DE 98-061 CTC COMMUNICATIONS CORPORATION Petition to Require Assignment of Contracts Order Clarifying Order No. 23,040 O R D E R N O. 23,116 January 26, 1999 I. PROCEDURAL BACKGROUND 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. II. POSITIONS OF THE PARTIES 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. III. COMMISSION ANALYSIS 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 items. 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.