DE 98-061
          Petition to Require Assignment of Contracts
               Order Clarifying Order No. 23,040
                    O R D E R   N O.  23,116
                        January 26, 1999
       On November 3, 1998, New England Telephone and
     Telegraph Company, d/b/a Bell Atlantic - New Hampshire (Bell
     Atlantic) filed with the New Hampshire Public Utilities
     Commission (Commission) a letter requesting clarification and/or
     reconsideration of one portion of Order No. 23,040 (October 7,
     1998).  The requested clarification, according to Bell Atlantic,
     does not alter the Commission's conclusion in this docket or the
     ordering clauses of Order No. 23,040.
       Having received a three day extension of time to
     answer, on November 16, 1998, CTC Communications Corporation
     (CTC) filed a response in opposition to Bell Atlantic's request. 
     On December 23, 1998, in further support of its request for
     clarification and/or reconsideration, Bell Atlantic submitted a
     copy of a Maine Public Utilities Commission Hearing examiner's
     Report regarding a similar docket.
       Bell Atlantic contends that specific language in Order
     No. 23,040 requires clarification for three reasons.  First, Bell
     Atlantic claims the order mischaracterizes the Company's
     position.  A sentence on page 14 of the Order reads:  "Without
     citing any authority for its claim, Bell Atlantic argued that it
     should collect a termination fee upon processing CTC orders which
     assume an end user's contract."  In its letter requesting
     clarification Bell asserts that it had argued that the contracts
     in question were not freely assignable and that, therefore,
     assignment rightly triggered Bell Atlantic's right to a
     termination charge levied against Bell Atlantic's customer.
     According to Bell Atlantic, once the Commission decided that the
     contracts in question are freely assignable, as it did on page 13
     of the Order, based on interpretation of Bell Atlantic's tariffs,
     Bell Atlantic avers it no longer would argue in favor of
     termination charges.  Accordingly, Bell Atlantic's second request
     for clarification is a claim that the Commission's discussion of
     the appropriateness of termination charges beginning on page 14
     of the order is not essential to the Commission's decision and
     should be deleted.  Third, Bell Atlantic claims that the
     Commission Order's discussion of several FCC orders is misleading
     because those orders do not specifically rule that the collection
     of termination charges for assignment of end user contracts
     constitutes an unreasonable restriction on resale. 
       CTC opposes Bell Atlantic's request for clarification,
     claiming that the Commission's order properly characterized Bell
     Atlantic's actions, if not Bell Atlantic's arguments; that Bell
     Atlantic espoused various positions during the proceeding; that a
     discussion of the effect of Bell Atlantic's actions in relation
     to the mandates of the Telecommunications Act of 1996 is
     appropriate; and that the FCC orders cited by the Commission
     support the Commission's conclusion that Bell Atlantic's actions
     amounted to an unreasonable restriction on resale.  For those
     reasons, CTC requests that the Commission deny Bell Atlantic's
     request to clarify or reconsider Order No. 23,040.
       We appreciate the careful reading of Order No. 23,040
     which prompted this Motion for Clarification.  While we intend
     all our orders to be clear, we recognize the limitations of
     language which can lead to unintended constructions.  Since Bell
     Atlantic has identified several instances in Order No. 23,040
     which it considers unintentional misstatements, we will clarify
     the order pursuant to the following discussion.
       The first point Bell Atlantic wishes clarified is a
     sentence stating that "Bell Atlantic argued that it should
     collect a termination fee upon processing CTC orders which assume
     an end users's contract."  This sentence does not mis-state the
     argument Bell Atlantic advanced at hearing.  In order to be
     clear, however, we will add the reason Bell Atlantic made the
     argument.  The paragraph, which is the seventh paragraph of
     Section III in Order 23,040, is clarified to read:
         Without citing any authority for its claim,
       Bell Atlantic argued that it should collect a
       termination fee upon processing CTC orders
       which assume an end user's contract because
       those contracts are not assignable.  As
       discussed above, we do not accept Bell
       Atlantic's claim.  Bell Atlantic further
       argued that it should be compensated for loss
       of customer control, possible ancillary
       service sales, and stability of its rate
       base.  However, the value of customer control
       cannot be measured, and no evidence was
       presented as to the value of possible
       ancillary sales.  As to a stable rate base,
       that appears to remain stable when assigned
       at the same retail rate; furthermore, a
       stable rate base would appear to be a
       perquisite provided to a monopoly, not the
       right of a competitive carrier.  Accordingly,
       we will not provide compensation for these
       The second point Bell Atlantic wishes clarified in
     Order No. 23,040 is the import of our analysis regarding Bell
     Atlantic's actions in light of the resale provisions of the
     Telecommunications Act of 1996 (TAct).  Bell Atlantic appears to
     ask that we delete this analysis because it is unnecessary to
     support the ordering clauses of Order 23,040.  We agree that our
     discussion of resale is not an essential underpinning for our
     conclusion; neither is it contradictory to our conclusion.  
     While our order rests firmly on our reading of the language of
     the parties' Resale Agreement and Bell Atlantic's tariff
     provisions, we also wish to place Bell Atlantic's actions and
     this dispute in the context of the transition of the
     telecommunications industry to a post-TAct environment.  We will
     not delete it.
       In order to place this docket in the proper context, we 
     cited certain FCC orders which have addressed resale and
     restrictions on resale.  Bell Atlantic, as its third point for
     clarification, asserts that the orders cited do not hold that the
     imposition of termination charges for assignment of an end user
     contract represents an unreasonable restriction on resale.  Our
     decision, however, was not dictated by the cases cited.  Those
     cases merely support our conclusion in this case that Bell
     Atlantic "in effect exempt(ed) these contracts from resale."  The
     cases cited dealt, inter alia, with contracts that certain
     jurisdictions explicitly exempted from resale.  We merely
     analogize to those cases in finding that the effect of Bell
     Atlantic's actions represents a similar unreasonable restriction
     on resale.  As clarified here, the cases are not inapposite.
       We have reviewed the Maine PUC's Hearing Examiner's
     Report dated December 9, 1998.  The rationale put forth differs
     from that we follow here.  We are not persuaded by it. 
       Based upon the foregoing, it is hereby
       ORDERED, that Order No. 23,040 is clarified as detailed
     above, without effect upon the outcome of Docket No. DE 98-061.
       By order of the Public Utilities Commission of New
     Hampshire this twenty-sixth day of January, 1999.
           Douglas L. Patch       Susan S. Geiger      Nancy Brockway*
               Chairman           Commissioner          Commissioner
     Attested by:
     Claire D. DiCicco
     Assistant Secretary
     * Commissioner Brockway took no part in the deliberations or
     decision in this docket.