STATE OF ILLINOIS ILLINOIS COMMERCE COMMISSION

Joint Submission of the Amended Plan ) of Record for Operations Support ) Docket No. 00-0592 Systems (“OSS”) )

COVAD COMMUNICATIONS COMPANY’S BRIEF ON EXCEPTIONS ON REHEARING

Covad Communications Company (“Covad”) hereby files these exceptions to certain conclusions reached on Issue 19(b) and Issues 29/31 in the Administrative Law

Judges’ Proposed Order dated July 3, 2001 (“HEPO”). The Administrative Law Judges reached the appropriate conclusions regarding the provision of loop makeup information on multiple loops. Nonetheless, implementation of the conclusions identified below regarding the impair analysis, identification of loops by CLECs during the ordering process, and direct access would be contrary to state and federal law, sound public policy, and the rapid deployment of advanced services in Illinois.

Covad takes exception to seven issues in the HEPO.

First, the HEPO should be revised to remove any requirement that a CLEC must satisfy the “necessary and impair” standard in order to obtain access to pre-ordering and ordering OSS functions. As discussed below, such a requirement violates both federal and state law. Second, even if the impair analysis were required (which it is not), the HEPO misapplies the impair analysis. Third, the HEPO errs in finding that the Commission’s January 2001 Order has been stayed. Fourth, the HEPO errs in discounting evidence regarding the OSS access provided by other ILECS. Fifth, the HEPO improperly credits Ameritech’s unfounded claim that it is a massive undertaking for Ameritech to allow CLECs to identify a loop for ordering. In

1 addition, the HEPO artificially restricts Covad’s and other CLEC’s ability to provide varied DSL service to Illinois consumers because Ameritech, rather than CLECs, determines what loops will be optimal for the CLEC’s DSL service. Sixth, the HEPO must be clarified regarding Ameritech’s obligation to provide loop makeup information on multiple loops. As discussed below, Ameritech today provides manual and electronic loop makeup; the HEPO should be revised to require Ameritech to provide similarly manual and electronic loop makeup on multiple loops. Seventh, the HEPO must be revised to eliminate the erroneous conclusion that federal law does not require direct access to Ameritech’s OSS systems. Covad has provided it proposed replacement language as Attachment A to its Brief on Exceptions. I. APPLICATION OF THE IMPAIR ANALYSIS TO PRE-ORDERING AND ORDERING OSS FUNCTIONS VIOLATES FEDERAL AND STATE LAW.

The HEPO concludes that it must apply the impair standard “to determine whether

Ameritech’s OSS offerings for the proposals at issue must be expanded beyond those required by the FCC.” (HEPO at 44). The HEPO’s conclusion is erroneous for two reasons. First, the OSS functions at issue in this case do not “expand” beyond those required by federal law. Second, the OSS functions at issue in this case must be made available to CLECs under state law. Accordingly, the HEPO must be revised to remove any requirement that CLECs can only access such pre-ordering and ordering OSS functions upon satisfactory completion of the impair analysis.

A. The HEPO Effectively Removes An Unbundled Network Element from the Federal List of Unbundled Network Elements.

The HEPO improperly concludes that it must apply the impair standard in this proceeding before Covad and other CLECs can gain access to pre-ordering and ordering

2 OSS functions. This pronouncement is tantamount to removing portions of OSS from the federal list of unbundled network elements.

Federal law requires that ILECs provide unbundled access to their OSS functions, consisting of pre-ordering, ordering, provisioning, maintenance and repair, and billing functions supported by the ILEC’s databases and information. 47 C.F.R. § 51.319(g).

Covad seeks access to pre-ordering and ordering functions supported by Ameritech’s

OSS. Thus, this case involves access to Ameritech’s OSS – an existing unbundled network element that Ameritech is already required to provide. State commissions cannot remove network elements from the ILEC’s unbundling obligations under the 1996

Act. UNE Remand Order ¶ 157. Yet, the HEPO does just that – it removes some unspecified portion of Ameritech’s OSS functions from the list of unbundled network elements available to CLECs.

Moreover, the HEPO does not make clear where the line will be drawn. What pre-ordering OSS functions exist within the federally-defined OSS unbundled network element? What pre-ordering functions are “new elements” that require the Commission to apply the impair analysis? What ordering functions fall within the OSS unbundled network element? In sum, when is Ameritech’s OSS a UNE and when is a new network element? The HEPO is silent on all of these issue. Moreover, there is nothing in the

Telecommunications Act or in its implementing regulations that supports the conclusion that specific functions of OSS are not already unbundled network elements. During this rehearing, Ameritech has been equally unable to explain when the Commission must apply the impair analysis. Ameritech’s witnesses could only articulate that the impair analysis must be applied if the functionality involves a substantial change. (Tr. at 1720,

3 1745). As Ameritech acknowledged in its reply brief, “the OSS UNE, of course, is expansive, and it covers many different areas of an ILEC’s operations, from pre-ordering through maintenance and repair and billing.” (Ameritech Reply Br. at 3). It is apparently not expansive enough, however, to cover the OSS functions at issue in this case. Thus,

CLECs can only be left wondering which pre-ordering and ordering functions are covered in the federal OSS UNE, and which ones are somehow now excluded from this otherwise “expansive” federal UNE.

It appears that Ameritech seeks a rule such as the following: If Ameritech is willing to make an OSS modification requested by CLECs, then that modification is part of the “expansive” federal UNE; if Ameritech is unwilling to make an OSS modification requested by CLECs, then that modification may only be achieved through applying the impair analysis. Obviously, such a rule as suggested by the HEPO and supported by

Ameritech renders the CLEC community in complete uncertainty about its rights and

Ameritech’s obligations, even when the FCC has already spoken clearly on the CLECs right to OSS as an unbundled network element.

As a result, the HEPO opens the door for increased litigation before the

Commission. Such a result is contrary to public policy. As the FCC stated, “Litigation over the incumbents’ unbundling obligations requires the parties . . . and state commissions . . . to expend vast amounts of time, and resources, ultimately impairing the ability of competitive LECs to execute their business plans.” UNE Remand Order ¶ 115.

Yet, such a result is inevitable here. A CLEC, relying on the federal law that requires access broadly to pre-ordering and ordering “functions supported by an incumbent LEC’s databases and information,” cannot know whether Ameritech will find that those

4 functions fall within the OSS UNE. Ameritech may determine, as here, that certain pre- ordering and ordering functions are not covered in the UNE definition. CLECs will then be faced with the threat of “necessary and impair” litigation every time they request additional or modified OSS functionality. Such a result directly contradicts federal law.

The FCC has explicitly stated that a list of unbundled network elements provides

CLECs with the certainty necessary to compete effectively against ILECs. UNE Remand

Order ¶¶ 114-115. The FCC noted: “we find that unbundling requirements we adopt should typically provide the uniformity and predictability new entrants and fledgling competitors need to develop and implement national and regional business plans.” UNE

Remand Order ¶ 114. The HEPO injects uncertainty into the process because CLECs can no longer be assured that all pre-ordering and ordering OSS functions will be made available to them.

The HEPO appears to ground its decision to apply the impair standard here on the

FCC’s Kansas/Oklahoma 271 Order. In particular, the HEPO finds that the FCC

“determined [in its Kansas/Oklahoma 271 Order] that SBC’s optimization process, which returned information on one loop in the pre-ordering sessions, did not violate the UNE

Remand Order.” (HEPO at 42). Yet, as Staff, Covad, and AT&T stated, the FCC expressly declined in the Kansas/Oklahoma 271 Order to interpret the UNE Remand

Order requirements regarding loop makeup information. Indeed, the FCC determined that it would be inappropriate to do so in a 271 proceeding. Thus, the Kansas/Oklahoma

271 Order did not hold that additional pre-ordering functionality – seeking qualification information on additional loops available at a customer’s address – was not required by the UNE Remand Order, as Ameritech argued and the HEPO concludes. Instead, the

5 FCC found that it was not “self-evident” that this functionality was required by its order and thus encouraged public comment. In doing so, the FCC made absolutely no mention whatsoever of the application of the necessary and impair test, nor did it presuppose that this functionality was not required by the UNE Remand Order or the 1996 Act.

Indeed, the HEPO interprets the Kansas/Oklahoma 271 Order as holding that loop makeup information on multiple loops cannot be an existing ILEC obligation because it approved Southwestern Bell Telephone’s (SWBT’s) 271 application without requiring that such functionality be made available to all CLECs. Yet, the FCC similarly approved SWBT’s Texas 271 application despite the fact that SWBT failed to prvoide line splitting. As with loop makeup information in Kansas, the FCC found the 271 context an inappropriate one for resolution of such an issue. Despite the 271 approval, the FCC subsequently found that SWBT had a “pre-existing obligation” to provide line splitting pursuant to the Act and its rules. Third Report and Order on Reconsideration and

Further Notice of Proposed Rulemaking, CC Docket No. 98-147 (rel. Jan. 19, 2001).

Thus, the Kansas/Oklahoma 271 Order cannot be read, as the HEPO does, to indicate that

Ameritech does not have pre-existing legal obligations to provide the pre-ordering and ordering functions at issue in this rehearing. Accordingly, the FCC’s Kansas/Oklahoma

271 Order does not mandate that the Commission apply an impair analysis in this proceeding. The HEPO’s finding that the impair analysis must be applied, therefore, is erroneous and should be removed.

B. State Law Requires Ameritech to Provide CLECs with Access to its OSS.

The HEPO also ignores Ameritech’s obligations under state law. The Illinois

Public Utilities Act, as recently amended, imposes additional state requirements on

6 ILECs such as Ameritech, including an obligation to provide access to its pre-ordering, ordering, provisioning, maintenance and repair and billing functions in their OSS. 220

ILCS 5/13-801(e). In the statute, the Illinois legislature stated that these additional obligations are “not inconsistent with Section 261(c) of the federal Telecommunications

Act of 1996.” 220 ILCS 5/13-801. As a result, state law obviates any need for this

Commission to apply the impair analysis to the loop qualification issues on rehearing.

For this reason, any impair analysis requirements must be removed from the HEPO.

C. The HEPO Applies the Impair Analysis in a Discriminatory Manner.

For the first time in this proceeding, the HEPO applies the impair analysis to determine if Ameritech must provide certain OSS functions to CLECs. In essence, the

HEPO concludes that, while Ameritech must provide pre-ordering and ordering OSS functions generally, the particular functions that Covad seeks must uniquely satisfy the impair analysis. As AT&T stated in its briefs, the Commission never applied the

“necessary and impair” analysis in its original OSS arbitration order, despite the fact that order required Ameritech to provide new pre-ordering and ordering functionalities not previously available. (AT&T Initial Br. at 8). Yet, for the first time, the HEPO determines that certain, undefined OSS functions are not part of the OSS unbundled network element, and must independently satisfy the impair analysis. The HEPO’s conclusion is inconsistent with the Commission’s prior actions in this proceeding.

The HEPO discounts AT&T’s argument noting that AT&T failed to provide any specific citations where “we failed to apply the necessary and impair” standard.” (HEPO at 43). A review of the Commission’s January 24, 2001 Order reveals numerous

7 instances where the Commission ordered Ameritech to provide additional OSS functionality without embarking upon the impair analysis:

• Issue 74 (Line Splitting). The Commission ordered “In the likely event, however, that it is ordered to provide line-splitting, Ameritech must be prepared to develop OSS to provide this functionality.” (Order at 109). At no point does the Commission indicate that Ameritech’s preparation of such “new” OSS functionality is contingent upon CLECs successfully meeting the impair requirements.

• Issue 94 (Dark Fiber). The Commission ordered Ameritech to institute new practices to ensure that its paper records regarding dark fiber and to file a plan for the electronic mechanization of its dark fiber database. (Order at 113). While the Commission requests a “cost-benefit analysis regarding mechanization,” it does not apply or even allude to an impair analysis requirement.

• Issue 6 (Pre-Ordering Availability). The Commission ordered Ameritech to provide additional pre-ordering availability (beyond the hours that Ameritech provides to its retail operations) without an impair analysis.

The HEPO discounts AT&T’s argument, noting that regardless of whether “we failed to apply the “necessary and impair” test on any issue, Ameritech has accepted our findings on this issues.” (HEPO at 43). As the HEPO finds, the Commission cannot act without the proper authority. (HEPO at 43). Yet, it ordered Ameritech to make OSS modifications in its Merger Order and in its January 24, 2001 Order without once embarking upon the impair analysis. The Commission did not apply the impair analysis because it did not need to do so. It is a discriminatory application of law to impose the impair analysis uniquely upon the OSS functions to which Covad seeks access.

II. THE HEPO MISAPPLIES THE IMPAIR ANALYSIS FACTORS.

As discussed above, the impair analysis has no application to this proceeding on rehearing. Yet, even if the impair analysis must be applied here, the HEPO misapplies the relevant impair factors. The HEPO finds that “If Ameritech’s current pre-ordering

8 and ordering OSS systems enable CLECs to compete effectively and are not in themselves impediments to competition, we cannot require Ameritech to make costly changes to those systems. If, however, the OSS systems do not effectively meet CLECs’ needs for competing, we can and will require changes to be made.” (HEPO at 45).

The HEPO’s proposal demonstrates the inapplicability of impair analysis to this proceeding. The HEPO interprets the impair standard as requiring a comparison of third party alternatives to Ameritech’s existing OSS. Federal law, however, does not support such an interpretation of the impair factors. The UNE Remand Order clearly requires that a state commission applying the “impair” analysis consider the totality of the circumstances to determine “whether an alternative to the incumbent LEC’s network element is available in such a manner that the requesting carrier can realistically be expected to actually provide service using the alternative.” UNE Remand Order at ¶ 63.

The analysis requires an examination of alternatives “available though self-provisioning and from third-party suppliers and whether these alternatives are available as a practical, economic, and operational matter.” UNE Remand Order at ¶ 62.

The HEPO, however, skews this analysis. For example, no where in the UNE

Remand Order does the FCC state that the state commission should examine whether an

OSS change is “too costly” for Ameritech to implement. Indeed, the “cost” factor requires the Commission to “consider all the costs that the requesting carrier would incur to provide the services it seeks to offer” including costs to the requesting carrier associated with self-provisioning or purchasing alternative elements from third-party suppliers. UNE Remand Order at ¶ 72 (emphasis added). As part of this analysis, the commission must “evaluate the difference between the cost to the requesting carrier of

9 obtaining the unbundled network element from the incumbent LEC at forward-looking costs and the cost of an alternative element.” UNE Remand Order at ¶ 74 (emphasis added). In sum, the impair analysis examines costs to the requesting carrier; the HEPO, however, examines costs to Ameritech. Accordingly, the HEPO errs in its application of the impair analysis for this additional reason.

III. THE HEPO INCORRECTLY FINDS THAT THE COMMISSION’S JANUARY 2001 ORDER HAS BEEN STAYED.

The HEPO finds that the grant of rehearing in this proceeding has effectively stayed this Commission’s January 2001 Order. (HEPO at 39). This conclusion is contrary to the plain language of 220 ILCS 5/10-113 and 220 ILCS 5/10-110. The statute provides that the Commission’s Order become effective 20 days after service absent some order from the Commission staying the order. In addition, 220 ILCS 5/10-113 makes clear that even an application and grant of rehearing, by itself, will not excuse any corporation from complying with the Commission’s order “except in such cases and upon such terms as the Commission may by order direct.” Here, Ameritech has neither sought not been granted a stay by the Commission. Absent a stay, Ameritech’s compliance has not been excused.

In addition, the other statutory provisions cited by the HEPO are inapposite. For example, the State Liquor Control Commission statue explicitly provides that “If an application for rehearing is filed, the licensee shall continue the operation of the licensed business until the denial of the application, or if the rehearing is granted, until the decision on rehearing.” (HEPO at 40, emphasis added). The Illinois Commerce

Commission’s statute lacks any such language indicating that a stay is automatically granted until the decision on rehearing is issued. As a result, the State Liquor Control

10 Commission’s statute has no application here. Accodingly, the HEPO should be revised to remove any statement that the Commission’s January 2001 Order has been stayed.

IV. THE HEPO ERRS IN DISCOUNTING EVIDENCE REGARDING THE OSS ACCESS PROVIDE BY OTHER ILECS.

The HEPO also discounts evidence regarding the “types of OSS other ILECs” offer. (HEPO at 48). The HEPO dismisses the evidence in the record regarding the OSS access provided by Bell Atlantic, BellSouth, and Qwest because (1) Covad subsequently filed an antitrust lawsuit against BellSouth; and (2) there may be differences in the

ILEC’s OSS systems. (HEPO at 48). The HEPO thus concludes that “we are not sufficiently convinced to rely on the practices of other ILECs either to determine the necessity for OSS improvements or the feasibility of implementing such OSS changes.”

(HEPO at 48).

The HEPO errs by not relying on the practices of other ILECs. As an initial matter, the undisputed evidence in the record amply establishes that other ILECs provide

CLECs with the type of pre-ordering and ordering functions at issue here. The record includes documents from BellSouth’s own website which evidence that existing and spare loops are identified by telephone number or circuit ID. (Covad Ex. 2.0, Szafraniec

Attachment 3 at 4, 8). BellSouth then queries LFACs and searches for loop makeup information on up to 10 loops and returns that information to the CLEC. (Covad Ex. 2.0,

Szafraniec Attachment 3 at 9). At the time BellSouth returns loop makeup data to the

CLEC, it provides an identifier with the returned data. If the CLEC desires a particular loop, it submits an order with the facility number on it. BellSouth will use its “best efforts to assign to the CLEC the facility” requested. (Covad Ex. 2.0, Szafraniec

11 Attachment 2 at 7). “For those limited occasions when BellSouth’s assignment system cannot assign the specific facility of preferred loop makeup. . . BellSouth will assign the

CLEC a facility that meets the BellSouth technical standards of the BellSouth type loop as ordered by the CLEC.” (Covad Ex. 2.0, Szafraniec Attachment 2 at 7)

The HEPO appears to discount the evidence of BellSouth’s practices contained in

BellSouth’s own documents on the grounds that Covad filed an antitrust suit against

BellSouth that included allegations regarding BellSouth’s OSS. Covad’s antitrust suit highlights significant problems with BellSouth’s less than state-of –the-art OSS; yet even

BellSouth is capable of providing the type of OSS pre-ordering and ordering functions at issue in this case. It is undisputed in the record that BellSouth provides the precise type of OSS functions at issue here (and that Bell Atlantic and Qwest provide similar functionality); the HEPO errs when it dismisses such evidence simply because Covad filed an unrelated antitrust suit.

Nor can the HEPO properly discount the practices of other ILECs on the grounds that there may be differences between in the ILEC’s LFACS systems. LFACS is a system developed by Telcordia and sold to various ILECs, including Ameritech. Thus, as

Ameritech’s own witness acknowledged, any modifications to LFACs utilized by other

ILECs should apply in the Ameritech region. (Tr. at 1773; see also Covad Ex. 2.0,

Szafraniec Rebuttal Testimony at 8-9).

Nor should the Commission discount the evidence regarding BellSouth on the grounds that BellSouth “reserves” loops, while the Commission previously ordered

“tagging.” Ameritech argues that the Commission should ignore the loop identification system utilized in BellSouth because BellSouth “ freezes” its loops during the reservation

12 process, and the Commission rejected a reservation system here. As stated in its Initial

Brief, Covad recognizes that the Commission declined to reserve loops. While the

Commission did not order loop reservation, BellSouth’s system is directly relevant here because it demonstrates that LFACS can be modified to recognize and provision electronically a loop identified by the CLEC. Thus the evidence regarding BellSouth demonstrates that it loops can be identified and selected by CLECs during the ordering phase.

Ameritech’s arguments regarding “freezing” of loops are simply unavailing. (See

Ameritech Reply Br. on Rehearing at 11). Ameritech claims that loop identification can only work where, as Ameritech claims BellSouth does, loops are frozen during a reservation period. Ameritech does not explain why loop identification requires loops to be frozen in time. Indeed, the record establishes that loop identification can work even if loops are not frozen. For example, CLECs in the BellSouth region use the loop identifier to request a particular loop. As BellSouth’s documents state, that particular loop may on occasion be unavailable (which of course, should not occur if the loops were frozen). In such an event, BellSouth relies on LFACS to provision a similar loop, from among those available, to the CLEC. In sum, the practices of BellSouth and other ILECs demonstrate that Ameritech’s OSS can support the type of pre-ordering and ordering functions at issue in this case.

V. THE HEPO ERRONEOUSLY CONCLUDES THAT AMERITECH DOES NOT NEED TO ALLOW CLECS TO IDENTIFY THEIR DESIRED LOOP DURING THE ORDERING PROCESS.

The HEPO then concludes that Ameritech does not need to allow CLECs to identify a loop during the ordering stage because the evidence does not establish that

13 CLECs will be impaired without this capability. (HEPO at 50-51). As discussed above, the impair analysis is inapplicable in this proceeding. In addition, the HEPO’s findings and conclusions are erroneous for three reasons: (1) it effectively renders loop makeup on multiple loops meaningless for CLECs; (2) it ignores evidence in the record that loop identification is critical to CLECs and that loop identifiers currently exist in Ameritech’s

OSS; and (3) it improperly credits Ameritech’s speculative and unsupported assertions regarding systems work required to implement the Commission’s January 2001 Order.

Each of these reasons is discussed in more detail below.

First, the HEPO’s conclusion regarding loop identification renders loop makeup on multiple loops meaningless for CLECs. Regarding loop makeup information on multiple loops, the HEPO properly recognizes that “parity cannot be used as a means to inhibit CLECs from providing new technologies.” (HEPO at 48). Because Covad offers many flavors of DSL, while AADS offers only one (ADSL), the HEPO properly finds that it is critical for CLECs to examine loop makeup information on multiple loops in order to determine which loop would best support the particular service the CLEC desires to provide (or that the end user has requested). (HEPO at 48). The HEPO credits the testimony of Ms. Carter on behalf of Covad that depending on the service Covad seeks to provide, it may select the loop with the repeater and in other instances, again depending on the service it seeks to provide, Covad may select the loop without the repeater.

(HEPO at 49). Accordingly, the HEPO concludes that “this testimony suggests to us that even with the enhancement, Ameritech’s pre-ordering loop qualification does not present

CLECs with enough variety of information to determine for themselves which “flavor” of

DSL service should be offered to an end customer.” (HEPO at 49).

14 Yet, the HEPO ensures that CLECs will not be allowed to do anything with the

“variety of information” it is now able to obtain regarding multiple loops. The HEPO concludes that loop identification is unnecessary because “CLECs can move quickly from pre-ordering and ordering and that it will thus maximize the chances that the loop it viewed during pre-ordering will be the one actually provisioned.” (HEPO at 51). The

HEPO also finds that “if Covad or any other CLEC delays in placing the order it assumes the risk that the loop will be assigned elsewhere under the obviously fair first-come, first- served basis.” (HEPO at 51). In reaching this conclusion, the HEPO erroneously determines that the loop that LFACS provisions every time would be the loop that

CLECs would select for themselves. The record, however, demonstrates that not to be the case.

As the Commission Order permits Covad loop makeup on multiple loops, Covad can now access information on three loops for example. Loop #1 may have a repeater on it and loop #2 may not. Having viewed this information during the pre-ordering process,

Covad may determine that Loop #1 is the optimal loop for the service Covad seeks to provide the particular end user. (Tr. at 1823-1826). Yet, no matter how quickly Covad moves from pre-ordering to ordering, it may never obtain Loop #1 because LFACS, and thus Ameritech, has no idea that Covad wants Loop #1. Instead, LFACS’ provisioning logic may select Loop #2, despite the fact that Loop #1 is available and indeed preferable to Covad.

The HEPO creates the untenable situation that the loop identified by Covad as the preferred loop during the pre-ordering phase may in fact still be available during ordering, yet Covad may not receive its preferred loop because LFACS may not select

15 that particular loop. Thus, despite the fact that the loop has not been assigned to anyone else, Covad will not obtain its preferred loop. As a result, the HEPO effectively renders loop makeup information on multiple loops meaningless. It makes absolutely no sense to, on the one hand, conclude that Ameritech should provide CLECs access to additional loop information in the pre-ordering process so as to not stymie the CLECs’ ability to inform their customers as to their available service options and then, on the other hand, to conclude that a CLEC should not be able to obtain the loop it identified during the ordering stage, if it is available.

While Covad recognizes that identifying a loop does not guarantee a CLEC that a particular loop will be available, it would allow CLECs to obtain their desired loop if that loop is still available. The HEPO eliminates this possibility. Loop makeup information during the pre-ordering process is meaningless if Covad would select Loop #1 out of 3,

Loop #1 is still available, yet Ameritech provisions Loop #2. Under such a scenario,

Covad is in no better a position than if it never examined loop makeup information during pre-ordering and simply placed an order with Ameritech. Regardless of the information that Covad examines during the pre-ordering process and regardless of whether Covad’s desired loop is available, it must accept the loop that Ameritech provisions.

The HEPO recognizes that CLECs are impaired without access to loop makeup information on multiple loops during pre-ordering process because the loop qualification does not present CLECs with enough variety of information for CLECs to determine for themselves the “flavor” of DSL service CLECs may offer to an end user. (HEPO at 49).

16 Yet, in a cruel twist, the HEPO then concludes that now that CLECs have access to that information, they cannot do anything with it.

The HEPO reaches this conclusion under the misguided belief that Ameritech, rather than CLECs, is in the best position to select which loop will best serve the CLEC’s customers needs. Through loop identification, a CLEC can identify its desired loops. If the loop identified by the CLEC were no longer available at the time of ordering,

Ameritech could then provision a substitute loop using the LFACs logic. Moreover, if during the pre-ordering process, the CLEC determined that the available and spare loops were unacceptable, the CLEC could opt not to identify any loop and allow LFACS to provision a better loop by completing a line and station transfer to create a “new” loop.

Second, the HEPO improperly concludes that Covad presented no evidence or only conclusory arguments regarding loop identification. (HEPO at 50-51) Indeed, the

HEPO details just one page earlier Covad’s witness’ testimony regarding loop identification and explains why and when Covad might select a different loop than

Ameritech would. (HEPO at 49). Yet, the HEPO inexplicably ignores this exact evidence when determining whether Ameritech should be required to provide a loop identification function.

In addition, the HEPO ignores ample evidence in the record that Ameritech’s systems already include identifiers for existing and spare loops. Indeed, logic dictates that identifiers must exist, otherwise how would LFACS be able to tell SOAC which loop should be provisioned; it must have a means of identifying the particular loop to be provisioned. The record demonstrates this to be true. Ameritech’s own witness testified that its database has unique identifiers for “every single piece part in the network.” (Tr.

17 at 1922-23). Ameritech’s witness further testified that “LFACS does have a way of identifying each of the loops hat it could use in the assignment of that service.” (Tr. at

1922-23).1 Thus, the HEPO must be revised to remove its finding that there is insufficient, or inadequate, evidence to affirm the Commission’s prior Order regarding loop identification and verification.

Third, the HEPO improperly credits Ameritech’s testimony regarding systems changes required to allow CLECs to identify and verify that it received their desired loop.

Ameritech presented only the most conclusory statements in its testimony that loop identification would require “substantial resources” to implement. Nonetheless, the

HEPO finds that “Ameritech’s evidence shows that many systems would need to be changed, including, but not limited to: LFACS, the Service Order Analysis and control system, ARES, SAM, and AEMS.” (HEPO at 51). The HEPO continues “[a] further problem presents itself in that certain of the systems are licensed to Ameritech and therefore other companies would need to be involved in, and give their consent to, the implementation.” (HEPO at 51). Yet, Ameritech presented no evidence on these issues other than general, unsupported statements. For example, as Ameritech witness Mr.

Hamilton notes, some Ameritech systems such as LFACS may, or may not, require work by third-party vendors like Telcordia. Yet, Ameritech has apparently not contacted

Telcordia or any other vendor to determine if any work would even be required.

Accordingly, there is no evidence that such third parties would even need to be involved and certainly no evidence that such vendors would not give their consent.

1 The HEPO discounts this evidence on the grounds that Staff failed to make its proposal prior to its reply brief on rehearing. Evidence regarding existing identifiers came to the fore during the hearing. Despite this evidence, Ameritech claimed in its initial brief on rehearing that it would impossible to implement loop identification. Staff, therefore, in its reply brief simply sought to advice the Commission regarding the

18 Furthermore, the HEPO places too much weight on the fact that Ameritech may need to modify various systems. As discussed above, the types and natures of any changes are purely speculative at this point. Even if modifications were required to various systems, changes to Ameritech’s systems are ongoing and thus cannot serve as a basis to deny CLECs OSS access to which they are entitled. Even if Ameritech were required to modify AEMS, EDI, SAM, ARES, and LFACS, such modifications would hardly be unprecedented. Indeed, Ameritech has recently modified all those systems.

(See Covad Reply Br. on Rehearing at 24-26 (Confidential Version)).

In addition, the HEPO erroneously declines to allow loop identification because

“during the initial stages of implementation, these orders would have to be processed manually. This is a step backwards in our goal of promoting electronic OSS functions.”

(HEPO at 51). Yet, it is not uncommon for Ameritech to rely on manual processing for a certain period while electronic OSS functions are being developed. For example, line sharing orders were submitted manually until Ameritech’s electronic OSS functions were up and running. Similarly, the Commission required Ameritech in its January 24, 2001

Order regarding Issue 94 to update its paper records regarding dark fiber while it examined the development of an electronic database. Indeed, Ameritech provides loop makeup information manually today because of database mismatches. Yet, no one (not even Ameritech) would claim that it does not need to provide loop makeup information simply because it must do so manually. Moreover, if Ameritech had complied with this

Commission’s Order in January, as it was obligated to do, the systems would likely be in place already to accommodate this function mechanically. Thus, the mere fact that

record in this case and the availability of alternatives to the creation of any entirely new system. This evidence should not be rejected in the HEPO.

19 manual processing may be required in certain circumstances, or for a limited period of time, does not constitute a basis to reverse the Commission’s January 2001 Order regarding loop identification and verification. Even if manual processing were required during an initial phase, it would be an interim measure as even Ameritech does not dispute that it would move to electronic loop identification.

VI. THE HEPO MUST BE CLARIFIED TO REQUIRE AMERITECH TO PROVIDE MANUAL AND ELECTRONIC LOOP MAKEUP ON MULTIPLE LOOPS.

Covad does not take exception to the HEPO’s ultimate conclusion that Ameritech must provide CLECs with loop makeup information on multiple loops. Covad requests, however, that the HEPO be modified to clarify that Ameritech must provide such information electronically and manually. The HEPO provides that “Ameritech will modify its systems to return actual loop makeup on multiple loops at a service address, up to ten loops, if available, that could be processed within 120 seconds of a request.”

(HEPO at 49). Ameritech applies the 120 second time limit to electronic requests. Thus, by accepting Ameritech’s proposal, the HEPO leaves open the possibility that Ameritech need not provide the same information if a CLEC submits a manual loop request. The

HEPO should be revised to make clear that Ameritech must provide loop makeup on multiple loops both manually and electronically.

VII. THE HEPO MUST BE REVISED TO REMOVE ITS ERRONEOUS CONCLUSION THAT FEDERAL LAW DOES NOT REQUIRE DIRECT ACCESS TO AMERITECH’S OSS.

The HEPO concludes regarding Issue 19(b) that CLECs are “entitled to access the information” in Ameritech’s back end systems, and not direct access to the back office

20 systems themselves. (HEPO at 12). The HEPO further states that “we perceive the back office systems themselves to contain a multitude of information and data much of which the CLECs are not entitled to access.” (HEPO at 12). The HEPO errs in concluding that federal law does not entitle CLECs to direct, read-only access to Ameritech’s back end systems if Ameritech’s employees have such access.

Indeed, the UNE Remand Order and the Commission’s January 2001 Order make clear that CLECs must have the same type of access to OSS information, in the same format, and within in the same time frames as Ameritech’s employees have access.

(HEPO at 11). Thus, if Ameritech’s employees access certain loop information via electronic interfaces, then CLECs are entitled to access certain loop information in the same manner. Order, Docket No. 00-0592 at 72 (citing UNE Remand Order at ¶¶ 427,

429. 430, 431). If Ameritech’s employees access certain loop information manually, then

CLECs are entitled to access that information in the same manner. By extension, if

Ameritech’s employees access certain OSS information by directly accessing the back- end systems (in a read-only mode), then CLECs are entitled to the same access. Any other result would discriminate against CLECs.

In addition, the HEPO incorrectly finds that “Covad wants ‘something more’ than the information to which it is entitled. (HEPO at 12). Covad has not advocated for access to any information in Ameritech’s OSS; rather, Covad seeks access to all the loop information in Ameritech’s OSS. Covad is undeniably entitled to such information under federal law. UNE Remand Order at ¶ 427. Covad also is entitled to access that information in the same way that Ameritech’s employees do. UNE Remand Order at ¶

427. Thus, the HEPO’s finding that Covad somehow how wants something more than

21 the information to which it its entitled is erroneous. Covad sought rehearing to correct the legal error contained in the Commission’s order that, even if the record demonstrated that Ameritech’s employees access loop information via direct, read-only access to

Ameritech’s back end systems (as it did in Docket No. 00-0312/00-0313 and Docket No.

00-0393), Covad and other CLECs would not be entitled to the same access. The

Commission’s Order as it stands would shut the door to CLECs accessing the information in the same manner as Ameritech’s employees in direct contravention to federal law.

State law also requires such non-discriminatory access. The Public Utilities Act, as recently amended, makes clear that Ameritech cannot provide CLECs with inferior

OSS access. The Illinois statute prohibits Ameritech from “unreasonably refusing or delaying access to or provision of operation support systems to another telecommunications carrier or providing inferior operation support systems to another telecommunications carrier.” 220 ILCS 5/13-514(9). Any finding that Ameritech need not provide CLECs with direct, read-only access to its back office systems, even if its employees have such access violates Illinois law. For those reasons, the HEPO should be revised to make clear that federal and state law requires ILECs to provide CLECs with access to loop information in its OSS in the same manner (whether electronic, manual, or direct, read-only) and in the same time frames as its employees.

22 CONCLUSION For the foregoing reasons, the HEPO should be revised as outlined in Attachment A to Covad’s Brief on Exceptions to reaffirm in whole the Commission’s January 2001 Order regarding Issues 29/31 regarding DSL Loop Qualification and to revise the Commission’s legal error in Issue 19(b). Respectfully submitted,

Felicia Franco-Feinberg Covad Communications Company 227 West Monroe 20th Floor Chicago, Illinois 60606 (312) 596-8386

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