Opinion
No. C 03-1850 SI.
September 1, 2004
ORDER DENYING MOTION TO LIFT ABEYANCE
Currently before the Court is the motion by plaintiff Pacific Bell Telephone Company, now known as SBC California, to lift the abeyance previously imposed on proceedings in this matter. The Court finds the motion appropriate for determination without oral argument pursuant to Civil Local Rule 7-1(b), and the hearing date set for September 3, 2004 is hereby VACATED. Having carefully considered the papers submitted, the Court DENIES the motion.
DISCUSSION
This action arises out of the California Public Utilities Commission's ("CPUC" or "Commission") alleged violation of the federal Telecommunications Act of 1996 ("1996 Act" or "Act"), the Federal Communications Commission ("FCC") rules implementing the 1996 Act, and the Takings and Due Process Clauses of the United States Constitution and the California Constitution. Compl. at ¶ 2. On January 30, 2003, the CPUC issued Decision No. 03-01-077 requiring Pacific Bell/SBC California to: (i) provide competing local exchange telecommunications carriers ("CLECs") with access to the high-frequency portion of the electronic spectrum of a copper loop ("HFPL") in SBC California's network as an unbundled network element ("UNE"); (ii) charge a monthly recurring price of zero ($0.00) for the HFPL; and (iii) refund to CLECs that have purchased the HFPL all of their previous payments for the HFPL, which were made under the interim monthly price of approximately $5.00 per HFPL.Id. at ¶ 1.
"A `loop' is the wire that connects and end-user's location to the phone company's `local switch,' which is a computer that directs the call on to its final destination. 47 C.F.R. § 51.319(A). The FCC has always defined the loop as an unbundled network element under the 1996 Act." Compl. at ¶ 17. "CLECs sought to use the HFPL to provide data service to an end-user while the incumbent continued to provide voice service to the same end-user over the same loop. This is referred to as a `line-sharing' arrangement." Id. at ¶ 18.
"Unbundled" refers to one of three ways that a CLEC can acquire access to incumbent carriers' facilities. When passing the 1996 Act, Congress established three paths of entry for CLECs seeking to compete with incumbent carriers in the local market. A CLEC can (i) construct and deploy its own facilities and then "interconnect" them with the incumbent's network so that customers of the two carriers can call each other, 47 U.S.C. § 251 (c)(2); (ii) purchase the incumbent's finished retail services at a large discount and then resell them to its own customers, id. at § 251(c)(4); or (iii) lease qualifying elements of the incumbent's network on an "unbundled" basis (i.e., as a stand-alone offering rather than as part of a complete service) and then use those elements, in combination with other facilities, to provide a finished service, id. at § 251(c)(3). See Compl. at ¶ 11.
A "network element" means "a facility or equipment used in the provision of a telecommunications service." 47 U.S.C. § 153(29).
The FCC decision initially determining that the HFPL was a UNE has since been vacated as inconsistent with the 1996 Act and the FCC has released an order containing new rules with different provisions, designated the "Triennial Review Order." See In the Matter of Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 2003 WL 22175730 (Aug.21, 2003). Plaintiff claims, among other things, that the CPUC's decision on HFPL is preempted by and violates the 1996 Act and FCC's Triennial Review Order and new unbundling rules.
On May 10, 2004, this Court granted defendant's Motion to Hold the Proceedings In Abeyance, because the legal validity of the new FCC rules has been pending before the D.C. Circuit. At that time, the D.C. Circuit had issued its decision in United States Telecom Ass'n v. FCC, 359 F.3d 554 (2004) (" USTA II"), and various parties were considering whether to file petitions for writ of certiorari with the United States Supreme Court. The Solicitor General of the United States has since declined to file such a petition, but three other petitions for certiorari in USTA II (including one by the CPUC), were filed in the United States Supreme Court on June 30, 2004. As the United States Supreme Court decision regarding the pending petitions for certiorari has not been made, the Court sees no reason to lift the abeyance order at this time.
In the interest of judicial economy and avoidance of piecemeal litigation, the Court will continue the Abeyance Order pending a decision by the United States Supreme Court on the Petition for Writ of Certiorari. Counsel is to notify this Court upon the Supreme Court's disposition of the Petition for Writ of Certiorari in United States Telecom Ass'n v. FCC, 359 F.3d 554 (2004).
CONCLUSION
For the foregoing reasons and for good cause shown, the Court hereby DENIES SBC California's Motion to Lift the Abeyance [docket # 85].
IT IS SO ORDERED.