OAH Docket No. 7-2500-19433-2

PUC Docket No. P-999/CI-07-865

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE PUBLIC UTILITIES COMMISSION

 

In the Matter of Qwest's Petition for Approval of 2007 Additions to Non-Impaired Wire Center List

 

RECOMMENDED ORDER

 

 

This matter came before Administrative Law Judge (ALJ) Richard C. Luis with the receipt of written submissions from the parties and oral argument held on May 8, 2008.  Qwest indicated that only a single wire center (Owatonna) remained in the proceeding and only one issue remained for resolution.  The submissions by the Department of Commerce and the CLEC Coalition confirmed Qwest’s assertion.  The parties agreed to submit the matter to the ALJ for decision on written submissions without a formal hearing.  The parties are represented as follows:

Joan C. Peterson and Jason Topp, Qwest Communications, 200 South Fifth Street, Room 395, Minneapolis, MN 55402, and John Devaney, Perkins, Coie, 607 14th St. NW, Washington, D.C. 20005, appeared on behalf of Qwest Communications (Qwest).

Dan Lipschultz, Moss & Barnett, 4800 Wells Fargo Center, 90 South Seventh St., Minneapolis, MN 55402-4129, appeared on behalf of the CLEC Coalition.

Karen Hammel, Assistant Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2131, appeared on behalf of the Department of Commerce (Department or DOC).

Based on the written submissions, arguments of the parties, and on all the filings in this proceeding, the Administrative Law Judge makes the following:

RECOMMENDED ORDER

IT IS RECOMMENDED that:

1.               Under the standards set out by the Federal Communications Commission (FCC), a fiber-based collocation where electrical power is not being used by equipment in the collocation does not have an “active electrical power supply.”  Such a collocation cannot be counted toward the total for reclassification of a wire center from Tier 3 to Tier 2.

2.               The FCC requirement for an “active electrical power supply” is met only where transport equipment is drawing electrical power from the available supply in the collocation.

3.               The Owatonna wire center collocation at issue in this proceeding has no deployed transport equipment that draws electrical power from the available supply.

4.               The collocation that Qwest seeks to count toward the total of fiber-deployed collocations at the Owatonna wire center does not have an “active electrical power supply” as that term is used by the FCC.  For that reason, the collocation cannot be counted toward the total for reclassification of the Owatonna wire center from Tier 3 to Tier 2.

5.               The Petition of Qwest to reclassify the Owatonna wire center from Tier 3 to Tier 2 be DENIED.

Dated:  June 5, 2008

/s/ Richard C. Luis

___________________________

RICHARD C. LUIS

Administrative Law Judge

 

Recorded:    Angela Threlkeld, Court Reporter

                   Shaddix and Associates

                   (Transcript Prepared, One Volume)

 

MEMORANDUM

Procedural Background

On June 27, 2007, Qwest petitioned the Commission for a designation of nonimpaired status for a number of its wire centers.  On January 10, 2008, the Commission referred this matter to the Office of Administrative Hearings (OAH) for resolution on an expedited basis.[1]  The Commission identified the parties to this matter as Qwest and the Department.   The Joint CLECs, (comprised of DIECA Communications, Inc. d/b/a/ Covad Communications Company, Inc.; Integra Telecom of Minnesota, Inc.; McLeodUSA Telecommunications Service, Inc.; POPP.com, Inc.; TDS Metrocom; XO Communications of Minnesota, Inc.; and Eschelon Telecom, Inc.) appeared at the initial prehearing conference in this matter and was admitted as a party to this proceeding.  A smaller group, known as the CLEC Coalition, participated through the oral argument in this proceeding.[2]

On February 15, 2008, the Department filed a letter indicating that its objections had been withdrawn regarding three of the wire centers at issue in this proceeding.  The three wire centers for which the objections were withdrawn are Brainerd, Plymouth-Fernbrook, and Eden Prairie wire centers.[3]  No other party had raised objections regarding those wire centers.  Reclassification of those wire centers was referred back to the Commission by operation of the ALJ’s Second Prehearing Order.[4]

On March 7, 2008, the Department filed a letter indicating that its objections had been withdrawn regarding the Saint Paul-Midway wire center.[5]  Also on March 7, 2008, Qwest filed a letter indicating that it was withdrawing its request to reclassify as nonimpaired the Lexington-Eagan wire center.[6]

No parties objected to either the referral of the Saint Paul-Midway wire center to the Commission, or the withdrawal of the request to reclassify the Lexington-Eagan wire center.  The withdrawal of the petition to reclassify the Lexington-Eagan wire center and referral of the reclassification of the Saint Paul-Midway wire center back to the Commission were accomplished by way of the ALJ’s Third Prehearing Order.[7]

On March 14, 2008, the Department filed a Motion to Recommend Denial of Qwest’s Request for Reclassification of the Owatonna Wire Center from Tier 3 to Tier 2, and to Refer Jurisdiction Back to the Commission.  The Department asserted that the phrase “active electrical power supply,” as used by the FCC in its Triennial Review Remand Order (TRRO), means that electric power is actually being used by equipment in the collocation.[8]   The Department set out a short summary of facts that were characterized as “undisputed.”[9]

The parties agreed that the only remaining wire center at issue in this proceeding is the Qwest wire center located in Owatonna, Minnesota.  The parties agreed that the only issue to be resolved in this proceeding was whether the language in the U.S. Federal Communications Commission’s Triennial Review Remand Order requiring that a collocation have an “active electrical power supply” is met by the configuration of a CLEC collocation in the Owatonna wire center.[10]

The parties agreed that this matter could proceed without an evidentiary hearing and without cross-examination of witnesses.  In lieu of a hearing, the parties conducted oral argument, relying on their briefs and prefiled testimony. [11]  Oral argument was held on May 8, 2008, at the Office of Administrative Hearings, 600 North Robert Street, Saint Paul, Minnesota.

Factual Background

There are three collocators who have some form of optical fiber-based facilities in Qwest’s Owatonna wire center.  The parties have noted that one of these fiber-based collocators has optical fiber that is lit and carrying traffic.  This particular collocator has a fiber splice in its collocation space.[12]

Qwest described the criteria used in identifying fiber-based collocators within its wire centers as:

a. having a collocation

b. an active electrical power supply to the collocation

c. the collocation operating a fiber-optic cable or comparable transmission facility that :

(1) terminates at a collocation arrangement within the wire center ;

(2) leaves the incumbent LEC's wire center premises ;

(3) is owned by a party other than the incumbent LEC or any

affiliate of the incumbent LEC.

d. in instances where two or more affiliated fiber-based collocators, or a single collocator, had multiple collocations in a single wire center, they were collectively counted as a single-fiber-based collocator.[13]

Edward Fagerlund, Ph.D., an economist for the Department, visited Qwest's Owatonna central office, most recently on May 24, 2007, with the Department's consulting telecommunications engineer, Mr. Wes Legursky.  Dr. Fagerlund observed DC power equipment, the power cabling, and the three collocations that are being counted by Qwest as meeting the nonimpairment standard to move the Owatonna wire center to Tier 2.[14]

The collocation at issue in this matter is a cageless collocation.  No electrical power cables were attached to any of the equipment of the CLEC operating that collocation.  No equipment in the collocation is connected to any other collocation in the Owatonna central office.  DC electric power cables were extended to a point near the collocation.  Dr. Fagerlund noted his understanding that the only reason these power cables were extended to the point near the collocation is that Qwest makes installing the cables a requirement for getting the collocation.  This requirement exists even if the CLEC has no plans to use electricity and never connects equipment to the power cable.[15]

Qwest acknowledges that the particular collocator's equipment does not currently draw power from the power supply available to it from Qwest in the Owatonna wire center.[16]

Triennial Review Remand Order

Where competition in telecommunication services is impaired, incumbent local exchange carriers (ILECs) are required to provide certain unbundled network elements (UNEs) to CLECs under Total Element Long Range Incremental Cost pricing principles (“TELRIC”).  Where an ILEC’s wire center is no longer impaired, ILECs are relieved of the TELRIC pricing for certain UNEs.[17]  The FCC has established standards for determination of impairment in its TRRO.  The FCC identified fiber-based facilities as a measure of competition, stating:

96. Fiber-Based Collocation. We use fiber-based collocation as a key factor in determining where competing carriers already have deployed fiber transport facilities because a sufficient degree of such collocation indicates the duplicability of these network elements and, thus, a lack of impairment. The Commission previously has used fiber-based collocation as a key indicator of competitive fiber deployment, and the D.C. Circuit has affirmed this use as reasonable.  Fiber-based collocation in a wire center very clearly indicates the presence of competitive transport facilities in that wire center and signals that significant revenues are available from customers served by that wire center sufficient to justify the deployment of transport facilities.

97. Further, the record indicates that those competing carriers that deploy fiber and collocate do so in multiple incumbent LEC wire centers within core business areas, thus increasing the chances that competitive transport facilities exist connecting many incumbent LEC wire centers.  For instance, Verizon submitted evidence, based on physical inspections of collocation arrangements in its wire centers, showing that dozens of competing carriers each have collocated with fiber facilities in several wire centers in various market areas.  For these reasons, we find it likely that the same competing carriers will have fiber-based collocations on both ends of a route, making possible a connection between the two end-points.[18]

The FCC found that examining the extent of fiber-based collocation in a wire center would substitute for more complicated measurements of competition, stating:

101. Additionally, we find that fiber-based collocation provides a reasonable proxy for where significant revenue opportunities exist for competitive LECs, regardless of the size, density, or geographic attributes of the wire center, because it identifies competition in both large and small incumbent LEC wire centers.  The record indicates that there are smaller wire centers to which competitors have deployed significant transport facilities. Because our thresholds are disjunctive, our test will capture these relatively smaller offices that, through fiber-based collocation, display signs of significant potential revenues.[19]

Having arrived at the use of fiber-based collocation as an indicator of competition, the FCC described how that indicator was to be measured as follows:

102. We define fiber-based collocation simply. For purposes of our analysis, we define fiber-based collocation as a competitive carrier collocation arrangement, with active power supply, that has a non-incumbent LEC fiber-optic cable that both terminates at the collocation facility and leaves the wire center.  We find that the collocation arrangement may be obtained by the competing carrier either pursuant to contract, tariff or, where appropriate, section 251(c)(6) of the Act, including less traditional collocation arrangements such as Verizon’s CATT fiber termination arrangements.  Because fixed wireless carriers’ collocation arrangements may not literally be fiber-based, but nevertheless signal the ability to deploy transport facilities, we include fixed-wireless collocation arrangements at a wire center if the carrier’s alternative transmission facilities both terminate in and leave the wire center.  In tallying the number of fiber-based collocators for purposes of our transport impairment analysis, parties shall only count multiple collocations at a single wire center by the same or affiliated carriers as one fiber-based collocation.[20]

“”Fiber-based Collocation” was defined by the FCC in Appendix B to the TRRO as:

A fiber-based collocator is any carrier, unaffiliated with the incumbent LEC, that maintains a collocation arrangement in an incumbent LEC wire center, with active electrical power supply, and operates a fiberoptic cable or comparable transmission facility that (1) terminates at a collocation arrangement within the wire center ; (2) leaves the incumbent LEC wire center premises; and (3) is owned by a party other than the incumbent LEC or any affiliate of the incumbent LEC except as set forth in this paragraph . Dark fiber obtained from an incumbent LEC on an indefeasible right of use basis shall be treated as non-incumbent LEC fiber-optic cable. Two or more affiliated fiber-based collocators in a single wire center shall collectively be counted as a single fiber-based collocator . For purposes of this paragraph, the term affiliate is defined by 47 U.S.C. § 153(1) and any relevant interpretation in this Title.[21]

Commission Jurisdiction

As an initial matter, Qwest maintains that determining the meaning of “active electrical power supply” in the TRRO is the equivalent of adopting new impairment criteria and therefore is outside the jurisdiction of the Commission. [22]  The Department disputed this contention, noting that, “State commissions routinely apply FCC rules in the dockets that come before them.”[23]  The CLEC Coalition noted that “Qwest, multiple CLECs and the Department have previously recognized that thìs Commission is the proper authority to resolve disputes regarding the proper interpretation and implementation of the FCC's TRRO.”[24]

Determining the meaning of a term in an FCC order does constitute the adoption of new criteria.  Interpreting the meaning of a term in a statute or order is a common practice and well-recognized as within the jurisdiction of the Commission.

Department Position on Active Electrical Power Supply

The Department maintains that, for a collocation to have an active electrical power supply to determine nonimpairment under the TRRO, there must be an active use of electrical power.  The Department notes that neither the term, “active” nor the phrase “active electrical power supply” are defined in the TRRO.  Relying on the common dictionary definition of “active”, the Department maintains that unless equipment in the collocation operates through the use of electricity supplied in the collocation, that electricity is not an “active electrical power supply” for non-impairment analysis purposes.[25]

The existing situation in the collocation at issue is analogized by the Department to resemble that of a cabin where electricity is supplied to the location, but no wiring is installed in the dwelling.  Power is supplied, the Department contends, but that supply is not “active.” [26]  The Department maintained that Qwest was requiring collocators to purchase unwanted electrical facilities in violation of the TELRIC pricing principles.[27]

CLEC Coalition Position on Active Electrical Power Supply

The CLEC Coalition agreed with the Department’s interpretation of active electrical power supply in this proceeding.  The CLEC Coalition also considered this interpretation to be consistent with the FCC's intent regarding the identification of fiber-based collocations for the purposes of determining impairment.  The CLEC Coalition maintained that:

The FCC's fiber-based collocation definition is precise and detailed because, for this part of the "non-impairment" test, the FCC was looking at actual deployment of transport alternatives rather than a carrier’s ability to expand the use its collocation.  The FCC's use of the term "active electrical power supply” is consistent with the FCC's view of the role of dedicated transport.  The FCC notes that "(c)ompeting carriers generally use unbundled interoffice transport as a means to aggregate end-user traffic.”[28]

The presence of active electrical power at the carrier’s fiber collocation was noted by the CLEC Coalition as a requirement before those facilities can be used by other CLECs as an alternative to Qwest’s transport facilities.[29]  The CLEC Coalition maintains that the absence of "active electrical power" in a collocation demonstrates that the “fiber is not an aggregation point in that central office and cannot act as an alternative to Qwest transport facilities.”  The analogy drawn by the CLEC Coalition is that of train tracks with no station.  Traffic can pass through that location, but no traffic can embark or debark.[30]

Qwest Position on Active Electrical Power Supply

Qwest maintains that the language of the TRRO establishes the condition for a power supply which is met by the provision of live electrical current to a location accessible in the cageless collocation where the fiber splice is located.  Qwest asserts that the Department’s position adds the following conditions which are not contained in the TRRO:

(1)     that the power the collocator is using is provided by Qwest and

 (2)    that the power is being drawn from a source located in the same wire center.[31]

Qwest points out that the Department's position would allow a collocator to actually serve customers but be excluded from the count of fiber-based collocators for purposes of the non-impairment analysis.  Qwest maintains that such a collocation should be counted, even if the collocator draws the power to operate its "lit" facility from another location.[32]

Meaning of “Active Electrical Power Supply”

Qwest notes that the FCC explicitly recognized that the fiber-based collocation standard was being adopted as a “proxy” for actual deployment of competing fiber-based transport facilities.[33]  Competing fiber-based transport facilities require more than simply a fiber-splice.  The FCC recognized the importance of these facilities in providing competitive transport by requiring not only fiber collocation in a wire center, but that the fiber collocation have an active electric power supply.

The requirement for active electrical power supply cannot be met by light passing through fiber in the collocation, as maintained by Qwest.  To provide competitive transport facilities, the significant factor is the ability to manipulate the signals passing through the fiber, using technology referred to as “optronics.”  The FCC has recognized the need for this technology as it relates to fiber-based transport in the TRRO, stating:

Furthermore, carriers are capable of activating dark fiber when they have aggregated sufficient revenues from traffic to justify the deployment of extensive optronics, but even at such revenue levels, sometimes carriers have not achieved sufficient revenues to justify the high expense of fiber deployment.[34]

A requirement of deployed optronics is electrical power.  The FCC is using fiber-based collocation as a proxy for the existence of competing fiber-based transport.  A requirement of competing fiber-based transport is deployed optronics to manage the flow of communications traffic over the fiber-optic cable.  The ALJ concludes that the FCC’s requirement for a fiber collocation to have an “active electrical power supply” means that there is equipment in the collocation that is actively drawing electrical power to light the fiber-optic cable.

Conclusion

In the Owatonna wire center, Qwest has sought to count as a fiber-based collocation, one collocation that is provided electrical power, but which has no equipment installed to actively draw electrical power.  Under the standards set out in the TRRO, that collocation does not have an “active electrical power supply.”  That collocation cannot be counted toward the total for reclassification of the Owatonna wire center from Tier 3 to Tier 2.

R. C. L.

 


[1] Commission Notice and Order for Hearing, at 6 (issued January 10, 2008) (https://www.edockets.state.mn.us/EFiling/ShowFile.do?DocNumber=4897441).

[2] The CLEC Coalition consists of CP Telecom, Integra Telecom, and McLeodUSA.  CP Telecom stipulated that it is not a party to the proceeding and it is not eligible for party status in this proceeding.  CP Telecom joined in the CLEC Coalition's reply comments regarding the Owatonna wire center as a "participant" under Minnesota Rules, Part 7829.0100, subp. 13.  Qwest Letter (May 2, 2008)(https://www.edockets.state.mn.us/EFiling/ShowFile.do?DocNumber=5165513).

[4] Second Prehearing Order (February 20, 2008) (https://www.edockets.state.mn.us/EFiling/ShowFile.do?DocNumber=4950438).

[9] Id., at 7-8.

[13] Torrence Direct, at 4-5.

[15] Id. at 4.

[16] Torrence Direct, at 5.

[17] Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, WC Docket No. 04-313; CC Docket No. 01-338, FCC 04-290, ¶¶ 41 and 66  (Order on Remand, rel. February 4, 2005)("TRRO").

[18] TRRO ¶¶ 96-97 (footnotes omitted).

[19] TRRO ¶ 101 (footnotes omitted).

[20] TRRO ¶ 102 (footnotes omitted).

[21] TRRO Appendix B (47 C.F.R. § 51.5).

[22] Tr. at 19-20 (Qwest).

[24] CLEC Reply at  4 (citing  ITMO a Commission Investigation Identifing Wire Centers in Which Qwest Corporation Must Offer High-Capacity Loop or Transport UNEs at Cost-Based Rates, MPUC Docket No. P-999/CI-06-685) (https://www.edockets.state.mn.us/EFiling/ShowFile.do?DocNumber=5122742 ).

[26] Id., at 10-11.

[27] Id., at 10-11

[28] CLEC Coalition Reply, at 5 (quoting TRRO, ¶ 69, at 45) (https://www.edockets.state.mn.us/EFiling/ShowFile.do?DocNumber=5122742).

[29] CLEC Coalition Reply, at 5.

[30] CLEC Coalition Reply, at 6-7.

[32] Tr. at 17-18 (Qwest).

[33] Qwest Brief, at 7.

[34] TRRO, ¶ 134 (footnote omitted).