S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION * * * * * In the matter of the petition of ) ACD TELECOM, INC., ARIALINK TELECOM, ) LLC, CYNERGYCOMM.NET, INC., DAYSTARR) LLC, LUCRE, INC., MICHIGAN ACCESS, INC., ) OSIRUS COMMUNICATIONS, INC., SUPERIOR) SPECTRUM TELEPHONE AND DATA, LLC, ) TC3 TELECOM, INC., and TELNET ) Case No. WORLDWIDE, INC. for arbitration of inter- ) connection rates, terms, conditions, and related ) arrangements with MICHIGAN BELL ) TELEPHONE COMPANY d/b/a AT&T ) MICHIGAN. ) ) At the September 25, 2012 meeting of the Michigan Public Service Commission in Lansing, Michigan. PRESENT: Hon. John D. Quackenbush, Chairman Hon. Orjiakor N. Isiogu, Commissioner Hon. Greg R. White, Commissioner ORDER ON REHEARING On October 24, 2011, competitive local exchange carriers (CLECs) ACD Telecom, Inc., Arialink Telecom, LLC, CynergyComm.Net, Inc., DayStarr LLC, Lucre, Inc., Michigan Access, Inc., Osirus Communications, Inc., Superior Spectrum Telephone and Data, LLC, TC3 Telecom, Inc., and Telnet Worldwide, Inc., (collectively, the CLECs) filed a petition seeking arbitration of terms and conditions of an interconnection agreement with AT&T Michigan. The parties followed the process set up by the arbitration panel, and on January 9, 2012, the arbitration panel issued its decision (DAP). Following the filing of objections to the DAP, the Commission issued an order
on February 15, 2012, adopting, with certain modifications, the findings and conclusions of the DAP. Concerning those issues for which the Commission found neither party submitted reasonable language, the order directed the parties to continue negotiations, submitting their last best proposals to the Commission for resolution of any remaining dispute. On March 16, 2012, AT&T Michigan and the CLECs filed petitions for rehearing of certain issues resolved in the February 15, 2012 order and documents concerning the results of the continued negotiations. On April 6, 2012, AT&T Michigan and the CLECs each filed responses to the petitions for rehearing. On April 27, 2012, the CLECs withdrew their rehearing petition. On July 30, 2012, the Commission issued an order (July 30 order) dealing with AT&T Michigan s petition for rehearing and resolving the remaining issues upon which the parties had been instructed to negotiate. The Commission ordered the parties to submit conforming interconnection agreements within 45 days of the July 30 order. 1 On August 30, 2012, AT&T Michigan filed a petition for rehearing or for clarification of the Commission s July 30 order with respect to Resale Sections 7.7.5.2 and 7.7.5.2.1. Those sections relate to the permissible term length of resold services under individual case basis (ICB) contracts. The former applies to those contracts sought to be resold when in their original term, the latter to ICB contracts in a renewal term. On September 19, 2012, the CLECs filed a response to AT&T Michigan s petition for rehearing in which they argue that the petition fails to meet the standards set out in Rule 403 and should be denied. 1 The Commission notes that conforming interconnection agreements have been submitted by the parties and are the subject of a separate order issued today. Page 2
Discussion Rule 403 of the Commission s Rules of Practice and Procedure, 1999 AC, R 460.17403, provides that a petition for rehearing may be based on claims of error, newly discovered evidence, facts or circumstances arising after the hearing, or unintended consequences resulting from compliance with the order. A petition for rehearing is not merely another opportunity for a party to argue a position or to express disagreement with the Commission s decision. Unless a party can show the decision to be incorrect or improper because of errors, newly discovered evidence, or unintended consequences of the decision, the Commission will not grant a rehearing. AT&T Michigan argues that the wording the Commission approved in the July 30 order would require AT&T Michigan to provide service under a resold contract after the underlying contract had expired. Specifically, AT&T Michigan objects to the Commission s approval of the following language from those two sections: The term length of the CLEC offering of the service shall be equal to the length of AT&T s underlying ICB contract with its end user. [Section 7.7.5.2] The term length shall be equal to the length of the renewal term of AT&T s underlying ICB contract with its end user. [Section 7.7.5.2.1] AT&T Michigan argues that 47 USC 251(c)(4) imposes on AT&T Michigan the duty to offer for resale at wholesale rates any telecommunications service that the carrier provides at retail to subscribers who are not telecommunications carriers. It argues that because the word provides is in the present tense, it would be unlawful for the Commission to require AT&T Michigan to provide service under a resold contract beyond the termination date of the underlying ICB contract (or renewal period) with its retail customer. AT&T Michigan argues that the Commission has two options to cure the alleged defect from the July 30 order. It proposes that the Commission alter the approved language to read: The term Page 3
length of the CLEC offering of the service shall be equal to the remaining term of AT&T s underlying ICB contract with its end user. AT&T Michigan s rehearing petition, p. 4. Alternatively, it argues the Commission could leave the approved language as is, but clarify that those provisions will be interpreted to mean that the contract term for any resold ICB contract will end at the time that the underlying ICB contract terminates. The CLECs respond that the Commission s July 30 order as it relates to Resale Issue 4(l), creates no unintended or unlawful consequences. They note that during negotiations, the parties disagreed concerning the freshness of ICB contracts for reselling purposes. The parties proposed competing language, and the Commission approved the language proposed by the CLECs as the most reasonable. They argue that AT&T Michigan failed to use its opportunity to respond to the portion of the CLECs proposed language to which it now objects prior to the issuance of the July 30 order. They argue that AT&T Michigan now takes the position that when a CLEC resells telecommunications services provided under an ICB contract that has a term requirement, the CLECs should be permitted to resell such service only for the remaining term of the ICB contract. This position, the CLECs point out, is opposite to the position AT&T Michigan took concerning the similarly situated issue that the CLEC s customer must agree to whatever length of contract AT&T Michigan s retail customer accepted. They point out that AT&T Michigan s stated reason for its position was that price reductions may be supported by the length of contract term to which the customer has agreed. See, AT&T Michigan s proposed language for Resale Section 7.7.2.2. In order to meet the similarly situated requirement as defined in that section, the CLECs argue, they must be permitted to resell the ICB service for the same length of time. Otherwise, AT&T Michigan could argue that there is never a time when the CLECs ICB customer is similarly situated to AT&T Michigan s ICB retail customer. Page 4
As to the argument under 47 USC 251(c)(4), the CLECs maintain that use of the present tense provides relates to the time at which the CLEC seeks to begin reselling the ICB contract. In this case, the Commission approved language limiting the reselling of services under an ICB contract to the first half of either the original contract term, or the first half of a renewal term. The CLECs argue that adopting AT&T Michigan s position would have unlawful and absurd results. No ICB contract services could be resold, and if they were, the language proposed by AT&T Michigan would leave the actual term undeterminable, because the parties to the underlying ICB contract could agree to an early termination. Thus, the CLECs argue, AT&T Michigan s position would leave the availability of the ICB contract services vulnerable to the whims of AT&T and its customer. CLECs response, p. 7. Therefore, for all these reasons, the CLECs urge the Commission to deny the petition for rehearing. The Commission finds that AT&T Michigan s petition for rehearing should be denied. AT&T Michigan had an opportunity to raise whatever issue it desired concerning the proposed language before the Commission issued its July 30 order. Moreover, the Commission finds no unintended or unlawful consequences resulting from its previous determinations. It is telling that adopting AT&T Michigan s position on this issue would set up an inconsistency within the interconnection agreement that could prohibit any resale of the ICB contract services. If the customer must agree to the same term length, but that term length is not available due to the requested adjustment in language, there would be no way for the customer to meet the base line requirement. The Commission s July 30 order follows the adopted arbitration process, using a baseballstyle arbitration and choosing the language that was most reasonable, when reasonable language Page 5
was supplied. The Commission finds that there is no reason to either grant rehearing or clarify the previously approved provisions. denied. THEREFORE, IT IS ORDERED that the rehearing petition filed by AT&T Michigan is The Commission reserves jurisdiction and may issue further orders as necessary. Any party aggrieved by this order may file an action in the appropriate federal District Court pursuant to 47 USC 252(e)(6). MICHIGAN PUBLIC SERVICE COMMISSION John D. Quackenbush, Chairman Orjiakor N. Isiogu, Commissioner By its action of September 25, 2012. Greg R. White, Commissioner Mary Jo Kunkle, Executive Secretary Page 6
P R O O F O F S E R V I C E STATE OF MICHIGAN ) Case No. County of Ingham ) Alyssa Sherman being duly sworn, deposes and says that on September 25, 2012 A.D. she served a copy of the attached Commission order by first class mail, postage prepaid, or by inter-departmental mail, to the persons as shown on the attached service list. Subscribed and sworn to before me This 25 th day of September 2012 Alyssa Sherman Gloria Pearl Jones Notary Public, Ingham County, MI My Commission Expires June 5, 2016 Acting in Eaton County
Service List ACD Telecom, Inc. Kevin Schoen, President 1800 N. Grand River Avenue, Suite 1 Lansing MI 48906-6200 Arialink Telecom, L.L.C. Jason Schreiber 230 N. Washington Square Lansing MI 48933 COMPTEL Mary C. Albert 900 17th Street N.W., Suite 400 Washington DC 20006 CynergyComm.Net, Inc., d/b/a UTMI.net Scott Baldwin 2900 Preserve Blvd. Panama City Beach FL 32408 Daystarr, LLC, d/b/a Daystarr Communications Collin J. Rose, President 321 N. Shiawassee Street P.O. Box 250 Corunna MI 48817 Sharon L. Feldman DLARA/MAHS - MPSC Hearings Constitution Hall - North Tower 525 W. Allegan, 3rd Floor Lansing MI 48913 Gary L. Field Field Law Group PLLC 3493 Woods Edge Dr., Ste. 100 Okemos MI 48864-5985 Gary A. Gensch, Jr. Field Law Group PLLC 3493 Woods Edge Dr., Ste. 100 Okemos MI 48864-5985 Lucre, Inc. R. Steven Hale 4011 Plainfield, NE Grand Rapids MI 49525 Michigan Access, Inc. Glenn Wilson, President 380 E. Borden Road Rose City MI 48654
Service List Osirus Communications Inc. 212 E. Grand River Avenue Lansing MI 48906 Superior Spectrum Telephone and Data, LLC Mark Iannuzzi 1175 W. Long Lake Road Suite 101 Troy MI 49098 TC3 Telecom, Inc. a/k/a Three Rivers Telecom, Inc. Joseph P. Mattausch, President 247 S. Main Street Adrian MI 49221 TelNet Worldwide, Inc. d/b/a Superior Spectrum Inc. and d/b/a Superior Spectrum Communications Mark Iannuzzi, President 1175 W. Long Lake Road, Suite 101 Troy MI 48098-4443