Commission Conclusion. The Commission does not find the language of Section 252 as clear as Ameritech portrays it to be. First, the Commission understands subsection (e)(4) to serve as an incentive for State commissions to act quickly in reviewing proposed agreements. Providing carriers with prompt decisions serves TA96’s goal of promoting competition by allowing new carriers to begin offering services swiftly or, if the case merits, sending carriers back to the proverbial drawing board without undue delay so that they may try again to develop a nondiscriminatory agreement that is consistent with the public interest and in compliance with State requirements envisioned under subsection (e)(3). Nor does the Commission find in subsection (e)(1) any support for Ameritech’s position. Rather, a requirement that deficiencies be identified enables carriers to know how their filing was deficient and assists them, and other carriers, in developing a compliant interconnection agreement. The Commission finds Ameritech’s interpretation of subsection (e)(2) equally unpersuasive. The fact that agreements may only be rejected under limited circumstances set forth in subsection (e)(2) (notwithstanding subsection (e)(3)) does not compel the Commission to conclude that the burden in such matters falls on an entity other than the moving parties. Although TA96 may indeed favor the negotiation of interconnection agreements, this fact does in itself result in a presumption that carriers that negotiate a agreement do not have the burden of demonstrating that their agreement is compliant with TA96. In the absence of a clear indication in TA96 of who bears the burden of proof, the Commission turns to the generally accepted principle that a petitioner in an administrative proceeding has the burden of proof. This principle is applicable here since it is Petitioners who entered into the interconnection agreement and now bring it before the Commission for approval pursuant to TA96. With the filing of a petition, carriers seeking approval of an interconnection agreement are at least implicitly asserting that the agreement does not discriminate, is in the public interest, and in all other respects complies with TA96 and relevant state law and rules. Since Petitioners, and not Staff or any others, are in the best position to demonstrate that they acted in accordance with TA96, it is logical to place the burden on Petitioners. The fact that Staff now questions whether a portion of Petitioners’ Agreement is in th...
Commission Conclusion. The Commission is troubled by the liquidated damages provisions in the 11-State Plan and finds that Ameritech has not demonstrated that the provisions are consistent with the public interest. The Illinois Remedy Plan establishes the caps that it does for particular reasons. Generally, the Commission deems the soft cap a sufficient means of encouraging Ameritech to fulfill its obligations under TA96 and the Act by making CLECs reasonably whole for any Ameritech breach. The procedural cap also serves to alert the Commission as to when it may need to take a closer look at Ameritech’s performance. Ameritech’s argument that the cap issue is moot until Ameritech reaches the cap is unpersuasive, in part because the cap in and of itself is not the issue. Rather, it is the amount that Ameritech must pay before reaching the cap that serves to encourage Ameritech to provide adequate service. Reducing the amount diminishes the effect of the payments under a remedy plan, therefore the Commission finds the reduction in the 11-State Plan to be inconsistent with the public interest. The fact that the 11-State Plan does not cover as many CLECs as the Illinois Remedy Plan does not justify the lower cap amount since Ameritech has made it no secret that it would rather not implement the Illinois Remedy Plan and prefer that all CLECs operate under its remedy plan terms. Nor does the record support, one way or another, Ameritech’s claim that payments under the 11-State Plan would be “virtually” no different than payments under the Illinois Remedy Plan.
Commission Conclusion. Ameritech asserts that Staff has failed to support the premise that wholesale service quality is driven by the stringency of the performance measures and performance remedy plan. Whether or not Staff sufficiently did so in this docket is not a deciding factor in light of the fact that the Commission already concluded in the Remedy Plan Order that more stringent remedy plan provisions are necessary to improve Ameritech’s wholesale service quality. Xxxxxxxxx appears to be trying to relitigate this issue in the instant docket. Moreover, Ameritech has failed to convince the Commission that its current performance should be a factor in deciding whether the 11-State Plan is consistent with the public interest. As Staff points out, a remedy plan is meant to ensure future performance, not simply current performance. Given Ameritech’s desire to enter the long distance market and concomitant showings that it must make to gain such approval, the Commission would expect Ameritech to be trying to improve its service quality to CLECs. In the future, whether Ameritech earns long distance approval or not, the Commission does not want to see Ameritech’s service quality backslide once its long distance docket has concluded. A stringent remedy plan will better assure a high level of service quality than a weak one. The Illinois Remedy Plan is a more stringent plan than that proposed by Ameritech and is intended to promote competition, with the intended beneficiary of competition being the general public. Therefore, not only is it proper to compare the 11-State Plan to the Illinois Remedy Plan as an intrastate service quality standard, the latter is the standard intended to protect the public interest. Section 252(e)(3) allows the Commission to enforce its service quality standards in interconnection agreements. The Commission is not alone in its belief that remedy plans are important in ensuring service quality. The FCC has also found that remedy plans ought to prevent deterioration of wholesale performance in the future. In its review of petitions for authority to provide long distance service, the FCC has found that a remedy plan is beneficial for ensuring that the local market remains open to competition. Additionally, one does not need a degree in economics to understand that companies respond to profit opportunities. As a general rule, when the benefit to a company from taking an action exceeds the cost, the firm will undertake that action. There is no question that Ame...
Commission Conclusion. The Commission understands Staff’s concern but is not convinced that this is the appropriate context in which to interpret this aspect of the Intervening Law provision. Ameritech does not suggest that the CLEC has waived any of its rights, nor does the CLEC complain that it was made to do so. The Commission does, however, direct Ameritech and CLECs entering into interconnection agreements to be more clear on this issue in the future.
Commission Conclusion. Ameritech’s arguments in support of its position lead the Commission to believe that the 11-State Plan is not necessarily inconsistent with the public interest to the extent that it does not reference Tier 2 payments to the State. While there is some ambiguity regarding the operation of Tier 2 payments in conjunction with the 11-State Plan, assuming that Ameritech’s characterization of Tier 2 payments is correct any uncertainty could be resolved through clarifications to the 11-State Plan. The Commission does not share Staff’s interpretation of Section 2.1 as being inconsistent with Ameritech’s explanation of Tier 2 payments in light of the fact that Tier 2 payments are not made to Easton. Ameritech’s arguments persuade the Commission that the absence of any reference to Tier 2 payments is not in and of itself inconsistent with the public interest.
Commission Conclusion. While it is probable that the annual audit conducted pursuant to the Illinois Remedy Plan will most likely encompass the same systems and processes used to produce performance results under the 11-State Plan, it is not clear whether Easton would benefit from any findings under the annual audit. Because the 11-State Plan makes no mention of the annual audits under the Illinois Remedy Plan, it does not appear that Easton would benefit from a finding that Ameritech had miscalculated payments due. The Commission finds that Ameritech has not justified this variation from the Illinois Remedy Plan. The audit system established in the Illinois Remedy Plan is the minimum that the Commission deems necessary to protect both CLECs’ and the Commission’s interests. The 11-State Plan provides no benefit to Easton from the annual audit while the “looser pays” condition on the only audit available under the 11- State Plan may discourage CLECs under that plan from requesting an audit.4 This deficiency in the 11-State Plan compromises the Commission’s ability to monitor Ameritech’s wholesale performance and, absent a justification by Ameritech, constitutes a material variation from the Illinois Remedy Plan audit provisions in a manner inconsistent with the public interest.
Commission Conclusion. The Commission does not find Staff’s interpretation of the provisions in question as unreasonable as Ameritech does and instead considers Staff’s interpretation plausible. By the same token, however, Ameritech’s interpretation could also be correct. The fact that two reasonable but different interpretations exist begs the question of whether Ameritech was too quick to declare in its responses to Staff’s discovery that the language is clear on its face.5 The lack of clarity as to the proper interpretation indicates that this language is deficient. In any event, regardless of which interpretation is proper, the Commission finds that Ameritech has not adequately supported the three-month exemption. The fact that payments are not due under diagnostic measures is one thing, but to conclude that any “new” measures are akin to diagnostic measures (because those attending the collaboratives said so) and that therefore no payment is due treads on the Commission’s determinations in the Remedy Plan Order. Had the Commission thought that the situation merited a “payment exemption” period, it would have included one in the Illinois Remedy Plan. Ameritech’s attempt to circumvent remedy payment obligations is in appropriate and, given its lack of support for doing so, is not consistent with the public interest.
Commission Conclusion. In light of the representations made on the record, the Commission finds the Agreement and amendment thereto reasonable and acceptable. Accordingly, the Agreement and amendment should be approved. Concerning the implementation of the Agreement and amendment, the Commission will impose the same implementation requirements imposed in other interconnection agreement dockets. Therefore, within five days from the date the Agreement and amendment are approved, Ameritech shall modify its tariffs to reference the Agreement and amendment for each service. Such reference shall be included in the following section of Ameritech’s tariff: Agreements with Telecommunications Carriers (ICC No. 21, Section 19.15). In addition, Ameritech must file a verified statement with the Chief Clerk of the Commission, within five days of approval by the Commission, that the approved Agreement and amendment are the same as the Agreement and amendment filed in these consolidated dockets with the respective verified joint petitions. The Chief Clerk shall place the Agreement and amendment on the Commission’s web site under “Interconnection Agreements.” These requirements are consistent with the Commission’s orders in previous interconnection agreement dockets and allows interested parties access to the Agreement and amendment.
Commission Conclusion. The Commission has considered the record and the request for approval of the Engagement Agreements with Volkert, Xxxxxxx, and Xxxxx. As recommended by Staff, the Commission finds that the terms of the Engagement Agreements are reasonable, and that the Engagement Agreements should be approved.
