DE 98-061
CTC COMMUNICATIONS CORPORATION
Petition to Require Assignment of Contracts
Order Clarifying Order No. 23,040
O R D E R N O. 23,116
January 26, 1999
I. PROCEDURAL BACKGROUND
On November 3, 1998, New England Telephone and
Telegraph Company, d/b/a Bell Atlantic - New Hampshire (Bell
Atlantic) filed with the New Hampshire Public Utilities
Commission (Commission) a letter requesting clarification and/or
reconsideration of one portion of Order No. 23,040 (October 7,
1998). The requested clarification, according to Bell Atlantic,
does not alter the Commission's conclusion in this docket or the
ordering clauses of Order No. 23,040.
Having received a three day extension of time to
answer, on November 16, 1998, CTC Communications Corporation
(CTC) filed a response in opposition to Bell Atlantic's request.
On December 23, 1998, in further support of its request for
clarification and/or reconsideration, Bell Atlantic submitted a
copy of a Maine Public Utilities Commission Hearing examiner's
Report regarding a similar docket.
II. POSITIONS OF THE PARTIES
Bell Atlantic contends that specific language in Order
No. 23,040 requires clarification for three reasons. First, Bell
Atlantic claims the order mischaracterizes the Company's
position. A sentence on page 14 of the Order reads: "Without
citing any authority for its claim, Bell Atlantic argued that it
should collect a termination fee upon processing CTC orders which
assume an end user's contract." In its letter requesting
clarification Bell asserts that it had argued that the contracts
in question were not freely assignable and that, therefore,
assignment rightly triggered Bell Atlantic's right to a
termination charge levied against Bell Atlantic's customer.
According to Bell Atlantic, once the Commission decided that the
contracts in question are freely assignable, as it did on page 13
of the Order, based on interpretation of Bell Atlantic's tariffs,
Bell Atlantic avers it no longer would argue in favor of
termination charges. Accordingly, Bell Atlantic's second request
for clarification is a claim that the Commission's discussion of
the appropriateness of termination charges beginning on page 14
of the order is not essential to the Commission's decision and
should be deleted. Third, Bell Atlantic claims that the
Commission Order's discussion of several FCC orders is misleading
because those orders do not specifically rule that the collection
of termination charges for assignment of end user contracts
constitutes an unreasonable restriction on resale.
CTC opposes Bell Atlantic's request for clarification,
claiming that the Commission's order properly characterized Bell
Atlantic's actions, if not Bell Atlantic's arguments; that Bell
Atlantic espoused various positions during the proceeding; that a
discussion of the effect of Bell Atlantic's actions in relation
to the mandates of the Telecommunications Act of 1996 is
appropriate; and that the FCC orders cited by the Commission
support the Commission's conclusion that Bell Atlantic's actions
amounted to an unreasonable restriction on resale. For those
reasons, CTC requests that the Commission deny Bell Atlantic's
request to clarify or reconsider Order No. 23,040.
III. COMMISSION ANALYSIS
We appreciate the careful reading of Order No. 23,040
which prompted this Motion for Clarification. While we intend
all our orders to be clear, we recognize the limitations of
language which can lead to unintended constructions. Since Bell
Atlantic has identified several instances in Order No. 23,040
which it considers unintentional misstatements, we will clarify
the order pursuant to the following discussion.
The first point Bell Atlantic wishes clarified is a
sentence stating that "Bell Atlantic argued that it should
collect a termination fee upon processing CTC orders which assume
an end users's contract." This sentence does not mis-state the
argument Bell Atlantic advanced at hearing. In order to be
clear, however, we will add the reason Bell Atlantic made the
argument. The paragraph, which is the seventh paragraph of
Section III in Order 23,040, is clarified to read:
Without citing any authority for its claim,
Bell Atlantic argued that it should collect a
termination fee upon processing CTC orders
which assume an end user's contract because
those contracts are not assignable. As
discussed above, we do not accept Bell
Atlantic's claim. Bell Atlantic further
argued that it should be compensated for loss
of customer control, possible ancillary
service sales, and stability of its rate
base. However, the value of customer control
cannot be measured, and no evidence was
presented as to the value of possible
ancillary sales. As to a stable rate base,
that appears to remain stable when assigned
at the same retail rate; furthermore, a
stable rate base would appear to be a
perquisite provided to a monopoly, not the
right of a competitive carrier. Accordingly,
we will not provide compensation for these
items.
The second point Bell Atlantic wishes clarified in
Order No. 23,040 is the import of our analysis regarding Bell
Atlantic's actions in light of the resale provisions of the
Telecommunications Act of 1996 (TAct). Bell Atlantic appears to
ask that we delete this analysis because it is unnecessary to
support the ordering clauses of Order 23,040. We agree that our
discussion of resale is not an essential underpinning for our
conclusion; neither is it contradictory to our conclusion.
While our order rests firmly on our reading of the language of
the parties' Resale Agreement and Bell Atlantic's tariff
provisions, we also wish to place Bell Atlantic's actions and
this dispute in the context of the transition of the
telecommunications industry to a post-TAct environment. We will
not delete it.
In order to place this docket in the proper context, we
cited certain FCC orders which have addressed resale and
restrictions on resale. Bell Atlantic, as its third point for
clarification, asserts that the orders cited do not hold that the
imposition of termination charges for assignment of an end user
contract represents an unreasonable restriction on resale. Our
decision, however, was not dictated by the cases cited. Those
cases merely support our conclusion in this case that Bell
Atlantic "in effect exempt(ed) these contracts from resale." The
cases cited dealt, inter alia, with contracts that certain
jurisdictions explicitly exempted from resale. We merely
analogize to those cases in finding that the effect of Bell
Atlantic's actions represents a similar unreasonable restriction
on resale. As clarified here, the cases are not inapposite.
We have reviewed the Maine PUC's Hearing Examiner's
Report dated December 9, 1998. The rationale put forth differs
from that we follow here. We are not persuaded by it.
Based upon the foregoing, it is hereby
ORDERED, that Order No. 23,040 is clarified as detailed
above, without effect upon the outcome of Docket No. DE 98-061.
By order of the Public Utilities Commission of New
Hampshire this twenty-sixth day of January, 1999.
Douglas L. Patch Susan S. Geiger Nancy Brockway*
Chairman Commissioner Commissioner
Attested by:
Claire D. DiCicco
Assistant Secretary
* Commissioner Brockway took no part in the deliberations or
decision in this docket.