Illinois had submitted in a prior proceeding involving multiple CLECs. In the prior proceeding, after hearing Ameritech Illinois' arguments in favor of the charge, the ICC found it was not TELRIC compliant, basing its decision on the fact that Ameritech Illinois currently maintained its loop information in a mechanized format and therefore should be able to generate it without manual intervention. (R. 10, Pl.'s App., Ex. I at 44.)
Ameritech Illinois next presented additional evidence in support of the charge, offering expert testimony that mechanized loop qualification information was captured in Ameritech Illinois' systems, but "either by design or error" the systems occasionally produced different results ("the systems hiccupped or burped . . ."), requiring manual intervention in the form of the manual loop qualification procedure. (R. 10, Pl.'s App., Ex. G. at 150.) In subsequent rebuttal testimony, Ameritech Illinois provided two additional instances where manual intervention may be required. (R. 10, Pl.'s App., Ex. F, line 70 — 93.) The expert testimony suggests that the trigger for a manual loop qualification procedure is not so much a failure in technology as one of information storage and design.*fn3 In response to this testimony, an ICC expert offered his own opinion that the forward-looking costs for retrieval of loop qualification information "should be de minimus, since using the most advanced telecommunications technology . . . this process should be entirely automated." (R. 10, Pl.'s App., Ex. H, lines 32-35.) The ICC agreed, and held that "[t]he fact that Ameritech incurs costs using a manual process today does not mean that it is entitled to assess a charge to CLECs for its inefficient process. To conclude otherwise would abandon the TELRIC principles altogether." (R. 9, Pl.'s App., Ex. A at 21.) In essence, the ICC rejected the evidence of additional scenarios requiring manual loop qualification because it failed to support Ameritech Illinois' contention that its cost study reflected "forward-looking cost(s) by reference to a hypothetical, most efficient element at existing wire-centers." (Id. at 21-22.)
We are not prepared to say that the ICC's subsequent finding denying this charge was "so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Hix, 986 F. Supp. at 16. We find sufficient evidence in the record to support the ICC's finding that the proposed charge was not TELRIC compliant. Ameritech Illinois conceded that loop qualification information was available in a mechanized format, but produced no technical explanation of why mechanized retrieval would not be feasible using currently available technology, offering instead examples of instances where mechanized retrieval fails. Under FCC rules, Ameritech Illinois bore the burden of proof that the cost study was TELRIC compliant. 47 C.F.R. § 51.505(c). "An incumbent LEC must prove to the state commission that the rates for each element it offers to do not exceed the forward-looking economic cost per unit of providing the element, using a cost study that complies with the methodology set forth in this section . . ." Id. Given this burden of proof and the expert testimony outlined above, the court finds sufficient evidence in the record to meet the "substantial evidence" review requirement adopted by the Fourth and Ninth Circuits in MCI Telecommunications and GTE South.
Ameritech Illinois argues alternatively that the ICC's order constituted legal error, claiming that "the ICC in effect concluded that manual loop qualification work is per se inefficient and not compensable under the 1996 Act." (R. 9, Pl.'s Mem. at 12.) The evidence does not support this assertion. As stated above, the ICC considered evidence presented by Ameritech Illinois and concluded that it did not meet TELRIC standards. This is not a legal determination, but a factual determination made by weighing the evidence. The ICC did not find that a manual loop qualification procedure could never be valid; rather, it found that given the existing technology available to Ameritech Illinois, as described by its own experts, Ameritech Illinois had not demonstrated that the "most efficient telecommunications technology currently available" would still require manual intervention.*fn4
For the reasons stated above, Ameritech Illinois' motion for summary judgment is denied. Because there are no issues of material fact in this case and the ICC and McLeod are entitled to judgment as a matter of law, declaratory judgment is entered for the ICC and McLeod. (R. 9-1.) The Clerk of the Court is instructed to enter judgment, pursuant to Federal Rule of Civil Procedure 58, in favor of Defendants.