DE 97-229
BELL ATLANTIC
Arbitration Regarding Request for
Recognition of Dark Fiber as an Unbundled Network
Element
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.
I. PROCEDURAL HISTORY
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
Commission.
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
(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.
II. BACKGROUND AND STATEMENT OF THE ISSUES
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
commissions.
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.
III. POSITIONS OF THE PARTIES AND STAFF
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
services.
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"
interpretation.
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
standard.
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
quickly.
IV. COMMISSION ANALYSIS
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
compete.
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
needs.
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