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 Federal  Communications  Commission  DA  04-  626 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of 
 Petition  of  Cavalier  Telephone,  LLC  Pursuant  to  Section  252(  e)(  5)  of  the 
 Communications  Act  for  Preemption  of  the  Jurisdiction  of  the  Virginia  State  Corporation 
 Commission  Regarding  Interconnection  Disputes  with  Verizon  Virginia,  Inc.  and  for 
 Arbitration 

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 WC  Docket  No.  02-  359 

 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  March  5,  2004  Released:  March  5,  2004 
 By  the  Associate  Bureau  Chief,  Wireline  Competition  Bureau: 
 I.  INTRODUCTION 
 1.  On  December  12,  2003,  the  Wireline  Competition  Bureau  (Bureau),  acting  through  authority  expressly  delegated  from  the  Commission  and  standing  in  the  stead  of  the 

 Virginia  State  Corporation  Commission,  issued  a  decision  resolving  all  questions  arising  under  the  petition  for  arbitration  of  an  interconnection  agreement  between  Verizon  Virginia,  Inc. 
 (Verizon)  and  Cavalier  Telephone,  LLC  (Cavalier  or  Petitioner)  (collectively,  the  Parties).  1  In  the  Arbitration  Order,  the  Bureau  instructed  the  Parties  to  incorporate  its  determinations  into  a 
 final  interconnection  agreement,  setting  forth  both  the  negotiated  and  arbitrated  terms  and  conditions,  pursuant  to  section  252(  e)(  1)  of  the  Communications  Act  of  1934.  2  Section  252(  e)(  1) 
 also  instructs  the  State  commission  (or,  in  this  case,  the  Bureau)  to  approve  or  reject  the  agreement,  with  written  findings  as  to  any  deficiencies.  Consistent  with  the  required  timetable,  3 
 the  Parties  filed  a  proposed  conforming  contract  jointly  on  February  5,  2004.  4 

 1  See  Petition  of  Cavalier  Telephone  LLC  Pursuant  to  Section  252(  e)(  5)  of  the  Communications  Act  for  Preemption 
 of  the  Jurisdiction  of  the  Virginia  State  Corporation  Commission  Regarding  Interconnection  Disputes  with  Verizon  Virginia,  Inc.  and  for  Arbitration,  WC  Docket  No.  02-  359,  Memorandum  Opinion  and  Order,  DA  03-  3947  (rel.  Dec. 

 12,  2003)  (Arbitration  Order). 
 2  Arbitration  Order,  para.  208;  47  U.  S.  C.    252(  e)(  1). 

 3  See  Arbitration  Order,  para.  208  (requiring  a  final  interconnection  agreement  to  be  filed  within  45  days  of  that 
 Order);  Petition  of  Cavalier  Telephone  LLC  Pursuant  to  Section  252(  e)(  5)  of  the  Communications  Act  for  Preemption  (continued.) 
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 2.  In  this  Order,  again  under  authority  delegated  from  the  Commission,  5  we  approve  the  agreement  submitted  by  the  Parties.  Except  as  expressly  provided  below,  we  find  no 
 deficiencies  in  this  agreement,  nor  do  we  find  any  other  reason  to  withhold  approval.  We  note  that  this  agreement  was  jointly  prepared  and  submitted  and  reflect  agreement  between  the  parties 
 on  how  to  implement  the  determinations  contained  in  the  Arbitration  Order.  6  Accordingly,  to  the  extent  this  agreement  reflects  the  determinations  made  in  the  Arbitration  Order,  we  find  it  to 
 meet  the  requirements  of  section  251,  including  the  regulations  prescribed  by  the  Commission  pursuant  to  section  251,  and  except  as  discussed  below,  not  subject  to  rejection.  We  note  that 
 both  Parties  filed  petitions  with  the  Commission  seeking  Bureau  review  of  certain  aspects  of  the  Arbitration  Order.  7  Under  the  Commissions  rules,  the  pendency  of  these  petitions  does  not 
 affect  the  finality  of  the  Arbitration  Order,  and  does  not  prevent  this  Order  from  being  effective  and  binding  upon  release.  8 

 II.  OUTSTANDING  ISSUES 
 3.  Section  252(  e)(  5)  provides  for  the  Commission  to  assume  the  responsibility  of  the  State  commission  under  this  section  with  respect  to  the  proceeding  or  matter  and  act  for  the 

 State  commission,  including  acting  for  the  state  commission  under  section  252(  e)(  1),  which  calls  for  state  commission  approval  of  any  interconnection  agreement  adopted  by  negotiation  or 
 arbitration.    9  Portions  of  an  arbitrated  agreement  may  be  rejected  if  they  do  not  meet  the  requirements  of  section  251,  including  the  Commissions  rules  implementing  section  251,  or  if 
 they  do  not  meet  the  pricing  requirements  of  section  252(  d).  10 

 (Continued  from  previous  page)  of  the  Jurisdiction  of  the  Virginia  State  Corporation  Commission  Regarding  Interconnection  Disputes  with  Verizon 
 Virginia,  Inc.  and  for  Arbitration,  WC  Docket  No.  02-  359,  Order,  DA  04-  291  (rel.  Feb.  5,  2004)  (granting  a  10  day  extension  of  the  time  to  file  the  final  interconnection  agreement). 

 4  See  Letter  from  Kimberly  A.  Newman,  Counsel  for  Verizon,  to  Marlene  H.  Dortch,  Secretary,  Federal 
 Communications  Commission,  WC  Docket  No.  02-  359  (filed  Feb.  5,  2004)  (Verizon  Feb.  5  Letter). 
 5  See  47  U.  S.  C.    155(  c)(  1);  see  also  Procedures  for  Arbitrations  Conducted  Pursuant  to  Section  252(  e)(  5)  of  the 
 Communications  Act  of  1934,  as  amended,  16  FCC  Rcd  6231,  6233,  paras.  8-  10  (2001)  (Arbitration  Procedures  Order). 

 6  See  Verizon  Feb.  5  Letter. 
 7  See  Verizon  Petition  for  Clarification  and  Reconsideration,  WC  Docket  No.  02-  359  (filed  Jan.  12,  2004); 
 Cavalier  Petition  for  Reconsideration,  WC  Docket  No.  02-  359  (filed  Jan.  12,  2004). 
 8  See  Arbitration  Procedures  Order,  para.  9;  see  also  47  U.  S.  C.    155(  c)(  3),  405(  a),  408;  47  C.  F.  R.  1.102(  b). 

 9  47  U.  S.  C.    252(  e)  cited  in  Implementation  of  the  Local  Competition  Provisions  of  the  Telecommunications  Act 
 of  1996,  CC  Docket  No.  96-  98,  First  Report  and  Order,  11  FCC  Rcd  15499,  16129-  30,  para.  1290  (1996)  (Local  Competition  First  Report  and  Order)  (subsequent  history  omitted). 

 10  See  47  U.  S.  C.    252(  e)(  2)(  B). 
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 4.  In  addition,  in  the  Arbitration  Order,  we  required  the  parties  to  submit  a  revised  section  11.2.12.  11  Upon  reviewing  section  11.2.12  submitted  by  the  Parties,  we  identified  certain 
 language  that  must  be  modified  to  ensure  it  accords  with  that  Order  and  the  statutory  standard.  We  therefore  approve  the  contract  submitted  by  Cavalier  and  Verizon,  modified  as  described 
 below. 
 5.  Sections  11.2.12.2(  B),  (C),  and  (F)  reference  manual  loop  qualification.  Those  sections  should,  instead,  refer  to  the  defined  term  Manual  Loop  Qualification.  We  direct  the 

 Parties  to  make  that  modification. 
 6.  In  the  third  sentence  of  section  11.2.12.2(  C),  we  require  the  Parties  to  replace  the  phrase  If  Cavalier  requests  loop  qualification  manually  or  through  an  Engineering  Query  with 

 the  phrase  If  Cavalier  requests  Manual  Loop  Qualification  or  an  Engineering  Query.  This  clarifies  that  it  is  the  loop  qualification  process  that  is  manual,  and  not  necessarily  Cavaliers 
 request  that  is  manual. 
 7.  The  third  sentence  of  section  11.2.12.2(  C)  likewise  refers  to  a  query  being  issued  to  Cavalier  with  loop  qualification  results.  However  a  query  is  not  itself  the  loop 

 qualification  results,  but  is  the  process  used  to  determine  those  results.  Thus,  for  clarity,  we  direct  the  Parties  to  modify  that  language  to  refer  to  a  query  result  being  issued  to  Cavalier. 

 8.  The  first  sentence  of  section  11.2.12.2(  D)  requires  that  Verizons  mechanized  loop  qualification  database  or  its  Manual  Loop  Qualification  must  indicate  that  a  loop  does  not 
 qualify  as  xDSL  compatible  before  Cavalier  may  request  an  Engineering  Query.  However,  Cavalier  has  the  right  to  use  non-  Verizon  loop  pre-  qualification  or  qualification  tools,  and  may 
 wish  to  request  an  Engineering  Query  after  utilizing  those  tools.  Consequently,  we  direct  the  Parties  to  remove  the  restriction  and  modify  the  first  sentence  of  section  11.2.12.2(  D)  to  read 
 simply  Cavalier  may  request  an  Engineering  Query  to  obtain  more  information  regarding  the  characteristics  of  the  loop  itself. 

 9.  Finally,  the  first  sentence  of  section  11.2.12.3(  B)  erroneously  refers  to  an  Engineering  Query,  when  it  should  instead  refer  to  an  Engineering  Work  Order.  We  direct 
 the  Parties  to  modify  section  11.2.12.3(  B)  to  make  that  correction. 
 10.  In  sum,  we  direct  the  Parties  to  modify  sections  11.2.12.2  and  11.2.12.3  to  read  as  follows: 

 11.2.12.2  The  following  ordering  procedures  shall  apply  to  the  Digital  Designed  Loops: 

 A.  Cavalier  shall  place  orders  for  xDSL  Compatible  Loops  and  Digital  Designed  Loops  by  delivering  to  Verizon  a  valid  electronic  transmittal  service  order  or 
 other  mutually  agreed  upon  type  of  service  order.  Such  service  order  shall  be  provided  in 

 11  Arbitration  Order,  para.  70. 
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 accordance  with  industry  format  and  specifications  or  such  format  and  specifications  as  may  be  agreed  to  by  the  Parties. 
 B.  Verizon  is  in  the  process  of  conducting  a  mechanized  survey  of  existing  Loop  facilities,  on  a  Central  Office  by  Central  Office  basis,  to  identify  those  Loops  that 
 meet  the  applicable  technical  characteristics  established  by  Verizon  for  compatibility  with  ADSL,  HDSL,  SDSL,  IDSL  and  ISDN  signals.  The  results  of  this  mechanized 
 survey  will  be  stored  in  a  mechanized  database  that  is  made  available  to  Cavalier  on  a  non-  discriminatory  basis.  Cavalier  may  utilize  this  mechanized  loop  qualification 
 database,  where  available,  in  advance  of  submitting  a  valid  electronic  transmittal  service  order  for  an  ADSL,  HDSL,  SDSL,  IDSL  or  ISDN  Loop  provided,  however,  Cavalier  may 
 request  Manual  Loop  Qualification  or  an  Engineering  Query  if  the  mechanized  loop  qualification  database  is  not  available  or  if  Cavalier  chooses  not  to  utilize  such  database. 
 Charges  for  Engineering  Query,  Engineering  Work  Order  and  Manual  Loop  Qualification  are  set  forth  in  Exhibit  A.  Cavalier  may  also  access  loop  make-  up  information  from 
 Verizons  Loop  Facility  Assignment  and  Control  System  (  LFACS)  (e.  g.,  cable  segment  lengths  and  gauges,  bridged  tap  lengths,  gauges  and  locations,  load  coil  locations,  and 
 DLC  system  types)  as  that  information  exists  in  the  LFACS  database  at  the  rates  set  forth  in  Exhibit  A.  Cavalier  may  utilize,  at  its  option,  any  of  the  loop  pre-  qualification 
 methods  currently  provided  by  or  used  by  Verizon,  including  any  affiliate  of  Verizon.  Cavalier  may  also  use  any  alternative  loop  pre-  qualification  or  qualification  method 
 generally  available  to  CLECs,  subject  to  the  terms  of  Section  11.2.12.2(  E).  When  Cavalier  elects  not  to  use  Verizon's  loop  pre-  qualification  procedure,  it  shall  not  be 
 assessed  any  charge  for  such  procedures;  however,  for  the  avoidance  of  any  doubt,  Verizon  shall  bill  and  Cavalier  shall  pay  any  charges  incurred  by  Verizon  in  connection 
 with  modifications  to  its  loop  pre-  qualification  OSS  that  are  made  at  Cavalier's  request  and  as  a  result  of  Cavaliers  decision  to  use  non-  Verizon  loop  pre-  qualification  tools. 

 C.  If  the  Loop  is  not  listed  in  the  mechanized  database  described  in  section  (B)  above,  Cavalier  may  request  either  a  Manual  Loop  Qualification  or  Engineering 
 Query  prior  to  or  in  conjunction  with  submitting  a  valid  electronic  service  order  for  an  ADSL,  HDSL,  SDSL,  IDSL  or  BRI  ISDN  Loop.  The  rates  for  Manual  Loop 
 Qualification  and  Engineering  Query  are  set  forth  in  Exhibit  A.  If  Cavalier  requests  Manual  Loop  Qualification  or  an  Engineering  Query,  three  (3)  business  days  (or  a  shorter 
 period  if  required  under  Applicable  Law)  following  receipt  of  Cavaliers  valid  and  accurate  request  will  be  generally  required  before  a  FOC  or  a  query  result  can  be  issued 
 to  Cavalier  with  the  Loop  qualification  results.  Verizon  may  require  additional  time  to  complete  the  Engineering  Query  where  there  are  poor  record  conditions,  spikes  in 
 demand  or  other  unforeseen  events,  unless  such  additional  time  is  not  permitted  pursuant  to  an  effective  Commission  order. 

 D.  Cavalier  may  request  an  Engineering  Query  to  obtain  more  information  regarding  the  characteristics  of  the  loop  itself.  Subject  to  the  terms  herein,  including  but 
 not  limited  to  Section  11.2.12.2(  C)  above,  Verizon  will  respond  to  an  Engineering  Query  with  information  from  Verizon  cable  records  such  as  amount  and  location  of  bridged 
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 taps,  number  and  location  of  load  coils,  location  of  digital  loop  carrier,  or  cable  gauge  at  specific  locations  or  any  other  reason  that  may  be  revealed  through  loop  qualification. 
 E.  If  Cavalier  uses  a  non-  Verizon  loop  pre-  qualification  or  qualification  tool,  then  Verizon  will  not  be  responsible  for  the  service  performance  of  any  loop,  including 
 any  performance  measurements  and  remedies  under  this  Agreement,  and,  except  as  otherwise  required  by  Applicable  Law,  under  any  FCC  or  Commission  approved  carrier-to- 
 carrier  performance  assurance  guidelines  or  plan,  regardless  of  whether  that  loop  was  in  use  providing  the  same  xDSL  service  at  the  time  of  Cavaliers  order.  If  Cavalier 
 submits  a  service  order  for  an  ADSL,  HDSL,  SDSL,  IDSL  or  BRI  ISDN  Loop  that  is,  in  fact,  found  not  to  be  compatible  with  such  services  in  its  existing  condition,  Verizon  will 
 respond  back  to  Cavalier  with  a  Nonqualified  indicator  and  with  information  showing  whether  the  non-  qualified  result  is  due  to  the  presence  of  load  coils,  presence  of  digital 
 loop  carrier,  or  loop  length  (including  bridged  tap). 
 F.  Where  Cavalier  has  followed  a  loop  pre-  qualification  procedure  described  above  resulting  in  the  determination  that  a  Loop  is  not  compatible  with  ADSL,  HDSL, 

 SDSL,  IDSL  or  BRI  ISDN  service  in  its  existing  condition  (e.  g.,  the  results  of  the  manual  or  mechanized  prequalification  query  indicate  that  a  Loop  does  not  qualify  due  to  factors 
 such  as  the  presence  of  load  coils,  presence  of  digital  loop  carrier,  loop  length  (including  bridged  tap)  or  for  any  other  reason  that  may  be  revealed  through  loop  qualification), 
 Cavalier,  together  with  its  order  or  prior  to  submitting  an  order  for  service,  may  request  an  Engineering  Query  to  determine  whether  conditioning  may  make  the  Loop  compatible 
 with  the  applicable  service;  or  if  Cavalier  is  already  aware  of  the  conditioning  required  (e.  g.,  where  Cavalier  has  previously  requested  a  Manual  Loop  Qualification  or  an 
 Engineering  Query),  Cavalier  may  submit  a  service  order  for  a  Digital  Designed  Loop.  Verizon  will  undertake  to  condition  or  extend  the  Loop  in  accordance  with  this  Section 
 11.2.12  upon  receipt  of  Cavaliers  valid,  accurate  and  pre-  qualified  service  order  for  a  Digital  Designed  Loop. 

 11.2.12.3  The  Parties  will  make  reasonable  efforts  to  coordinate  their  respective  roles  in  order  to  minimize  Digital  Design  Loop  provisioning  problems.  In 
 general,  unless  and  until  a  shorter  period  is  required  under  Applicable  Law,  where  conditioning  or  loop  extensions  are  requested  by  Cavalier,  an  interval  of  eighteen  (18) 
 business  days  will  be  required  by  Verizon  to  complete  the  loop  analysis  and  the  necessary  construction  work  involved  in  conditioning  and/  or  extending  the  loop  as 
 follows: 
 A.  Three  (3)  business  days  will  be  required  following  receipt  of  Cavaliers  valid,  accurate  and  pre-  qualified  service  order  for  a  Digital  Designed  Loop  to  analyze  the 
 loop  and  related  plant  records  and  to  create  an  Engineering  Work  Order. 
 B.  Upon  completion  of  an  Engineering  Work  Order,  Verizon  will  initiate  the  construction  order  to  perform  the  changes/  modifications  to  the  Loop  requested  by 

 Cavalier.  Conditioning  activities  are,  in  most  cases,  able  to  be  accomplished  within 
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 fifteen  (15)  business  days.  Unforeseen  conditions  may  add  to  this  interval,  unless  such  additional  time  is  not  permitted  pursuant  to  Applicable  Law. 
 C.  After  the  engineering  and  conditioning  tasks  have  been  completed,  the  standard  Loop  provisioning  and  installation  process  will  be  initiated,  subject  to  Verizons 
 standard  provisioning  intervals. 
 11.  Section  51.807(  c)(  3)  of  the  Commissions  rules  allows  us  to  specify  a  schedule  for  implementation  of  the  approved  interconnection  agreement.  12  To  provide  certainty  as  to  the 

 effective  date  of  this  interconnection  agreement  both  for  these  Parties,  as  well  as  other  parties  that  might  wish  to  opt  in  to  this  agreement  pursuant  to  section  252(  i)  of  the  Act,  we  require  the 
 Parties  to  submit  an  executed  copy  of  the  modified  agreement  to  the  Commission  within  five  days  of  the  date  of  this  order.  13  In  compliance  with  section  252(  h)  of  the  Act,  we  likewise 
 require  the  Parties  to  file  a  copy  of  the  executed  interconnection  agreement  with  the  Virginia  State  Corporation  Commission.  14 

 12  47  C.  F.  R.    51.807(  c)(  3). 
 13  47  U.  S.  C.    252(  i). 
 14  47  U.  S.  C.    252(  h). 
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 III.  ORDERING  CLAUSES 
 12.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Section  252  of  the  Communications  Act  of  1934,  as  amended,  and  Sections  0.91,  0.291  and  51.807  of  the 

 Commissions  rules,  47  U.  S.  C.    252  and  47  C.  F.  R.    0.91,  0.291  and  51.807,  the  Interconnection  Agreement  submitted  jointly  by  Cavalier  and  Verizon,  as  modified  herein,  IS 
 APPROVED. 
 13.  IT  IS  FURTHER  ORDERED  that  Cavalier  Telephone,  LLC  and  Verizon  Virginia,  Inc.  SHALL  INCORPORATE  the  above  determinations  into  an  executed 

 interconnection  agreement,  setting  forth  both  the  negotiated  and  arbitrated  terms  and  conditions,  to  be  filed  within  five  days  from  the  date  of  this  Order  with  the  Commission,  pursuant  to  Section 
 252(  e)(  1)  of  the  Communications  Act  of  1934,  47  U.  S.  C.    252(  e)(  1)  and  with  the  Virginia  State  Corporation  Commission,  pursuant  to  Section  252(  h)  of  the  Communications  Act  of  1934,  47 
 U.  S.  C.    252(  h). 
 By  Order  of  the  Associate  Bureau  Chief, 

 _____________________________  Richard  Lerner 
 Associate  Bureau  Chief  Wireline  Competition  Bureau 
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