Table of Contents

VI. METHODS OF OBTAINING INTERCONNECTION AND ACCESS TO UNBUNDLED ELEMENTS

542. In this section, we address the means of achieving interconnection and access to unbundled network elements that incumbent LECs are required to make available to requesting carriers.

A. Overview

1. Background

543. Section 251(c)(2) requires incumbent LECs to provide interconnection with the LEC's network "for the facilities and equipment of any requesting telecommunications carrier."⁽¹⁾ Section 251(c)(6) imposes upon incumbent LECs "the duty to provide . . . for physical collocation of equipment necessary for interconnection or access to unbundled network elements at the premises of the [LEC], except that the carrier may provide for virtual collocation if the [LEC] demonstrates to the State commission that physical collocation is not practical for technical reasons or because of space limitations."⁽²⁾ In the NPRM, we noted that section 251(c)(6) does not expressly limit the Commission's authority under section 251(c)(2) to establish rules requiring incumbent LECs to make available a variety of methods of interconnection, except in situations where the incumbent can demonstrate to the state commission that physical collocation is not practical for technical reasons or space limitations. We tentatively concluded that the Commission has the authority to require any reasonable method of interconnection, including physical collocation, virtual collocation, and meet point interconnection arrangements.⁽³⁾

2. Comments

544. Many parties agree with our tentative conclusion that we have the authority to require any reasonable method of interconnection.⁽⁴⁾ The Illinois Commission states that the purpose of 251(c)(6) is to eliminate any question about the Commission's authority to require physical collocation, and not to limit the type of interconnection incumbent LECs are required to provide under 251(c)(2).⁽⁵⁾

545. CAPs and IXCs argue that incumbent LECs should be required to offer competitive entrants the choice between physical and virtual collocation, regardless of whether it is practical to offer physical collocation at a particular LEC premises.⁽⁶⁾ Consumer Federation of America and the Consumers Union argue that the Commission can and should order physical and virtual collocation.⁽⁷⁾ MCI contends that interconnectors have the right to choose virtual or physical collocation, or both, and should have the right to switch from one arrangement to another while paying only the actual costs of such a change.⁽⁸⁾ Sprint argues that the authority to require physical collocation necessarily includes the authority to require less invasive forms of collocation, such as virtual.⁽⁹⁾ Hyperion contends that small carriers lack the financial resources to make the economic investment necessary for physical collocation at every end office. Hyperion suggests that permitting new entrants to request virtual or physical collocation, depending upon their requirements would encourage competition.⁽¹⁰⁾ ACTA asserts that the cost of converting existing virtual collocation arrangements to physical should be borne by the incumbent LEC.⁽¹¹⁾

546. Several parties urge the Commission to require interconnection at "meet points."⁽¹²⁾ Teleport states that incumbent LECs currently provide meet point interconnection arrangements between one another's facilities and are thus obligated to provide such arrangements to others.⁽¹³⁾ Teleport also claims that requiring meet point arrangements would be pro-competitive because it would allow competitors the flexibility to construct more efficient networks by eliminating the need to match the incumbent LEC's network.⁽¹⁴⁾

547. Incumbent LECs respond that the statute does not give the Commission authority to require virtual collocation in addition to physical collocation.⁽¹⁵⁾ Ameritech argues that Congress specifically addressed collocation in section 251(c)(6), and that it would be inappropriate to mandate virtual collocation pursuant to the general duty under section 251(c)(2) to provide interconnection. It contends that, under principles of statutory construction, the specific language of section 251(c)(6), which provides for virtual collocation only where physical collocation is not practical, should govern the general language of section 251(c)(2).⁽¹⁶⁾

548. GTE claims that section 251(c)(2) does not provide for any Commission role in specifying acceptable forms of interconnection.⁽¹⁷⁾ Bell Atlantic and BellSouth claim that meet point interconnection arrangements are very complex and should not be mandated by the Commission or the states, but rather left to the negotiation process.⁽¹⁸⁾ PacTel argues that incumbent LECs should not be required to develop new network capabilities or expand current network facilities to interconnect with competitors.⁽¹⁹⁾

3. Discussion

549. We conclude that, under sections 251(c)(2) and 251(c)(3), any requesting carrier may choose any method of technically feasible interconnection or access to unbundled elements at a particular point. Section 251(c)(2) imposes an interconnection duty at any technically feasible point; it does not limit that duty to a specific method of interconnection or access to unbundled elements.

550. Physical and virtual collocation are the only methods of interconnection or access specifically addressed in section 251. Under section 251(c)(6), incumbent LECs are under a duty to provide physical collocation of equipment necessary for interconnection unless the LEC can demonstrate that physical collocation is not practical for technical reasons or because of space limitations. In that event, the incumbent LEC is still obligated to provide virtual collocation of interconnection equipment. Under section 251, the only limitation on an incumbent LEC's duty to provide interconnection or access to unbundled elements at any technically feasible point is addressed in section 251(c)(6) regarding physical collocation. Unless a LEC can establish that the specific technical or space limitations in subsection (c)(6) are met with respect to physical collocation, we conclude that incumbent LECs must provide for any technically feasible method of interconnection or access requested by a competing carrier, including physical collocation.⁽²⁰⁾ If, for example, we interpreted section 251(c)(6) to limit the means of interconnection available to requesting carriers to physical and virtual collocation, the requirement in section 251(c)(2) that interconnection be made available "at any technically feasible point" would be narrowed dramatically to mean that interconnection was required only at points where it was technically feasible to collocate equipment. We are not pursuaded that Congress intended to limit interconnection points to locations only where collocation is possible.

551. Section 251(c)(6) provides the Commission with explicit authority to mandate physical collocation as a method of providing interconnection or access to unbundled elements. Such authority was previously found lacking by the U.S. Court of Appeals for the D.C. Circuit in Bell Atlantic v. FCC,⁽²¹⁾ which was decided prior to enactment of the 1996 Act. While section 251(c)(6) limits an incumbent LEC's duty to provide physical collocation in certain circumstances, we find that it does not limit our authority to require, under sections 251(c)(2) and (c)(3), the provision of virtual collocation. We note that under our Expanded Interconnection rules, that were amended subsequent to the Bell Atlantic decision, competitive entrants using physical collocation were required by many incumbent LECs to convert to virtual collocation. If the Commission concluded that subsection (c)(6) places a limitation on our authority to require virtual collocation, competitive providers would be required to undertake costly and burdensome actions to convert back to physical collocation even if they were satisfied with existing virtual collocation arrangements. We conclude that Congress did not intend to impose such a burden on requesting carriers that wish to continue to use virtual collocation for purposes of section 251(c). Further, the record indicates that this requirement would be costly and would delay competition.⁽²²⁾ In short, we conclude that, in enacting section 251(c)(6), Congress intended to expand the interconnection choices available to requesting carriers, not to restrict them.

552. We also conclude that requiring incumbent LECs to provide virtual collocation and other technically feasible methods of interconnection or access to unbundled elements is consistent with Congress's desire to facilitate entry into the local telephone market by competitive carriers. In certain circumstances, competitive carriers may find, for example, that virtual collocation is less costly or more efficient than physical collocation. We believe that this may be particularly true for small carriers which lack the the financial resources to physically collocate equipment in a large number of incumbent LEC premises.⁽²³⁾ Moreover, since requesting carriers will bear the costs of other methods of interconnection or access, this approach will not impose an undue burden on the incumbent LECs.

553. Consistent with this view, other methods of technically feasible interconnection or access to incumbent LEC networks, such as meet point arrangements, in addition to virtual and physical collocation, must be available to new entrants upon request.⁽²⁴⁾ Meet point arrangements (or mid-span meets), for example, are commonly used between neighboring LECs for the mutual exchange of traffic, and thus, in general, we believe such arrangements are technically feasible.⁽²⁵⁾ Further, although the creation of meet point arrangements may require some build out of facilities by the incumbent LEC, we believe that such arrangements are within the scope of the obligations imposed by sections 251(c)(2) and 251(c)(3). In a meet point arrangement, the "point" of interconnection for purposes of sections 251(c)(2) and 251(c)(3) remains on "the local exchange carrier's network"⁽²⁶⁾ (e.g., main distribution frame, trunk-side of the switch), and the limited build-out of facilities from that point may then constitute an accommodation of interconnection.⁽²⁷⁾ In a meet point arrangement each party pays its portion of the costs to build out the facilities to the meet point. We believe that, although the Commission has authority to require incumbent LECs to provide meet point arrangements upon request, such an arrangement only makes sense for interconnection pursuant to section 251(c)(2) but not for unbundled access under section 251(c)(3). New entrants will request interconnection pursuant to section 251(c)(2) for the purpose of exchanging traffic with incumbent LECs. In this situation, the incumbent and the new entrant are co-carriers and each gains value from the interconnection arrangement. Under these circumstances, it is reasonable to require each party to bear a reasonable portion of the economic costs of the arrangement. In an access arrangement pursuant to section 251(c)(3), however, the interconnection point will be a part of the new entrant's network and will be used to carry traffic from one element in the new entrant's network to another. We conclude that in a section 251(c)(3) access situation, the new entrant should pay all of the economic costs of a meet point arrangement. Regarding the distance from an incumbent LEC's premises that an incumbent should be required to build out facilities for meet point arrangements, we believe that the parties and state commissions are in a better position than the Commission to determine the appropriate distance that would constitute the required reasonable accommodation of interconnection.

554. Finally, in accordance with our interpretation of the term "technically feasible," we conclude that, if a particular method of interconnection is currently employed between two networks, or has been used successfully in the past, a rebuttable presumption is created that such a method is technically feasible for substantially similar network architectures. Moreover, because the obligation of incumbent LECs to provide interconnection or access to unbundled elements by any technically feasible means arises from sections 251(c)(2) and 251(c)(3), we conclude that incumbent LECs bear the burden of demonstrating the technical infeasibility of a particular method of interconnection or access at any individual point.

B. Collocation

1. Collocation Standards

a. Adoption of National Standards

(1). Background

555. In the NPRM we tentatively concluded that we should adopt national rules for virtual and physical collocation. This tentative conclusion was based on the belief that national standards would help to speed the development of competition.⁽²⁸⁾ We also sought comment on specific national standards that we might adopt, and on whether any specific state approaches would serve as an appropriate model.⁽²⁹⁾

(2). Comments

556. Incumbent LECs and state commissions argue that collocation is a state matter and that terms and conditions for collocation should be negotiated between the parties⁽³⁰⁾ or determined by the states.⁽³¹⁾ Some parties recommend that, to the extent national guidelines are necessary, the Commission should readopt the standards established in the Expanded Interconnection proceeding.⁽³²⁾ Teleport and the New York Commission suggest that, if we adopt rules, we should use the New York Commission's "comparably efficient interconnection" standard as a model.⁽³³⁾ The Alabama and Missouri Commissions support the approach to interconnection that each adopted in their respective states.⁽³⁴⁾ Pacific Telesis supports California's "preferred outcomes approach."⁽³⁵⁾

557. Competitive providers generally favor national standards for collocation.⁽³⁶⁾ MFS argues that Congress did not intend for the states to have a policy role in collocation matters, and that unambiguous national guidelines are needed to prevent incumbent LECs from engaging in discriminatory practices and to avoid duplicative litigation in multiple forums.⁽³⁷⁾

(3). Discussion

558. We conclude that we should adopt explicit national rules to implement the collocation requirements of the 1996 Act. We find that specific rules defining minimum requirements for nondiscriminatory collocation arrangements will remove barriers to entry by potential competitors and speed the development of competition. Our experience in the Expanded Interconnection proceeding indicates that incumbent LECs have an economic incentive to interpret regulatory ambiguities to delay entry by new competitors.⁽³⁸⁾ We and the states should therefore adopt, to the extent possible, specific and detailed collocation rules. We find, however, that states should have flexibility to apply additional collocation requirements that are otherwise consistent with the 1996 Act and our implementing regulations.

b. Adoption of Expanded Interconnection Terms and Conditions for Physical and Virtual Collocation under Section 251

(1). Background

559. In our Expanded Interconnection proceeding, we required LECs to offer expanded interconnection to all interested parties, which allowed competitors and end users to terminate their own special access and switched transport access transmission facilities at LEC central offices.⁽³⁹⁾ We required Tier 1 LECs⁽⁴⁰⁾ to offer physical collocation, with the interconnecting party paying the LEC for central office floor space.⁽⁴¹⁾ We required that LECs provide space to interested parties on a first-come first-served basis, and that they provide virtual collocation when space for physical collocation is exhausted.⁽⁴²⁾ Under virtual collocation, interconnectors are allowed to designate central office transmission equipment dedicated to their use, as well as to monitor and control their circuits terminating in the LEC central office. Interconnectors, however, do not pay for the incumbent's floor space under virtual collocation arrangements and have no right to enter the LEC central office. Under our virtual collocation requirements, LECs must install, maintain, and repair interconnector-designated equipment under the same intervals and with the same or better failure rates for the performance of similar functions for comparable LEC equipment.⁽⁴³⁾

560. In the Expanded Interconnection proceeding, we required the LECs to file tariffs to implement our virtual and physical collocation requirements. Our initial review of the LECs' tariffs raised significant concerns regarding the LECs' provision of physical and virtual collocation.⁽⁴⁴⁾ Consequently, the Bureau partially suspended the rates proposed by many of the LECs and allowed these rates to take effect subject to investigation and an accounting order.

561. In 1994, the U.S. Court of Appeals for the District of Columbia Circuit found that the FCC lacked the authority under section 201 of the 1934 Communications Act to require physical collocation and remanded all other issues to the Commission.⁽⁴⁵⁾ On remand, we adopted rules for both special access and switched transport that required LECs to provide either virtual or physical collocation, at the LECs' option.⁽⁴⁶⁾ Those rules currently are in place, although the court of appeals remanded the Remand Order to us to consider the impact of the 1996 Act on those rules.⁽⁴⁷⁾ In the 1996 Act, Congress specifically directed incumbent LECs to provide physical collocation for interconnection and access to unbundled network elements, absent technical or space constraints, pursuant to section 251(c)(6) of the Communications Act.⁽⁴⁸⁾

562. We sought comment in the NPRM on whether, for purposes of implementing physical and virtual collocation under section 251, we should readopt the standards set out in our Expanded Interconnection proceeding and, if so, how to adapt those standards to reflect the new statutory requirements and other policy considerations of the 1996 Act.⁽⁴⁹⁾

(2). Comments

563. To the extent parties addressed the substantive content of national rules, most favor readoption of the Expanded Interconnection rules. Assuming that national standards are to be adopted, several state commissions and a number of incumbent LECs generally favor readoption of our Expanded Interconnection requirements because they were developed based on an extensive record.⁽⁵⁰⁾ BellSouth, in contrast, argues that the Commission's Expanded Interconnection rules are no longer necessary under the 1996 Act, because parties should be free to negotiate agreements between themselves without being governed by FCC rules.⁽⁵¹⁾ SBC and Pacific Telesis argue that physical collocation should be negotiated in order to allow parties to address unique requirements.⁽⁵²⁾ Cincinnati Bell argues that the FCC should not establish regulations regarding services that are ancillary to collocation such as rent, insurance, and equipment maintenance, because they are not activities within the purview of Title II of the Communications Act.⁽⁵³⁾

564. CAPs and IXCs also generally favor readoption of our Expanded Interconnection requirements.⁽⁵⁴⁾ Several commenters advocate specific amendments that they believe are required by the 1996 Act or by intervening circumstances.⁽⁵⁵⁾ MFS, however, argues that the purposes of the 1996 Act are much broader than those of the Expanded Interconnection proceedings and that the collocation standards under section 251 should reflect this difference.⁽⁵⁶⁾ MCI contends that existing collocation rules, terms, and conditions should be significantly modified.⁽⁵⁷⁾ Teleport asserts that the Commission should require all incumbent LECs to refile with the FCC their most recent physical collocation tariffs, subject to the previously applicable accounting orders.⁽⁵⁸⁾

(3). Discussion

565. We conclude that we should adopt the existing Expanded Interconnection requirements, with some modifications, as the rules applicable for collocation under section 251.⁽⁵⁹⁾ Those rules were established on the basis of an extensive record in the Expanded Interconnection proceeding, and are largely consistent with the requirements of section 251(c)(6). Adoption of those requirements for purposes of collocation under section 251, moreover, has substantial support in the record of this proceeding. Thus, the standards established for physical and virtual collocation in our Expanded Interconnection proceeding will generally apply to collocation under section 251. The most significant requirements of Expanded Interconnection are specifically set out in rules we adopt here. We address pricing and rate structure issues separately, in section VII below.

566. We find, however, that certain modifications to our Expanded Interconnection requirements are necessary to account for specific provisions of section 251(c)(6) and service arrangements that differ from those contemplated in our Expanded Interconnection orders.⁽⁶⁰⁾ For example, the Expanded Interconnection requirements apply to Tier 1 LECs that are not NECA pool members, and section 251 applies to "incumbent LECs," though there is an exemption for certain rural carriers.⁽⁶¹⁾ Expanded Interconnection also allows end-users to interconnect their equipment, while section 251 requires that interconnection and access to unbundled network elements be provided to "any requesting telecommunications carrier."⁽⁶²⁾ Accordingly, we set forth below several modifications to the terms and conditions for collocation as they are described in our Expanded Interconnection orders for application in implementing section 251. We believe that, in light of the expedited statutory time frame for this rulemaking and limited record addressing the specific terms and conditions for collocation under section 251 in this proceeding, it would be impractical and imprudent to develop a large number of new substantive collocation requirements in this order. We may consider the need for additional or different requirements in a subsequent proceeding, if we determine that such action is warranted.

567. The most significant difference between the Expanded Interconnection rules and the collocation rules we adopt to implement the 1996 Act concerns the collocation tariffing requirement. As discussed below, the 1996 Act does not require that collocation be federally tariffed.⁽⁶³⁾ We thus do not adopt, under section 251, the Expanded Interconnection tariffing requirements originally adopted under section 201 for physical and virtual collocation. The existing tariffing requirements of Expanded Interconnection for interstate special access and switched transport will continue to apply for use by customers that wish to subscribe to those interstate services.⁽⁶⁴⁾

568. We reject SBC's contention that we may not adopt any terms and conditions in this proceeding that differ from those in the Expanded Interconnection proceeding. SBC argues that Congress intended, in section 251(c)(6), to use the term "physical collocation" as a term of art, and thereby to adopt wholesale the terms and conditions for physical collocation that the Commission adopted in the Expanded Interconnection proceeding. A variety of terms and conditions for physical collocation are possible and section 251(c)(6) makes no reference to the Commission's decisions on these issues in the Expanded Interconnection proceeding. If Congress had intended to readopt those rules wholesale without permitting the Commission any flexibility in the matter, we believe that Congress would have been more explicit rather than merely using the phrase "physical collocation." Thus, we believe that we can and should modify our preexisting standards, as set forth below, for purposes of implementing the provisions of section 251(c)(6). In the following sections (c. - i.) we address comments filed by interested parties concerning application of our existing Expanded Interconnection requirements for purposes of collocation under section 251.⁽⁶⁵⁾

569. Finally, our experience reviewing the tariffs that incumbent LECs filed to implement our requirements for physical and virtual collocation suggests that rates, terms, and conditions under which incumbent LECs propose to provide these arrangements pursuant to section 251(c)(6) bear close scrutiny.⁽⁶⁶⁾ We strongly urge state commissions to be vigilant in their review of such arrangements.⁽⁶⁷⁾ We will review this issue and revise our requirements as necessary.

c. The Meaning of the Term "Premises"

(1). Background

570. In the Expanded Interconnection proceeding, we required collocation at end offices, serving wire centers, and tandem switches, as well as at remote distribution nodes and any other points that the LEC treats as a "rating point."⁽⁶⁸⁾ Section 251(c)(6) requires physical collocation "at the premises of the local exchange carrier."⁽⁶⁹⁾ In the NPRM, we tentatively concluded that the term "premises" includes, in addition to LEC central offices and tandem offices, all buildings or similar structures owned or leased by the incumbent LEC that house LEC network facilities. We sought comment on whether structures that house LEC network facilities on public rights-of-way, such as vaults containing loop concentrators or similar structures, should be deemed to be LEC "premises."⁽⁷⁰⁾

(2). Comments

571. Incumbent LECs generally argue that collocation is infeasible at locations other than central offices, tandem switching locations, and remote nodes, and that only such locations should be included in the interpretation of the word "premises."⁽⁷¹⁾ Pacific Telesis argues that points for collocation cannot be determined until the Commission determines the points of interconnection and access to unbundled network elements.⁽⁷²⁾ Ameritech contends that we should define the term "premises" as only those portions of central office buildings in which the LEC has the exclusive right of occupancy and in which the technically feasible point of interconnection or access to unbundled elements is located.⁽⁷³⁾ The Rural Tel. Coalition asks that interconnection and collocation points be established in a flexible manner to recognize size and volume differences among carriers.⁽⁷⁴⁾

572. CAPs and IXCs generally favor an expansive definition of the term "premises" that includes "structures housing LEC network facilities on public rights-of-way including vaults containing loop concentrators or similar structures."⁽⁷⁵⁾ These commenters argue that physical collocation should be offered at any incumbent LEC location where physical collocation is technically feasible, including central offices, cable vaults, manholes, cross-connect points, loop carrier, and building closets.⁽⁷⁶⁾ ALTS and MFS contend that assertions of technical infeasibility should be addressed in fact-specific situations and should not narrow the general application of section 251(c)(6).⁽⁷⁷⁾ The Illinois Commission supports our tentative conclusion and argues that collocation should not be restricted to central and tandem offices.⁽⁷⁸⁾

(3). Discussion

573. The 1996 Act does not address the definition of premises, nor is the term discussed in the legislative history. Therefore, we look to the purposes of the 1996 Act and general uses of the term "premises" in other contexts in order to define this term for purposes of section 251(c)(6). The term "premises" is defined in varying ways, according to the context in which it is used.⁽⁷⁹⁾ In light of the 1996 Act's procompetitive purposes, we find that a broad definition of the term "premises" is appropriate in order to permit new entrants to collocate at a broad range of points under the incumbent LEC's control. A broad definition will allow collocation at points other than those specified for collocation under the existing Expanded Interconnection requirements. We find that this result is appropriate because the purposes of physical and virtual collocation under section 251 are broader than those established in the Expanded Interconnection proceeding. We therefore interpret the term "premises" broadly to include LEC central offices, serving wire centers and tandem offices, as well as all buildings or similar structures owned or leased by the incumbent LEC that house LEC network facilities. We also treat as incumbent LEC premises any structures that house LEC network facilities on public rights-of-way, such as vaults containing loop concentrators or similar structures.

574. As discussed below, we conclude that section 251(c)(6) requires collocation only where technically feasible. In light of this conclusion, we find that adoption of a definition of "premises" that depends on whether interconnection or access to unbundled network elements at a particular point is "technically feasible," as suggested by Ameritech and Pacific Telesis, would be superfluous. We also conclude that it is not appropriate to adopt a definition of "premises," as suggested by several parties, that is dependent on whether it is "practical" to collocate equipment at a particular point. We note however, that neither physical nor virtual collocation is required at points where not technically feasible.⁽⁸⁰⁾ We therefore decline to adopt specific requirements regarding collocation at particular points in the LEC network, as suggested by GVNW and others. Because collocation is only required where technically feasible, the approach we here adopt will enable competitors to take advantage of opportunities to collocate equipment without imposing undue burdens on incumbent LECs, whether large or small.

575. We also address the impact on small incumbent LECs. For example, the Rural Tel. Coalition asks that interconnection and collocation points be established in a flexible manner. We have considered the economic impact of our rules in this section on small incumbent LECs. For example, we do not adopt rigid requirements for locations where collocation must be provided. Incumbent LECs are not required to physically collocate equipment in locations where not practical for technical reasons or because of space limitations, and virtual collocation is required only where technically feasible. We also note, however, that section 251(f) of the 1996 Act provides relief to certain small LECs from our regulations implementing section 251.⁽⁸¹⁾

d. Collocation Equipment

(1). Background

576. In the Expanded Interconnection proceeding, we allowed collocation for central office equipment needed to terminate basic transmission facilities between LEC central offices and third-party premises. Acceptable equipment included optical terminating equipment and multiplexers. We did not require the LECs to permit collocation of enhanced services equipment or customer premises equipment because such equipment was not necessary to foster competition in the provision of basic transmission services. We also did not require LECs to allow the collocation of switches.⁽⁸²⁾ Section 251(c)(6) requires incumbent LECs to allow collocation of "equipment necessary for interconnection or access to unbundled elements . . . ."⁽⁸³⁾ We sought comment in the NPRM on what types of equipment competitors should be permitted to collocate on LEC premises.⁽⁸⁴⁾

(2). Comments

577. BOCs and other incumbent LECs generally favor limiting the type of equipment allowed to be collocated to transmission equipment necessary to interconnect to LEC networks.⁽⁸⁵⁾ Sprint argues that incumbent LECs should be permitted to limit the amount of space they have to provide to that needed for equipment necessary for the particular type of interconnection that is taking place.⁽⁸⁶⁾ IXCs and CAPs argue that any type of equipment may be collocated absent demonstrable harm to the LEC, and that any arbitrary limit on the types of equipment to be collocated could foreclose efficient methods of interconnection and/or access to unbundled elements.⁽⁸⁷⁾ MFS contends that competing providers should not be required to demonstrate affirmatively that equipment is "necessary" before allowing it to be collocated. The Illinois Commission supports a policy that would not restrict the type of equipment to be collocated except where necessary to prevent harm to the network. The Colorado Commission supports limiting allowable equipment to that used to provide a telecommunications service.⁽⁸⁸⁾ The Association of Telemessaging Services International urges the Commission to require collocation of equipment used to provide enhanced services.⁽⁸⁹⁾

578. WinStar argues that the 1996 Act establishes its right to place its microwave facilities on the roofs of incumbent LEC buildings in which its termination equipment is to be collocated in order to ensure that wireline facilities are not favored over wireless, and therefore urges the Commission to adopt a collocation standard that is technology neutral.⁽⁹⁰⁾

(3). Discussion

579. We believe that section 251(c)(6) generally requires that incumbent LECs permit the collocation of equipment used for interconnection or access to unbundled network elements. Although the term "necessary," read most strictly, could be interpreted to mean "indispensable," we conclude that for the purposes of section 251(c)(6) "necessary" does not mean "indispensable" but rather "used" or "useful." This interpretation is most likely to promote fair competition consistent with the purposes of the Act. (We note that this view is consistent with the findings of the Colorado Commission).⁽⁹¹⁾ Thus, we read section 251(c)(6) to refer to equipment used for the purpose of interconnection or access to unbundled network elements.⁽⁹²⁾ Even if the collocator could use other equipment to perform a similar function, the specified equipment may still be "necessary" for interconnection or access to unbundled network elements under section 251(c)(6). We can easily imagine circumstances, for instance, in which alternative equipment would perform the same function, but with less efficiency or at greater cost. A strict reading of the term "necessary" in these circumstances could allow LECs to avoid collocating the equipment of the interconnectors' choosing, thus undermining the procompetitive purposes of the 1996 Act.

580. Consistent with this interpretation, we conclude that transmission equipment, such as optical terminating equipment and multiplexers, may be collocated on LEC premises. We also conclude that LECs should continue to permit collocation of any type of equipment currently being collocated to terminate basic transmission facilities under the Expanded Interconnection requirements. In addition, whenever a telecommunications carrier seeks to collocate equipment for purposes within the scope of section 251(c)(6), the incumbent LEC shall prove to the state commission that such equipment is not "necessary," as we have defined that term, for interconnection or access to unbundled network elements. State commissions may designate specific additional types of equipment that may be collocated pursuant to section 251(c)(6).

581. We do not find, however, that section 251(c)(6) requires collocation of equipment used to provide enhanced services, contrary to the arguments of the Association of Telemessaging Services International.⁽⁹³⁾ We also decline to require incumbent LECs to allow collocation of any equipment without restriction.⁽⁹⁴⁾ Section 251(c)(6) requires collocation only of equipment "necessary for interconnection or access to unbundled elements." Section 251(c)(2) requires incumbent LECs to provide "interconnection" for the "transmission and routing of telephone exchange service and exchange access," and section 251(c)(3) requires incumbent LECs to provide access to unbundled network elements "for the provision of a telecommunications service."⁽⁹⁵⁾ Section 251(c)(6) therefore requires incumbent LECs to provide physical or virtual collocation only for equipment "necessary" or used for those purposes. We find that section 251(c)(6) does not require collocation of equipment necessary to provide enhanced services.⁽⁹⁶⁾ At this time, we do not impose a general requirement that switching equipment be collocated since it does not appear that it is used for the actual interconnection or access to unbundled network elements.⁽⁹⁷⁾ We recognize, however, that modern technology has tended to blur the line between switching equipment and multiplexing equipment, which we permit to be collocated. We expect, in situations where the functionality of a particular piece of equipment is in dispute, that state commissions will determine whether the equipment at issue is actually used for interconnection or access to unbundled elements. We also reserve the right to reexamine this issue at a later date if it appears that such action would further achievement of the 1996 Act's procompetitive goals. Finally, because we lack an adequate record on the issue, we decline to adopt AT&T's proposal that we require that incumbent LECs allow collocated equipment to be used for "hubbing."⁽⁹⁸⁾

582. In response to WinStar's suggestion that we require collocation of microwave transmission facilities, we note that collocation of microwave transmission equipment was required where reasonably feasible by the Special Access Order.⁽⁹⁹⁾ We also require the collocation of microwave equipment under section 251, although we modify the Expanded Interconnection standard we adopt under section 251 for when such collocation is required slightly to conform to the standard for the provision of physical collocation in section 251(c)(6). We therefore require that incumbent LECs allow competitors to use physical collocation for microwave transmission facilities except where this is not practical for technical reasons or because of space limitations, in which case virtual collocation is required where technically feasible.⁽¹⁰⁰⁾

e. Allocation of Space

(1). Background

583. In the Expanded Interconnection proceeding, we required LECs to allocate space for physical collocation on a first-come, first-served basis. We also required LECs to take into account interconnector demand for collocation space when reconfiguring space or building new central offices, and we found that imposing reasonable restrictions on warehousing of space by collocating carriers was appropriate.⁽¹⁰¹⁾ The NPRM sought comment on whether national guidelines would deter anticompetitive behavior through the manipulation or unreasonable allocation of space by either incumbent LECs or new entrants.⁽¹⁰²⁾

(2). Comments

584. CAPs and IXCs support adoption of rules governing incumbent LEC space allocation. AT&T asserts that incumbent LECs should be required to consider the needs of collocators when remodeling or building new facilities.⁽¹⁰³⁾ MFS and Teleport contend that incumbent LECs should not be able to limit the amount of space that may be occupied by an interconnector's equipment unless the incumbent LEC demonstrates that space is nearing exhaustion.⁽¹⁰⁴⁾ MCI asserts that we should prohibit an incumbent LEC from denying a collocator use of available space unless the incumbent demonstrates that it had plans for such space prior to the request for collocation.⁽¹⁰⁵⁾ In locations where space is scarce, MCI argues that incumbent LECs should be required to file reports with the FCC on the status and planned increase and use of space.⁽¹⁰⁶⁾ Bell Atlantic counters that such a policy could prevent it from serving its customers efficiently.⁽¹⁰⁷⁾ Pacific Telesis suggests that the Commission reiterate its policy of allowing "reasonable restrictions on warehousing of unused space by interconnectors."⁽¹⁰⁸⁾ The Pennsylvania Commission asserts that it is not necessary for the FCC to adopt national guidelines regarding space allocation.⁽¹⁰⁹⁾ GVNW argues that collocation should be required in rural areas only where there is space available.⁽¹¹⁰⁾

(3). Discussion

585. We believe that incumbent LECs have the incentive and capability to impede competitive entry by minimizing the amount of space that is available for collocation by competitors. Accordingly, we adopt our Expanded Interconnection space allocation rules for purposes of section 251, except as indicated herein. LECs will thus be required to make space available to requesting carriers on a first-come, first-served basis. We also conclude that collocators seeking to expand their collocated space should be allowed to use contiguous space where available. We further conclude that LECs should not be required to lease or construct additional space to provide physical collocation to interconnectors when existing space has been exhausted. We find such a requirement unnecessary because section 251(c)(6) allows incumbent LECs to provide virtual collocation where physical collocation is not practical for technical reasons or because of space limitations. Consistent with the requirements and findings of the Expanded Interconnection proceeding, we conclude that incumbent LECs should be required to take collocator demand into account when renovating existing facilities and constructing or leasing new facilities, just as they consider demand for other services when undertaking such projects. We find that this requirement is necessary in order to ensure that sufficient collocation space will be available in the future. We decline, however, to adopt a general rule requiring LECs to file reports on the status and planned increase and use of space. State commissions will determine whether sufficient space is available for physical collocation, and we conclude that they have authority under the 1996 Act to require incumbent LECs to file such reports. We expect individual state commissions to determine whether the filing of such reports is warranted.

586. We also agree with Pacific Telesis that restrictions on warehousing of space by interconnectors are appropriate.⁽¹¹¹⁾ Because collocation space on incumbent LEC premises may be limited, inefficient use of space by one competitive entrant could deprive another entrant of the opportunity to collocate facilities or expand existing space. In the Expanded Interconnection proceeding, we allowed "reasonable restrictions on warehousing of space,"⁽¹¹²⁾ and will adopt this provision for purposes of section 251. As discussed below, we also adopt measures to ensure that incumbent LECs themselves do not unreasonably "warehouse" space, although we do permit them to reserve a limited amount of space for specific future uses.⁽¹¹³⁾ Incumbent LECs, however, are not permitted to set maximum space limitations without demonstrating that space constraints make such restrictions necessary, as such maximum limits could constrain a collocator's ability to provide service efficiently.

587. We also address the impact on small incumbent LECs. For example, GVNW argues that we should require collocation in rural areas only where there is space available. We have considered the impact of our rules in this section on small incumbent LECs and do not require physical collocation at any point where there is insufficient space available. We decline, however, to adopt rules regarding space availability that apply differently to small, rural carriers because the rules we here adopt are sufficiently flexible. We also note, however, that section 251(f) of the 1996 Act provides relief to certain small LECs from our regulations implementing section 251.⁽¹¹⁴⁾

f. Leasing Transport Facilities

(1). Background

588. Our Expanded Interconnection rules require LECs to provide collocation for the purpose of allowing collocators to terminate their own transmission facilities for special access or switched transport service.⁽¹¹⁵⁾ We did not require that collocation be made available for other purposes, for example, when the interconnecting party wished only to connect incumbent LEC transmission facilities to collocated equipment. We sought comment in the NPRM on whether we should modify the standards of the Expanded Interconnection proceeding in light of the new statutory requirements and disputes that have arisen in the investigations regarding the incumbent LECs' physical and virtual collocation tariffs.⁽¹¹⁶⁾

(2). Comments

589. MCI and others argue that collocators should not be prohibited from leasing transport facilities from the incumbent LEC to connect equipment in the collocated space to any other point in the incumbent LEC's network.⁽¹¹⁷⁾ Pacific Telesis contends that LECs should not be required to permit collocation of equipment that will be connected to a LEC's transmission facilities because such a policy would result in exhaustion of central office space and is outside the purposes of the 1996 Act.⁽¹¹⁸⁾ Bell Atlantic argues that permitting such interconnection is not advisable, because it would allow resellers to obtain lower-priced interconnection and access to unbundled elements without providing any facilities of their own.⁽¹¹⁹⁾

(3). Discussion

590. Although in Expanded Interconnection the Commission required that interested parties interconnect collocated equipment with their own transmission facilities,⁽¹²⁰⁾ we conclude that it would be inconsistent with the provisions of the 1996 Act to adopt that requirement under section 251. Rather, we conclude that a competitive entrant should not be required to bring transmission facilities to LEC premises in which it seeks to collocate facilities. Entrants should instead be permitted to collocate and connect equipment to unbundled network transmission elements obtained from the incumbent LEC. The purpose of the Expanded Interconnection requirement was to foster competition in the market for interstate switched and special access transmission facilities.⁽¹²¹⁾ The purposes of section 251 are broader. Section 251(c)(3) requires that competitive entrants be given access to unbundled elements and that they be permitted to combine such elements.⁽¹²²⁾ Prohibiting competitors from connecting unbundled network elements to their collocated equipment would appear contrary to the provisions of section 251(c)(3).

591. Finally, we find that Bell Atlantic's opposition to this requirement is without merit. Bell Atlantic argues that collocators should be required to provide their own transmission facilities because otherwise new entrants could compete without providing any of their own facilities. Section 251(c)(3) specifically states that unbundled elements are to be provided in a manner that allows requesting carriers to combine elements in order to provide telecommunications service. As stated above, requiring collocators to supply their own transmission facilities would amount to a prohibition on connecting unbundled transmission facilities to other unbundled elements connected to equipment in the collocation space. Although such interconnection arrangements were not required by our Expanded Interconnection requirements, we conclude that they are required by section 251 when collocated equipment is used to achieve interconnection or access to unbundled network elements.

g. Co-Carrier Cross-Connect

(1). Background

592. In the most common collocation configuration under existing requirements, the designated physical collocation space of several competitive entrants is located close together within the LEC premises. Since carriers connect to the collocation space via high-capacity lines, different competitive entrants seeking to interconnect with each other may find connecting between their respective collocation spaces on the LEC premises the most efficient means of interconnecting with each other. We sought comment in the NPRM on whether we should adopt any requirements in addition to those adopted in the Expanded Interconnection proceeding in order to fulfill the mandate of the 1996 Act.⁽¹²³⁾

(2). Comments

593. Several CAPs and IXCs argue that we should adopt as an additional requirement that interconnectors be allowed to connect directly to other collocators located at the collocation space.⁽¹²⁴⁾ Incumbent LECs generally object to such a configuration on the basis that such access is not expressly required by the statute and that we therefore lack authority to impose such a requirement.⁽¹²⁵⁾

(3). Discussion

594. We believe that it serves the public interest and is consistent with the policy goals of section 251 to require that incumbents permit two or more collocators to interconnect their networks at the incumbent's premises. Parties opposed to this proposal have offered no legitimate objection to such interconnection. Allowing incumbent LECs to prohibit collocating carriers from interconnecting their collocated equipment would require them to interconnect collocated facilities by routing transmission facilities outside of the LECs' premises. We find that such a policy would needlessly burden collocating carriers. To the extent equipment is collocated for the purposes expressly permitted under section 251(c)(6), the statute does not bar us from requiring that incumbent LECs allow connection of such equipment to other collocating carriers located nearby. We find that requiring LECs to allow such interconnection of collocated equipment will foster competition by promoting efficient operation. It is also unlikely to have a significant effect on space availability. We find authority for such a requirement in section 251(c)(6), which requires that collocation be provided on "terms and conditions that are just, reasonable, and nondiscriminatory" and in section 4(i), which permits the Commission to "perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions."⁽¹²⁶⁾ We therefore will require that incumbent LECs allow collocating telecommunications carriers to connect collocated equipment to such equipment of other carriers within the same LEC premises so long as the collocated equipment is used for interconnection with the incumbent LEC or access to the LEC's unbundled network elements.

595. We clarify that we here require incumbent LECs to provide the connection between the equipment in the collocated spaces of two or more collocating telecommunications carriers unless they permit the collocating parties to provide this connection for themselves. We do not require incumbent LECs to allow placement of connecting transmission facilities owned by competitors within the incumbent LEC premises anywhere outside of the actual physical collocation space.

h. Security Arrangements

(1). Background

596. Under our Expanded Interconnection requirements, incumbent LECs typically require that physically collocated equipment be placed inside a collocation cage within the incumbent LEC facility. Such cages are intended to separate physically the competitors' facilities from those of the incumbent and to prevent access by unauthorized personnel to any parties' equipment. Such cages frequently add considerably to the cost of establishing physical collocation at a particular LEC premises and could constitute a barrier to entry in certain circumstances.

(2). Comments

597. Teleport argues that cage construction is one of the most expensive items associated with physical collocation and that we should modify our Expanded Interconnection requirements to allow new entrants to subcontract construction of their physical collocation security arrangements with contractors approved by the incumbent LEC.⁽¹²⁷⁾ ALTS and MCI argue that security measures should only be provided at the request of the entrant and at the cost the entrant would have incurred if it performed the construction itself.⁽¹²⁸⁾ GVNW argues that incumbent LECs need to ensure that a competitor's personnel do not cause breaches of security and therefore should be subject to minimum proficiency requirements.⁽¹²⁹⁾

(3). Discussion

598. Based on the comments in this proceeding and our previous experience with physical collocation in the Expanded Interconnection docket, we will continue to permit LECs to require reasonable security arrangements to separate an entrant's collocation space from the incumbent LEC's facilities. The physical security arrangements around the collocation space protect both the LEC's and competitor's equipment from interference by unauthorized parties. We reject the suggestion of ALTS and MCI that security measures be provided only at the request of the entrant since LECs have legitimate security concerns about having competitors' personnel on their premises as well. We conclude that the physical separation provided by the collocation cage adequately addresses these concerns. At the same time, we recognize that the construction costs of physical security arrangements could serve as a significant barrier to entry, particularly for smaller competitors. We also conclude that LECs have both an incentive and the capability to impose higher construction costs than the new entrant might need to incur. We therefore conclude that collocating parties should have the right to subcontract the construction of the physical collocation arrangements with contractors approved by the incumbent LEC. Incumbent LECs shall not unreasonably withhold such approval of contractors. Approval by incumbent LECs of such contractors should be based on the same criteria as such LECs use for approving contractors for their own purposes. We decline, however, to require that competitive entrants' personnel be subject to minimum training and proficiency requirements as suggested by GVNW. We find that such concerns are better resolved through negotiation and arbitration.

i. Allowing Virtual Collocation in Lieu of Physical

(1). Background

599. Section 251(c)(6) requires that incumbent LECs provide physical collocation unless the carrier "demonstrates to the state commission that physical collocation is not practical for technical reasons or because of space limitations . . . ."⁽¹³⁰⁾ In the NPRM, we sought comment on whether the Commission should establish guidelines for states to apply when determining whether physical collocation is not practical for "technical reasons or because of space limitations."⁽¹³¹⁾

(2). Comments

600. Pacific Telesis argues that national standards to determine whether physical collocation is not practical at a specific LEC location are unnecessary. It further argues that "reduced reliability or other harm to the network" should be considered a technical reason that justifies refusal to allow physical collocation.⁽¹³²⁾ IXCs and CAPs assert that the burden of showing that physical collocation is not practical should fall on the incumbent LEC.⁽¹³³⁾ AT&T contends that an incumbent LEC should be required to show that there is no practical way of providing additional space before it is relieved of its obligation to provide physical collocation. If physical collocation is genuinely not practical, then AT&T argues that the incumbent should provide trunking at no cost to allow the entrant to interconnect.⁽¹³⁴⁾ Time Warner asserts that, where physical collocation is not possible in a LEC central office, LECs should supply a substitute at cost.⁽¹³⁵⁾ State commissions that comment on this issue generally oppose strict national rules and argue that, to the extent such rules are adopted, they should allow the states maximum flexibility.⁽¹³⁶⁾

601. Time Warner also asserts that the FCC should require LECs to offer a $1 sale and repurchase option for virtually collocated equipment.⁽¹³⁷⁾ The Independent Cable and Telecommunications Association argues that incumbent LECs should be required to provide virtual collocation that is equal in all functional aspects to physical collocation in order to avoid prejudicing small entities that may not have sufficient market share to justify a physical collocation arrangement.⁽¹³⁸⁾

(3). Discussion

602. Section 251(c)(6) clearly contemplates the provision of virtual collocation when physical collocation is not practical for technical reasons or because of space limitations.⁽¹³⁹⁾ Section 251(c)(6) requires the incumbent LEC to demonstrate to the state commission's satisfaction that there are space limitations on the LEC premises or that technical considerations make collocation impractical. Because the space limitations and technical practicality issues will vary considerably depending on the location at which competitor equipment is to be collocated, we find that these issues are best handled on a case-by-case basis, as they were under our Expanded Interconnection requirements.⁽¹⁴⁰⁾ In light of our experience in the Expanded Interconnection proceeding, we require that incumbent LECs provide the state commission with detailed floor plans or diagrams of any premises where the incumbent alleges that there are space constraints. Submission of floor plans will enable state commissions to evaluate whether a refusal to allow physical collocation on the grounds of space constraints is justified. We also find that the approach detailed by AT&T in its July 12 Ex Parte submission to be useful and believe that state commissions may find it a valuable guide.⁽¹⁴¹⁾

603. Although section 251(c)(6) provides that incumbent LECs are not required to provide physical collocation where impractical for technical reasons or because of space limitations, our experience in the Expanded Interconnection proceeding has not demonstrated that technical reasons, apart from those related to space availability, are a significant impediment to physical collocation. We therefore decline to adopt any rules for determining when physical collocation should be deemed impractical for technical reasons.

604. Incumbent LECs are allowed to retain a limited amount of floor space for defined future uses. Allowing competitive entrants to claim space that incumbent LECs had specifically planned to use could prevent incumbent LECs from serving their customers effectively.⁽¹⁴²⁾ Incumbent LECs may not, however, reserve space for future use on terms more favorable than those that apply to other telecommunications carriers seeking to hold collocation space for their own future use.⁽¹⁴³⁾

605. We decline to adopt AT&T's suggestion that incumbent LECs should be required to lease additional space or provide trunking at no cost where they have insufficient space for physical collocation.⁽¹⁴⁴⁾ In light of the availability of substitute virtual collocation arrangements, we find that requiring the type of "substitute" for physical collocation as advocated by AT&T is unnecessary. We similarly reject Time Warner's suggestion that incumbent LECs supply a "substitute" for physical collocation at cost, except to the extent we require virtual collocation. On the other hand, we will require incumbent LECs with limited space availability to take into account the demands of interconnectors when planning renovations and leasing or constructing new premises, as we have in the Expanded Interconnection proceeding.⁽¹⁴⁵⁾

606. Incumbent LECs are not required to provide collocation at locations where it is not technically feasible to provide virtual collocation. Although space constraints are a concern normally associated with physical collocation, given our broad reading of the term "premises,"⁽¹⁴⁶⁾ we find that space constraints could preclude virtual collocation at certain LEC premises as well. State commissions will decide whether virtual collocation is technically feasible at a given point. We do, however, require that incumbent LECs relinquish any space held for future use before denying virtual collocation due to a lack of space unless the incumbent can prove to a state commission that virtual collocation at that point is not technically feasible. Moreover, when virtual collocation is not feasible, we require that incumbent LECs provide other forms of interconnection and access to unbundled network elements to the extent technically feasible.⁽¹⁴⁷⁾

607. Finally, we decline to require that incumbent LECs provide virtual collocation that is equal in all functional aspects to physical collocation. Our Expanded Interconnection rules required a variety of standards for the virtual collocation and have been largely successful. In addition, Congress was aware of the differences between virtual and physical collocation when it adopted section 251(c)(6), and this section does not specify any requirements for virtual collocation.⁽¹⁴⁸⁾ As discussed above, we adopt the Expanded Interconnection requirements for virtual collocation under section 251.⁽¹⁴⁹⁾ We find, however, that a standard simply requiring equality in all functional aspects could be difficult to administrate and could lead to substantial disputes. We also decline to adopt the suggestion that we require LECs to offer virtual collocation under the "$1 sale and repurchase option."⁽¹⁵⁰⁾ We do not find evidence that such a specific requirement is necessary at this time. We reserve the right to revisit these issues in the future, however, if we perceive that smaller entities would be disadvantaged by our existing standards.

2. Legal Issues

a. Relationship between Expanded Interconnection Tariffs and Section 251

(1). Background

608. The enactment of sections 251 and 252 raises the question of whether, and to what extent, the interconnection, access to unbundled network element, and collocation requirements set forth in those sections, and the delegation of specific rate-setting authority to the states under section 252(d)(1), as a matter of law supplant our section 201 Expanded Interconnection requirements. We tentatively concluded in the NPRM that our existing Expanded Interconnection policies for interstate special access and switched transport should continue to apply.⁽¹⁵¹⁾

(2). Comments

609. Although commenting parties have not addressed this question directly, some commenters appear to assume that LECs will be required to continue to tariff their collocation offerings with the FCC, as currently required under Expanded Interconnection.⁽¹⁵²⁾ Other parties appear to assume that requirements to file federal tariffs are inconsistent with, and superseded by, the negotiation and arbitration provisions in section 252.

(3). Discussion

610. Our Expanded Interconnection rules require the largest incumbent LECs to file tariffs with the Commission to offer collocation to parties that wish to terminate interstate special access and switched transport transmission facilities. Section 252 of the 1996 Act, on the other hand, provides for interconnection arrangements rather than tariffs, for review and approval of such agreements by state commissions rather than the FCC, and for public filing of such agreements. Section 252 procedures, however, apply only to "request[s] for interconnection, services, or network elements pursuant to section 251."⁽¹⁵³⁾ Such procedures do not, by their terms, apply to requests for service under section 201. Moreover, section 251(i) expressly provides that "[n]othing in this section shall be construed to limit or otherwise affect the Commission's authority under section 201,"⁽¹⁵⁴⁾ which provided the statutory basis for our Expanded Interconnection rules. Thus, we find that the 1996 Act, as a matter of law, does not displace our Expanded Interconnection requirements, and, in fact, grants discretion to the FCC to preserve our existing rules and tariffing requirements to the extent they are consistent with the Communications Act.

611. We further conclude that it would make little sense to find that sections 251 and 252 supersede our Expanded Interconnection rules, because the two sets of requirements are not coextensive. For example, our Expanded Interconnection rules encompass collocation for interstate purposes for all parties, including non-carrier end users, that seek to terminate transmission facilities at LEC central offices.⁽¹⁵⁵⁾ In comparison, section 251 requires collocation only for "any requesting telecommunications carrier."⁽¹⁵⁶⁾ Certain competing carriers -- and non-carrier customers not covered by section 251 -- may prefer to take interstate expanded interconnection service under general interstate tariff schedules. We find that it would be unnecessarily disruptive to eliminate that possibility at this time. We also conclude that permitting requesting carriers to seek interconnection pursuant to our Expanded Interconnection rules as well as section 251 is consistent with the goals of the 1996 Act to permit competitive entry through a variety of entry strategies. Thus, a requesting carrier would have the choice of negotiating an interconnection agreement pursuant to sections 251 and 252 or of taking tariffed interstate service under our Expanded Interconnection rules.

612. Finally, we expect that, over time, sections 251 and 252 and our implementing rules may replace our Expanded Interconnection rules as the primary regulations governing interconnection for carriers. We note that section 251 is broader than our Expanded Interconnection requirements in certain respects. For example, section 251 requires incumbent LECs to offer collocation for purposes of accessing unbundled network elements, whereas our Expanded Interconnection rules require collocation only for the provision of interstate special access and switched transport.⁽¹⁵⁷⁾ In addition, section 251(c)(6) requires incumbents to offer physical collocation subject to certain exceptions, whereas our existing Expanded Interconnection rules only require carriers to offer virtual collocation, although they may choose to offer physical collocation under Title II regulation in lieu of virtual collocation. In the future, we may review the need for a separate set of Expanded Interconnection requirements and revise our requirements if necessary. We believe that this approach is consistent with Congress' determination that the need for federal regulations will likely decrease as the provisions of the 1996 Act take effect and competition develops in the local exchange and exchange access markets.⁽¹⁵⁸⁾

b. Takings Issues

(1). Background

613. In Bell Atlantic v. FCC, the U.S. Court of Appeals for the D.C. Circuit found that the Commission lacked authority under the Communications Act to impose physical collocation on the LECs. The court found that this requirement implicated the Fifth Amendment takings clause.⁽¹⁵⁹⁾ On remand, the Commission required LECs to provide virtual collocation. In Pacific Bell v. FCC,⁽¹⁶⁰⁾ several LECs challenged the Commission's virtual collocation rules on essentially identical grounds, claiming that the virtual collocation rules also constituted an unauthorized taking. The court did not reach the merits of these claims. Instead, addressing the scope of section 251 immediately following enactment and before the FCC had yet exercised its interpretive authority with respect to the provision, the court stated that regulations enacted to implement the 1996 Act would render moot questions regarding the future effect of the virtual collocation order under review. The court did not vacate the order, but remanded to the Commission the issues presented in that case.⁽¹⁶¹⁾

(2). Comments

614. U S West and BellSouth argue that virtual collocation is a taking and that the Commission lacks authority under section 201 to require virtual collocation under its Expanded Interconnection rules.⁽¹⁶²⁾ U S West also argues that the Commission lacks authority to require virtual collocation under section 251.⁽¹⁶³⁾ Some incumbent LECs and the Florida Commission also argue that physical collocation amounts to a taking in violation of the Fifth Amendment.⁽¹⁶⁴⁾ In opposition, several competitive carriers argue that rates that recover incremental costs of collocation will satisfy constitutional "just compensation concerns."⁽¹⁶⁵⁾

(3). Discussion

615. We conclude that the ruling in Bell Atlantic does not preclude the rules we are adopting in this proceeding. The court in Bell Atlantic did not hold that an agency may never "take" property; the court acknowledged that, as a constitutional matter, takings are unlawful only if they are not accompanied by "just compensation."⁽¹⁶⁶⁾ Instead, the court simply said that the Communications Act of 1934 should not be construed to permit the FCC to take LEC property without express authorization. Because the court concluded that mandatory physical collocation would likely constitute a taking,⁽¹⁶⁷⁾ and that section 201 of the Act did not expressly authorize physical collocation, the court held that the Commission was without authority under section 201 to impose physical collocation requirements on LECs.⁽¹⁶⁸⁾

616. The question of statutory authority to impose (physical or virtual) collocation obligations on incumbent LECs largely evaporates in the context of the 1996 Act. New section 251(c)(6) expressly requires incumbent LECs to provide physical collocation, absent space or technical limitations. Where such limitations exist, the statute expressly requires virtual collocation. Thus, under the court's analysis in Bell Atlantic, there is no warrant for a narrowing construction of section 251 that would deny us the authority to require either form of collocation. Moreover, for the reasons stated in the Virtual Collocation Order,⁽¹⁶⁹⁾ we continue to believe that virtual collocation, as we have defined it, is not a taking, and that our authority to order such collocation (under either section 251 or section 201) is not subject to the strict construction canon announced in Bell Atlantic.

617. Given that we now have express statutory authority to order physical and virtual collocation pursuant to section 251, any remaining takings-related issue necessarily is limited to the question of just compensation. As discussed in Section VII.B.2.a.(3).(c), below, we find that the ratemaking methodology we are adopting to implement the collocation obligations under section 251(c) is consistent with congressional intent and fully satisfies the just compensation standard. There is, therefore, no merit to the LECs' Fifth Amendment-based claims.

Footnotes

1. ¹³²¹ 47 U.S.C. 251(c)(2).

2. ¹³²² 47 U.S.C. 251(c)(6).

3. ¹³²³ NPRM at para. 64. Under the Commission's Expanded Interconnection rules, LECs are not required to offer a collocating carrier a choice between physical and virtual collocation. Special Access Order, 7 FCC Rcd at 7407; Switched Transport Order, 8 FCC Rcd at 7404; see also Physical Collocation Designation Order, 8 FCC Rcd 4589 (under our Expanded Interconnection rules, LECs must provide virtual collocation where: virtual collocation is available on an intrastate basis; a LEC has negotiated an interstate virtual collocation arrangement; LECs are exempted from providing physical collocation because of space constraints; or a state commission has granted a waiver). Also, see Section VI.B.1.b. regarding the definitions of physical and virtual collocation.

4. ¹³²⁴ See, e.g., MFS comments at 17-18 (if Congress meant that 251(c)(6) collocation was the exclusive means of obtaining interconnection or access to unbundled elements, then subsections (c)(2) and (c)(3) would not have been required); Teleport comments at 26; Citizens Utilities comments at 11; Illinois Commission comments at 33; Pennsylvania Commission comments at 22; Sprint reply at 21.

5. ¹³²⁵ Illinois Commission comments at 33; MFS comments at 18 (no inference can be drawn that Congress intended any limitation on the Commission's authority to require forms of interconnection other than physical collocation, especially in light of section 251(i)).

6. ¹³²⁶ See, e.g., AT&T comments at 41; Hyperion comments at 14; MFS comments at 23.

7. ¹³²⁷ CFA/CU comments at 14.

8. ¹³²⁸ MCI comments at 56.

9. ¹³²⁹ Sprint Comments at 19.

10. ¹³³⁰ Hyperion comments at 15.

11. ¹³³¹ ACTA comments at 16.

12. ¹³³² A meet point is a point, designated by two carriers, at which one carrier's responsibility for service begins and the other carrier's responsibility ends.

13. ¹³³³ Teleport reply at 25; Sprint reply 21-22 (argues for a "mid-span" meet arrangement whereby two carriers' fiber optic cables would be spliced together at a point between two repeaters).

14. ¹³³⁴ Teleport reply at 25.

15. ¹³³⁵ See, e.g., Bell Atlantic comments at 34; PacTel comments at 36.

16. ¹³³⁶ Ameritech comments at 24.

17. ¹³³⁷ GTE comments at 22.

18. ¹³³⁸ Bell Atlantic comments at 22; BellSouth comments at 23.

19. ¹³³⁹ PacTel comments at 19.

20. ¹³⁴⁰ Because we require incumbent LECs to offer virtual collocation in addition to physical collocation, we reject the suggestion of ACTA that the cost of converting from virtual to physical collocation be borne by the incumbent LEC. See ACTA comments at 16.

21. ¹³⁴¹ Bell Atlantic Telephone Companies v. FCC, 24 F.3d 1441 (D.C. Cir. 1994) (Bell Atlantic v. FCC).

22. ¹³⁴² See Teleport comments at 32; ALTS comments at 23; Time Warner comments at 42-44 (objecting to non-recurring charges for the reconnection of existing interconnected virtual collocation services to a replacement physical collocation arrangement).

23. ¹³⁴³ See Hyperion comments at 15.

24. ¹³⁴⁴ See Teleport comments at 26-30; see also Washington Utilities and Transportation Commission, Fourth Supplemental Order Rejecting Tariff Filings and Ordering Refiling; Granting Complaints, in Part, (Washington Commission Oct. 31, 1995), Docket No. UT-941464, at 45; Application of Electric Lightwave, Inc., MFS Intelnet of Oregon, Inc., and MCI Metro Access Transmission Services, Inc., Public Utility Commission of Oregon Order, Order No. 96-021, (Oregon Commission Jan. 12, 1996), at 68-69; Rules for Telecommunications Interconnection and Unbundling, Arizona Corporation Commission Order, Decision No. 59483, (Arizona Commission Jan. 11, 1996), Proposed Rule R14-2-1303 (Attachment E hereto).

25. ¹³⁴⁵ The Michigan Commission recently required Ameritech to provide meet point interconnection. Michigan Public Service Commission, Case No. U-10860 (Michigan June 5, 1996) at 18 n.4.

26. ¹³⁴⁶ 47 U.S.C. 251(c)(2).

27. ¹³⁴⁷ See, supra Section IV.E., above, discussing accommodation of interconnection.

28. ¹³⁴⁸ NPRM at para. 24.

29. ¹³⁴⁹ NPRM at para. 70.

30. ¹³⁵⁰ BellSouth comments at 23; SBC comments at 64; USTA comments at 19; PacTel comments at 34.

31. ¹³⁵¹ See, e.g., New York Commission comments at 13-14; see also Ohio Commission comments at 29; Florida Commission comments at 22; Oregon Commission comments at 23.

32. USTA comments at 19; Bell Atlantic comments at 32-33; Sprint reply at 22; California Commission comments at 24, Texas Commission comments at 13-14; District of Columbia Commission comments at 20.

33. ¹³⁵³ Teleport comments at 30 (this standard is consistent with, if not demanded by, the requirements for nondiscriminatory interconnection in section 251(c)(2)(C)); New York Commission comments at 34 (the Commission should not set specific rules, but should adopt guidelines that incumbent LECs offer comparably efficient interconnection).

34. ¹³⁵⁴ Alabama Commission comments at 17 (under Alabama's interconnection model, parties negotiate collocation arrangements and may petition the Alabama commission to require collocation under specific terms and conditions should negotiations fail); Missouri Commission comments at 12 (The Missouri Commission requires the incumbent LEC to provide the type of interconnection that the interconnecting carrier requests, either physical or virtual. The Commission also requires that large incumbent LECs tariff their interconnection arrangements, and that collocators pay a deposit).

35. ¹³⁵⁵ PacTel comments at 36.

36. ¹³⁵⁶ Intermedia comments at 6; Teleport comments at 30; ALTS comments at 21; Hyperion comments at 14; ACSI comments at 14; NCTA comments at 34; Telecommunications Resellers Ass'n comments at 46; Time Warner comments at 32; MFS comments at 20-21; AT&T comments at 39.

37. ¹³⁵⁷ MFS comments at 20-21.

38. ¹³⁵⁸ Our review of the LECs' initial physical and virtual collocation tariffs raised significant concerns regarding the implementation of our Expanded Interconnection requirements and resulted in the designation of numerous issues for investigation. The Commission has not yet reached decisions on most of these issues, though it has found that certain rates for virtual collocation were unlawful. See Local Exchange Carriers' Rates, Terms, and Conditions for Expanded Interconnection Through Virtual Collocation for Special Access and Switched Transport, 10 FCC Rcd 6375 (Com. Car. Bur. 1995)(Phase I Report and Order); see also Local Exchange Carriers' Rates, Terms, and Conditions for Expanded Interconnection for Special Access, 8 FCC Rcd 6909 (Com. Car. Bur. 1993) (Physical Collocation Designation Order); Local Exchange Carriers' Rates, Terms, and Conditions for Expanded Interconnection Through Virtual Collocation for Special Access and Switched Transport, 10 FCC Rcd 11116 (Com. Car. Bur. 1995)(Virtual Collocation Designation Order).

39. Expanded Interconnection with Local Telephone Company Facilities, First Report and Order, 7 FCC Rcd 7369 (1992)(Special Access Order), vacated in part and remanded, Bell Atlantic, 24 F.3d 1441 (1994); First Reconsideration, 8 FCC Rcd 127 (1993); vacated in part and remanded, Bell Atlantic, 24 F.3d 1441; Second Reconsideration, 8 FCC Rcd 7341 (1993); Second Report and Order, 8 FCC Rcd 7374 (1993)(Switched Transport Order), vacated in part and remanded, Bell Atlantic Telephone Cos., v. FCC, 24 F.3d 1441; Remand Order, 9 FCC Rcd 5154 (1994)(Virtual Collocation Order), remanded for consideration of 1996 Act, Pacific Bell, et al. v. FCC, 81 F.3d 1147 (1996) (collectively referred to as Expanded Interconnection). Interstate access is a service traditionally provided by local telephone companies and enables IXCs and other customers to originate and terminate interstate telephone traffic. Special access is a form of interstate access that uses dedicated transmission lines between two points, without switching the traffic on those lines. Switched transport is another form of interstate access comprising the transmission of traffic between interexchange carriers' (or other customers') points of presence and local telephone companies' end offices, where the traffic is switched and routed to end users.

40. ¹³⁶⁰ Tier 1 LECs are local exchange carriers having $100 million or more in "total company annual regulated revenues." Commission Requirements for Cost Support Material to be Filed with 1990 Annual Access Tariffs, 5 FCC Rcd 1364, 1364 (Com. Car. Bur. 1990)(1990 Cost Support Order).

41. ¹³⁶¹ The interconnecting party uses the space to locate equipment necessary to terminate its transmission links for interconnection with the LEC's network. The interconnector has physical access to this space in the LEC central office to install, maintain, and repair its transmission equipment. Special Access Order, 7 FCC Rcd at 7391.

42. ¹³⁶² 7 FCC Rcd at 7391.

43. ¹³⁶³ Special Access Order, 7 FCC Rcd at 7394; Switched Transport Order, 8 FCC Rcd at 7393.

44. ¹³⁶⁴ See Special Access Physical Collocation Designation Order, 8 FCC Rcd 6909; Virtual Collocation Designation Order, 10 FCC Rcd 11116; see also supra, note 1358.

45. ¹³⁶⁵ Bell Atlantic v. FCC, 24 F.3d 1441.

46. ¹³⁶⁶ Remand Order, 9 FCC Rcd 5154.

47. ¹³⁶⁷ Pacific Bell et al. v. FCC, 81 F.3d 1147 (D.C. Cir. 1996). As discussed in Section VI.B.2.a, below, we find that the 1996 Act does not supplant or otherwise alter our Expanded Interconnection rules for interstate interconnection services provided pursuant to section 201 of the Communications Act.

48. ¹³⁶⁸ 47 U.S.C. 251(c)(6).

49. ¹³⁶⁹ NPRM at para. 71.

50. ¹³⁷⁰ Bell Atlantic comments at 33; Cincinnati Bell comments at 15; PacTel comments at 35; NYNEX comments at 66; Roseville Tel. comments at 2-3; SNET comments at 15; GTE comments at 24 (Expanded Interconnection rules should be readopted if used to identify acceptable outcomes and not to dictate behavior); see also Alabama Commission comments at 17; Texas Commission comments at 14; Illinois Commission comments at 35.

51. ¹³⁷¹ BellSouth comments at 24 (the Act sets up a new framework under which the parties must be free to negotiate arrangements "unencumbered by excessive rules and regulations").

52. ¹³⁷² PacTel reply at 12; SBC comments at 64 (collocation should be negotiated and should not be subject to uniform requirements because of the differing conditions at each location).

53. ¹³⁷³ Cincinnati Bell comments at 15.

54. ¹³⁷⁴ See, e.g., Sprint comments at 21; Time Warner comments at 38; Intermedia comments at 6.

55. ¹³⁷⁵ ALTS comments at 24; Telecommunications Resellers Ass'n comments at 47; Intermedia comments at 9 (incumbent LECs must tariff cross-connect elements for services not currently offered, such as packet switching, frame relay, ATM, and SONET services); ACSI comments at 16 (revised Expanded Interconnection rules should reflect resolution of issues raised in designation orders).

56. ¹³⁷⁶ MFS comments at 22; see also MCI comments at 54.

57. ¹³⁷⁷ MCI comments at 58.

58. ¹³⁷⁸ Teleport comments at 31; Intermedia comments at 7 (arguing that LECs must establish terms and conditions for physical collocation within 30 days).

59. ¹³⁷⁹ See Remand Order, 9 FCC Rcd at 5168-69, 5174-83.

60. ¹³⁸⁰ See supra, note 1358, 1359.

61. ¹³⁸¹ See infra, Section XII.

62. ¹³⁸² See 47 U.S.C. 251(c)(2), (3).

63. ¹³⁸³ See infra, Section VI.B.2.a.

64. ¹³⁸⁴ See infra, Section VI.B.2.a.

65. ¹³⁸⁵ In a number of instances, we decline to adopt proposals for modifications to our Expanded Interconnection requirements.

66. ¹³⁸⁶ See Special Access Physical Collocation Designation Order, 8 FCC Rcd 6909; Virtual Collocation Designation Order, 10 FCC Rcd 11116.

67. ¹³⁸⁷ Some areas our investigations have found problematic in the past include channel assignment, letters of agency, charges for repeaters, and placement of point-of-termination bays.

68. ¹³⁸⁸ See Remand Order, 9 FCC Rcd at 5168; Special Access Order, 7 FCC Rcd at 7418; Switched Transport Order, 8 FCC Rcd at 7409. A rating point is a point used in calculating the length of interoffice special access links.

69. ¹³⁸⁹ 47 U.S.C. 251(c)(6).

70. ¹³⁹⁰ NPRM at para. 72.

71. ¹³⁹¹ See, e.g., USTA comments at 20; NYNEX comments at 66; Cincinnati Bell comments at 15; Ameritech comments at 22 (the term "premises" should only include central offices housing network facilities in which the incumbent LEC has the exclusive right of occupancy).

72. ¹³⁹² Bell Atlantic comments at 37.

73. ¹³⁹³ Ameritech comments at 22.

74. ¹³⁹⁴ Rural Tel. Coalition comments at 31.

75. ¹³⁹⁵ See, e.g., AT&T comments at 40; see also Telecommunications Resellers Ass'n comments at 46; Hyperion comments at 14.

76. ¹³⁹⁶ See, e.g., MFS comments at 23.

77. ¹³⁹⁷ ALTS reply at 35; MFS reply at 29.

78. ¹³⁹⁸ Illinois Commerce Commission at 33.

79. ¹³⁹⁹ See Gibbons v. Brandt, 170 F.2d 385, 387 (7th Cir. 1948) ("the word 'premises' does not have one fixed and absolute meaning. It is to be determined always by its context . . .").

80. ¹⁴⁰⁰ Incumbent LECs are required to permit the collocation of equipment for the purpose of interconnection under section 251(c)(2) or access to unbundled network elements under section 251(c)(3). Interconnection and access to unbundled network elements are only required under these sections at technically feasible points. 47 U.S.C. 251(c)(2) and (3).

81. ¹⁴⁰¹ See infra, Section XII.

82. ¹⁴⁰² See generally Remand Order, 9 FCC Rcd at 5178-81 (paras. 82-94); see also Special Access Order, 7 FCC Rcd at 7412-16, Switched Transport Order, 8 FCC Rcd at 7411-16.

83. ¹⁴⁰³ 47 U.S.C. 251(c)(6).

84. ¹⁴⁰⁴ NPRM at para.72.

85. ¹⁴⁰⁵ See, e.g., SBC comments at 63-64; Bell Atlantic comments at 34; GTE reply at 14; PacTel comments at 38, reply at 13.

86. ¹⁴⁰⁶ Sprint reply at 23.

87. ¹⁴⁰⁷ See, e.g., MFS comments at 24; MCI comments at 54-55; Time Warner comments at 39; GCI comments at 10.

88. ¹⁴⁰⁸ Illinois Commission comments at 34; Colorado Commission comments at 23.

89. ¹⁴⁰⁹ Association of Telemessaging Services International reply at 16.

90. ¹⁴¹⁰ WinStar comments at 4, reply at 4.

91. ¹⁴¹¹ Colorado Public Utilities Commission, Proposed Rules Regarding Implementation of 40-15-101 et. seq., Requirements Relating to Interconnection and Unbundling, Docket No. 95R-556T, (Colorado Commission, March 29, 1996) at 19-20.

92. ¹⁴¹² Cf. National Railroad Passenger Corporation v. Boston and Maine Corp., 503 U.S. 407, 417 (1992) (upholding the ICC's interpretation of the word "required" as "useful or appropriate," rather than "indispensable"); McCulloch v. Maryland, 4 Wheat. 316, 413 (1819) (Chief Justice Marshall read the word "necessary" to mean "convenient, or useful," rejecting a stricter reading of the term).

93. ¹⁴¹³ ATSI reply at 16.

94. ¹⁴¹⁴ See, e.g., MFS comments at 24.

95. ¹⁴¹⁵ 47 U.S.C. 251(c)(3).

96. ¹⁴¹⁶ We note that we declined to require collocation of enhanced services equipment in our Computer III and ONA proceedings. See Third Computer Inquiry, Report and Order, 104 FCC 2d 958, 1037-38 (1986); Computer III Remand, 6 FCC Rcd 7571 (1991). Enhanced services are defined as services that "employ computer processing applications which act on the format, content, code, protocol or similar aspects of the subscriber's transmitted information; provide the subscriber additional, different, or restructured information; or involve

subscriber interaction with stored information." 47 C.F.R. 64.702. This definition appears not to include the provision of "telecommunications services." See 47 U.S.C. 153(43), (46).

97. ¹⁴¹⁷ If switching equipment is located at the collocated space, generally the only equipment used for interconnection or access to unbundled elements is the cross-connect equipment. The switching equipment generally performs other functions.

98. ¹⁴¹⁸ AT&T advocates requiring LECs to allow new entrants to "connect additional equipment of their own to their collocated equipment in the collocated space." Letter from Betsy Brady, Federal Government Affairs Director and Attorney, to Robert McDonald, Common Carrier Bureau, July 12, 1996, at 3, n.2 (AT&T July 12, 1996 Ex Parte). See also AT&T comments at 40 n. 51.

99. ¹⁴¹⁹ Special Access Order, 7 FCC Rcd at 7416; see also Remand Order, 9 FCC Rcd at 5178-79.

100. ¹⁴²⁰ Under our technical feasibility standard, the costs of any construction necessary to accommodate the proposed interconnection arrangement are to be borne by the party seeking to interconnect. See supra, Section IV.E.

101. ¹⁴²¹ Special Access Order, 7 FCC Rcd at 7408.

102. ¹⁴²² NPRM at para.72.

103. ¹⁴²³ AT&T comments at 41-42 (where space is unavailable incumbent LECs should be required to provide trunking at no extra cost and enable the interconnector to connect to designated equipment elsewhere, with a timetable for moving the interconnector to the incumbent LEC's premises when space becomes available).

104. ¹⁴²⁴ MFS comments at 34; Teleport comments at 33.

105. ¹⁴²⁵ MCI comments at 56.

106. ¹⁴²⁶ MCI comments at 56.

107. ¹⁴²⁷ Bell Atlantic reply at 16.

108. ¹⁴²⁸ PacTel comments at 36.

109. ¹⁴²⁹ Pennsylvania Commission comments at 22.

110. ¹⁴³⁰ GVNW comments at 8.

111. ¹⁴³¹ PacTel comments at 36.

112. ¹⁴³² Special Access Order, 7 FCC Rcd at 7408; see also Remand Order, 9 FCC Rcd at 187-88.

113. ¹⁴³³ See infra, Section VI.B.1.i.

114. ¹⁴³⁴ See infra, Section XII.

115. ¹⁴³⁵ See Remand Order, 9 FCC Rcd at 5180-81, 5183; Special Access Order, 7 FCC Rcd at 7403; Switched Transport Order, 8 FCC Rcd at 7402.

116. ¹⁴³⁶ NPRM at para. 73.

117. ¹⁴³⁷ MCI comments at 55; ACTA comments at 16; Telecommunications Resellers Ass'n comments at 47.

118. ¹⁴³⁸ PacTel comments at 39, reply at 14.

119. ¹⁴³⁹ Bell Atlantic reply at 16.

120. ¹⁴⁴⁰ Special Access Order, 7 FCC Rcd at 7403; Switched Transport Order, 8 FCC Rcd at 7402.

121. ¹⁴⁴¹ See Special Access Order, 7 FCC Rcd at 7372; Switched Transport Order, 8 FCC Rcd at 7377.

122. ¹⁴⁴² 47 U.S.C. 251(c)(3).

123. ¹⁴⁴³ NPRM at para. 73.

124. ¹⁴⁴⁴ See, e.g., MCI comments at 55; MFS comments at 24; GGI comments at 10; Telecommunications Resellers Ass'n comments at 47; Intermedia comments at 9.

125. ¹⁴⁴⁵ See, e.g., GTE reply at 15; Bell Atlantic reply at 15; PacTel reply at 14; Sprint reply at 23.

126. ¹⁴⁴⁶ 47 U.S.C. 154(i).

127. Teleport comments at 32.

128. ¹⁴⁴⁸ ALTS comments at 23; MCI comments at 58; contra PacTel reply at 15.

129. ¹⁴⁴⁹ GVNW comments at 10; accord Rural Tel. Coalition comments at 31.

130. ¹⁴⁵⁰ 47 U.S.C. 251(c)(6).

131. ¹⁴⁵¹ NPRM para. 72.

132. ¹⁴⁵² PacTel comments at 39.

133. ¹⁴⁵³ See, e.g., Hyperion comments at 14; ACSI comments at 16; AT&T comments at 41.

134. ¹⁴⁵⁴ AT&T comments at 41-42.

135. ¹⁴⁵⁵ Time Warner comments at 36, 40.

136. ¹⁴⁵⁶ See, e.g., Texas Commission comments at 14; Pennsylvania Commission comments at 22; Oregon Commission comments at 23.

137. ¹⁴⁵⁷ Time Warner comments at 38.

138. ¹⁴⁵⁸ ICTA reply at 13.

139. ¹⁴⁵⁹ 47 U.S.C 251(c)(6).

140. ¹⁴⁶⁰ See Special Access Order, 7 FCC Rcd 7407.

141. ¹⁴⁶¹ AT&T describes a detailed proposed showing that would be required of an incumbent LEC that claims physical collocation is not practical because of space exhaustion. The proposed showing would require the specific identification of the space on incumbent LEC premises that is used for various purposes, as well as specific plans for rearrangement/expansion and identification of steps taken to avoid exhaustion. AT&T July 12, 1996 Ex Parte.

142. ¹⁴⁶² Special Access Order, 7 FCC Rcd at 7409.

143. ¹⁴⁶³ See supra, Section VI.B.1.e.

144. ¹⁴⁶⁴ See AT&T comments at 41-42.

145. ¹⁴⁶⁵ See Special Access Order, 7 FCC Rcd at 7408.

146. ¹⁴⁶⁶ See supra, Section VI.B.1.c.

147. ¹⁴⁶⁷ See supra, Section VI.A.

148. ¹⁴⁶⁸ See Remand Order, 9 FCC Rcd at 5166-69.

149. ¹⁴⁶⁹ See supra, Section VI.B.1.a.

150. ¹⁴⁷⁰ This configuration is described as involving "the acquisition by the interconnectors of the equipment to be dedicated for interconnectors' use on the LEC premises and the sale of that equipment to the LECs for a nominal $1 sum while maintaining a repurchase option." Time Warner comments at 42.

151. ¹⁴⁷¹ NPRM at para. 73.

152. ¹⁴⁷² See, e.g., MFS comments at 32; MCI comments at 58.

153. ¹⁴⁷³ 47 U.S.C 252(a)(1) (emphasis added).

154. ¹⁴⁷⁴ Section 201 authorizes the Commission "to establish physical connections with other carriers . . ." 47 U.S.C. 201.

155. ¹⁴⁷⁵ Special Access Order, 7 FCC Rcd at 7403.

156. ¹⁴⁷⁶ See 47 U.S.C. 251(c)(2) and (3).

157. ¹⁴⁷⁷ See Special Access Order, 7 FCC Rcd 7369; Switched Transport Order, 8 FCC Rcd 7372.

158. ¹⁴⁷⁸ See, e.g., 47 U.S.C. 161 (requiring the Commission to "review all regulations . . . in effect at the time of the review that apply to the operations or activities of any provider of telecommunications service.").

159. ¹⁴⁷⁹ See Bell Atlantic v. FCC, 24 F.3d 1441 (D.C. Cir. 1994).

160. ¹⁴⁸⁰ 81 F.3d 1147 (D.C. Cir. 1996).

161. ¹⁴⁸¹ Id.

162. ¹⁴⁸² U S West comments at 29-30; BellSouth comments at 25.

163. ¹⁴⁸³ U S West comments at 30.

164. ¹⁴⁸⁴ ALLTEL comments at 9; GTE comments at 66-68; US West comments at 29-31; Florida Commission comments at 15 (readoption of old physical collocation rules would be invalidated as a taking but should be readopted as model rules for the states to adopt if they chose).

165. ¹⁴⁸⁵ MFS reply at 23; ACSI reply at 8-9; GST reply 14; ALTS reply at 8-11.

166. ¹⁴⁸⁶ Bell Atlantic, 24 F.3d at 1445.

167. ¹⁴⁸⁷ The Commission maintains the position that mandatory physical collocation should not properly be seen to create a takings issue. See Remand Order, 9 FCC Rcd at 5169.

168. ¹⁴⁸⁸ See Bell Atlantic, 24 F.3d at 1447 ("we hold that the Act does not expressly authorize an order of physical co-location and thus the Commission may not impose it.").

169. ¹⁴⁸⁹ See 9 FCC Rcd at 5161-66.

© Copyright 1999
http://www.robotics.net
Nathan Stratton nathan@robotics.net
First Created February 15, 1999
Last Modified February 15, 1999