot
     problems on its own network.  Without Dark Fiber, Vitts
     claims, its planned SONET ring topography will require
     additional multiplexers, increasing the cost and the number
     of possible failure points.  Without Dark Fiber, Vitts
     estimates construction costs for building its own fiber
     network will be $7.1 million, or $55,000 per mile, making
     the plan cost-prohibitive.
          3.  Implementation
               Vitts recommends that Bell Atlantic reserve enough
     Dark Fiber to accommodate three years of projected growth on
     a particular route.  In the future, according to Vitts,
     capacity of fiber will increase, allowing more traffic on a
     single fiber, thereby making a three year projection more
     than sufficient.  Vitts also recommends that Dark Fiber be
     priced using Bell Atlantic's TELRIC study and rates approved
     in Massachusetts.
          B.   Bell Atlantic
               1.  Definition
               Bell Atlantic argues that "used" in the TAct
     definition of network element means "currently used." 
     According to Bell Atlantic, only those fiber optic strands,
     within an installed fiber optic sheath, which are currently
     connected to the electronics necessary to enable them to
     transmit telecommunications services are "used in the
     provision of telecommunications service" as required by the
     definition.  Dark Fiber is not so connected.  Nor does it
     currently transmit telecommunications information for a fee
     to the public, pursuant to the TAct's definition of
     "telecommunications service."  Therefore, Bell Atlantic
     contends, Dark Fiber is not used in the provision of
     telecommunications services and cannot be a network element.
               The fact that some Dark Fiber is categorized as
     used and useful for the purposes of accounting and
     ratemaking, does not drive the decision as to whether Dark
     Fiber is a network element,  Bell Atlantic argues.  The
     Commission's accounting standards reflect a policy of
     encouraging prudent network planning by allowing recovery of
     investment for a whole sheath when one strand has been lit. 
     That policy, however, Bell Atlantic contends, merely makes
     use of an accounting convention and does not represent a
     judgment of whether the unlit portions of the sheath are
     "used in the provision of telecommunications services" under
     the TAct.
               Bell Atlantic further argues that Dark Fiber is
     not equivalent to dark copper.  Bell Atlantic asserts that
     copper can sometimes be used directly to provide a
     telecommunications service without first being lit, e.g.,
     1000 grade private line.  Hence, according to Bell Atlantic,
     dark copper is appropriately a network element but dark
     fiber is not.
          2.  Impairment
               Bell Atlantic agrees that the impairment standard
     is described in Section 251(d)(2)(B) but disputes Vitts'
     claim of impairment.  First, Bell Atlantic argues that
     provision of a shared, lit, ring configuration using Bell
     Atlantic multiplexers would be at least equal to the quality
     of service Vitts would obtain using Dark Fiber.  The failure
     rate of its multiplexers in the entire Bell Atlantic region
     is, according to Bell Atlantic, .0007%, with a corresponding
     reliability factor of 99.9993%.  Therefore, the addition of
     multiplexers, while it does increase the number of possible
     failure points, does not actually decrease the quality of
     service.  Potential failures are too unlikely, Bell Atlantic
     claims, to make the number of multiplexers a reasonable
     gauge of reliability.
               Second, Bell Atlantic argues that Vitts has not
     demonstrated any increased costs occurring as a result of
     not getting Dark Fiber as an unbundled network element.  No
     evidence was adduced, Bell Atlantic claims, other than
     speculation, with respect to any increase in cost.  
               Bell Atlantic asserts that the eight point Dark
     Fiber configuration that Vitts requests is unavailable
     because Bell Atlantic's central offices face fiber
     exhaustion at three of those eight points.  Bell Atlantic
     suggests an alternative shared lit fiber ring architecture
     (SLRA).  The SLRA, as described in Bell Atlantic's Exhibit
     24, would use only a small fraction of each multiplexer. 
     Furthermore, Bell Atlantic asserts the SLRA would likely
     result in a cost advantage to Vitts.  No pricing figures are
     available on the SLRA costs, however, because Vitts refused
     to discuss the SLRA alternative.
               The SLRA alternative is in the best interest of
     New Hampshire, Bell Atlantic contends, because it would
     avoid the disruption of Bell Atlantic network planning and
     service provisioning and avoid the substantial increased
     costs of network rearrangements that unbundling Dark Fiber
     would trigger.  The Shared Ring Architecture alternative
     provides a sharing of existing fiber and multiplexer
     capacity, thereby creating network efficiencies and cost
     savings, argues Bell Atlantic.
               3.  Implementation
               Bell Atlantic argues that if the Commission
     decides Dark Fiber would be unbundled, technical problems
     arise regarding security, maintenance, testing, repair,
     inventory, provisioning, and billing.  Bell Atlantic can
     provide access to dedicated Dark Fiber at a Bell Atlantic
     central office or at a customer premise.  However, according
     to Bell Atlantic, access to Dark Fiber at other locations
     such as plant splices, outside plant remote termination
     locations, controlled environment vaults and huts, are not
     technically feasible or, at the very least, pose operational
     difficulties that the Commission should minimize.  
               Bell Atlantic also contends that, if the
     Commission decides to reserve a sufficient level of spare
     fiber to provide growth, emergency restoration, and
     maintenance, warehousing or storage of unused dark fiber for
     future use by Vitts should be precluded and conditions
     should be imposed to insure reasonably prompt use of fiber.
               Bell Atlantic recommends, if unbundling is
     necessary, that the Commission permit Bell Atlantic to
     reserve eight spare fibers in the local loop and twenty-four
     spare fibers in the heavily trafficked interoffice fiber
     cable sections.   
          C.   OCA
               The OCA argues that Dark Fiber is a network
     element and should be unbundled.  In addition to supporting
     Vitts' position in all respects, the OCA argues all Dark
     Fiber to which Vitts is denied access should be removed from
     rate base.  The OCA argues that Bell Atlantic should not be
     able to claim Dark Fiber as "used and useful" for accounting
     purposes and at the same time claiming Dark Fiber is not
     "used" for interconnection purposes.  Therefore, the OCA
     contends, if the Commission were to rule that Dark Fiber is
     not used as a network element, Bell Atlantic should not be
     allowed to include Dark Fiber in future rates and should
     refund to customers the amounts collected on the basis that
     Dark Fiber is used and useful. Removing Bell Atlantic's
     ability to earn on Dark Fiber will act as an incentive, the
     OCA believes, for Bell Atlantic to become an active
     proponent of competition.
               In the affirmative, the OCA posits that Dark Fiber
     is used for the provisioning of telecommunications services. 
     Fiber optic strands are similar in function to copper pairs,
     the OCA asserts, in that they both act as an information
     transmitting medium within a telecommunications system.  The
     OCA contended that the only distinction between fiber and
     copper is in the type of technology deployed, not the
     purpose or function of those technologies within the system. 
     That being so, the two technologies should be treated the
     same in the OCA's view: as unenergized copper is considered
     a network element, so too should Dark Fiber be considered a
     network element.
          D.   Staff
               1. Definition
               The Commission Staff argues that the definition of
     network element has been decided finally by the 8th Circuit
     court in Iowa Utilities Board v. FCC, 120 F.3d 753 (1997). 
     In that decision, the 8th Circuit affirmed network element
     status for elements whose use is "implicated" by the
     offering of phone services.  Id. At 807.  As a result,
     directory assistance, caller I.D., call forwarding, and call
     waiting are network elements.  Staff argues that the 8th
     Circuit decision undermines Bell Atlantic's reasoning that
     Dark Fiber is not a network element because Dark Fiber does
     not presently transport telecommunications without
     additional electronics, i.e., is not currently in use. 
     Citing Telecommunications Corporation Petition to Establish
     an Interconnection Agreement with Central Telephone Company
     of Illinois (Sprint), 96 AB-009 (February 5, 1997), Staff
     contends that the FCC definition wording means "what is
     customarily employed for the purpose."
               Staff characterizes Dark Fiber as spare capacity
     within the fiber optic cable sheath.  Staff argues that the
     actual element Vitts requests is the spare capacity within
     the sheath, not the spare capacity of the individual fiber
     strand.  The similarity to copper, Staff argues, is
     inescapable, supporting its argument with physical exhibits
     of copper and fiber, and has been recognized by a number of
     state commission orders.  
          2.  Impairment
               Access to a network element, Staff agrees, is
     governed by Section 251 (d)(2)(B), which states that access
     must be granted where failure to provide access would impair
     the ability of the carrier to provide the services it seeks
     to offer.  Staff contends the 8th Circuit interpreted this
     section as not including an inquiry on whether a network
     element could be obtained elsewhere. Iowa Utils.Bd. at 811. 
     Therefore, Staff argues, Bell Atlantic's arguments about the
     availability of SLRA is irrelevant to the impairment
     question.  Vitts is impaired, Staff maintains, because
     without Dark Fiber Vitts' ability to provide service will be
     significantly delayed and will cost more.  Staff argues that
     those consequences mean that Vitts has met the impairment
          3.  Implementation
               Staff recognizes that unbundling Dark Fiber
     requires steps to insure that Dark Fiber is not warehoused,
     either by competitors or by Bell Atlantic.  Staff reviewed
     various methods by which other states have dealt with
     warehousing and with the need to insure Bell Atlantic
     retains enough spare capacity for growth, emergency service
     restoration, and maintenance and repair.  These
     methodologies run the gamut from a specific percentage of
     Dark Fiber (25% in a particular feeder segment) to a general
     prohibition against reserving Dark Fiber which is not
     demonstrably necessary to meet individual short-term service
     needs.  Staff recommends that Bell Atlantic be permitted to
     reserve only the fiber necessary to cover projected growth
     for three years based on the past three years, and that the
     Commission order an arbitration process for dealing with
     contested requests for Dark Fiber, consisting of a Bona Fide
     Request and a 20-day "fast track" arbitration, to resolve
     disputes over fiber availability.   The process Staff
     recommends mirrors  that ordered by Rhode Island's
     Commission for Dark Fiber and that ordered by the Commission
     itself in DE 96-252 for pole space.  According to Staff,
     such a process would provide flexibility to move with the
     changing market demand and insure that disputes are resolved
               The issue presented here is whether Bell
     Atlantic's Dark Fiber is a Network Element that is subject
     to the unbundling requirements of 251(c)(3) of the TAct,
     an issue that the FCC left unresolved in its local
     competition order (450).  A network element, as the parties
     and Staff agree, is defined by the TAct as "a facility or
     equipment used in the provision of a telecommunications
     service." 47 U.S.C.153 (29).  The Commission rules provide
     the same definition.  NH Admin. Rules Chapter Puc 1302.11. 
     Our first task, therefore, having carefully reviewed the
     extensive record in this case, is to interpret this
     definition and decide if Dark Fiber comes within its ambit.
               We do not find persuasive Bell Atlantic's
     interpretation of the definition of network element.  Bell
     Atlantic contends that the substance of a telecommunications
     service is the transmission of information.  Bell Atlantic
     reasons that because Dark Fiber does not transmit
     information, it is not used to provide a telecommunications
     service.  The nub of Bell Atlantic's argument is that Dark
     Fiber is not "currently used."
               The more reasonable interpretation is that posited
     by Vitts and by Staff.  They contend that "used" refers to
     that which is customarily employed for the purpose, or, as
     Vitts states "intended for and capable of use" for the
     purpose.  For example, fiber optic cable is customarily
     employed by telecommunication carriers for the purpose of
     providing a telecommunications service.  At least at the
     current time, fiber is a facility that is not used for any
     purpose other than telecommunications service; its sole
     purpose is telecommunications.  Furthermore, as Staff
     pointed out, the fact that Dark Fiber is not currently used
     in the provision of service to customers for a fee does not
     distinguish it from other network elements.  Most parts of
     the network are designed to have spare capacity and fiber is
     no exception.  We presume that is why Bell Atlantic's
     accounting records report, as used and useful, all fiber
     sheath which has even one lit strand.
               We consider the TAct's provision for network
     element unbundling as designed to preclude incumbent LECs
     from reserving all spare capacity for themselves.  This view
     is consistent with the FCC's expansive interpretation of the
     term "network element" to include features, functions and
     capabilities of facilities and equipment.  It is also
     consistent with the 8th Circuit's affirmation of the FCC's
     broad interpretation in Iowa Utilities Bd.  This
     interpretation furthers the purpose of the TAct to
     "jumpstart competition in the local telecommunications
     industry." Id. At 811.  Having interpreted the definition of
     network element consistent with the FCC, we find that the
     fiber sheath is the network element, spare capacity of which
     (Dark Fiber) must be unbundled pursuant to 251(c)(3).
               As is uncontroverted, the impairment standard is
     satisfied if without access to Dark Fiber the quality of
     Vitts' services would be lower or the cost of Vitts' service
     would be higher. Iowa Utils.Bd., 120 F.3d at 812.  This is
     the 8th Circuit's interpretation of 251(d)(2)(B), the
     relevant standard, which states that a network element must
     be unbundled by an ILEC when "the failure to provide access
     to such network elements would impair the ability of the
     telecommunications carrier seeking access to provide the
     services it seeks to offer." 
               Our inquiry into whether these effects will flow
     from denial of access to Dark Fiber need not include an
     investigation as to whether Vitts has an alternate source
     for the network element.  The 8th Circuit determined that
     generous unbundled access to network elements is necessary
     in order to expedite the arrival of competition in local
     telephone markets, i.e., to achieve the goal of the TAct. 
     "Allowing incumbent LECs to evade their unbundling duties
     whenever a network element could be obtained elsewhere would
     eviscerate unbundled access as a means of entry and delay
     competition."  Id. At 811.
               Nonetheless, even though our inquiry need not
     encompass an examination of alternative routes to Vitts'
     goal, Bell Atlantic testified about an alternative method
     for Vitts to obtain a fiber ring via a SLRA.  We find that
     the SLRA described by Bell Atlantic does not provide Vitts
     with service quality and costs equal to that provided by a
     dedicated Dark Fiber SONET ring.  The SLRA does not enable
     Vitts to monitor and maintain service to a given geographic
     area.  The proposed dedicated ring architecture using Dark
     Fiber enables a carrier to detect electronic problems in a
     cable and redirect service so a customer experiences no
     interruption.  Response time would be faster with a
     dedicated ring.  This ability is important to businesses
     where service quality is better maintained via dedicated
     rings.  In addition, the SLRA requires Vitts to connect its
     own multiplexers to Bell Atlantic multiplexers.  We are
     convinced that the increased number of multiplexers adds
     additional failure points, diminishing the quality of Vitts'
     service.  We are convinced also that the cost of Vitts'
     service will increase if it uses the SLRA.  Thus, even if we
     were required to deny access to Dark Fiber only if an
     alternative network element were available, our decision
     would be the same.  No alternative network element is
     available and the alternative methodology described by Bell
     Atlantic is not equal to the Dark Fiber methodology.
               Turning away from the unnecessary comparison of
     Vitts' service over a dedicated ring versus shared ring
     architecture, we find that Vitts' ability to provide service
     will be impaired if it is denied access to Dark Fiber. 
     Building its own fiber network to connect its eight sites is
     cost prohibitive.  We are convinced that denying access to
     this network element will undermine Vitts' ability to
               We accept Staff's arguments regarding technical
     feasibility.  Technical feasibility, while not dispositive
     as to whether a network element must be unbundled, remains a
     consideration as to where unbundled access may occur.  Iowa
     Utils. Bd. at 810.  It is undisputed that access to Dark
     Fiber is technically feasible at Bell Atlantic central
     offices and at customer premises.  Staff argued to our
     satisfaction that access is also feasible at outside plant
     remote terminal locations.  Such access must reasonably
     address Bell Atlantic's concerns.  Therefore, we will
     require Vitts to engage Bell Atlantic personnel to perform
     splices and allow splicing only at existing termination
     points, including such facilities as digital loop carriers
     and central office terminals.
               Implementing the unbundling of Dark Fiber requires
     consideration of Bell Atlantic's status as carrier of last
     resort.  All parties and Staff agree that Bell Atlantic
     should retain enough spare fiber to meet short-term service
     needs.   They testified to two methods for achieving that
     status: allowing Bell Atlantic to reserve the amount
     projected as adequate for three years, or allowing Bell
     Atlantic to reserve 8 spare fiber strands in the local loop
     and 24 spare fiber strands in interoffice cable sections.   
               We choose to deal with the issue on a case-by-case
     basis in the context of a bona fide request and 20-day
     fast-track arbitration process, as suggested in Staff's
     brief.  We approved this process in Docket DE 96-252 for
     reservation of space in rights-of-way, conduits and poles. 
     We will apply this process in instances where fiber exists
     today and in the future where it exists as a result of
     future building or deployment.  LECs need not build out or
     deploy fiber where it has not yet been installed.  At issue
     in this fast-track arbitration will be whether the LEC is
     reserving Dark Fiber which is not demonstrably necessary to
     meet its individual short-term service needs.  As in the
     process we ordered for resolving disputes over space in
     rights-of-way, we will allow Bell Atlantic 30 days to reply
     in writing to a request for access to dark fiber.  If Bell
     Atlantic denies the access requested, Bell Atlantic shall
     include in its written reply the reason the request cannot
     be granted.  The reason must be specific and include the
     following: total number of fiber sheath and strands between
     points on the requested routes, number of strands currently
     in use and the transmission speed on each strand (e.g. OC-3,
     OC-48), the number of strands in use by other carriers, the
     number of strands reserved for Bell Atlantic's use, the
     number of strands lit in each of the three preceding years,
     the estimated completion date of any construction jobs
     planned for the next two years or currently underway, and an
     offer of any alternate route with available dark fiber.  In
     addition, for fibers currently in use, Bell Atlantic shall
     specify if the fiber is being used to provide non-revenue
     producing services such as emergency service restoration,
     maintenance and/or repair. We reserve the right in the
     future to establish more specific criteria for reservation
     of Dark Fiber in light of experience gained during the
     arbitration process.
               Implementing the unbundling of Dark Fiber also
     requires that we impose conditions on CLECs to insure they,
     like Bell Atlantic, are precluded from warehousing Dark
     Fiber.  A bona fide request for Dark Fiber, at a minimum,
     shall consist of a description of the requested route, the
     planned service offering, and the intended use of the
     requested Dark Fiber.  The CLEC shall commence the intended
     use of the requested Dark Fiber within a reasonably prompt
     period of time from the date of its receipt as an unbundled
     network element.  Commencement of intended use means
     completion of all preparations rendering the Dark Fiber
     capable of providing the planned service offering to
     customers.  If the CLEC does not commence the intended use
     of the requested Dark Fiber within a reasonably prompt
     period, any carrier may petition the Commission for a
     fast-track arbitration process, as described above, to
     consider whether the CLEC is reserving Dark Fiber which is
     not demonstrably necessary to meet its short-term service
               Until other pricing has been approved for New
     Hampshire, we adopt Bell Atlantic's TELRIC cost study
     submitted to and rates approved by the Massachusetts
     Department of Public Utilities on December 4, 1996.
               In order to ensure that New Hampshire consumers
     obtain the benefit of this decision, we require Bell
     Atlantic to cooperate fully with Vitts to determine the
     availability of Dark Fiber between the points on Vitts'
     proposed ring architecture.  Cooperation includes but is not
     limited to providing Vitts with information on available
     existing fiber and information on how Vitts can bridge or
     otherwise manage gaps in the Dark Fiber ring architecture.
               Based upon the foregoing, it is hereby 
               ORDERED, that Dark Fiber is a network element
     subject to the unbundling requirement of  251 of the
     Telecommunications Act of 1996; and it is
               FURTHER ORDERED, that Bell Atlantic shall provide,
     to any requesting telecommunications carrier for the
     provision of a telecommunications service, nondiscriminatory
     access to Dark Fiber on an unbundled basis; and it is
               FURTHER ORDERED, that disputes about the
     availability of Dark Fiber shall be resolved using a fast
     track arbitration process as described herein.
               By order of the Public Utilities Commission of New
      Hampshire this nineteenth day of May, 1998.
       Douglas L. Patch    Bruce B. Ellsworth   Susan S. Geiger
           Chairman           Commissioner       Commissioner
     Attested by:
     Thomas B. Getz
     Executive Director and Secretary