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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Armstrong Communications, Inc. ) Petition for Relief Pursuant to ) CCB Pol. 97-6 Section 252(e)(5) of the ) Telecommunications Act of 1996 ) and Request for Additional Relief ) MEMORANDUM OPINION AND ORDER Adopted: January 22, 1998 Released: January 22, 1998 By the Chief, Common Carrier Bureau: I. INTRODUCTION 1. On May 22, 1997, Armstrong Communications, Inc. (Armstrong) filed the above-captioned petition (Petition) with the Commission. Armstrong requests that the Commission direct the Citizens Telephone Company of Kecksburg (Citizens), pursuant to sections 251(b) and (c) of the Telecommunications Act of 1996 (1996 Act), to provide Armstrong with interconnection and to negotiate in good faith the terms and conditions of an interconnection agreement consistent with those sections. In addition, or in the alternative, Armstrong requests that the Commission preempt the jurisdiction of the Pennsylvania Public Utilities Commission (Pennsylvania Commission) pursuant to section 252(e)(5) of the Act with respect to Armstrong's pending request for interconnection with Citizen. For the reasons described below, we deny Armstrong's Petition. II. BACKGROUND 2. Armstrong is a cable operator in a portion of Westmoreland County, Pennsylvania. Citizens is an incumbent local exchange carrier (LEC) serving approximately 5,000 access lines in a portion of Westmoreland County. On March 6, April 2, and May 30, 1996, Armstrong directed letters to Citizens asking for interconnection pursuant to section 251 of the Act. Sections 251(a) and (b) of the Act impose on all LECs certain duties regarding interconnection, resale of telecommunications services, number portability, dialing parity, access to rights-of-way, and reciprocal compensation. Section 251(c) requires incumbent LECs to meet certain additional obligations to potential competitors with respect to interconnection, access to unbundled network elements, and resale of retail services, among other things. 3. Armstrong's request for interconnection triggered a disagreement between Armstrong and Citizens regarding, among other things, whether and to what extent Citizens had to comply with Armstrong's request under section 251 and, in particular, whether Citizens is exempt from the obligations imposed on incumbent LECs by section 251(c) pursuant to the rural exemption set forth in section 251(f)(1)(A) of the Act. This exemption applies to any incumbent LEC that is a "rural telephone company" within the meaning of section 3(37) of the Act. The rural exemption from section 251(c) terminates if and when the incumbent rural telephone company receives from a potential competitor a "bona fide request for interconnection, services, or network elements" that the relevant state commission determines is not unduly economically burdensome, is technically feasible, and is consistent with statutory universal service requirements. Moreover, the rural exemption generally is not available when the request for interconnection comes from "a cable operator providing video programming, and seeking to provide any telecommunications service, in the area in which the rural company provides video programming." This limitation on the rural exemption does not apply, however, "to a rural telephone company that is providing video programming on the date of enactment of the Telecommunications Act of 1996." 4. Given this impasse, on October 1, 1996, Armstrong filed a petition with the Pennsylvania Commission (Arbitration Petition) requesting that it arbitrate Armstrong's interconnection dispute with Citizens pursuant to section 252 of the Act. Section 252 establishes a scheme whereby telecommunications carriers may obtain interconnection with incumbent LECs according to agreements fashioned through (1) voluntary negotiations among the carriers, (2) mediation by state commissions, or (3) arbitration by state commissions. To the extent voluntary negotiations are unsuccessful, any party to the negotiation may petition the relevant state commission, during the period from the 135th to the 160th day after the incumbent LEC receives a request for negotiation, to arbitrate any open issues. Upon receiving such a petition, the state commission has nine months from the date on which the LEC received the interconnection request to resolve the open issues. Armstrong subsequently indicated to the Pennsylvania Commission that it expected action on its Arbitration Petition no later than February 28, 1997, which was nine months after the transmittal of its May 30, 1996 letter to Citizens. 5. On February 27, 1997, the Pennsylvania Commission's staff sent Armstrong a letter stating: "In a cursory review of the record, it appears that Armstrong's initial filing was not perfected. . . . In addition, my review of the record reveals that additional requirements also may be lacking. Consequently, your calculation of the February 28, 1997 deadline in which the [Pennsylvania] Commission should act is in error. While the [Pennsylvania] Commission will review Armstrong's petition in due course, the [Pennsylvania] Commission will not act on or before February 28, 1997." On March 10, 1997 Armstrong filed with the Pennsylvania Commission a petition for review of the Pennsylvania Commission staff's February 27th determination. The petition for review was placed on the Pennsylvania Commission's June 12, 1997 public meeting agenda for resolution. Prior to that public meeting, Armstrong filed its Petition with this Commission on May 22, 1997. 6. On June 12, 1997, the Pennsylvania Commission addressed Armstrong's petition for review of the Pennsylvania Commission staff's February 27th letter (June 12 Order). The Pennsylvania Commission noted that it had issued an order on June 3, 1996 (Consolidation Order) establishing a consolidated procedure, pursuant to section 252(g) of the Act, for reviewing matters concerning the entry by a carrier (such as Armstrong) into the service territory of a rural LEC (such as Citizens). Under the Consolidation Order, any carrier seeking to interconnect with a rural LEC (i.e., a rural telephone company with less than 50,000 access lines) must file: (i) a bona fide request for interconnection pursuant to section 251(f)(1)(A) with the small LEC; and (ii) a request for universal service eligibility designation with the Pennsylvania Commission pursuant to section 214((e)(2) of the Act. The Pennsylvania Commission gave Armstrong twenty days to perfect its filing based on the procedures set forth in the Consolidation Order (i.e., by filing a universal service eligibility designation). It stated that, upon perfection, the Pennsylvania Commission would assign Armstrong's Arbitration Petition to an administrative law judge (ALJ) to address on an expedited basis all relevant interconnection obligations and other related issues. 7. On July 10, 1997, the Pennsylvania Commission issued an additional order suspending for a two-year period the interconnection requirements in sections 251(b) and (c) of the Act for 18 small rural telephone companies in Pennsylvania. In the Suspension Order, the Pennsylvania Commission denied Citizen's request for similar relief, but stayed any pending section 251(b) or (c) interconnection requests involving Citizens until the issue of whether Citizens is exempt from such obligations under section 251(f) is resolved. The record does not reflect whether the Pennsylvania Commission has made any subsequent determinations regarding Citizens' request for exemption under section 251(f), or whether the ALJ has made any findings regarding Armstrong's Arbitration Petition. 8. On August 6, 1997, Citizens forwarded an "Agreement to Toll Statutory Deadline Contained in Section 252(e)(5)" (Tolling Agreement) signed by all the parties to this proceeding to the Commission. Under the Tolling Agreement, the parties agreed to toll the Commission's 90-day deadline for deciding section Armstrong's 252(e)(5) petition until such time Armstrong notified the Commission in writing that action on its petition was required. The Tolling Agreement further provided that, upon receipt of such notification, the Commission would have 45 days to act on the Petition. On November 7, 1997, Armstrong notified the Commission in writing that it wished the Commission to proceed with its order. On November 26, 1997, however, Armstrong sent the Commission another letter superseding its November 7, 1997 letter. In the November 26th letter, Armstrong informed the Commission that its notification should be deemed effective December 15, 1997, and the deadline for Commission action on its Petition should be 45 days thereafter. III. DISCUSSION A. Preemption under Section 252(e)(5) 9. We address Armstrong's request for preemption first. Section 252(e)(5) directs the Commission to preempt the jurisdiction of a state commission in any proceeding or matter in which a state commission "fails to act to carry out its responsibility under [section 252]." Under our rules, the party petitioning for preemption must prove that the state has "failed to act" within the meaning of section 252(e)(5). We find that Armstrong has not met this burden. The record shows that Armstrong did not file its Arbitration Petition with the Pennsylvania Commission within the time frame specified in section 252(b)(1) of the Act. Because Armstrong failed to comply with the procedures specified in section 252(b)(1), the Pennsylvania Commission was not bound by section 252(b)(4) to resolve Armstrong's Arbitration Petition within nine months. Consequently, as discussed more fully below, we find that the Pennsylvania Commission did not "fail to act" within the meaning of section 252(e)(5) of the Act. 1. Section 252(b)(1) 10. Section 252(b) of the Act allows a party to petition a state commission for arbitration "[d]uring the period from the 135th to the 160th day (inclusive) after the date on which the incumbent [LEC] receives a request for negotiation." In such case, the state commission has nine months from the date the LEC received the interconnection request to resolve the open issues involved in the arbitration. Although it appears from the record that Armstrong requested interconnection from Citizens on at least three different dates (March 6, April 2, and May 30, 1996), Armstrong relies on its May 30, 1996 letter to Citizens as the date triggering the Pennsylvania Commission's duty to act within nine months. We thus rely on that date as well for purposes of calculating "the period from the 135th to the 160th day (inclusive)" during which, under section 252(b)(1), Armstrong was authorized to file its Arbitration Petition with the Pennsylvania Commission. According to our calculations, that period ran from October 12, 1996 through November 5, 1996. Thus, as both Citizens and the Pennsylvania Commission point out, Armstrong's October 1, 1996 Arbitration Petition was filed in advance of the statutory period provided for in section 252(b). Since Armstrong's Arbitration Petition did not meet the statutory criteria, the Pennsylvania Commission was, in turn, not bound by section 252 to complete the arbitration process within nine months of Armstrong's May 30, 1996 interconnection request (i.e., by February 28,1997). 11. It is well established in other contexts that statutory deadlines cannot be waived or extended except in very limited circumstances. While this rule usually has been applied in situations where a party files late, it is not inappropriate to apply the rule in this case where a party has filed too early. In section 252, Congress established a specific statutory scheme -- with specific time frames and deadlines -- for negotiating and arbitrating interconnection agreements. In adopting section 252(b)(1), Congress made a judgment that parties should spend at least 135 days negotiating among themselves before seeking the "more formal remedy" of expedited arbitration before a state commission: If issues remain unresolved more than 135 days after the date the [LEC] received the request to negotiate, any party to the negotiations may petition the state to intervene for the purpose of resolving any issues that remain open in the negotiation. Requests to the state to intervene must be made during the 25 day period that begins 135 days after the [LEC] received the negotiation request." The legislative history thus indicates that Congress was concerned about parties filing too early and not giving informal negotiations a chance to succeed. Requiring parties strictly to adhere to the statutory deadlines in section 252, therefore, is consistent with that concern, as expressed in the statute and the legislative history. 12. Armstrong argues that, in its view, the Pennsylvania Commission staff's failure to act on Armstrong's Arbitration Petition within the nine month statutory deadline was not based on the "timeliness" of Armstrong's filings, but rather on other considerations. We recognize that the Pennsylvania Commission staff's February 27, 1997 letter does not elaborate on the statements that Armstrong's Arbitration Petition was "not perfected" and lacked "additional requirements." Nonetheless, the fact remains that, under section 252(b), Armstrong did not file a timely Arbitration Petition with the Pennsylvania Commission, and therefore the Pennsylvania Commission was not bound by that statute to act within nine months. 13. Armstrong also argues that, even if its Arbitration Petition were untimely, the Pennsylvania Commission was put on notice that Armstrong desired to interconnect with Citizens pursuant to section 251; thus, the Pennsylvania Commission's continued failure to resolve that matter requires this Commission to preempt to protect the public interest. This Commission, however, also is bound by the statutory requirements. Under section 252(e)(5) and our implementing rules, we must find that the relevant state commission has "fail[ed] to act to carry out its responsibility under [section 252]" in order to preempt that state commission's jurisdiction over such matter. In this case, since Armstrong's Arbitration Petition was not properly filed under section 252(b), the Pennsylvania Commission cannot be said to have failed to "carry out its responsibility" within the meaning of section 252(e)(5). 14. Moreover, the record does not support a finding that Armstrong has been denied "procedural fairness." To the contrary, we note that the statutory scheme in section 252 continued to remain available to Armstrong. As Citizens points out, Armstrong had (and continues to have) the option of submitting a new request for negotiation to Citizens, and then properly filing an arbitration request with the Pennsylvania Commission during the period from the 135th to the 160th day after that. At that point, assuming all other requirements were met, the Pennsylvania Commission would be statutorily required to resolve that petition within nine months from the date Citizens received Armstrong's new request. Thus, Armstrong's right to formal arbitration within a nine month deadline is not forfeited by its one-time failure to file within the statutory time frame. 15. We also note that, unlike the state commissions in the Low Tech Order, the Pennsylvania Commission staff did not dismiss or deny Armstrong's Arbitration Petition, but rather stated that it would review the petition "in due course." The Pennsylvania Commission is currently, to our understanding, addressing the issues raised by both Armstrong and Citizens on the merits, albeit not within the nine-month time frame specified in section 252(b)(4). Under these circumstances, we do not find that Armstrong has been denied "procedural fairness" or that an exception to the general rule that statutory deadlines may not be waived is warranted. 2. Section 251(f)(1)(B) 16. Armstrong also argues that, under section 251(f)(1)(B), the Pennsylvania Commission had a statutory duty to take action by January 29, 1997 -- 120 days after Armstrong filed its October 1, 1996 Arbitration Petition -- to determine whether Citizens was subject to the rural exemption under section 251(f)(1)(A), and if so, whether to terminate that exemption pursuant to the conditions set forth in section 251(f)(1)(B). Armstrong contends that the Pennsylvania Commission's continued failure to resolve this particular question requires "Commission action . . . to protect the public interest." The Pennsylvania Commission contends, in response, that it was not bound by the 120-day deadline in section 251(f)(1)(B) for determining whether Citizens was subject to the rural exemption since it had established separate procedures in its Consolidation Order for resolving that and other related issues. 17. We decline to preempt the Pennsylvania Commission's jurisdiction on this basis. Section 252(e)(5) gives the Commission authority to preempt a state commission only if it "fails to act to carry out its responsibility under this section in any proceeding or other matter under this section . . . ." Thus, the determination under section 251(f)(1) of whether a LEC is subject to the rural exemption is not specifically covered by section 252(e)(5). To the extent the rural exemption issue became part of Armstrong's section 252 proceeding before the Pennsylvania Commission, we have already determined above that preemption of that matter is not warranted since the Pennsylvania Commission did not "fail to act" within the meaning of section 252(e)(5). 3. Other Arguments 18. The Pennsylvania Commission and Citizens make various other arguments as to why we should not grant Armstrong's request for preemption pursuant to section 252(e)(5). Since we have found that Armstrong's request for preemption fails on the ground that its Arbitration Petition was untimely under section 252(b)(1), we do not need to reach these other arguments. B. Interconnection and Good Faith Negotiations under Sections 251(b) and (c) 19. Because of our decision pursuant to section 252(e)(5) not to preempt the Pennsylvania Commission's jurisdiction over Armstrong's request for interconnection from Citizens, we do not reach Armstrong's additional requests that we direct Citizens to interconnect and engage in good faith negotiations under sections 251(b) and (c), since the Pennsylvania Commission continues to have jurisdiction over that matter. IV. CONCLUSION 20. For the foregoing reasons, we deny Armstrong's Petition. V. ORDERING CLAUSES 21. Accordingly, IT IS ORDERED that, pursuant to section 252 of the Communications Act of 1934, as amended, and section 51.801 of the Commission's rules, 47 U.S.C.  252 and 47 C.F.R.  51. 801, Armstrong's Petition for Relief Pursuant to Section 252(e)(5) of the Telecommunications Act of 1996 and Request for Additional Relief is DENIED. FEDERAL COMMUNICATIONS COMMISSION A. Richard Metzger, Jr. Chief Common Carrier Bureau