DE 97-229
BELL ATLANTIC
Arbitration Regarding Request for Recognition of Dark
Fiber as an Unbundled Network Element
Order Clarifying Commission Order No. 22,942 and
Approving Contract Language Consistent with that Order
O R D E R N O. 22,990
July 24, 1998
In its Order No. 22,942, the New Hampshire Public
Utilities Commission (Commission) resolved a dispute between New
England Telephone & Telegraph Company d/b/a Bell Atlantic-New
Hampshire (Bell Atlantic) and Vitts Corporation (Vitts) regarding
Vitt's bona fide request, made pursuant to the Interconnection
Agreement of the Parties, for provision of Dark Fiber under
252(c)(3) of the Telecommunications Act of 1996 (the TAct). The
Commission found that Dark Fiber is a network element subject to
the unbundling requirement of 251 of the TAct. This order
addresses two matters that have arisen as a result of Order No.
22,942.
I. BELL ATLANTIC'S REQUEST FOR CLARIFICATION
AND/OR RECONSIDERATION
By letter dated June 2, 1998, Bell Atlantic requested
clarification and/or reconsideration of one portion of Order No.
22,942, the order finding Dark Fiber a network element. Bell
Atlantic suggests that the Commission misstated an aspect of the
application of the impairment standard. The impairment standard
involves consideration of whether a failure to provide access to
a network element would impair the ability of a new entrant to
provide a service it seeks to offer. On page 18 of Order No.
22,942, we stated that the impairment standard "need not include
an investigation as to whether Vitts has an alternate source for
the network element." Citing language in 283 and 285 of the
FCC's First Report and Order in CC Docket No. 96-98, Bell
Atlantic argues that, while the Commission need not consider
alternative sources other than the incumbent local exchange
company (emphasis in Bell Atlantic's letter), the Commission must
evaluate impairment by comparing the quality or costs of the
service as provided over the network element requested compared
with providing that service over other unbundled elements in the
incumbent LEC's network. (Emphasis in Bell Atlantic's letter.)
Because our order contains the comparison described here and
finds that our decision would be the same "even if we were
required to deny access to Dark Fiber only if an alternative
network element were available," Bell Atlantic does not aver that
the requested clarification would alter the ultimate conclusion
in the case. However, for future disputes, Bell Atlantic wishes
to establish what it considers the correct application of the
standard for determining whether network elements must be made
available on an unbundled basis.
The 8th Circuit's review of the FCC's First Report and
Order, at 811, which we cited in our order, considers certain
petitioners' assertions that the FCC unreasonably decided in 283
that the impairment standard in 251(d)(2)(A) does not require an
inquiry into whether a competing carrier could obtain a network
element from another source. Bell Atlantic correctly points out
that 283 declined to interpret 251(d)(2)(A) as meaning that
ILECs need not provide proprietary elements if requesting
carriers can obtain the requested proprietary element from a
source other than the incumbent. The FCC's stated rationale for
declining this interpretation is because it would require new
entrants to duplicate unnecessarily "even a part of the
incumbent's network," generating delay and higher costs for new
entrants so as to thwart the goals of the TAct. The 8th Circuit
upheld the FCC's decision with regard to proprietary network
elements.
Although Dark Fiber is not a proprietary network
element, we believe that Order No. 22,942 should be clarified in
the manner suggested by Bell Atlantic. More specifically, an
analysis of whether a network element, whether proprietary or
not, must be unbundled need not include an investigation of
sources other than the ILEC for the network element. However, an
investigation of other sources within the ILEC is appropriate
when applying the impairment standard.
II. CONTRACT LANGUAGE
In compliance with the procedural order in this docket,
Order No. 22,800, on June 16, 1998, Vitts and Bell Atlantic
jointly filed proposed contract language amending the
Interconnection Agreement to reflect the provision of Dark Fiber
as an unbundled network element. We have reviewed the proposed
contract language and find that it accurately reflects the
conditions we deemed appropriate in order to insure that
Competitive Local Exchange Carriers (CLECs) obtain the benefits
of the network element without jeopardizing the integrity of the
Bell Atlantic network system or the quality of service provided
to Bell Atlantic customers.
In compliance with our order, the amended contract
language establishes a Dark Fiber Price Schedule identical to
that agreed upon in an Interconnection Agreement between XCOM and
Bell Atlantic-Massachusetts. We note that these are interim
prices that will be superseded by the Dark Fiber prices to be
established for New Hampshire when docket DE 97-171 is concluded.
We find that the proposed language is just and reasonable and
meets the requirements of the TAct.
Based upon the foregoing, it is hereby
ORDERED, that Commission Order No. 22,942 is clarified
to the effect that an analysis of whether a network element must
be unbundled need not include an investigation of sources other
than the ILEC for the network element; and it is
FURTHER ORDERED, that the proposed contract language
filed with the Commission by Vitts and Bell Atlantic on June 16,
1998 is hereby approved.
By order of the Public Utilities Commission of New
Hampshire this twenty-fourth day of July, 1998.
Douglas L. Patch Bruce B. Ellsworth Susan S. Geiger
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary