NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** $// Order, NYNEX Telephone Companies, DA 96-289 //$ $/ 47 C.F.R.  69.121 Connection Charges for EI /$ $/ 47 C.F.R.  0.291 Delegated Authority /$ FOR RECORD ONLY DA 96-289 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) NYNEX Telephone Companies ) ) Petition for Waiver of Part 69 of the ) Commission's Rules ) ORDER Adopted: March 1, 1996 Released: March 5, 1996 By the Chief, Common Carrier Bureau: I. INTRODUCTION 1. On May 31, 1995, the NYNEX Telephone Companies (NYNEX) filed a petition for waiver of Section 69.121(c) of the Commission's rules to permit them to provide cross- connection service to customers other than interconnectors. Teleport Communications Group (Teleport) filed two opposition pleadings to the NYNEX petition, and NYNEX responded to each opposition. For the reasons set forth below, we conclude that NYNEX does not need a waiver to provide the service it seeks to offer. We, therefore, dismiss NYNEX's petition. II. BACKGROUND 2. In a series of orders issued over the past several years, the Commission adopted and implemented an expanded interconnection policy that creates new opportunities for the competitive provision of access services that the local telephone companies traditionally have provided on a monopoly basis. Expanded interconnection is a local exchange carrier (LEC) offering that enables parties, by interconnecting their circuits with those of the LEC, through either physical collocation or virtual collocation, to compete on a facilities basis with certain LEC access services. To interconnect the facilities of the LEC with those of the competitive access provider, the circuits of the two carriers must be connected together or cross-connected. 3. This petition raises matters that are related to issues in two pending tariff investigations and in one pending complaint proceeding. In two orders, the Special Access Physical Collocation Designation Order and the Virtual Collocation Designation Order, we designated for investigation whether it is reasonable for LECs to refuse to honor letters of agency (LOAs) allowing parties other than the interconnector, such as interexchange carriers (IXCs), to negotiate services with a LEC on the interconnector's behalf, and whether it is reasonable to restrict other parties from ordering and being billed for such services. Similarly, at issue in the pending complaint is Teleport's allegation that NYNEX's refusal to permit an IXC customer of Teleport to order and be billed for both the cross-connection and NYNEX's special and switched access services violates Sections 201(b) and 202(a) of the Communications Act of 1934, as amended (Act). In its request for relief, Teleport asks the Commission for an award of damages and for the imposition of forfeitures upon NYNEX. III. POSITIONS OF THE PARTIES A. Petition 4. NYNEX asserts that IXCs have asked to be permitted to order switched and special access services, including the cross-connection elements, to multiplexing nodes that have been established by interconnectors. In light of these requests, NYNEX asks for a waiver of the Commission's rules so that it may charge parties other than the interconnector for cross- connection services. NYNEX asserts that Section 69.121(c) and the Commission's expanded interconnection orders provide that only interconnectors are entitled to order and be billed for connection charge subelements. NYNEX maintains that the Commission imposed this restriction so that customers, like AT&T, that are located in LEC central office buildings pursuant to pre-existing lease arrangements would not be able to purchase cross-connection service to connect their facilities to LEC services unless they established their own expanded interconnection multiplexing nodes. NYNEX contends that the definition of "interconnector" appears in Part 64, not Part 69. Specifically, NYNEX points to Section 64.1402(a) of the Commission's rules, which defines an interconnector as "a party taking expanded interconnection offerings." Thus, NYNEX argues, only a party that establishes an expanded interconnection multiplexing node is entitled to order the cross-connection rate elements for services that are interconnected with its multiplexing node. 5. NYNEX seeks a waiver of Part 69 so that it may file a new tariff, that would allow the IXCs, or any other access customer, to order and be billed for access services that NYNEX provides to multiplexing nodes operated by third parties. Because the multiplexing node would be under the control of the interconnector, NYNEX states that the tariff should require a LOA from the interconnector that authorizes IXCs or others to connect circuits to the point of termination at the interconnector's multiplexing node. NYNEX also plans to include in its tariff a separate charge to recover the costs of the additional functions that NYNEX would be required to perform in processing orders from customers other than the interconnector for cross-connection service. NYNEX maintains that there is good cause for the Commission to grant this waiver because the IXCs and interconnectors would gain additional flexibility in ordering and maintaining the services obtained from NYNEX. In addition, NYNEX argues, grant of this waiver would simplify procedures for ordering circuits by allowing customers to deal directly with NYNEX for access services that are ordered in conjunction with the transport services provided by interconnectors. B. Comments 6. Teleport opposes NYNEX's petition on the grounds that there is neither a need nor a justification for a waiver. Contrary to NYNEX's claim, Teleport asserts that nothing in Section 69.121 states that the cross-connection service may "only" be offered to the party that constructs the collocation cage. Further, Teleport contends that nothing in the Commission's rules defines the term interconnector to refer exclusively to the party that constructs the collocation arrangement. Moreover, Teleport states that other LECs allow IXCs, at no additional charge, to order and be billed for cross-connections and access services terminating at interconnectors' collocation nodes without obtaining Part 69 waivers. Teleport asserts that if NYNEX's interpretation of Section 69.121(c) is correct, these LECs are in violation of the Commission's rules. 7. Teleport also argues that the Commission should not allow NYNEX to use the vehicle of a waiver to obtain a premature judgment of the merits of Teleport's pending formal complaint against NYNEX. Teleport contends that because the issues raised in the complaint are identical to those posed by NYNEX in its petition, it would be improper for the Commission to grant the proposed waiver instead of deciding the complaint on its merits. Finally, Teleport alleges that a waiver would also force interconnectors to absorb new "coordination" charges that would anticompetitively increase the cost of expanded interconnection, thereby hampering an interconnector's ability to compete with NYNEX. 8. In response to Teleport's oppositions, NYNEX contends that offering cross- connection service to parties other than interconnectors would be inconsistent with Commission rules and expose it to enforcement action. As to Teleport's argument that this rule does not say that "only" interconnectors may order cross-connection service, NYNEX observes that the Commission's Part 69 rules do not state, for example, that "only" end users shall pay end user charges or "only" carriers shall pay carrier charges. NYNEX further contends that its definition of interconnector, in contrast to Teleport's more expansive definition, is consistent with the Commission's use of the term in its expanded interconnection rules and orders. NYNEX asserts that the Commission consistently uses the term interconnector to refer to a person that establishes an expanded interconnection multiplexing node and that installs fiber optic or microwave transmission facilities in its node. 9. NYNEX denies that its waiver is intended to frustrate Teleport's formal complaint. To the contrary, NYNEX contends that it filed this request for waiver so that Teleport can obtain the services it seeks even if the Commission rules against Teleport in the complaint action. NYNEX further claims that the waiver request was prompted by recent requests it has received from IXCs for access services terminating at the interconnectors' collocation nodes. NYNEX states that rather than waiting for a decision on Teleport's formal complaint, it decided to seek favorable expedited action on this waiver request so that it can file the tariff revisions necessary to meet these service requests. 10. NYNEX declares that if third parties can order and be billed for services to an interconnector's multiplexing node, it would have primary responsibility for both the installation and maintenance of its circuits as well as coordinating the installation and maintenance of the interconnectors' transport services. Further, NYNEX maintains, Teleport's allegation that other LECs currently offer the service for which NYNEX seeks a waiver to provide does not demonstrate that a waiver is not needed and, in any event, is unsubstantiated. Finally, NYNEX submits that objections to the charges that NYNEX plans to assess for coordination should be addressed in the tariff review process. IV. DISCUSSION 11. NYNEX requests a waiver of Section 69.121(c) so that it may permit parties other than the interconnector that obtain a LOA to order and be billed for cross-connection service. Although Section 69.121(c) provides that connection charge subelements must be assessed on the interconnector (in this case, Teleport) this section does not prohibit NYNEX from accepting a LOA executed by the interconnector authorizing another party to order and be billed for cross- connection service. Further, neither the Act nor the Commission's rules or orders prohibit or restrict carriers from entering into agency agreements, such as LOAs. We note that many LECs commonly accept LOAs for the ordering and billing of special and switched access services. NYNEX itself permits the use of LOAs in connection with its other switched and special access services. 12. There is no evidence in the record that the ordering and billing of expanded interconnection service differs in any material respect from the ordering and billing of other access services for which LOAs are accepted. Further, the ability to order and be billed for cross-connection service pursuant to a LOA in no way grants additional rights to parties other than interconnectors. Thus, for example, AT&T still cannot obtain access to the cross- connection without either establishing its own expanded interconnection arrangements, or using those of an interconnector. We, therefore, conclude that the Commission's rules do not preclude NYNEX from allowing IXCs and other access customers to order and be billed for cross- connection service pursuant to LOAs. Because we find that the Commission's rules currently permit NYNEX to offer the service for which it seeks a waiver to provide, we dismiss its waiver request. 13. We note that our disposition of NYNEX's waiver petition does not prejudge the issues in the tariff investigations and the complaint proceeding. We do not resolve whether it is reasonable for a LEC to include in its tariffs provisions that restrict parties other than the interconnector from ordering interconnection services nor do we resolve whether NYNEX's past refusal to accept a LOA was unreasonable under the Act. These issues will be determined in the pending tariff and complaint proceedings based on the records developed therein. In addition, we note that this action does not alter the definition of those that may take expanded interconnection offerings. 14. Finally, we do not reach the question of whether new connection charges are warranted if NYNEX amends its tariff to permit IXCs to order and be billed for services pursuant to LOAs. The Commission's expanded interconnection rules do not prescribe a rate structure for any expanded interconnection offering except for the cross-connection rate element. LECs, therefore, have the flexibility to develop their own rate elements. If NYNEX proposes revisions to its tariff to establish such charges, Teleport will have the opportunity to raise its objections in the tariff review process. V. ORDERING CLAUSE 15. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i), 5, and 201-205 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 155, and 201-205, and Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91 and 0.291, the petition for waiver filed by NYNEX IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Regina M. Keeney Chief, Common Carrier Bureau