SBC Illinois’ Position. SBC Illinois said the FCC had determined that customer interests would best be served by incumbent and competitive local exchange carriers (“ILECs” and “CLECs”) engaging in good-faith negotiations to arrive at commercially acceptable arrangements that would provide a substitute for unbundled network elements (“UNE” or “UNE-P”). SBC Illinois and Sage have entered into a private LWC Agreement for a market-based substitute for UNE-P. Some of the products and services to be provided under the agreement relate to the implementation of Section 251 obligations, however, other products and services do not. These other items were negotiated on a strictly voluntary basis, precisely as the FCC encouraged. SBC Illinois and Sage recognize that terms of the agreement pertaining to obligations under Section 251 must be filed with the Commission, but there is no requirement to seek approval of any non-251 arrangements in the agreement. Such a requirement would expand the scope of Section 252 without legal support and run counter to the spirit of voluntary commercial negotiations. SBC Illinois added that if voluntary commercial negotiations are subjected to regulatory approval or modification, carrier incentive to negotiate could diminish. Commercial negotiations may contain the type of business information a carrier would not ordinarily reveal to a competitor. Requiring disclosure could cause parties to either avoid terms that might reveal sensitive data or to risk disclosure. Neither case is likely to result in productive negotiations. Also, if state commissions require parties to change the terms of an agreement as a condition for approval, parties could not be confident that tradeoffs made during negotiations will be preserved, and they will be less likely to negotiate at all. Moreover, the agreement in this docket is region-wide, not state specific, meaning that it is based on a balance of interests across several states. Invalidation in a single state could disrupt the entire agreement. Even if a commercial agreement is approved in fact, contentious proceedings could undermine such benefits as the elimination of regulatory uncertainty and regulatory costs. Another SBC Illinois concern is the possibility that other CLECs could choose parts of an agreement that do not implement a Section 251 obligation. The negotiation process involves a certain amount of give-and-take and parties strike a balance between the two. An ILEC would not be inclined to offer something in one...
