DE 97-229
BELL ATLANTIC
Arbitration Regarding Request for Recognition of Dark Fiber as an
Unbundled Network Element
Order Further Clarifying Order No. 22,942
O R D E R N O. 23,176
March 29, 1999
Order No. 22,942, issued by the New Hampshire Public
Utilities Commission (Commission) on May 19, 1998, resolved a
dispute between New England Telephone & Telegraph Company (Bell
Atlantic) and Vitts Corporation (Vitts) as to whether Dark Fiber
is a network element which must be unbundled by Bell Atlantic.
The Commission decided in the affirmative. Responding to a
request from Bell Atlantic, the Commission clarified a portion of
the Order. The Commission's clarification, issued as Order No.
22,990, did not alter the Commission's affirmative conclusion
that Dark Fiber is a network element.
Order No. 22,990 merely corrected a misstatement of an
aspect of the application of the impairment standard. The
impairment standard involves consideration of whether a failure
to provide access to a network element would impair the ability
of a new entrant to provide a service it seeks to offer. The
impairment standard, as clarified, does not require the
Commission to consider alternative sources for the network
element other than the incumbent local exchange company (ILEC)
but the Commission must compare the quality or costs of the
service as provided over the network element requested compared
with providing that service over other unbundled elements in the
ILEC's network.
By letter dated July 31, 1998, Vitts Corporation
(Vitts) informed the Commission that Vitts had not received a
copy of Bell Atlantic's request for clarification and therefore
had no knowledge of or opportunity to respond to the request
until receiving Order No. 22,990. Vitts requested further
clarification of the point raised by Bell Atlantic, taking
exception to language used by the Commission in Order No. 22,990.
Vitts expressed concern that the language used in Order No.
22,990 could have the unintended result of raising the level of
the demonstration of "impairment" required of a competitive local
exchange carrier (CLEC) which seeks an additional unbundled
network element.
At page 4, Order No. 22,990 recites that "an
investigation of other sources within the ILEC is appropriate
when applying the impairment standard." Vitts points out that
Bell Atlantic's clarification request dealt with the Federal
Communications Commission's (FCC's) First Report and Order at
285, CC Docket 96-08 (August 8, 1996). The FCC's application of
the impairment standard of 47 U.S.C.252(d)(2)(A) requires
consideration of the quality and costs of a CLEC's proposed
service using the requested unbundled network element "compared
with providing that service over other unbundled elements in the
incumbent LEC's network." Vitts therefore requests that the
Commission further clarify Order 22,990 so as to make it
consistent with the FCC's articulation of the application of the
impairment standard.
To the extent that our language in Order 22,990 can be
interpreted to require investigation of sources within an ILEC
other than other unbundled elements, we clarify that language.
Our intent is to apply the impairment standard consistent with
the FCC's interpretation at 285 of the First Report and Order.
Based upon the foregoing, it is hereby BELL ATLANTIC
ORDERED, that Order No. 22,942, as clarified by Order
No. 22,990, is further clarified to the effect that an analysis
of whether a network element must be unbundled shall include
consideration of the quality and cost of a CLEC's proposed
service using the requested unbundled network element as compared
with providing that service over other unbundled elements in the
ILEC's network.
By order of the Public Utilities Commission of New
Hampshire this twenty-ninth day of March, 1999.
Douglas L. Patch Susan S. Geiger Nancy Brockway
Chairman Commissioner Commissioner
Attested by:
Thomas B. Getz
Executive Director and Secretary