Opinion
IP 01-1690 CM/S.
December 13, 2002
ORDER ON PLAINTIFF'S COMPLAINT FOR DECLARATORY AND OTHER RELIEF
This matter comes before the Court on plaintiff's, Indiana Bell Telephone Company, Incorporated, d/b/a Ameritech Indiana ("Ameritech"), Complaint for Declaratory and Other Relief (the "Complaint") against Commissioners of the Indiana Utility Regulatory Commission ("IURC"), William D. McCarty, David W. Hadley, David E. Ziegner, Camie J. Swanson-Hull and Judith G. Ripley (the "Commissioners"), ATT Communications of Indiana, GP, and TCG Indianapolis ("ATT"). Ameritech requests that the Court declare certain IURC determinations unlawful as contrary to the Telecommunications Act of 1996, enjoin the Commissioners and ATT from enforcing certain provisions of an interconnection agreement between Ameritech and ATT ("the parties"), and direct the reformation of the parties' agreement. Ameritech's requests for an injunction on Counts II, III, VI, XVIII, and XIX of the Complaint are DENIED. Ameritech's request for an injunction on Count XXI of the Complaint is GRANTED in part and DENIED in part. Finally, Ameritech's request for an injunction on Counts I and XVI of the Complaint are GRANTED and REMANDED to the IURC for further findings.
The parties refer to ATT Communications of Indiana, GP, and TCG Indianapolis collectively as ATT. Ameritech's complaint for relief is directed at both defendants, and this Order is equally binding on both defendants.
I. BACKGROUND
Congress passed the Telecommunications Act of 1996, Pub.L. 104-104, 110 Stat. 5 (1996) (codified as amended at scattered sections of Title 47, United States Code) (the "Act") primarily to promote competition in the local telecommunications markets. See Reno v. ACLU, 521 U.S. 844, 857 (1997). Sections 251 and 252 of the Act establish the rights and obligations of incumbent local exchange carriers ("ILECs") and competing local exchange carriers ("CLECs"), and establish the process by which CLECs can gain interconnection with and access to ILECs' networks, facilities, and services. 47 U.S.C. § 251, 252. The FCC has promulgated rules to implement Sections 251 and 252 of the Act. See 47 C.F.R. § 51.1 (2000) et seq.
An ILEC is the local exchange carrier that, with respect to a given area, provided the area's telephone exchange services as of February 8, 1996. 47 U.S.C. § 251(h)(1). The general duty of all carriers is to "interconnect directly or indirectly with facilities and equipment of other telecommunications carriers" and to install network features, functions or capabilities that comply with the guidelines and standards set forth in the Act. Id. § 251(a). The duties of the local exchange carriers also include, inter alia, the duty to "establish reciprocal compensation arrangements for the transport and termination of telecommunications." Id. § 251(b)(5). The ILEC must "provide . . . interconnection . . . at any technically feasible point" in its network, and "on rates, terms, and conditions that are just, reasonable, and nondiscriminatory." Id. § 251(c). Upon a CLEC's request, an ILEC also must provide interconnection on an "unbundled basis." Id.
Section 252 of the Act sets forth procedures for negotiating, arbitrating and obtaining final approval of interconnection agreements. Id. § 252. The process begins with a bona fide request for negotiation of an interconnection agreement. Id. § 252(a). However, if voluntary or mediated negotiations fail to produce a complete agreement within a specific period of time after the initial request, any party may petition the state commission to "arbitrate any open issues." Id. § 252(b). In resolving the issues raised in an arbitration, the state commission must abide by certain standards set out in Section 252(c). Specifically, it must ensure that the agreement meets the requirements of Section 251 and any regulations promulgated pursuant to that section, determine whether the rates set are in compliance with Section 252(d), and set a schedule for implementating the terms and conditions of the agreement. Id. § 252(c).
Before any interconnection agreement may be implemented or enforced, whether it was produced by negotiation or arbitration, the state commission must approve it. Id. § 252(e)(1). Once the state commission has decided to approve or reject an agreement, any party aggrieved by such determination may bring an action in an appropriate federal district court to determine whether the agreement meets the requirements of Section 251 of the Act. Id. § 252(e)(6).
Ameritech is an ILEC and ATT is a CLEC. On November 23, 1999, ATT made a request to Ameritech to begin negotiations for an interconnection agreement. Complaint ¶ 21. On June 23, 2000, ATT filed a Petition for Arbitration to the IURC, seeking arbitration on the issues on which the parties could not agree. Id. ¶ 22. The arbitration was assigned IURC Cause No. 40571-INT-03 and the IURC appointed an arbitration facilitator to oversee the arbitration. Id. The IURC issued an order (the "Arbitration Order") on November 20, 2000, addressing the disputed issues, and ordered the parties to submit an interconnection agreement for the IURC's approval. Id. ¶ 23.
On December 8, 2000, Ameritech filed a Petition for Reconsideration and Rehearing of the Arbitration Order; the IURC denied that petition on January 18, 2001. Id. ¶ 24. The parties subsequently submitted an interconnection agreement to the IURC, each with its preferred language on the issues still in dispute. Id. ¶ 25. The IURC issued an order on April 18, 2001, resolving the disputed issues, and directing the parties to submit a final interconnection agreement. Id. ¶ 26. However, on May 18, 2001 the parties again submitted separate interconnection agreements that included differing language on the issues still in dispute. Id. ¶ 27.
The IURC conducted a hearing on July 11, 2001, regarding the remaining issues, and again requested that the parties jointly submit an interconnection agreement. Id. ¶ 28. On July 24, 2001, the parties filed letters with the IURC stating that they had resolved all remaining issues except as to collocation rates. Id. ¶ 29. On August 15, 2001, the IURC issued an order resolving the dispute on collocation rates and again ordered the parties to jointly submit an interconnection agreement. Id. ¶ 30. The parties submitted an agreement and on September 19, 2001, and the IURC approved the agreement (the "Agreement") with one amendment.
The IURC actually arbitrated one interconnection agreement for ATT Communications of Indiana, GP, and one for TCG Indianapolis. The agreements are identical in all material respects and are being challenged on identical grounds. Complaint ¶ 1 n. 1.
Pursuant to 47 U.S.C. § 252(e)(6), Ameritech has brought this suit for judicial review of the IURC's Arbitration Order and the parties' Agreement. The parties have agreed that this case should be decided via appellate-style briefing, and that no discovery or trial need be conducted. Thus, the parties having fully briefed the Court on these issues, the Court now finds as discussed below.
II. STANDARDS
In its review of an arbitrated interconnection agreement between an incumbent local exchange carrier and a competitive local exchange carrier, a court considers de novo whether the agreement complies with the Act. See US West Communications, Inc. v. Hamilton, 224 F.3d 1049, 1052 (9th Cir. 2000). Courts also consider de novo a state commission's interpretations of the Act and the FCC's regulations. See Southwestern Bell Tel. Co. v. Apple, 309 F.3d 713, 717 (10th Cir. 2002). "Once federal courts determine that state commissions properly interpreted the Act and its regulations, courts apply an arbitrary and capricious standard to review the remaining state commissions' determinations." Id. at 717-18; accord US West Communications, Inc., 224 F.3d at 1052.
In determining whether the IURC's actions were arbitrary, capricious, or otherwise inconsistent with law, the Court will presume agency actions to be valid if supported by a rational basis. See Board of Tr. of Knox County Hosp. v. Shalala, 959 F. Supp. 1026, 1030 (S.D.Ind. 1997), aff'd, 135 F.3d 493 (7th Cir. 1998). "[U]nder the arbitrary-and-capricious standard, our deference to the agency is greatest when reviewing technical matters within its area of expertise." Indiana Forest Alliance, Inc. v. U.S. Forest Serv., No. NA99-0214-C-H/G, 2001 WL 912751, *11 (S.D.Ind. July 5, 2001) (quoting Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 329 (5th Cir. 1988)). "By giving the agency discretionary power to fashion remedies, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 619-21 (1966) (citations omitted). As noted by the Supreme Court, "[t]his broad deference is all the more warranted when, as here, the regulation concerns `a complex and highly technical regulatory program,' in which the identification and classification of relevant `criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.'" West Vir. Mining and Reclamation Ass'n v. Babbitt, 970 F. Supp. 506, 514 (S.D.W.V. 1997) (quoting Thomas Jefferson Univ., 512 U.S. at 512).
III. DISCUSSION A. UNE COMBINATIONS 1. Ameritech Must Provide New UNE Combinations
Ameritech concedes that the Supreme Court's ruling in Verizon Communications, Inc. v. FCC, 122 S.Ct. 1646 (2002), requires Ameritech to provide new unbundled network element ("UNE") combinations for ATT. The Supreme Court has ruled that the FCC's combinations rules, Rules 315(c) and (d), which require an ILEC to "perform the functions necessary" to combine UNEs, are consistent with the Act. Verizon, 122 S.Ct. at 1684. The Act assumes that ILECs and CLECs are unequal, and thus, the Act's language that requires an ILEC to provide UNEs in a manner that allows CLECs to combine them, does not give the ILEC a statutory right to refuse to do the combining work itself. See id.
However, Ameritech is correct that it must not be made to offer new UNE combinations under all circumstances. See id. at 1685 ("[T]he duties imposed under the [combining] rules are subject to restrictions limiting the burdens placed on the incumbents."). First, an ILEC must combine elements for a CLEC only when the CLEC is unable to do the combining itself. Id. Second, the ILEC must provide only the "functions necessary to combine" the elements, not necessarily the actual, complete combination. Id. (citing 47 C.F.R. § 51.315(c),(d)). Third, the CLEC must pay a reasonable fee for the combination. Id. Finally, the ILEC's duty to provide new UNE combinations arises only when the requested combinations will not discriminate against other carriers, and are "technically feasible." Id. (citing 47 U.S.C. § 251(c)(3)). The Supreme Court has referred to the FCC's First Report and Order as a guide for determining "technical feasibility." "`[T]echnically feasible' does not mean merely what is `economically reasonable,' . . . or what is simply practical or possible in an engineering sense. . . . The limitation is meant to preserve `network reliability and security,' . . . and a combination is not technically feasible if it impedes an incumbent carrier's ability `to retain responsibility for the management, control, and performance of its own network.'" Id. (quoting First Report and Order).
In re Implementation of Local Competition in Telecommunication Act of 1996, 11 F.C.C.R. 15499 (Aug. 1, 1996).
The Court considers de novo whether the parties' arbitrated Agreement complies with the Act. See US West Communications, Inc., 224 F.3d at 1052. While the agreement complies with the Act by requiring Ameritech to provide ATT new UNE combinations, the agreement does not reflect the limitations on Ameritech's duty as recently set forth by the Supreme Court. In that sense, the agreement is not consistent with the Act. Arbitration Issue 17 is REMANDED to the IURC for further consideration in light of the Supreme Court's interpretation in Verizon, 122 S.Ct. at 1683-86, of Rules 315(c) and (d), and the parties are ordered to reform the Agreement accordingly.
2. The IURC Improperly Included Certain Network Elements As UNE Combinations
The Agreement improperly includes packet switching capabilities and facilities as elements approved for UNE combinations. The FCC has determined that packet switching capability, defined at 47 C.F.R. § 51.31(c)(4), can be provided as a UNE only where four requirements are met. 47 C.F.R. § 51.31(c)(5). While state commissions may supplement FCC rules to further competition, the IURC cannot act contrary to FCC rules. Here, the FCC has limited the situation in which an ILEC must provide nondiscriminatory access to packet switching capability. Indeed, it appears the parties and the IURC are aware of the limitation. See Agreement Schedule 9.2.6, § 9.2.6.5. Yet, the parties designate nothing in the Agreement or the administrative record to demonstrate that the IURC considered whether the elements listed at section 9.3.6, Table 1, meet the requirements of 47 C.F.R. § 51.(c)(5). Thus, it is unclear whether the Agreement is consistent with the Act. Arbitration Issues 18 and 79 are REMANDED to the IURC for findings as to whether the UNEs listed as available for UNE combinations, at section 9.3.6, Table 1, of the Agreement, are properly included without limitation. Ameritech's request for an injunction on Count I of its Complaint is GRANTED.
B. OPERATOR SERVICES AND DIRECTORY ASSISTANCE
The FCC rules require an ILEC to provide operator services and directory assistance ("OS/DA") as UNEs "only where the incumbent LEC does not provide the requesting telecommunications carrier with customized routing or a compatible signaling protocol." 47 C.F.R. § 51.319(f). The parties seem to agree that Ameritech has customized routing available, but dispute whether Ameritech actually provides customized routing. The IURC apparently found that Ameritech had not proved it provides customized routing, because it had not demonstrated that the customized routing is in place and functioning. Arbitration Order at 40. Thus, the IURC adopted ATT's proposed language requiring Ameritech to provide OS/DA as a UNE. Id.
In another context, the FCC has examined what it means for an ILEC to "provide" a CLEC with access and interconnection. See Application of Ameritech Michigan Pursuant to Section 27 of the Communications Act of 1934, as amended, to Provide In-Region, InterLATA Services in Michigan, 12 F.C.C.R. 20,543 (Aug. 19, 1997). There, the FCC concluded that an ILEC provides an item where it actually furnishes the item or, if no CLEC is using the item, the ILEC makes the item available as both a legal and practical matter. Id. ¶ 110. Legally, an ILEC makes an item available when it is obligated to do so by an approved interconnection agreement. See id. Practically, the ILEC makes an item available when it demonstrates that it can furnish the item at the quantity and quality a CLEC reasonably may demand. See id. The FCC explained that an ILEC's evidence "may include carrier-to-carrier testing, independent third-party testing, and internal testing." Id. Thus, the FCC clearly contemplates that "provide" means something more than offer.
Moreover, the FCC has noted that while it may be difficult, a state commission "must make a predictive judgment" whether, in situations like this where the item is not actually being furnished, the ILEC could furnish the item on demand. See id. ¶ 113. Here, the IURC heard evidence from witnesses in support of both parties' positions. In the Arbitration Order, the IURC acknowledged that evidence, but was not convinced that Ameritech was "providing" customized routing such that it was relieved of a duty to offer OS/DA as UNEs. The IURC did not adopt the view that Ameritech's offering must be fully tested, but found that the evidence failed to show that Ameritech's customized routing is in place and functioning. On the evidence the parties designated, the Court does not find that the IURC's judgment with respect to Arbitration Issue 14 was arbitrary or capricious. Ameritech's request for an injunction on Count II of its Complaint is DENIED.
C. TANDEM RECIPROCAL COMPENSATION RATE
The FCC has established that when a CLEC's switch serves a geographic area comparable to that served by the ILEC's tandem switch, the CLEC's rate should be the tandem interconnection rate. 47 C.F.R. § 51.711(a)(3). The IURC has determined that Ameritech should pay ATT the tandem interconnection rate for calls that originate on Ameritech's network and terminate on ATT's network. Ameritech argues that it should be required to pay only the end office rate, because ATT's switch did not "serve a geographic area comparable to the area served by" Ameritech's tandem switch. See 47 C.F.R. § 51.711(a)(3). Although Ameritech claims that the IURC made an error of law, the parties agree that the IURC applied the geographic area test found in 47 C.F.R. § 51.711(a)(3). The disagreement is whether the IURC came to the proper conclusion; thus, the Court reviews the IURC's determination under the arbitrary and capricious standard.
Both parties have cited court opinions and state utilities commission reports that address this issue. Yet, the FCC rule requires only that a CLEC serve a geographic area comparable to the area served by the ILEC. Id. The Arbitration Order reveals that the IURC reviewed ATT's testimony and exhibits that demonstrated ATT's switch coverage. Arbitration Order at 34-35. The IURC was satisfied that ATT's transparency maps of switches allowed a sufficient comparison of ATT's network coverage to that of Ameritech's network coverage. Id. at 34. From that, the IURC found that ATT's network serves an area "comparable to, if not more extensive than" Ameritech's network. Id. at 36. Ameritech seems to understand that evidence of ATT's customer location is not necessary to establish a comparable geographic area; it is difficult to imagine what else Ameritech expects. The IURC did not have to speculate about ATT's future capabilities. Cf. MCI Telecomm. Corp. v. Michigan Bell. Tel. Co., 79 F. Supp.2d 768, 791 (E.D.Mich. 1999) (refusing to find CLEC served comparable geographic area where it was not authorized to serve that area, but planned to be authorized in the future) aff'd, Nos. 00-1091, 00-1161, 00-1164, 2002 WL 135493 (6th Cir. June 19, 2002). The Court cannot say that the IURC's determination on Arbitration Issue 12 was arbitrary or capricious. Ameritech's motion for an injunction on Count XIX of its Complaint is DENIED.
D. RECIPROCAL COMPENSATION FOR ISP-BOUND TRAFFIC
Section 4.8.1 of the Agreement relates to reciprocal compensation, which the Act requires for the transport and termination of telecommunications. See 47 U.S.C. § 251(b)(5). The FCC recently has determined that traffic delivered to an Internet service provider ("ISP") is not subject to reciprocal compensation. Intercarrier Compensation for ISP-Bound Traffic, C.C. Docket No. 99-68, Order on Remand and Report and Order, 16 F.C.C.R. 9161 (Apr. 18, 2001) ("ISP Intercarrier Compensation Remand Order"), remanded sub nom. WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002). The Court reviews the Agreement de novo to determine whether it is consistent with the Act and FCC regulations. See US West Communications, Inc., 224 F.3d at 1052.
Section 4.8.1 of the Agreement complies with the Act. That provision makes very clear that the ISP Intercarrier Compensation Remand Order is effective and governs the parties' rights under the Agreement. It is also clear from the face of the Agreement that the parties may negotiate an amendment to Section 4.8.1 if they find it necessary. The Court is not convinced that the Agreement, which the IURC approved, imposes reciprocal compensation of ISP-bound traffic, as Ameritech argues. Ameritech fears that the IURC will, as it has previously, interpret the parties' reciprocal compensation obligation to include ISP-bound traffic. In light of the FCC's subsequent ISP Intercarrier Compensation Remand Order and the parties' recognition of that order in their Agreement, the Court does not share Ameritech's fear.
Ameritech's motion for an injunction on Count XVIII of its Complaint is DENIED.
E. OFF-SITE COLLOCATION
Under the Act, ILECs must provide "for physical collocation of equipment necessary for interconnection or access to unbundled network elements at the premises of the local exchange carrier." 47 U.S.C. § 251(c)(6). When an ILEC has no space remaining in a structure for collocation, the ILEC must make adjacent space "located at the incumbent LEC premises" available for collocation. 47 C.F.R. § 51.323(k)(3). An ILEC is not required to provide physical collocation where it "is not practical for technical reasons or because of space limitations." 47 U.S.C. § 251(c)(6). Nothing in the Act or the FCC rules contemplates that collocation may occur away from the ILEC's premises. In fact, by definition, collocation occurs within or upon an ILEC's premises. See 47 C.F.R. § 51.5. Further, when the Court of Appeals for the D.C. Circuit affirmed the FCC's authority to promulgate a rule that included a duty for the ILEC to provide adjacent collocation, it did so on the understanding that "adjacent" properties are still on the ILEC's "premises," and thus, the FCC had not exceeded its authority. GTE Serv. Corp. v. F.C.C., 205 F.3d 416, 425 (D.C. Cir. 2000). "Premises" includes:
all buildings and similar structures owned, leased, or otherwise controlled by the incumbent LEC that house its network facilities, all structures that house incumbent LEC facilities on public rights-of-way, and all land owned, leased, or otherwise controlled by an incumbent LEC that is adjacent to these structures. This definition, of course, excludes land and buildings in which the incumbent LEC has no interest.
Order on Reconsideration and Second Further Notice of Proposed Rulemaking in C.C. Docket No. 98-147 and Fifth Further Notice of Proposed Rulemaking in C.C. Docket No. 96-98, 15 F.C.C.R. 17806, ¶ 44 (Aug. 9, 2000); accord 47 C.F.R. § 51.5.
The Agreement provides that if physical collocation space is not available on Ameritech's premises, ATT has the option of an off-site arrangement. Agreement § 12.14(b), (c). Ameritech then is obligated to "provide all physical collocation services" as if the arrangement were on-site collocation. Id. § 12.15.3(j). Given the meaning of collocation and the definition of premises, the arrangement in the Agreement for off-site "collocation" space is not really collocation under Section 251(c)(6) of the Act.
ATT argues, first, that because Ameritech's sister company has a similar off-site arrangement in Texas, the "best practices" rule mandates that Ameritech make this arrangement available in Indiana. See 47 C.F.R. § 51.321(c). This argument is not persuasive. The best practices rule applies to collocation arrangements, making specific reference to the deployment of collocation on the ILEC's premises. See id. Because, as explained above, the arrangement ATT desires is not collocation, the best practices rule is irrelevant.
Second, ATT argues that even if the off-site collocation is not really collocation, the arrangement is authorized by Sections 251(c)(2) and (3) of the Act. See 47 U.S.C. § 251(c)(2), (3). That portion of the Act provides that an ILEC must provide a CLEC with nondiscriminatory interconnection and access to UNEs. ATT may be correct that some off-site arrangement for placement of its interconnection equipment is consistent with some section of the Act, but that is not the issue before the Court. The Court will not uphold the controversial provisions of the Agreement as in compliance with Sections 251(c)(2) and (3) of the Act because that is not the way the Agreement is drafted. Sections 12.14(b), 12.14(c), 12.1(c), 12.15.3(j) through 12.15.3(m) fall within the Agreement's collocation provisions, which impose certain rights and obligations on the parties particular to collocation.
As written, sections 12.14(b), 12.14(c), 12.15.3(j) through 12.15.3(m) of the Agreement are not consistent with the Act and are unenforceable. Ameritech's motion for injunction on Count XVI of its Complaint is GRANTED. Arbitration Issue 15 is REMANDED to the IURC for a determination in compliance with the Act and this Order. The parties are hereby ordered to reform the Agreement accordingly.
F. SUPERIOR QUALITY
As a matter of law, the IURC cannot require Ameritech to provide superior quality facilities. See Iowa Util. Bd. v. FCC, 219 F.3d 744, 758 (8th Cir. 2000); Iowa Util. Bd. v. FCC, 120 F.3d 753, 812-13 (8th Cir. 1997). Superior quality requirements "violate the plain language of the Act." Iowa Util. Bd., 219 F.3d at 758. A state commission's order need not necessarily be consistent with all of the FCC's rules in order to be consistent with the Act. See Iowa Utilities Bd., 120 F.3d at 806. However, just as the FCC is not permitted to promulgate rules that violate the Act, a state commission's discretion to "vary from a specific FCC regulation" does not authorize it to make orders that are inconsistent with or that substantially prevent the implementation of the interconnection and access rules. See id.
To the extent that the IURC imposed superior quality requirements on Ameritech, its order violates or is inconsistent with the Act and the Court reviews those issues de novo. However, to the extent the IURC imposed requirements on Ameritech because it factually found them not to be superior quality requirements, the Court must review the IURC's findings under an arbitrary and capricious standard. See Southwestern Bell Tel. Co. v. Apple, 309 F.3d 713, 717-18 (10th Cir. 2002). Thus, the IURC's order regarding each of the four network facilities or elements at issue must be examined independently.
1. Interfaces
The FCC has made clear that an ILEC's obligations under Section 251 of the Act "include modifications to incumbent LEC facilities to the extent necessary to accommodate interconnection or access to network elements." First Report and Order, ¶ 198. Further, that an ILEC must modify its facilities or equipment to respond to a request for interconnection "does not determine whether satisfying such request is technically feasible." 47 C.F.R. § 51.5 The IURC adopted ATT's proposed language with respect to technically feasible interfaces, which does not require Ameritech to provide "any" network interface ATT desires. On its face, this language clearly complies with the Act. See 47 U.S.C. § 251(c)(2). The IURC did not make a finding as to whether the language requires Ameritech to offer superior quality interconnection. The Court will not second guess the IURC's decision on Arbitration Issue 15.
2. Dial Tone
The IURC has ordered Ameritech to guarantee no interruption in service when converting a customer from Ameritech to ATT. Arbitration Order at 43. While Ameritech has argued, both to the IURC and to this Court that some interruption is necessary, the IURC found that dial tone should not be lost during a conversion. Id. The IURC better understands the "technical and specific idiosyncracies" of an ILEC's network, and if it finds, based on the evidence before it, that a requirement of no loss of dial tone is possible and necessary, the Court will not find otherwise. See MCI Telecomm. Corp. v. New York Tel. Co., 134 F. Supp.2d 490, 500 (N.D.N.Y. 2001). Nothing in the administrative record suggests that the IURC has ordered Ameritech to provide superior quality interconnection, and the Court may not substitute its own judgement for that of the IURC. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The IURC's determination on Issue 16 was not arbitrary or capricious.
3. Acceptance Testing
The IURC ordered Ameritech to perform a noise and frequency response test before opening a loop circuit, even recognizing that such tests are superior quality. Arbitration Order at 76-78. Superior quality requirements "violate the plain language of the Act." Iowa Util. Bd., 219 F.3d at 758. The IURC understands this, but concluded that state commissions can order requirements that "violate" the Act, as long as the requirements do not "conflict" with the Act. See Arbitration Order at 77-78. The Court fails to see the difference. A state commission's arbitration determinations must "meet the requirements of" the Act. 47 U.S.C. § 252(e)(6). It is difficult to conceive how a determination could violate the Act, but meet the requirements of it. As explained above, the IURC cannot require an ILEC to provide superior quality interconnection or access. The IURC's determination on Issue 40 is contrary to law.
4. Dark Fiber
The IURC ordered Ameritech to provide dark fiber to ATT in the same manner it is able to utilize dark fiber itself. Arbitration Order at 84-86. This means Ameritech cannot limit the amount of dark fiber ATT purchases, cannot reclaim fiber that ATT already has purchased, and must conduct splices of dark fiber at ATT's request. Nothing in the administrative record indicates that this requirement forces Ameritech to provide access to dark fiber superior to its own access. The IURC's determination on Arbitration Issue 82 was not arbitrary or capricious.
Thus, Ameritech's request for an injunction as to Counts III and VI of its Complaint is DENIED. Ameritech's request for an injunction as to Count XXI of its Complaint is GRANTED in part and DENIED in part. The IURC's determination on Issue 40 of the Arbitration Order is contrary to law.
IV. CONCLUSION
For the reasons discussed herein, Ameritech's requests for injunctive and declaratory relief on Counts II, III, VI, XVIII, and XIX of the Complaint are DENIED. Ameritech's request for an injunction on Count XXI of the Complaint is GRANTED in part and DENIED in part. Finally, Ameritech's request for an injunction on Counts I and XVI of the Complaint are GRANTED and REMANDED to the IURC for further findings.
IT IS SO ORDERED this ___ day of December, 2002.