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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Bell Atlantic-New York )
Authorization Under Section 271 ) File No. EB-00-IH-
0085
of the Communications Act to Provide ) Acct. No. X32080004
In-Region, InterLATA Service )
In the State of New York )
ORDER
Adopted: March 9, 2000 Released: March 9, 2000
By the Commission: Commissioner Tristani dissenting and issuing
separate statement.
1. The Commission has been conducting an investigation
into potential violations by New York Telephone Company (d/b/a
Bell Atlantic-New York) (Bell Atlantic) of section 271 of the
Communications Act of 1934, as amended, in connection with lost
or mishandled orders for unbundled network elements
electronically submitted by its local service competitors.1
2. The Commission and Bell Atlantic have negotiated the
terms of a Consent Decree that would terminate the Commission's
investigation. A copy of the Consent Decree is attached hereto
and is incorporated by reference.
3. We have reviewed the terms of the Consent Decree and
evaluated the facts before us. We believe that the public
interest would be served by approving the Consent Decree and
terminating the investigation.
4. Based on the record before us, and in the absence of
material new evidence relating to this matter, we conclude that
there are no substantial and material questions of fact as to
whether Bell Atlantic possesses the basic qualifications,
including its character qualifications, to hold or obtain any FCC
licenses or authorizations.
5. The Consent Decree imposes reporting requirements on
Bell Atlantic to measure its progress in resolving its treatment
of electronically submitted orders. These measurements were
based on extensive consultation with the New York Public Service
Commission (New York PSC). We have worked closely with the New
York PSC on this matter and intend to continue to work closely
with it on Bell Atlantic-related section 271 enforcement issues.
6. The performance measures we use here, and the related
voluntary payment provisions, are a carefully tailored
enforcement response to the specific difficulties experienced by
Bell Atlantic in complying with a statutory checklist element
that is a condition of its section 271 authorization to provide
long distance service in the State of New York.2 Under the
Consent Decree, expiration of these provisions is directly tied
to Bell Atlantic's performance. The Consent Decree does not
amend Bell Atlantic's section 271 authorization, modify any of
the conditions of that authorization, or impose any requirements
on any other carriers or states. The Consent Decree is for
settlement purposes only, and does not constitute either an
adjudication of the merits or a factual or legal finding
regarding any compliance or noncompliance by Bell Atlantic with
the requirements of the Communications Act, as amended. Nor do
the terms of the Consent Decree provide any basis for assessing
another BOC's compliance with section 251 or section 271 of the
Act. In addition, nothing in the Consent Decree shall limit the
Commission's authority to consider any complaint that may be
filed pursuant to section 208 or section 271 of the
Communications Act, as amended, or to take any action in response
to such complaint. Furthermore, if material facts change, such
as Bell Atlantic failing to correct the problems for a sufficient
period of time, or Bell Atlantic's performance deteriorates, the
Commission may issue an order requiring Bell Atlantic to show
cause as to why the Commission should not suspend or revoke Bell
Atlantic's authority to provide long distance service.
7. Accordingly, IT IS ORDERED, pursuant to sections 4(i),
4(j), and 271(d)(6) of the Communications Act, 47 U.S.C. §§
154(i), 154(j), 271(d)(6), that the Consent Decree, incorporated
by reference in and attached to this order, is hereby ADOPTED.
8. IT IS FURTHER ORDERED that the Secretary SHALL SIGN the
Consent Decree on behalf of the Commission.
9. IT IS FURTHER ORDERED that the above captioned
investigation IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
New York Telephone Company )
(d/b/a Bell Atlantic-New York) ) File No. EB-00-IH-0085
) Acct. No. X32080004
)
)
)
)
CONSENT DECREE
I. INTRODUCTION
1. The Federal Communications Commission (the
``Commission'' or the ``FCC'') and New York Telephone Company,
doing business as Bell Atlantic New York (``Bell Atlantic,''
``BA-NY,'' or the ``Company'') hereby enter into this Consent
Decree for the purpose of terminating an investigation by the
Commission into whether Bell Atlantic violated section 271 of the
Communications Act of 1934, as amended, 47 U.S.C. § 271, and a
condition of Bell Atlantic's authorization to provide long
distance service in New York State,3 regarding Bell Atlantic's
obligation to provide unbundled network elements to competing
providers of local telephone service. The investigation focused
on Bell Atlantic's problems associated with lost or mishandled
orders for unbundled network elements electronically submitted by
its local service competitors.4
II. BACKGROUND
2. As a Bell Operating Company (``BOC''), Bell Atlantic is
prohibited from providing long distance (or ``interLATA'')
services originating in its in-region states without first
complying with conditions designed to open its local telephone
markets to competition under section 271.5 To obtain
authorization to provide in-region, interLATA services in a
particular state under section 271, a BOC must demonstrate, among
other things, that it has fully implemented the 14-point
``competitive checklist'' set forth in section 271 in a manner
that is nondiscriminatory.6
3. On September 29, 1999, Bell Atlantic filed with the
Commission its application to enter the interLATA market in the
State of New York. After analyzing the record, the Commission
determined that Bell Atlantic had satisfied the requirements of
section 271 and granted its application.7 Bell Atlantic began
providing interLATA service in New York State on January 5, 2000.
4. As a condition of its authorization to provide long
distance service in New York, Bell Atlantic is required to
provide competitors nondiscriminatory, unbundled access to
certain piece parts or ``elements'' of its network.8
Specifically, checklist item 2 set forth in section 271 requires
Bell Atlantic to provide nondiscriminatory access to network
elements in accordance with the requirements of sections
251(c)(3) and 252(d)(1).9 Section 251(c)(3) requires an
incumbent local exchange carrier (``ILEC'') to provide
nondiscriminatory access to network elements ``on an unbundled
basis.''10
5. The Commission previously determined that access to
operations support systems (``OSS'')11 functions ``falls
squarely'' within an ILEC's duty under section 251(c)(3).12 As
the Commission stated in the Bell Atlantic New York 271 Order,
the nondiscriminatory provision of OSS is an integral aspect of
the BOC's obligation to provide access to unbundled network
elements as required by checklist item 2.13 Moreover, the
Commission has previously determined that ``without
nondiscriminatory access to the BOC's OSS, a competing carrier
`will be severely disadvantaged, if not precluded altogether,
from fairly competing' in the local exchange market.''14 Thus,
Bell Atlantic must provide requesting carriers nondiscriminatory
access to OSS functions in order to comply with section
271(c)(2)(B)(ii), and such nondiscriminatory access is a
fundamental condition of Bell Atlantic's approval to provide long
distance service in New York.
6. Bell Atlantic provides requesting carriers an
application-to-application interface based on Electronic Data
Interface (``EDI'') protocol for pre-ordering and ordering
functions.15 This critical component of Bell Atlantic's OSS
offering allows competing carriers the ability to place orders
for service with Bell Atlantic by interfacing directly with Bell
Atlantic's ordering system. When Bell Atlantic receives a
competing carrier's local service order over an EDI interface,
Bell Atlantic is supposed to respond over the same interface with
an acknowledgement of receipt of the order16 and either an order
confirmation notice (stating when the requested service will be
provisioned) or an order rejection notice.17 These electronic
notices are important to the competing carrier because they
provide information about, and the status of, a given order.18
Additionally, when Bell Atlantic completes the provisioning or
installation of the requested service, it sends two separate
order completion notices to the competing carrier.19 Bell
Atlantic first sends a ``work completion'' notice indicating that
the work associated with provisioning the order has been
completed. Bell Atlantic then sends a ``billing completion''
notice indicating that the order is recorded as completed in Bell
Atlantic's billing systems.20 The receipt of the billing
completion notice signals that Bell Atlantic has successfully
transferred the customer to the competing carrier, which can then
begin billing the customer without fear of double-billing. These
electronic notifications are central to a finding of
nondiscriminatory access to Bell Atlantic's OSS because they
provide an efficient carrier information necessary to a
meaningful opportunity to compete.21
7. On February 7, 2000, the Commission's Enforcement
Bureau began an investigation into Bell Atlantic's compliance
with sections 251 and 271 and the condition in its long distance
authorization that it provide competitors nondiscriminatory,
unbundled access to network elements by issuing interrogatories
and document requests.22 Evidence submitted by Bell Atlantic in
this investigation suggests that Bell Atlantic's performance in
providing order acknowledgements, confirmation and rejection
notices, and order completion notices for UNE-Platform local
service orders deteriorated following Bell Atlantic's entry into
the New York long distance market.23 Data submitted by Bell
Atlantic indicates that the problem appears most acute for
January and early February of this year. Specifically, Bell
Atlantic indicates that it received trouble tickets from
competing carriers in November 1999 regarding 33,000 orders;
60,000 in December 1999; and more than 86,000 in January 2000.
For the first eleven days of February 2000, Bell Atlantic reports
receiving trouble tickets regarding another 48,000 orders.24
8. In February and early March 2000, Bell Atlantic
implemented hardware and software changes, and instituted revised
manual and electronic procedures, designed to improve performance
in processing orders and timely sending required status
notifiers. Bell Atlantic takes the position that these changes
fully address and correct the problem of lost and mishandled
orders. Preliminary reports indicate that these changes may be
succeeding in improving the situation, particularly with respect
to carriers that have migrated to an EDI system that uses new
software developed by Bell Atlantic. At this point, however,
there is no record data demonstrating that any improved
performance will be sustained over the long run.
9. As a matter of corporate policy, BA-NY represents that
it is committed to providing CLECs with nondiscriminatory access
to its OSS, allowing them to offer local service in
``substantially the same time and manner'' as BA-NY.
III. DEFINITIONS
10. For purposes of this Consent Decree, the following
definitions shall apply:
(a) The ``FCC'' or the ``Commission'' means the Federal
Communications Commission and all of its divisions,
including the Enforcement Bureau.
(b) ``BA-NY'' or the ``Company'' means New York Telephone
Company, doing business as Bell Atlantic-New York.
(c) ``Parties'' means BA-NY and the FCC.
(d) ``Order'' or ``Adopting Order'' means an order of the
FCC adopting this Consent Decree without change,
addition, or modification.
(e) ``Final Order'' means an order that is no longer
subject to administrative or judicial reconsideration,
review, appeal, or stay.
(f) ``OSS'' or ``operating support systems'' means systems
used by BA-NY to perform the functions of pre-ordering,
ordering, provisioning, maintenance and repair, and
billing as defined in the First Report and Order,
Implementation of the Local Competition Provisions in
the Telecommunications Act of 1996, 11 F.C.C. Rcd
15499, ¶ 514, nn. 1244-1247.
(g) ``CLEC'' means a competing local exchange carrier.
(h) ``EDI'' or the ``EDI Interface'' means an application-
to-application interface using electronic data
interchange protocol provided by BA-NY enabling CLECs
to obtain access to BA-NY's OSS.
(i) ``Week'' means a period beginning at 12:01 a.m.
Saturday and ending at 12:00 midnight the following
Friday.
(j) ``Aggregate Performance'' means the numerical average
of the reported performance for the new performance
measurements described in Attachment A for the relevant
period.
(k) ``Investigation'' means the data request issued by the
Enforcement Bureau to Bell Atlantic on February 7, 2000
and any informal complaints, ex partes, or other
information received by the Commission related to the
issues addressed there (excluding information received
in, or in connection with, any formal complaint
proceeding) prior to the date of the Adoption Order.
(l) ``Effective Date'' means the date on which the
Commission adopts the Adopting Order.
IV. AGREEMENT
11. BA-NY and the Commission agree that this Consent Decree
does not constitute either an adjudication of the merits or a
factual or legal finding or determination regarding any
compliance or noncompliance by BA-NY with the requirements of the
Communications Act, as amended, including sections 251 and 271
thereof, arising out of any alleged actions or failures affecting
BA-NY's interfaces and systems or the access to OSS provided by
BA-NY to CLECs. The Parties agree that this Consent Decree is
for settlement purposes only and that by agreeing to this Consent
Decree, the Company does not admit any noncompliance, violation,
or liability associated with or arising from such alleged actions
or failures, including any problems or failures described in the
introductory paragraph of the data request, or in any informal
complaints, ex partes, or other information received by the
Commission on or before the Effective Date of this Consent
Decree. Indeed, BA-NY expressly denies any such noncompliance,
violation, or liability.
12. In express reliance on the covenants and
representations contained herein, the Commission agrees to
terminate the Investigation at such time as the Commission
releases an order adopting this Consent Decree.
13. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between BA-NY and the
Commission of the Investigation. In consideration for the
termination of this Investigation in accordance with the terms of
this Consent Decree, BA-NY agrees to the terms, conditions, and
procedures contained herein.
14. This Consent Decree applies only to orders sent and
status notices returned using the EDI Interface.
15. BA-NY represents that it is committed to providing
CLECs with nondiscriminatory access to its OSS, allowing them to
offer local service in ``substantially the same time and manner''
as BA-NY. To ensure that BA-NY is providing such
nondiscriminatory access, BA-NY agrees to implement the
measurement reporting system set forth in Attachment A. For any
week in which BA-NY's Aggregate Performance meets or exceeds 90%,
BA-NY will have no obligation to make a voluntary payment. If
BA-NY's Aggregate Performance falls below 90% for two consecutive
weeks (either the first two weeks for which BA-NY reports, or two
consecutive weeks following a week in which BA-NY incurs no
obligation to make a voluntary payment), BA-NY will, within three
business days, make a voluntary payment to the United States
Treasury of four million dollars ($4,000,000). If BA-NY's
Aggregate Performance continues below 90% for a third consecutive
week, BA-NY will, within three business days, make an additional
voluntary payment to the United States Treasury of eight million
dollars ($8,000,000). If BA-NY's Aggregate Performance continues
below 90% for a fourth consecutive week, BA-NY will, within three
business days, make an additional voluntary payment to the United
States Treasury of twelve million dollars ($12,000,000). With
respect to each of these voluntary payments, instead of making
such voluntary payment, BA-NY may choose voluntarily to suspend
enrolling additional subscribers, and not to market or promote
its interLATA service to customers in New York, until its
Aggregate Performance has met or exceeded 90% for two consecutive
weeks. If BA-NY's Aggregate Performance on the new measurements,
or its performance on the Additional Metric, falls below 90% for
any week as a result of force majeure, Acts of God, strikes,
commercially unreasonable actions by wholesale customers, or
other causes beyond BA-NY's control, BA-NY shall have the right
to seek the Commission's agreement that no voluntary payment will
be due for that week and that the week's Aggregate Performance
can be adjusted to remove the effect of such cause.
16. BA-NY will make a voluntary contribution to the United
States Treasury in the amount of three million dollars
($3,000,000) within 10 calendar days after the Commission Order
adopting this Consent Decree becomes final. Payment should be
paid by check or money order drawn to the order of the Federal
Communications Commission. Reference should be make on the check
or money order to ``Acct. No. X32080004.'' Such remittances must
be mailed to: Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois, 60673-7482.
17. The Commission agrees that, based on the facts
developed in its Investigation and in the absence of material new
evidence related to this matter, it will not use the facts
developed in the Investigation through the date of this Consent
Decree, or the existence of this Consent Decree, to institute, on
its own motion, any new proceedings, formal or informal, or to
take any actions on its own motion against the Company concerning
the matters that were the subject of the Investigation. The
Commission also agrees that, based on the facts developed in the
Investigation, and in the absence of material new evidence
related to this matter, it will not use the facts developed in
this Investigation to institute on its own motion any proceeding,
formal or informal, or take any action against BA-NY with respect
to its basic qualifications, including its character
qualifications, to be a Commission licensee or with respect to
compliance with the Commission's rules and policies. Consistent
with the foregoing, nothing in this Consent Decree limits the
Commission's authority to consider any complaint that may be
filed pursuant to section 208 or 271 of the Communications Act,
as amended, 47 U.S.C. §§208, 271, and to take any action in
response to such complaint.
18. The Company waives any and all rights it may have to
seek administrative or judicial reconsideration, review, appeal
or stay, or to otherwise challenge or contest the validity of
this Consent Decree and the Order adopting this Consent Decree,
provided the Order adopts the Consent Decree without change,
addition, or modification.
19. The Company's decision to enter into this Consent
Decree is expressly contingent upon issuance of an Order that is
consistent with this Consent Decree, and which adopts the Consent
Decree without change, addition, or modification.
20. In the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, it shall become
null and void and may not be used in any manner in any legal
proceeding.
21. If the Commission, or the United States on behalf of
the Commission, brings a judicial action to enforce the terms of
the Adopting Order, neither BA-NY nor the Commission will contest
the validity of the Consent Decree or Adopting Order, and the
Company will waive any statutory right to a trial de novo.
22. Any violation of the Consent Decree or the Adopting
Order will constitute a separate violation of a Commission order,
entitling the Commission to exercise any rights and remedies
attendant to the enforcement of a Commission order.
23. The Parties agree that this Consent Decree will
terminate if BA-NY meets either paragraph A. or B., below:
A. If BA-NY's Aggregate Performance for the new
measurements set out in Attachment A meets or exceeds 95%
for each week for a consecutive four-week period with no
individual measurement falling below 90% for any week, and,
in addition, BA-NY's performance on the first Additional
Metric described on Attachment A (% Confirmation Timeliness
- Total LSRs) also meets or exceeds 90% for each week for
the four-week period, and, in addition, BA-NY's performance
on the second Additional Metric described on Attachment A (%
Resubmission Rejection) also meets or exceeds 95% for each
week for the four-week period, then BA-NY's obligations
under this Consent Decree shall terminate.
B. If BA-NY's performance for each new individual
measurement set out in Attachment A meets or exceeds 90% for
each week for twelve consecutive weeks, and, in addition,
BA-NY's average performance on the first Additional Metric
described in Attachment A (% Confirmation Timeliness - Total
LSRs) meets or exceeds 90% for each week for the twelve-week
period, and, in addition, BA-NY's performance on the second
Additional Metric described on Attachment A (% Resubmission
Rejection) also meets or exceeds 95% for each week for the
twelve-week period, then BA-NY's obligations under this
Consent Decree shall terminate.
24. The Parties also agree that if any provision of the
Consent Decree conflicts with any subsequent rule or order
adopted by the Commission (except an order specifically intended
to revise the terms of this Consent Decree to which BA-NY does
not consent) that provision will be superseded by such Commission
rule or order.
25. This Consent Decree may be signed in counterparts.
FEDERAL COMMUNICATION COMMISSION
By: __________________________________
Magalie Roman Salas
Secretary
BA-NY
By: ___________________________________
Edward D. Young, III
ATTACHMENT A
BA-NY will implement three new performance measurements -
Percent Missing Notice Trouble Ticket PONs Closed within Three
Business Days; Percent Order Confirmations/Rejects Sent within
Three Business Days; and Percent Service Order Processor (SOP) to
Bill Completion within Three Business Days - which are defined
below. BA-NY will report its performance with respect to these
measurements to the Commission weekly, supported by a sworn
statement by a corporate officer. BA-NY will begin collecting
information for the new measurements on the Saturday following
the Effective Date of the Consent Decree. BA-NY will also report
its performance with respect to two Additional Metrics - Percent
Confirmation Timeliness-Total LSRs and Percent Resubmission
Rejection - both of which are defined in Attachment A. BA-NY
also will begin collecting data for these Additional Metrics as
defined on the Saturday following the Effective Date of the
Consent Decree. Because the measurements reflect performance
that may occur up to three business days following the last day
of the week reported on, the Reporting Period for a week will
close the following Wednesday. Each report will be provided no
later than 3:00 p.m. of the third business day following the
close of the Reporting Period. Such reports shall be posted on
BA-NY's website.
The data that will be reported for each of the measurements
will be collected, as defined below, for events that occur
during the week being reported. For example, with respect to the
new Percent Missing Notice Trouble Ticket PONs Closed within
Three Business Days measurement, for the Reporting Period
beginning March 18, BA-NY will collect data for PONs on Trouble
Tickets submitted during the week beginning March 18, and will
report the percentage of those trouble tickets closed within
three business days. For the first two weeks for which BA-NY
provides reports, BA-NY will measure all of the EDI Interface
platforms used by CLECs to submit orders. After the first two
weeks, BA-NY will measure and report only with respect to the EDI
Interface platform using the new NetLink software.
% Missing Notifier Trouble Ticket PONS Cleared within 3 Bus. Days
Definition: The percent of EDI missing notifier trouble ticket
PONS cleared within 3 business days from the day of
receipt of the trouble ticket. The elapsed time
begins with receipt at the Bell Atlantic Systems
Support Help Desk of a trouble ticket for EDI missing
notifiers (i.e., order acknowledgement, order
confirmation, order rejection, work completion, and
billing completion notices) with the PONS in questions
enumerated with the appropriate identification. The
ticket is considered cleared when Bell Atlantic has
either requested the CLEC to resubmit the PON or
communicated the current status of the PON and
provided the delayed status notifier to the CLEC.
Tickets received after 5 PM and trouble ticket
clearances sent after 5PM will be considered effective
on the following business day. Performance shall be
counted for the week in which the trouble ticket was
received.
Exclusions: · The PONs shall be considered to be timely cleared if
Bell Atlantic provides the status notifier after 3
business days at the request of the CLEC or because
of CLEC system capacity or availability.
· Out of sequence notifiers. This type of ticket
indicates that the CLEC has received one or more
notifiers for a PON but not in the sequence
expected.
Numerator Denominator
Number of EDI missing notifier Total number of EDI missing
trouble ticket PONS in notifier trouble ticket PONS
denominator cleared within 3 submitted within the calendar
business days after receipt. week.
% Order Confirmations/Rejects Sent Within 3 Business
Days
Definition: The percent of orders confirmed or rejected by Bell
Atlantic within 3 business days of receipt as a
percent of total LSRs received.
Note: This is a measure of completeness not
timeliness. Order confirmation/reject timeliness
standards are 95% within a range of 2 hours to 3
business days - depending on order type.
Source: Master PON File
Exclusions: · Cancelled Orders
· LSRs that were Supplemented prior to confirmation or
rejection.
· Front end rejects (negative 997's) that would not be
eligible for confirmation or rejection.
Numerator Denominator
Total LSR Confirmations plus Total LSRs received during the
Rejections sent within 3 business calendar week.
days of LSR submission.
% SOP to Bill Completion Within 3 Business Days
Definition: The percent of orders provisioning complete in SOP
that have BCN notices within 3 business days. Source
DCAS PON Master File. The start time is when physical
completion of the order has been entered into SOP.
The end time is when the billing completion notice is
time-stamped in DCAS.
Exclusions: · Complex resale orders.
Numerator Denominator
Total number orders in Number of SOP Completed Orders
denominator for which billing during the calendar week.
completion notices are time-
stamped in DCAS within 3 business
days of SOP completion.
% Confirmation Timeliness - Total LSRs
Definition: The percent of all Confirmed LSRs that are confirmed
within standards established in the NY Carrier to
Carrier Guidelines. This represents the weighted
average of all 12 LSRC measurements reported for
Resale and UNE under the Carrier to Carrier Guidelines
in effect on March 8, 2000.
Exclusions: · Same as Carrier to Carrier Guidelines
Numerator Denominator
Total Orders confirmed within Total confirmed orders (includes
established standard (standard all order types for resale and
varies by order type). UNE).
% Resubmission Rejection Metric
Definition: The percent of PONs resubmitted at Bell Atlantic's
request which are not rejected by Bell Atlantic's
ordering systems and interfaces as being duplicative
of PONs already in Bell Atlantic's systems.
Exclusions: · None
Numerator Denominator
Total PONs resubmitted at Bell Total PONs resubmitted at Bell
Atlantic's request during Atlantic's request during the
calendar week that are not calendar week.
rejected by Bell Atlantic's
systems as duplicative of PONs
already in Bell Atlantic's
systems.
March 9, 2000
Dissent of
Commissioner Gloria Tristani
Re: Bell Atlantic New York Authorization Under Section 271 of
the Communications
Act to Provide In-Region, InterLATA Service in the State of
New York.
I dissent from today's consent decree with Bell Atlantic. I
believe the more appropriate response would have been to direct
Bell Atlantic to show cause why the Commission should not suspend
its authorization to provide long distance service to new
customers in New York due to its apparent failure to provide
nondiscriminatory, unbundled access to network elements.
Evidence from the Enforcement Bureau's investigation in
February clearly suggests that Bell Atlantic's performance in
providing order acknowledgements, confirmation and rejection
notices, and order completion notices for UNE-Platform local
services deteriorated following Bell Atlantic's entry into the
long distance market. I believe the Commission should have
placed the burden on Bell Atlantic at that time to demonstrate
that it had not ceased to meet a fundamental requirement of its
approval to provide long distance service in New York. In
granting that approval, we explicitly stated that with respect to
the types of notifications at issue here, if there was evidence
of ``a systemic problem occurring for a significant number of
orders . . . it would warrant a finding of noncompliance.'' Such
a finding would, in turn, justify suspension of Bell Atlantic's
marketing authority.
Bell Atlantic's alleged failures have the potential to
impede significantly the development of competition in New York.
I urge Bell Atlantic to remedy these problems, and I expect that
today's consent decree will ensure improved performance on a
going-forward basis.
_________________________
1 See Letter from David H. Solomon, Chief, Enforcement Bureau
to Edward D. Young, III, Sr. Vice President-Regulatory, Bell
Atlantic Network Services, Inc. dated February 7, 2000.
2 47 U.S.C. § 271(c)(2)(B)(ii).
3 Application by Bell Atlantic New York for Authorization
Under Section 271 of the Communications Act to Provide In-Region,
InterLATA Service in the State of New York, CC Docket No. 99-295,
Memorandum Opinion and Order, FCC 99-404, (December 22, 1999)
(Bell Atlantic New York 271 Order), appeal pending sub nom. AT&T
Corp. v. FCC (D.C. Cir. filed Dec. 27, 1999) (No. 99-1538).
4 See Letter from David H. Solomon, Chief, Enforcement Bureau
to Edward D. Young, III, Sr. Vice President-Regulatory, Bell
Atlantic Network Services, Inc. dated February 7, 2000 (``Feb. 7
Solomon Letter'' or ``data request''). For purposes of this
Consent Decree, a ``lost'' order is a competitor's order that
Bell Atlantic is unable to locate in its internal systems and
subsequently directs the competitor to resubmit the order. A
``mishandled'' order is a competitor's order that Bell Atlantic
has received but failed timely to send one or more required
notices to the competitor regarding the status of the order.
5 See 47 U.S.C. § 271; U S WEST Communications, Inc. v. FCC,
177 F.3d 1058, 1059 (D.C. Cir. 1999), cert. denied, 2000 WL
220276 (U.S. Feb. 28, 2000) (No. 99-869).
6 47 U.S.C. §§ 271(d)(3)(A)(i), (ii) (requiring full
implementation of the competitive checklist); 271(d)(3)(B)
(requiring that implementation be carried out in accord with
section 272, including section 272(c) nondiscrimination
requirements). The additional requirements for section 271
authorization are discussed in the Bell Atlantic New York 271
Order at ¶¶ 17-20. In order to meet the nondiscrimination
standard of section 271(c)(2)(B)(ii), the Commission has held
that a carrier must provide the function at issue to its
competitors in substantially the same time and manner as it
provides that function to its retail operations. If there is no
retail analogue, however, as in these circumstances, the carrier
must demonstrate that it provides access to such function
``sufficient to allow an efficient competitor a meaningful
opportunity to compete.'' See Bell Atlantic New York 271 Order
at ¶¶ 86, 160, and 187.
7 Bell Atlantic New York 271 Order at ¶ 454.
8 See Bell Atlantic New York 271 Order at ¶ 44; 47 U.S.C. §
271(c)(2)(B)(ii).
9 47 U.S.C. § 271(c)(2)(B)(ii).
10 47 U.S.C. § 251(c)(3).
11 OSS encompasses a variety of systems, databases, and
personnel used by an ILEC to provide service to its customers.
See Bell Atlantic New York 271 Order at ¶ 83.
12 Bell Atlantic New York 271 Order at ¶ 84 (citing Application
of BellSouth Corporation, BellSouth Telecommunications, Inc. and
BellSouth Long Distance, Inc. for Provision of In-Region,
InterLATA Services In Louisiana, CC Docket No. 98-121, Memorandum
Opinion and Order, 13 FCC Rcd 20599, at 20653-54 (1998);
Application of BellSouth Corporation, et al., Pursuant to Section
271 of the Communications Act of 1934, as amended, To Provide In-
Region, InterLATA Services In South Carolina, CC Docket No. 97-
208, Memorandum Opinion and Order, 13 FCC Rcd 539, at 586 (1997);
and Application of Ameritech Michigan Pursuant to Section 271 of
the Communications Act of 1934, as amended, To Provide In-Region,
InterLATA Services In Michigan, CC Docket No. 97-137, Memorandum
Opinion and Order, 12 FCC Rcd 20543, at 20628 (1997) (Ameritech
Michigan Order)).
13 Bell Atlantic New York 271 Order at ¶ 81.
14 Bell Atlantic New York 271 Order at ¶ 83.
15 Bell Atlantic New York 271 Order at ¶ 159.
16 See Letter from Edward D. Young, III, Sr. Vice President-
Regulatory, Bell Atlantic Network Services, Inc. to David H.
Solomon, Chief, Enforcement Bureau dated February 14, 2000, at 2.
Bell Atlantic has requested confidential treatment of some of the
information contained in its submission pursuant to sections
0.457 and 0.459 of the Commission's rules and, on February 17,
2000, submitted a redacted version of the letter and attachments.
47 C.F.R. §§ 0.457, 0.459. This Consent Decree cites to and
relies on only the non-confidential portions of Bell Atlantic's
submission from its February 17, 2000 letter. See Letter from
Dee May, Director, Federal Regulatory, Bell Atlantic to David H.
Solomon, Chief, Enforcement Bureau dated February 17, 2000 (Bell
Atlantic Response to Interrogatories and Document Requests).
17 Bell Atlantic New York 271 Order at ¶ 159.
18 Id.
19 Bell Atlantic New York 271 Order at ¶ 187.
20 Id.
21 Bell Atlantic New York 271 Order at ¶¶ 160, 187. In Bell
Atlantic's response to Interrogatory 4, it explains that Bell
Atlantic does not provide acknowledgements, confirmation notices,
rejection notices, work completion notices or billing completion
notices to Bell Atlantic's own local retail service customers or
service representatives who take orders from its local retail
service customers. Thus, Bell Atlantic has no retail analogue
for this OSS function. In the absence of a retail analogue, the
standard is whether Bell Atlantic provides competitors access to
this function ``sufficient to allow an efficient competitor a
meaningful opportunity to compete.'' Id.; see also Bell Atlantic
New York 271 Order at ¶¶ 160, 187.
22 See Feb. 7 Solomon Letter.
23 ``UNE-Platform'' is a combination of network elements
(unbundled loop, switching, and shared transport) that provides
competitors with the ability to package and market services in
ways that differ from the BOC's existing service offerings. See
Bell Atlantic New York 271 Order at ¶ 230; Ameritech Michigan
Order, 12 FCC Rcd 20543, at 20628; see also Local Competition
Provisions of the Telecommunications Act of 1996, CC Docket No.
96-98, Third Report and Order and Fourth Further Notice of
Proposed Rulemaking, FCC 99-238, at ¶¶ 272-74 (rel. Nov. 5,
1999). Competing carriers are using UNE-Platform as the primary
vehicle to provide competitive local service to residential and
small business consumers in New York State.
24 See Attachment 2 at Bell Atlantic Response to
Interrogatories and Document Requests. In addition, Bell
Atlantic submitted updated data on February 23, 2000 indicating
that it received trouble tickets regarding an additional 28,133
orders between February 12-19, 2000. See Attachment 2A to Letter
from Edward D. Young, III, Sr. Vice President-Regulatory, Bell
Atlantic Network Services, Inc. to David H. Solomon, Chief,
Enforcement Bureau dated February 23, 2000. Bell Atlantic
submitted still further information indicating that it received
trouble tickets regarding an additional 18,454 orders between
February 20-23, 2000. See Attachment 2A to Letter from Leslie A.
Vial, Regulatory Counsel, Bell Atlantic Network Services, Inc. to
Bradford M. Berry, Deputy Bureau Chief, Enforcement Bureau dated
February 25, 2000; see also Letter from David H. Solomon, Chief,
Enforcement Bureau, to Edward D. Young, III, Sr. Vice President-
Regulatory, Bell Atlantic Network Services, Inc. dated February
22, 2000.