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.
         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
         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. 
         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