[Federal Register Volume 68, Number 78 (Wednesday, April 23, 2003)]
[Notices]
[Pages 19997-19999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10001]


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FEDERAL COMMUNICATIONS COMMISSION

[WC Docket No. 03-11; FCC 03-81]


Application by Qwest Communications International, Inc. for 
Authorization To Provide In-Region, InterLATA Services in New Mexico, 
Oregon and South Dakota

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 Qwest Communications 
International, Inc. for authorization to provide in-region, interLATA 
services in New Mexico, Oregon and South Dakota. The Commission grants 
Qwest's application based on its conclusion that Qwest has satisfied 
all of the statutory requirements for entry, and fully opened its local 
exchange markets to competition.

DATES: Effective date April 25, 2003.

FOR FURTHER INFORMATION CONTACT: Kimberly Cook, Attorney-Advisor, 
Wireline Competition Bureau, at (202) 418-7532 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. 03-11, FCC 03-81, adopted 
April 15, 2003 and released April 15, 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 website at http://www.fcc.gov/Bureaus/Common_Carrier/in-region_applications/qwest_nm_or_sd/welcome.html.

Synopsis of the Order

    1. History of the Application. On January 15, 2003, Qwest filed an 
application, pursuant to section 271 of the Telecommunications Act of 
1996, with the Commission to provide in-region, interLATA service in 
the states of New Mexico, Oregon and South Dakota.
    2. The State Commissions' Evaluation. The New Mexico Public 
Regulation Commission, Public Utility Commission of Oregon and the 
South Dakota Public Utilities Commission (State Commissions) following 
an extensive review process, advised the Commission that Qwest met the 
checklist requirements of section 271 and has taken the statutory steps 
to open its local markets in each state to competition. Consequently, 
the state commissions recommended that the Commission approve Qwest's 
in-region, interLATA entry in their evaluations.
    3. The Department of Justice's Evaluation. The Department of 
Justice filed its evaluation of Qwest's application on February 20, 
2003 in which it recommended approval of the application subject to the 
Commission satisfying itself regarding Qwest's compliance with Track A 
in New Mexico. The Department of Justice

[[Page 19998]]

further noted that Qwest should clarify its position concerning several 
complaints of WorldCom concerning Qwest's operations support systems 
(OSS) and that the Commission should carefully review that response.

Primary Issues in Dispute

    4. Compliance with Section 271(c)(1)(A). Based on the record, the 
Commission finds that Qwest satisfies the requirements of section 
271(c)(1)(A) in New Mexico, Oregon and South Dakota based on the 
interconnection agreements it has implemented with competing carriers 
in those states. The Oregon and South Dakota Commissions found that 
Qwest satisfies the requirements of Track A in these states. The New 
Mexico Commission found that Qwest complied with Track A for business 
subscribers, but deferred the issue of Qwest's compliance with Track A 
for residential customers to the Commission.
    5. The record shows that Qwest relies on interconnection agreements 
with AT&T Broadband Phone of Oregon, AT&T Corp. (fka TCG-Oregon), Black 
Hills FiberCom, Brooks Fiber of New Mexico, Cricket Communications, 
Eastern Oregon Telecom, McLeodUSA, Northern Valley Communications, and 
Time Warner Telecom of New Mexico in support of its Track A showing for 
these three states.
    6. The Commission finds that, in New Mexico, 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 Qwest for 
residential telephone exchange services. The Commission determines that 
Cricket Communications' residential broadband PCS offering in New 
Mexico is a ``telephone exchange service'' for purposes of Track A. The 
Commission further concludes that the evidence submitted by Qwest 
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 Qwest's survey 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 Qwest 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. The Commission concludes that Qwest meets it obligation to 
provide access to its OSS--the systems, databases, and personnel 
necessary to support the 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 Qwest 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, provisioning, maintenance and repair, and billing, 
as well as change management and technical assistance), Qwest provides 
access that enables competing carriers to perform the functions in 
substantially the same time and manner as Qwest or, if there is not an 
appropriate retail analogue in Qwest's systems, in a manner that 
permits an efficient competitor a meaningful opportunity to compete.
    9. Pursuant to this checklist item, Qwest must also provide 
nondiscriminatory access to network elements in a manner that allows 
other carriers to combine such elements, and demonstrate that it does 
not separate already combined elements, except at the specific request 
of a competing carrier. Based on the evidence in the record, and upon 
Qwest's legal obligations under interconnection agreements, Qwest 
demonstrates that it provides to competitors combinations of already-
combined network elements as well as nondiscriminatory access to 
unbundled network elements in a manner that allows competing carriers 
to combine those elements themselves.
    10. The Commission finds that Qwest's UNE rates in New Mexico, 
Oregon and South Dakota are just, reasonable, and nondiscriminatory as 
required by section 252(d)(1). Thus, Qwest's UNE rates in New Mexico, 
Oregon and South Dakota satisfy checklist item 2. The State Commissions 
concluded that Qwest's UNE rates satisfy checklist item 2. 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 factual findings on matters 
so substantial that the end result falls outside the range that a 
reasonable application of TELRIC principles would produce.''
    11. The Commission finds that rates in the three states satisfied a 
benchmark analysis with rates in Colorado, demonstrating that Qwest's 
New Mexico, Oregon and South Dakota UNE rates fall within a range of 
rates that a reasonable application of TELRIC would produce. The 
Commission also rejects arguments by a party that Qwest relied on rates 
in Oregon that (1) were based on old data, and (2) might be in effect 
only temporarily since they could be increased in a state commission 
proceeding that was pending. Thus, the Commission concludes that 
Qwest's UNE rates in New Mexico, Oregon and South Dakota satisfy the 
requirements of checklist item 2.

Other Checklist Items

    12. Checklist Item 1--Interconnection. Based on the evidence in the 
record, the Commission finds that Qwest demonstrates that it provides 
interconnection in accordance with the requirements of section 
251(c)(2), and as specified in section 271 and applied in the 
Commission's prior orders.
    13. Qwest also demonstrates that its collocation offerings in New 
Mexico, Oregon and South Dakota satisfy the requirements of sections 
251 and 271 of the Act. Qwest demonstrates that it offers 
interconnection in New Mexico, Oregon and South Dakota to other 
telecommunications carriers at just, reasonable, and nondiscriminatory 
rates, in compliance with checklist item 1.
    14. Checklist Item 4--Unbundled Local Loops. The Commission 
concludes that Qwest provides unbundled local loops in accordance with 
the requirements of section 271 and our rules. Our conclusion is based 
on our review of Qwest's performance for all loop types, which include 
voice-grade loops, xDSL-capable loops, digital loops, high-capacity 
loops, as well as our review of Qwest's processes for hot cut 
provisioning, and line sharing and line splitting.
    15. Checklist Item 5--Unbundled Transport. Section 271(c)(2)(B)(v) 
of the competitive checklist requires a BOC to provide ``local 
transport from the trunk side of a wireline local exchange carrier 
switch unbundled from switching or other services.'' The Commission 
concludes, based upon the evidence in the record, that Qwest 
demonstrates that it provides unbundled local transport in compliance 
with the requirements of checklist item 5.
    16. Checklist Item 7--911/E911 Access & Directory Assistance/
Operator Services. Section 271(c)(2)(B)(vii)(I), (II),

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and (III) require a BOC to provide nondiscriminatory access to ``911 
and E911 services,'' ``directory assistance services to allow the other 
carrier's customers to obtain telephone numbers'' and ``operator call 
completion services,'' respectively. Additionally, section 251(b)(3) of 
the 1996 Act imposes on each LEC ``the duty to permit all [competing 
providers of telephone exchange service and telephone toll service] to 
have nondiscriminatory access to * * * operator services, directory 
assistance, and directory listing with no unreasonable dialing 
delays.'' Based on the evidence in the record, the Commission concludes 
that Qwest offers nondiscriminatory access to its 911-E911 databases, 
operator services (OS), and directory assistance (DA).
    17. Checklist Items 3, 6, 8, 9, 10, 11,12, 13 and 14. An applicant 
under section 271 must demonstrate that it complies with item 3 (poles, 
ducts, and conduits), item 6 (unbundled local switching), item 8 (white 
pages), item 9 (numbering administration), item 10 (data bases and 
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, and in accordance with Commission rules 
and orders concerning compliance with section 271 of the Act, the 
Commission concludes that Qwest demonstrates that it is in compliance 
with checklist items 3, 6, 8, 9, 10, 11, 12, 13 and 14 in New Mexico, 
Oregon and South Dakota. The State Commissions also concluded that 
Qwest complies with the requirements of each of these checklist items.

Other Statutory Requirements

    18. Section 272 Compliance. Qwest provides evidence that it 
maintains the same structural separation and nondiscrimination 
safeguards in New Mexico, Oregon and South Dakota as it does in 
Colorado, Idaho, Iowa, Montana, Nebraska, North Dakota, Utah, 
Washington and Wyoming where Qwest has already received section 271 
authority. Based on the record before us, we conclude that Qwest has 
demonstrated that it will comply with the requirements of section 272.
    19. Public Interest Analysis. The Commission concludes that 
approval of this application is consistent with the public interest. It 
views the public interest requirement as an opportunity to review the 
circumstances presented by the applications to ensure that no other 
relevant factors exist that would frustrate the congressional intent 
that markets be open, as required by the competitive checklist, and 
that entry will therefore serve the public interest as Congress 
expected. While no one factor is dispositive in this analysis, the 
Commission's overriding goal is to ensure that nothing undermines its 
conclusion that markets are open to competition.
    20. The Commission finds that, consistent with its extensive review 
of the competitive checklist, barriers to competitive entry in the 
local market have been removed and the local exchange market today is 
open to competition. The Commission concludes that Qwest's entry into 
the long distance market will benefit consumers and competition.
    21. The Commission also finds that the performance monitoring and 
enforcement mechanisms developed in New Mexico, Oregon and South 
Dakota, in combination with other factors, provide meaningful assurance 
that Qwest continue to satisfy the requirements of section 271 after 
entering the long distance market.
    22. Notwithstanding its concern about discrimination with respect 
to interconnection agreements and potential violations of the Act as a 
result, the Commission finds that Qwest's previous failure to file 
certain interconnection agreements with the application states does not 
warrant a denial of this application. The Commission concludes that 
concerns about any potential ongoing checklist violation (or 
discrimination) are met by Qwest's submission of agreements to the 
commissions of the application states pursuant to section 252 and by 
each state acting on Qwest's submission of those agreements. Based on 
the limited circumstances established in the record, the Commission 
does not find that the allegations concerning Qwest's compliance with 
section 271 relate to openness of the local telecommunications markets 
to competition. Instead, it defers any enforcement action pending the 
Enforcement Bureau's investigation of the matter.
    23. The Commission concludes that approval of this application is 
consistent with the public interest. From our extensive review of the 
competitive checklist, which embodies the critical elements of market 
entry under the Act, we find that barriers to competitive entry in New 
Mexico, Oregon and South Dakota's local exchange market have been 
removed, and that the local exchange market is open to competition.
    24. Section 271(d)(6) Enforcement Authority. The Commission 
concludes that, working with the State Commissions, we will closely 
monitor Qwest's post-approval compliance to ensure that Qwest does not 
``cease[] to meet the conditions required for [section 271] approval.'' 
We stand ready to exercise our various statutory enforcement powers 
quickly and decisively if there is evidence that market opening 
conditions have not been sustained.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-10001 Filed 4-22-03; 8:45 am]
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