DE 98-211
SPRINT COMMUNICATIONS COMPANY LP
Order Nisi Supporting Petition
O R D E R N O. 23,111
January 25, 1999
On December 4, 1998 Sprint Communications Company LP
(Sprint), filed a petition requesting that the New Hampshire
Public Utilities Commission (Commission) enforce section 252(i)
of the Telecommunications Act of 1996 (TAct). Specifically,
Sprint seeks to execute an interconnection agreement with Bell
Atlantic under the same terms and conditions as those provided to
Freedom Ring Communications, LLC d/b/a BayRing Communications
(Freedom Ring), and approved by Order No. 22,475 on January 13,
1997.
Sprint initiated interconnection negotiations by letter
to Bell Atlantic dated June 15, 1998. Sprint states, that as a
result of the parties inability to resolve differences in the
negotiation of an interconnection agreement for New Hampshire,
Maine and Rhode Island, Sprint had decided not to arbitrate the
unresolved issues but rather request the same terms and
conditions of the agreement Bell Atlantic has for New Hampshire
with another carrier, Freedom Ring, pursuant to 252(i) of the
Tact. Sprint's claim is supported by a copy of a letter to Bell
Atlantic dated October 23, 1998.
Sprint alleges Bell failed to respond to their October
23rd request. This request was renewed in correspondence dated
November 18, 1998. Bell Atlantic responded by letter dated
November 19, 1998 which cites an FCC Memorandum Opinion and
Order, In the Matter of GTE Telephone Operating Companies, GTOC
Tariff No. 1, GTOC Transmittal No. 1148, dated October 30, 1998
in CC Docket No. 98-79 (GTE Order). The GTE order ruled that
"traffic that originates on a carrier's network and then
terminates over the Internet via the facilities of an Internet
Service Provider (ISP) comprises a single call. The FCC also
ruled that such traffic, when carried over ADSL facilities, is
jurisdictionally interstate, and not local." Bell Atlantic
states further in the letter that, "Accordingly, our proposed
agreements have been modified to eliminate any possible confusion
about the intended and literal meaning of the contract language."
Sprint states that the interconnection agreement forwarded with
the aforementioned letter of November 19th was modified to
reflect the Bell Atlantic position based on the FCC's GTE Order.
Sprint seeks to exercise its right under section 252(i)
of the TAct to adopt the Freedom Ring interconnection agreement.
252(i) states, in its entirety:
AVAILABILITY TO OTHER TELECOMMUNICATIONS CARRIERS
A local exchange carrier shall make available any
interconnection, service, or network element provided
under an agreement approved under this section to which
it is a party to any other requesting
telecommunications carrier upon the same terms and
conditions as those provided in the agreement.
Sprint states that the Eighth Circuit Court of Appeals decision
in Iowa Utilities Board v. FCC, 129 F.3d 753 (1997) confirms that
pursuant to 252(i), Bell Atlantic can not legally change a
provision in the Commission approved interconnection agreement
which Sprint intends to elect in its entirety as its own contract
with Bell Atlantic.
We agree with Sprint that 252(i) unconditionally
permits a Competitive Local Exchange Carrier (CLEC) to adopt an
approved interconnection agreement without modification. We note
that the GTE Order specifically excludes the issue of reciprocal
compensation for switched traffic delivered to Internet service
providers from the decision. The GTE Order states:
This Order does not consider or address issues
regarding whether local exchange carriers are entitled
to receive reciprocal compensation when they deliver to
information service providers, including Internet
service providers, circuit-switched dial-up traffic
originated by interconnecting LECs. [FN2] Unlike GTE's
ADSL tariff, the reciprocal compensation controversy
implicates: the applicability of the separate body of
Commission rules and precedent regarding switched
access service, the applicability of any rules and
policies relating to inter-carrier compensation when
more than one local exchange carrier transmits a call
from an end user to an ISP, and the applicability of
interconnection agreements under sections 251 and 252
of the Communications Act, as amended by the
Telecommunications Act of 1996, entered into by
incumbent LECs and competitive LECs that state
commissions have found, in arbitration, to include such
traffic. Because of these considerations, we find that
this Order does not, and cannot, determine whether
reciprocal compensation is owed, on either a
retrospective or a prospective basis, pursuant to
existing interconnection agreements, state arbitration
decisions, and federal court decisions.
Efforts by Bell Atlantic to modify an approved
interconnection agreement constitute negotiation of a new
agreement. Refusal to allow other CLECs to adopt an existing
interconnection agreement in its entirety is a violation of
section 252(i) of the TAct.
Disputes over language in an approved interconnection
agreement may be brought before the Commission for resolution.
Bell Atlantic has not done so with regard to the reciprocal
compensation issue which is the apparent controversy between Bell
Atlantic and Sprint. That issue may be resolved by the FCC in a
future order. In the interim, however, Bell Atlantic may not
deny a CLEC its right to adopt an existing interconnection
agreement. Bell Atlantic is required by 252(i) to provide
Sprint the exact interconnection agreement it has with any other
CLEC.
The failure of Bell Atlantic to permit the adoption of
interconnection agreements in a timely manner is detrimental to
the development of competition in New Hampshire. We will order
Bell Atlantic to provide adoption of approved interconnection
agreements, without modification, within 60 days of a written
request from a CLEC. We will also require Bell Atlantic to
provide a signed adoption of the Freedom Ring agreement, without
modification, to Sprint within seven days of the effective date
of this Order Nisi.
Based upon the foregoing, it is hereby
ORDERED NISI, that Bell Atlantic provide to Sprint a
signed adoption of the Freedom Ring interconnection agreement,
without modification, within seven days of the effective date of
this order and it is
FURTHER ORDERED, that Bell Atlantic provide a signed
adoption of any Commission approved interconnection agreement,
without modification, within sixty days after a written request
from a CLEC; and it is
FURTHER ORDERED, that Sprint shall cause a copy of this
Order Nisi to be published once in a statewide newspaper of
general circulation or of circulation in those portions of the
state where operations are conducted, such publication to be no
later than February 1, 1999 and to be documented by affidavit
filed with this office on or before February 8, 1999; and it is
FURTHER ORDERED, that all persons interested in
responding to this petition be notified that they may submit
their comments or file a written request for a hearing on this
matter before the Commission no later than February 15, 1999; and
it is
FURTHER ORDERED, that any party interested in
responding to such comments or request for hearing shall do so no
later than February 22, 1999; and it is
FURTHER ORDERED, that this Order Nisi shall be
effective March 1, 1999, unless the Commission provides otherwise
in a supplemental order issued prior to the effective date.
By order of the Public Utilities Commission of New
Hampshire this twenty-fifth day of January, 1999.
Douglas L. Patch Susan S. Geiger Nancy Brockway
Chairman Commissioner Commissioner
Attested by:
Claire D. DiCicco
Assistant Secretary