WPCu 2BJ Z Courier3|xw RomanTimes New Roman BoldX@HP LaserJet 4M 518 LPT2m 518 lpt2)HPLA4MP0.PRSx  @\9aX@26F K3|jCourierTimes New Roman518 L2HPLA4MPC.PRSx  @\{X@"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2[ D'XzKK CourierTimes New RomanTimes New Roman BoldTimes New Roman ItalicCourier Italic<?xxx,?x6X@`7X@7jC:,Xj\  P6G;XP7nC:,kXn4  pG;X\5hC:,- Xh*f9 xr G;XXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddfX@#ь MFS states that the Commission should renew  XH-the waiver for only 18 to 24 months, subject to the same conditions that currently exist.>H X-#Xj\  P6G; XP#э MFS Opposition at 3.#x6X@`7>fX@#ь Both parties believe that a limited waiver would give the Commission a more realistic period of time in which to determine the actual effects of NYNEX's practices on the development of  X -competition in New York.z? ?  X-#Xj\  P6G; XP#э MCI Opposition at 9; MFS Opposition at 3.z MFS also states that NYNEX's unique circumstances do not exist elsewhere and that the Commission should caution that any extension of NYNEX's waiver should not be construed as an invitation for other LECs to file similar waiver  X -requests.e@  X_-#Xj\  P6G; XP#э MFS Opposition at 3.e  X- x C. Reply  Xy-  Xb-x17.` ` NYNEX notes that the parties opposing the waiver argue that it should: (1) provide data comparing its growth rate with that of its competitors to determine whether competitors are lagging; (2) show data regarding total market share, including competitor services that bypass NYNEX's network; (3) show what its competitors' market shares would have been absent the waiver; (4) show that competition is well established and that competitors could absorb the NYNEX nonrecurring rollover charges; and (5) show that  X-NYNEX has lost circuits and revenue.A  X*$-#Xj\  P6G; XP#э NYNEX Reply at 4. #x6X@`7>fX@#ъ NYNEX argues, however, that information on its competitors' total market share could be obtained if the Commission adopts the proposed" RA0*(("  X-Telecommunications Access Provider Survey.B Xy-#Xj\  P6G; XP#э Id. at 4, n.10, citing Telecommunications Access Provider Survey, Docket CCBIAD Xd-95110.#x6X@`7>fX@# Moreover, NYNEX claims that the data the  X-parties opposing the waiver deem necessary are not relevant to this proceeding.Cd X-#Xj\  P6G; XP#э Id. at 4.#Xj\  P6G; XP#э  X-x18.` ` NYNEX states that, in addition to providing the same data elements on which the Commission relied in granting the original waiver, it has included new data to show that  X-competition in Manhattan south of 59th Street has grown.bD XU -#Xj\  P6G; XP#э  Id. at 3. b For instance, NYNEX states that between March 1995 and November 1995, the number of DS1 equivalent circuits in LATA  X_-132vE_ X-#Xj\  P6G; XP#э New York City is located in LATA 132.v reached 2,882, an increase of only 7 percent, while the number of DS1 equivalent  XH-circuits terminated to collocation nodes reached 2,355, an increase of more than 85 percent.?FH{ Xt-#Xj\  P6G; XP#э  Letter to Paul D'Ari, Tariff Division, Common Carrier Bureau from Dee May,  X_-Director, Federal Regulatory, NYNEX, dated March 19, 1996; see also, NYNEX Reply at 4.#x6X@`7>fX@#? Moreover, NYNEX claims that TW incorrectly asserts that the growth rate of interconnected trunks is only 12 percent. NYNEX argues that after converting the number of DSOs, DS1s,  X -and DS3s into DS1 equivalents, the actual growth rate is approximately 35 percent.G   X-#Xj\  P6G; XP#э NYNEX at 3, n.8; see also, TW Comments at 3, n.6. #x6X@`7>fX@#ѱ   X -NYNEX also asserts that there is no merit to MFS's and TW's suggestions that NYNEX is providing poor service to interconnecting carriers because it is still processing orders to  X -disconnect 32 percent of NYNEX's switched access trunks below 59th Street.H  X;-#Xj\  P6G; XP#э NYNEX at 4, n.9. #x6X@`7>fX@#ъ According to NYNEX, the process of disconnecting such a large number of switched access trunks is complex and time consuming and, given the number of requests for modifications, additions, and deletions of the facilities to be rolled over, it is not surprising that it is still in the process  Xb-of implementing these orders.Ib} X -#Xj\  P6G; XP#э Id. #x6X@`7>fX@#ф Moreover, in an ex parte filing, NYNEX states that between January 1, 1995 and January 1, 1996, it processed nearly 1,000 disconnection orders for  X6-switched transport DS1 equivalent crossconnects.J60 X$-#Xj\  P6G; XP#э Letter to Paul D'Ari, Tariff Division, Common Carrier Bureau from Dee May,  X%-Director, Federal Regulatory, NYNEX, dated March 18, 1996.#x6X@`7>fX@# NYNEX states that these disconnections"6 J0*(("  X-represent a loss of 21 percent of its DS1 equivalent switched transport services.K Xy-#Xj\  P6G; XP#э Id.#x6X@`7>fX@#э  X-x19.` ` In addition, NYNEX disputes MCI's claim that it is not appropriate to require a customer to pay $7,968 when it shifts from a NYNEXprovided DS3 circuit to an alternative  X-provider.hL{ X-#Xj\  P6G; XP#э NYNEX Reply at 4.h NYNEX argues that where a customer requests that NYNEX roll over 28 DS1 circuits that were multiplexed down from a DS3, it is appropriate to charge a reconfiguration NRC for each of the 28 DS1 circuits because it must physically disconnect and connect each of the 28 DS1 circuits. NYNEX states, however, that where a customer requests NYNEX to roll over a DS3 without multiplexing these circuits down to 28 DS1s, the NRC for this  X1-reconfiguration is only $407.37.ZM1, X-#Xj\  P6G; XP#э  Id.Z Further, NYNEX states that the requested waiver does not give NYNEX any competitive advantage over the CAPs because it allows NYNEX like CAPs to waive upfront NRCs as an inducement to use its services. In sum, NYNEX maintains that the unique competition it faces in Manhattan south of 59th Street, coupled with the fact that CAPs routinely waive NRCs for installation of special access circuits, warrants deviation from  X -the Commission's rules.`N  XN-#Xj\  P6G; XP#э Id. at 6.`  X- III. DISCUSSION TP  Xb-x20.` ` As we noted in granting NYNEX the initial waiver, it is well established that  XK-the Commission may exercise its discretion to waive a rule where there is "good cause" to do  X4-so,O4 Xw-#Xj\  P6G; XP#э NRC Waiver Order, 10 FCC Rcd at 5073 (para. 13), citing Section 1.3 of the Commission's Rules, 47 C.F.R.  1.3. The Commission's grant of a waiver must be based on articulated, reasonable standards that are predictable, workable, and not susceptible to  X4-discriminatory application. Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166  X-(D.C. Cir. 1990) (Northeast Cellular). and where the particular facts surrounding the waiver request would make strict  X-compliance inconsistent with the public interest.P  X!-#Xj\  P6G; XP#э NRC Waiver Order, 10 FCC Rcd at 5073 (para. 13), citing WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969). In the Second Reconsideration Order, the Commission identified the circumstances that would warrant a waiver of the Commission's  X-policy on reconfiguration NRCs for customers that shift from a LEC to an interconnector.Q X+&-#Xj\  P6G; XP#э Second Reconsideration Order, 8 FCC Rcd at 7363 (para. 51).  X-The Commission stated that it would consider waiving the reconfiguration NRC standard only" <Q0*((" if the differential treatment resulting from the waiver would not undermine competition or  X-otherwise violate the Communications Act.\R Xb-#Xj\  P6G; XP#э Id. \  X-x21.` ` We note that Applications for Review and a Petition for Reconsideration have  X-been filed in response to the Bureau's decision in the initial NRC Waiver Order.:S{ X-#Xj\  P6G; XP#э  NRC Waiver Order, 10 FCC Rcd 5070; see also, Petition for Reconsideration of MCI, filed April 19, 1995; Application for Review of ALTS, filed April 19, 1995; and Application for Review of Teleport, filed April 19, 1995. : Pursuant to Section 1.106(a)(1) of the Commission's rules, we refer the Petition for Reconsideration to the  Xx-Commission for further action.Tx X) -#Xj\  P6G; XP#э 47 C.F.R.  1.106(a)(1). #x6X@`7>fX@#є  We recognize that the Commission may review the record in  Xc-this proceeding and subsequently decide to reverse or modify the Bureau's NRC Waiver  XN-Order. In the interim, however, we will extend NYNEX's instant waiver request for one year because the circumstances that provided the basis for the original waiver have not significantly changed.  X -x22.` ` Our decision to extend the waiver is based on our application of the waiver standard that was applied when we granted the original waiver. We have decided to extend the waiver for one year because we have examined the record and have determined that  X -competition has not been undermined during the past year. As we found in the NRC Waiver  X-Order, for example, interconnectors have been operating in the NYNEX region for a longer period of time than any other region of the country. Moreover, interconnectors in the NYNEX region appear to have more collocation nodes than in any other region of the country  XW-and to have achieved higher market penetration.UW X-#Xj\  P6G; XP#э NRC Waiver Order, 10 FCC Rcd at 5073 (para. 14). #x6X@`7>fX@#Ѷ We also note that NYNEX submits that, in Manhattan south of 59th Street, ten of NYNEX's eleven central offices continue to provide  X)-collocation facilities.kV)d  X>-#Xj\  P6G; XP#э NYNEX Petition at 3.k Further, the record indicates that, during the past year, interconnectors' market share of the high capacity special access market in Manhattan south of 59th Street has increased from 40 percent to over 50 percent. It should be noted that no parties to this proceeding have challenged the accuracy of any of this information. We recognize that parties opposing the extension of the waiver have raised other arguments that we do not directly address in this Order. However, we find that these arguments concern whether we should have granted NYNEX the original waiver and we believe that these arguments should be addressed when Commission acts upon the Applications for Review and Petition for Reconsideration.  s fN "C  V0*(("  X- s fN x23. ` ` Accordingly, we will extend NYNEX's waiver of the Commission's standards governing nonrecurring reconfiguration charges for one additional year until March 20, 1997,  X-unless the Commission either reverses or modifies our NRC Waiver Order. This waiver will also be conditioned on NYNEX continuing to permit CAP customers to pay the CAP rollover  X-NRC over a 12 month period.W X-#Xj\  P6G; XP#э NRC Waiver Order, 10 FCC Rcd at 5074 (para. 18).  Xx-x24.` ` Furthermore, we deny NYNEX's request for an indefinite extension of the waiver. We do not believe such an extension is appropriate at this juncture because the Applications for Review and Petition for Reconsideration remain pending. Moreover, since the special access and switched transport market in NYNEX's Zone 1 is not yet fully competitive, we believe that it is necessary for the Bureau to examine the effects of this waiver again in one year to determine whether NYNEX's recurring charge rate structure has not undermined competition. With a waiver of limited duration, we can continue to observe how competition in NYNEX's region develops and whether the extension we now grant has a negative impact. If this waiver of the nondiscriminatory NRC requirement results in differential treatment that undermines competition or otherwise violates the Communications Act, we will further limit or rescind NYNEX's extension to reduce the risk of any serious damage to competition.  Xd-T  XM-IV. ORDERING CLAUSES ĐTP  X-x25.` ` Accordingly, IT IS ORDERED, pursuant to Section 1.3 of the Commission's Rules, 47 C.F.R.  1.3, that the petition for extension of waiver filed by New York Telephone Company and New England Telephone and Telegraph Company IS GRANTED IN PART AND DENIED IN PART as indicated above.  X-x26.` ` IT IS FURTHER ORDERED, pursuant to Section 1.106(a)(1) of the  X-Commission's Rules, 47 C.F.R.  1.106, the Petition for Reconsideration of the NRC Waiver  X-Order, filed by MCI Telecommunications Corporation, is referred to the Commission for further action. x x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhRegina M. Keeney x` `  hhChief, Common Carrier Bureau