Appeal from the Orders of the Illinois Commerce Commission in Ill. C.C. Dkt. No. 99-0615
The opinion of the court was delivered by: Justice Slater
This is an appeal from the Orders of the respondent, the Illinois Commerce Commission ("Commission"), regarding the amendment of a collocation services tariff *fn1 proposed by the petitioner, Illinois Bell Telephone Company d/b/a Ameritech ("Ameritech"). The proceedings in this case began on October 5, 1999, when Ameritech filed several revised tariff sheets (collectively, "the amended tariff"). The Commission reviewed the amended tariff and found that the proposed expansion should be suspended until it had held a hearing on the propriety of Ameritech's amended tariff. Several competitive local exchange carriers ("CLECs") intervened in this case including AT&T Communications of Illinois, Inc., Sprint Communications L.P., Nextlink Illinois, Inc., Rhythms Links, Inc., Covad Communications and MCI World Com, Inc. Hearings were held before a Commission hearing examiner on January 5, January 31, February 29, and March 9, 2000. Evidentiary hearings were held on May 23 and 24, 2000. The Commission filed its order on August 15, 2000. It rejected the terms and conditions upon which Ameritech offered shared and adjacent structure collocation. It also found that Ameritech's cost studies and prices should be rejected because its cost support was insufficient. It therefore ordered a 50% reduction in central office build-out charges pending submission of a new cost study within 60 days. After its applications for rehearing were denied, Ameritech appealed.
A. Background Information
Ameritech's amended tariff was filed in compliance with the Federal Communication Commission's ("FCC") Deployment of Wireline Services Offering Advanced Telecommunications Capability, First Report and Order of Further Notice of Proposed Rulemaking in FCC Docket Number 98--147, released March 31, 1999 (the "Advanced Services Order" or "ASO"). The ASO addressed issues regarding collocation, spectrum compatibility and line sharing. With respect to collocation, the FCC required incumbent local exchange carriers ("ILECs") to provide three new forms of collocation: shared cage, cageless and (when space is exhausted) adjacent structure collocation. On March 17, 2000, the United States Court of Appeals for the District of Columbia Circuit affirmed in part and remanded in part the ASO. GTE Service Corp. v. F.C.C., 205 F.3d 416 (D.C. Cir. 2000).
B. The Commission's Rulings
1. Shared collocation arrangements
Shared collocation is an arrangement in which two or more CLECs share a single collocation cage. Ameritech's amended tariff required that CLECs wishing to share collocation space designate a primary collocator that would deal directly with Ameritech regarding the shared collocation space. The primary collocator would negotiate its own terms and conditions with any secondary collocators with which is wished to share space. The proposed arrangement was a type of sub-lease.
Before ruling on Ameritech's proposed arrangements for shared collocation, the Commission set out the CLECs' position on this issue. The CLECs contended that Ameritech's proposed shared cage collocation arrangement was unreasonable because it placed an undue burden on the primary collocator, who was unlikely to be familiar with the business plans or equipment of the secondary collocators, to contract directly with Ameritech for other services. AT&T noted that even Ameritech's witness conceded that Ameritech's proposal put the burden on the primary collocator to insure that all secondary collocators met Ameritech's requirements for compliant equipment. AT&T further emphasized that Ameritech's shared cage collocation proposal not only placed an unfair hardship on the primary collocator, but it also was nothing more than a blatant attempt on the part of Ameritech to discourage CLECs from using shared collocation arrangements.
The Commission initially noted that the scope of its inquiry was to determine whether Ameritech's collocation services tariff were just, reasonable, and non-discriminatory. It then found that the ASO created a rebuttable presumption that if any ILEC offered a collocation arrangement in any jurisdiction that same collocation arrangement was presumed to be technically feasible in Illinois. It noted that Southwestern Bell Telephone Company ("SWBT"), a sister affiliate of Ameritech, provided a tariffed shared cage collocation arrangement in which SWBT billed each CLEC separately for unbundled network elements ("UNEs") and all interconnection arrangements. SWBT also made each CLEC responsible for its own performance under the tariff. The Commission noted that Ameritech offered no evidence that it was not technically feasible for it to offer that same shared cage arrangement to CLECs desiring to collocate in its premises in Illinois. Therefore, the Commission required Ameritech to import the "best practices" of SWBT and offer CLECs the option, via tariff, of a shared cage collocation arrangement similar to that offered in Texas whereby each CLEC in a shared cage arrangement contracts directly with Ameritech for all floor space, power, cabling, transport, UNEs, and interconnection. It also held that in order to ensure that no collocator is responsible for the actions of other collocators in a shared cage, the tariff should state, as the Texas tariff does, that "[A]ll collocators, including those who are sub-leasing the caged space, are bound by the terms and conditions of this tariff." Accordingly, the Commission ruled that all language in the proposed tariff requiring the primary CLEC to be responsible for the actions of the secondary CLEC was to be stricken.
2. Adjacent structure collocation arrangements
Adjacent structure collocation is an arrangement, for central offices which have no remaining collocation space, in which collocators can place their equipment in a controlled environmental vault, equipment hut, or similar space on the central office premises, but outside the office itself. This would be accomplished by building a structure near the central office building. Ameritech argued that adjacent space allocation should not be made standard for three reasons: (1) the arrangement is very uncommon and therefore the need is minimal; (2) neither ILECs nor CLECs have any significant experience with this arrangement and no such arrangements currently existed in the country; and (3) the arrangement would be inappropriate because of the large number of variables involved that would greatly affect the cost of the arrangements (surface and underground conditions, code and zoning restrictions, cable entrance facilities, building expansion plans, etc.).
With respect to requiring Ameritech to tariff adjacent on-site collocation as a standard physical collocation offering, the Commission deferred to the FCC's rebuttable presumption that unless Ameritech demonstrates why it is not technically feasible to offer it on a standard basis as SWBT does, Ameritech must offer it in Illinois. It found that SWBT tariffed adjacent collocation as a standard offering and that Ameritech had offered no credible evidence to indicate that it ...