[Federal Register Volume 62, Number 164 (Monday, August 25, 1997)]
[Notices]
[Pages 44969-44971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22548]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
[CC Docket No. 97-137; FCC 97-298]
Application of Ameritech Michigan Pursuant to Section 271 of the
Communications Act of 1934, as Amended, To Provide In-Region, InterLATA
Services in Michigan
AGENCY: Federal Communications Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Memorandum Opinion and Order (Order) in CC Docket No. 97-
137 concludes that Ameritech Michigan (Ameritech) has not satisfied the
requirements of section 271 of the Communications Act of 1934, as
amended (Act). The Commission therefore denies Ameritech's application
for authorization to provide in-region, interLATA services in Michigan.
The Order declines to grant Ameritech authority to provide in-region,
interLATA services in Michigan.
EFFECTIVE DATE: August 19, 1997.
FOR FURTHER INFORMATION CONTACT: Melissa Waksman, Attorney, Policy and
Program Planning Division, Common Carrier Bureau, (202) 418-1580.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
adopted and released August 19, 1997. The full text of this Order is
available for inspection and copying during normal business hours in
the FCC Reference Center, 1919 M St., NW, Room 239, Washington, DC. The
complete text also may be obtained through the World Wide Web, at
http://www.fcc.gov/Bureaus/Common Carrier/Orders/fcc97-298.wp, or may
be purchased from the Commission's copy contractor, International
Transcription Service, Inc., (202) 857-3800, 1231 20th St., NW,
Washington, DC 20036.
Synopsis of Order
1. On May 21, 1997, Ameritech Michigan (Ameritech) filed an
application for authorization under section 271 of the Communications
Act of 1934, as amended, to provide in-region, interLATA services in
the State of Michigan. In this Order, the Commission finds that
Ameritech has met its burden of demonstrating that it is providing
access and interconnection to an unaffiliated, facilities-based
provider of telephone exchange service to residential and business
subscribers in Michigan, as required by section 271(c)(1)(A) of the
statute. The Commission further concludes, however, that Ameritech has
not yet demonstrated that it has fully implemented the competitive
checklist in section 271(c)(2)(B). In particular, the Commission finds
that Ameritech has not met its burden of showing that it meets the
competitive checklist with respect to: (1) Access to its operations
support systems; (2) interconnection; and (3) access to its 911 and
E911 services. In addition, the Commission finds that Ameritech has not
demonstrated that its ``requested [in-region, interLATA authorization]
will be carried out in accordance'' with the structural and
transactional requirements of sections 272(b)(3) and 272(b)(5),
respectively. Accordingly, the Commission, pursuant to section
271(d)(3) of the Communications Act of
[[Page 44970]]
1934, as amended, (the Act), denies Ameritech's application to provide
in-region, interLATA services in Michigan.
2. Compliance with Section 271(c)(1)(A). The Commission finds that
Ameritech has entered into binding agreements with Brooks Fiber, MFS
WorldCom, and TCG that have been approved under section 252 and that
specify the terms and conditions under which Ameritech is providing
access and interconnection to its network facilities for the network
facilities of these three competing providers of telephone exchange
service to residential and business subscribers. In addition, the
Commission determines that Brooks Fiber is offering such telephone
exchange service exclusively over its own telephone exchange service
facilities. Thus, the Commission concludes that Ameritech has satisfied
the requirements of section 271(c)(1)(A) through its interconnection
agreement with Brooks Fiber. Because Ameritech has satisfied section
271(c)(1)(A) through its agreement with Brooks Fiber, the Commission
does not reach the issue of whether Ameritech has also satisfied this
provision through its agreements with MFS WorldCom and TCG.
3. Compliance with the Competitive Checklist in section 272(B).
Because the Commission has concluded that Ameritech satisfies section
271(c)(1)(A), the Commission must next determine whether Ameritech has
``fully implemented the competitive checklist in subsection
(c)(2)(B).'' For the reasons set forth below, the Commission concludes
that Ameritech has not yet demonstrated by a preponderance of the
evidence that it has fully implemented the competitive checklist.
4. As a preliminary matter, the Commission concludes that a BOC
``provides'' a checklist item if it actually furnishes the item at
rates and on terms and conditions that comply with the Act or, where no
competitor is actually using the item, if the BOC makes the checklist
item available as both a legal and a practical matter. The Commission
emphasizes that the mere fact that a BOC has ``offered'' to provide
checklist items will not suffice for a BOC petitioning for entry
pursuant to section 271(c)(1)(A) (i.e, ``Track A''), to establish
checklist compliance. To be ``providing'' a checklist item, a BOC must
have a concrete and specific legal obligation to furnish the item upon
request pursuant to state-approved interconnection agreements that set
forth prices and other terms and conditions for each checklist item.
Moreover, the petitioning BOC must demonstrate that it is presently
ready to furnish each checklist item in the quantities that competitors
may reasonably demand and at an acceptable level of quality.
5. With respect to the first checklist item addressed, the
Commission concludes, consistent with the findings of the Department of
Justice and the Michigan Public Service Commission, that Ameritech has
failed to demonstrate by a preponderance of the evidence that it
provides nondiscriminatory access to all of the operations support
systems (OSS) functions provided to competing carriers, as required by
the competitive checklist. First, the Commission outlines its general
approach to analyzing the adequacy of a BOC's operations support
systems. Second, the Commission briefly describes the evidence in the
record on this issue. Third, the Commission analyzes Ameritech's
provision of access to OSS functions. The Commission emphasizes that
Ameritech must demonstrate that it is providing nondiscriminatory
access to OSS functions associated with unbundled network elements. The
Commission then concludes that Ameritech has not demonstrated that the
access to OSS functions that it provides to competing carriers for the
ordering and provisioning of resale services is equivalent to the
access it provides to itself. Because Ameritech fails to meet this
fundamental obligation, the Commission need not decide, in the context
of this application, whether Ameritech complies with its duty to
provide nondiscriminatory access to each and every other remaining OSS
function. Therefore, although the Commission does not address every
OSS-related issue raised in the context of this application, the
Commission makes clear that it has not affirmatively concluded that
those OSS functions not addressed in this decision are in compliance
with the requirements of section 271. Fourth, the Commission concludes
that Ameritech has failed to provide the Commission with empirical data
necessary for it to analyze whether Ameritech is providing
nondiscriminatory access to all OSS functions, as required by the Act.
Finally, in order to provide additional guidance, the Commission
concludes by highlighting a number of other OSS-related issues that are
of concern to the Commission.
6. The next checklist item the Commission addresses is
interconnection. The Commission concludes, consistent with the
Department of Justice's finding, that Ameritech has not established by
a preponderance of the evidence that it is providing interconnection in
accordance with the requirements of the Act. First, the Commission
finds that the data Ameritech submitted provide the Commission with an
inadequate basis to compare the quality of the interconnection that
Ameritech provides to other carriers to that which Ameritech provides
itself. For example, Ameritech's data contain insufficient information
regarding the actual level of trunk blockage and no information about
the rate of call completion. Next, the Commission concludes that even
if it were to evaluate the quality of interconnection that Ameritech
provides based solely on the data that Ameritech submitted, the
difference between the blocking rates on trunks that interconnect
competing LECs' networks with Ameritech's network and the blocking
rates on Ameritech's retail trunks suggests that Ameritech's
interconnection facilities do not meet the technical criteria and
service standards that Ameritech uses within its own network, contrary
to the requirements imposed by section 251(c)(2)(C).
7. The Commission also addresses the checklist item that requires
Ameritech to provide nondiscriminatory access to 911 and E911 services,
and concludes, in agreement with the Michigan Public Service
Commission, that Ameritech has not met its burden of demonstrating that
it satisfies this obligation. Specifically, the Commission finds that
Ameritech maintains entries in its 911 database for its own customers
with greater accuracy and reliability than it does the entries for the
customers for competing local exchange carriers. In reaching this
conclusion, the Commission finds it significant that there have been at
least three instances involving customers of competing carriers, one as
recently as May 21, 1997, where incorrect end user information was sent
to emergency services personnel. Ameritech, which acknowledged fault in
all three incidents, has presented no evidence to demonstrate that the
911 database error rate for competing local exchange carrier customer
information is equivalent to the error rate for Ameritech's own
customers. The Commission also concludes that Ameritech has not
demonstrated that it provides facilities-based competitors that
physically interconnect with Ameritech access to the 911 database in a
manner that is at parity with the access it provides itself. In
addition to these parity issues, the Commission expresses concerns
regarding Ameritech's efforts to detect and remedy
[[Page 44971]]
errors in competitors' end user 911 data and in the proper functioning
of competitors' trunking facilities.
8. Compliance with Section 272. In addition to making findings
regarding Ameritech's compliance with section 271(c)(1)(A) and with the
competitive checklist, the Commission addresses, pursuant to section
271(d)(3)(B), whether Ameritech has demonstrated that the requested
authorization will be carried out in accordance with section 272. The
Commission concludes that, based on its current and past behavior,
Ameritech has failed to demonstrate that it will carry out the
requested authorization in accordance with the requirements of section
272.
9. Specifically, the Commission concludes that Ameritech's
corporate structure is not in compliance with the section 272(b)(3)
requirement that its interLATA affiliate (ACI) maintain ``separate''
directors from the operating company (Ameritech Michigan). In
particular, the Commission finds that under Delaware and Michigan
corporate law, Ameritech Corporation has the duties, responsibilities,
and liabilities of a director for both ACI and Ameritech Michigan. As a
result, ACI lacks the independent management intended by the separate
director requirement.
10. Additionally, the Commission concludes that Ameritech has
failed to demonstrate that it will carry out the requested
authorization in accordance with the section 272(b)(5) requirements
that all transactions between Ameritech Michigan and ACI be conducted
on an arm's length basis, be reduced to writing, and be available for
public inspection. Specifically, the Commission finds that Ameritech
has failed to disclose publicly the rates for all of the transactions
between Ameritech and ACI. Moreover, it appears that Ameritech and ACI
have not disclosed publicly all of their transactions as required by
section 272(b)(5). Accordingly, if Ameritech continues its present
behavior, and does not remedy these problems, it would not be in
compliance with the requirements of section 272(b)(5).
11. Public Interest. Based on the Commission's conclusions that
Ameritech has not implemented fully the competitive checklist and has
not complied with the requirements of section 272, the Commission
denies Ameritech's application for authorization to provide in-region,
interLATA telecommunications services in Michigan. As a result, the
Commission need not reach the further question of whether the requested
authorization is consistent with the public interest, convenience and
necessity, as required by section 271(d)(3)(C). The Commission
believes, however, that, provided the competitive checklist, public
interest, and other requirements of section 271 are satisfied, BOC
entry into the long distance market will further Congress' objectives
of promoting competition and deregulation of telecommunication markets.
In order to expedite such entry, the Commission believes it would be
useful to identify certain issues for the benefit of future applicants
and commenting parties, including the relevant state commission and the
Department of Justice, relating to the meaning and scope of the public
interest inquiry mandated by Congress. Accordingly, the Commission
identifies the various factors it will consider and balance in
undertaking a public interest analysis. The Commission notes that the
presence or absence of any one factor will not dictate the outcome of
its public interest inquiry. The Commission emphasizes, however, that
it is not examining the public interest showing made in Ameritech's
application, nor is the discussion intended to be an exhaustive
analysis of the scope of the Commission's public interest inquiry
generally.
12. Other Matters. In order to provide guidance to Ameritech, the
Department of Justice, the Michigan Public Service Commission, and
other interested parties, the Commission briefly addresses, but does
not make any findings with respect to, certain other matters raised in
the record. These matters include: the pricing requirements of the
competitive checklist; Ameritech's compliance with remaining checklist
requirements; Ameritech's inbound telemarketing script; Ameritech's
intraLATA toll service; and access to customer proprietary network
information.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-22548 Filed 8-22-97; 8:45 am]
BILLING CODE 6712-01-P