[Federal Register Volume 68, Number 77 (Tuesday, April 22, 2003)]
[Notices]
[Pages 19820-19822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9825]


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FEDERAL COMMUNICATIONS COMMISSION

[WC Docket No. 03-10; FCC 03-80]


Application by SBC Communications Inc., Nevada Bell Telephone 
Company, and Southwestern Bell Communications Services, Inc., for 
Authorization To Provide In-Region, InterLATA Service in Nevada

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: In the document, the Federal Communications Commission 
(Commission) grants the section 271 application of SBC Communications 
Inc., Nevada Bell Telephone Company, and Southwestern Bell 
Communications Services, Inc., (Nevada Bell) for authority to enter the 
interLATA telecommunications market in Nevada. The Commission grants 
Nevada Bell's application based on its conclusion that it has satisfied 
all of the statutory requirements for entry and opened its local 
exchange markets to full competition.

DATES: Effective April 25, 2003.

FOR FURTHER INFORMATION CONTACT: Pam Arluk, Attorney-Advisor, Wireline 
Competition Bureau, at (202) 418-1471 or via the Internet at 
[email protected]. The complete text of this Memorandum Opinion and Order 
is available for inspection and copying during normal business hours in 
the FCC Reference Information Center, Portals II, 445 12th Street, SW., 
Room CY-A257, Washington, DC 20554. Further information may also be 
obtained by calling the Wireline Competition Bureau's TTY number: (202) 
418-0484.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order in WC Docket No. 03-10, FCC 03-80, adopted 
April 14, 2003, and released April 14, 2003. The full text of this 
order may be purchased from the Commission's duplicating contractor, 
Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, 
or via e-mail [email protected]. It is also available on the 
Commission's Web site at http://www.fcc.gov/Bureaus/

[[Page 19821]]

Wireline--Competition/in-region--applications.

Synopsis of the Order

    1. History of the Application. On January 14, 2003, Nevada Bell 
filed an application pursuant to section 271 of the Telecommunications 
Act of 1996, with the Commission to provide in-region, interLATA 
service in the state of Nevada.
    2. The State Commission's Evaluation. The Nevada Public Utilities 
Commission (Nevada Commission), following an extensive review process, 
advised the Commission that Nevada Bell has taken the statutorily 
required steps to open its local markets to competition. Consequently, 
the Nevada Commission recommended that the Commission approve Nevada 
Bell's in-region, interLATA entry in their evaluation and comments in 
this proceeding.
    3. The Department of Justice's Evaluation. The Department of 
Justice filed its evaluation on February 21, 2003, recommending 
approval of the Nevada Bell application. The Department of Justice 
concludes that opportunities are available for competitive carriers to 
serve business customers, and also concludes that Nevada Bell has 
fulfilled its obligations to open its markets to residential 
competition. Accordingly, the Department of Justice recommends approval 
of Nevada Bell's application for section 271 authority in Nevada.

Primary Issues in Dispute

    4. Complete-As-Filed Waiver. The Commission's ``complete-as-filed'' 
requirement provides that when an applicant files new information after 
the comment date, the Commission reserves the right to start the 90-day 
review period again or to accord such information no weight in 
determining section 271 compliance. The Commission waives the complete-
as-filed requirement pursuant to Nevada Bell's request to consider its 
late-filed Track A evidence. The Applicant submitted additional 
evidence to respond quickly and positively to concerns raised in the 
record as to whether Cricket Communications' broadband Personal 
Communications Service (PCS) offering satisfied the requirements of 
Track A. Because the evidence was filed on day 31, the Bureau had 
sufficient time to place the evidence on public notice and request 
comments specific to the evidence submitted. Under these circumstances, 
the Commission believes that consideration of Nevada Bell's additional 
evidence better serves the Commission's interest in ensuring a fair and 
orderly 271 process than restarting the 90-day clock, and that a grant 
of this waiver will serve the public interest.
    5. Compliance with Section 271(c)(1)(A). The Commission concludes 
that Nevada Bell demonstrates that it satisfies the requirements of 
section 271(c)(1)(A) based on the interconnection agreements it has 
implemented with competing carriers in Nevada. The record shows that 
Nevada Bell relies on interconnection agreements with Advanced Telecom 
Group, WorldCom, and Cricket Communications in support of this showing. 
The Commission finds that Advanced Telecom Group and WorldCom each 
serve more than a de minimis number of business end users predominantly 
over their own facilities and represent ``actual commercial 
alternatives'' to Nevada Bell for business telephone exchange services. 
The Commission further finds that, Cricket Communications, a PCS 
provider, serves more than a de minimis number of residential users 
over its own facilities and, for purposes of section 271 compliance, 
represents an actual commercial alternative to Nevada Bell for 
residential telephone exchange services.
    6. First, the Commission determines that Cricket Communications' 
residential broadband PCS offering in Nevada is a ``telephone exchange 
service'' for purposes of Track A. The Commission further concludes 
that the evidence submitted by Nevada Bell adequately demonstrates that 
more than a de minimis number of Cricket customers use their service in 
lieu of wireline telephone service. The evidence shows that Cricket's 
marketing efforts stress that its product is a substitute for 
residential local telephone service. In addition, the Commission 
concludes that Nevada Bell's survey also demonstrates that Cricket 
customers use Cricket service in lieu of wireline telephone service. 
The Commission finds that the survey was random, and contains 
statistical analysis of sufficient quality to allow the Commission to 
rely on it for the purpose of showing compliance with Track A.
    7. Checklist Item 2--Unbundled Network Elements. Based on the 
record, the Commission finds that Nevada Bell has provided 
``nondiscriminatory access to network elements in accordance with the 
requirements of sections 251(c)(3) and 252(d)(1)'' of the Act in 
compliance with checklist item 2.
    8. Pricing of Unbundled Network Elements. Based on the record, the 
Commission finds that Nevada Bell's UNE rates in Nevada are just, 
reasonable and nondiscriminatory as required by section 251(d)(1). The 
Commission has previously held that it will not conduct a de novo 
review of a state's pricing determinations and will reject an 
application only if either ``basic TELRIC principles are violated or 
the state commission makes clear errors in the actual findings on 
matters so substantial that the end result falls outside the range that 
a reasonable application of TELRIC principles would produce.'' The 
Nevada Commission conducted extensive pricing proceedings to establish 
wholesale rates for UNEs. It approved recurring rates by using a Nevada 
specific version of the HAI model advocated by AT&T. Competitive LECs 
agreed to the vast majority of the nonrecurring rates. The Nevada 
Commission concluded that Nevada Bell's UNE rates are just, reasonable, 
and nondiscriminatory as required by section 251(c)(3), and satisfy the 
requirements of checklist item two. No party alleges that Nevada Bell's 
rates are inconsistent with TELRIC, or that the Nevada Commission 
committed TELRIC errors. Based on this record, the Commission finds 
that Nevada Bell has met its burden to show that its prices for UNEs 
satisfy the statutory mandate.
    9. Operations Support Systems (OSS). Based on the record, the 
Commission finds that Nevada Bell provides ``nondiscriminatory access 
to network elements in accordance with the requirements of sections 
251(c)(3) and 252(d)(1)'' of the Act in compliance with checklist item 
2. The Commission further finds that Nevada Bell provides persuasive 
evidence that the OSS in California are substantially the same as the 
OSS in Nevada and, therefore, evidence concerning the OSS in California 
is relevant and should be considered in our evaluation of the OSS in 
Nevada. Accordingly, when volumes in Nevada are too low to yield 
meaningful information concerning Nevada Bell's compliance with the 
competitive checklist, the Commission examines data reflecting Pacific 
Bell's performance in California.
    10. Pursuant to its analysis, the Commission finds that Nevada Bell 
provides non-discriminatory access to its OSS--the systems, databases, 
and personnel necessary to support network elements or services. 
Nondiscriminatory access to OSS ensures that new entrants have the 
ability to order service for their customers and communicate 
effectively with Nevada Bell regarding basic activities such as placing 
orders and providing maintenance and repair services for customers. The 
Commission finds that, for each of the primary OSS functions (pre-
ordering, ordering,

[[Page 19822]]

provisioning, maintenance and repair, and billing, as well as change 
management), Nevada Bell provides access to its OSS in a manner that 
enables competing carriers to perform the functions in substantially 
the same time and manner as Nevada Bell does or, if no appropriate 
retail analogue exists within Nevada Bell's systems, in a manner that 
permits competitors a meaningful opportunity to compete. In addition, 
regarding specific areas where the Commission identifies issues with 
Nevada Bell's or Pacific Bell's OSS performance, these problems are not 
sufficient to warrant a finding of checklist noncompliance.

Other Checklist Items

    11. Checklist Item 4--Unbundled Local Loops. Based on the evidence 
in the record, the Commission concludes that Nevada Bell provides 
unbundled local loops in accordance with the requirements of section 
271 and our rules. The Commission also notes that no commenter 
challenges Nevada Bell's showing on this checklist item or the 
California evidence that it relies upon. The Commission's conclusion is 
based on Nevada Bell's performance (and Pacific Bell's performance in 
California where Nevada volumes are low) for all loop types, which 
include, as in past section 271 orders, voice grade loops, hot cut 
provisioning, xDSL-capable loops, digital loops, high capacity loops, 
as well as our review of Nevada Bell's processes for line sharing and 
line splitting.
    12. Checklist Item 1--Interconnection. Based on the Commission's 
review of the record, it concludes that Nevada Bell complies with the 
requirements of checklist item 1. In reaching this conclusion, the 
Commission examined Nevada Bell's performance with respect to 
collocation and interconnection trunks, as the Commission has done in 
prior section 271 proceedings. For the one performance measure that the 
Commission noted that Nevada Bell failed four of the five-month data 
period, the failures were not sufficient to warrant a finding of 
checklist noncompliance.
    13. Remaining Checklist Items (3, 5-14). In addition to showing 
that it is in compliance with the requirements discussed above, an 
application under section 271 must demonstrate that it complies with 
checklist item 3 (access to poles, ducts, and conduits), item 5 
(unbundled transport), item 6 (local switching unbundled from 
transport), item 7 (911/E911 access and directory assistance/operator 
services), item 8 (white pages directory listings), item 9 (numbering 
administration), item 10 (databases and associated signaling), item 11 
(number portability), item 12 (local dialing parity), item 13 
(reciprocal compensation), and item 14 (resale). Based on the evidence 
in the record, the Commission concludes that Nevada Bell demonstrates 
that it is in compliance with these checklist items in Nevada. It notes 
that no party objects to Nevada Bell's compliance with these checklist 
items.
    14. Section 272 Compliance. Based on the record, the Commission 
concludes that Nevada Bell has demonstrated that it will comply with 
the requirements of section 272. Significantly, Nevada Bell provides 
evidence that it maintains the same structural separation and 
nondiscrimination safeguards in Nevada as it does in California.
    15. Public Interest Analysis. The Commission concludes that 
approval of this application is consistent with the public interest. 
From its extensive review of the competitive checklist, which embodies 
the critical elements of market entry under the Act, the Commission 
finds that barriers to competitive entry in the local exchange markets 
have been removed and the local exchange markets in Nevada today are 
open to competition. The Commission further finds that the record 
confirms our view, as noted in prior section 271 orders, that BOC entry 
into the long distance market will benefit consumers and competition if 
the relevant local exchange market is open to competition consistent 
with the competitive checklist.
    16. Section 271(d)(6) Enforcement Authority. Working with the 
Nevada Commission, the Commission intends to closely monitor Nevada 
Bell's post-approval compliance to ensure that Nevada Bell continues to 
meet the conditions required for section 271 approval. It stands ready 
to exercise its various statutory enforcement powers quickly and 
decisively in appropriate circumstances to ensure that the local market 
remains open in Nevada.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-9825 Filed 4-21-03; 8:45 am]
BILLING CODE 6712-01-P