an interexchange carrier within a reasonable time period. Absent unusual circumstances, the Court will consider six months to be the maximum amount of time necessary to provide such access. If a Regional Company determines that it is not feasible to provide such service at all or within six months of a request, it must promptly justify this determination based upon the cost, technical feasibility and time required for implementation, and discuss any possible alternatives.
There is also widespread agreement that the ultimate solution to the issue of sent-paid traffic lies in a combination of switch modification and software development to permit routing of sent-paid calls to all interexchange carriers through tandem connections. As the Court noted in its October 14, 1988 Opinion, a version of such software for its switches had been developed by Northern Telecom. See 698 F. Supp. at 367.
However, in order to implement this system, the software must be in place in both the end offices and tandem switches, and at this point, AT & T Technologies has not developed such software to be used over its own switches. In view of Northern Telecom's success in this area, there is no reason why AT & T should be incapable of developing the appropriate software; the question is only how quickly this software can be produced and become operational.
Several of the Regional Companies suggest that this can be done relatively quickly, while others request an indefinite continuation of the waiver granted in 1984. The Court agrees with the Department of Justice that there is no reason for extending the waiver indefinitely. See Department of Justice March 13, 1989 Memorandum at 24. The necessary software is being developed, and there is no reason or excuse for a prolongation of this barrier to equal access. Accordingly, the Court now orders that the existing waiver shall expire twelve months from the date of this Opinion. This will allow time for the complete development of the software, installation, and any necessary modifications to the Regional Company equipment.
The Court expects the Regional Companies to request that AT & T move expeditiously to provide the necessary technology to implement tandem access for sent-paid calls. The Court will not specify the means by which the end of routing to AT & T must be accomplished because it is possible that new and better software than that which currently exists might be developed. Instead, it will require the Regional Companies simply to submit to the Department of Justice their plans for rerouting sent-paid traffic within six months from the date of this Opinion. Further, as recommended by the Department of Justice, the Court will also require the Regional Companies to maintain records of any requests for sent-paid access and their disposition, as well as any orders placed with switch vendors for the necessary software and their status. The Department shall thereafter advise the Court of its view regarding compliance, in particular with respect to any disputed technical aspects.
The Court recognizes, of course, that the Regional Companies are in a peculiar sense at the mercy of AT & T as to their compliance. Accordingly, if problems arise with regard to AT & T's progress towards developing the technology, despite the best efforts of the Regional Companies, they should so inform the Department of Justice on the date specified above. At that time the Department may, for good cause shown, request a limited extension of the waiver. However, given AT & T's stated commitment to develop and support the new technologies upon request of the Regional Companies, see AT & T March 13, 1989 Reply at 10-11, the Court does not anticipate that this will be necessary.
Preliminary Accounting for EANR Cost Recovery
AT & T is under an obligation to reimburse the Regional Companies for the costs of Equal Access and Network Reconfiguration (EANR) which have not been recovered by January 1, 1984 through their collection of carrier access tariffs. 569 F. Supp. 1057, 1068 (D.D.C. 1983). The Regional Companies, in turn, must maintain records to isolate the expenses incurred strictly for equal access and network configuration, to submit preliminary accountings of their equal access and network reconfiguration costs on or by January 1, 1989, and to report to the Court on or before January 1, 1994 whether or not all costs have been recovered. Id. at 1068 and n. 37. As required, each of the Regional Companies submitted a preliminary accounting in the last week of December 1988.
These accountings indicate that most of the companies have fully recovered their costs for this period through carrier access tariffs. However, a few have not.
In response to these submissions, AT & T claims that the accountings are not sufficiently detailed, and it has requested the Court not to accept them. AT & T January 27, 1989 Motion at 2-9. AT & T also argues that the size of the shortfalls and the expense of performing a detailed and accurate accounting do not warrant an accounting at this stage, and it has requested that the Court defer the preliminary accounting until January 31, 1992. Id. at 9-11. The company has proposed that a thorough and accurate accounting be done at that point, so that any unrecovered shortfalls can be included in the tariffs for the final year. Id. at 10-11.
In fact, both AT & T and the Regional Companies now agree that a detailed accounting at the present time would be premature and unnecessarily costly, and the Court likewise agrees. The purpose of having the Regional Companies file preliminary accountings in 1989 was to gain some sense of whether or not the tariff recovery program for equal access construction is working. The preliminary accountings indicate that it is. A detailed accounting at this stage, when no claims for reimbursement can be made, would not be warranted, for it would have to be repeated in 1994 if a Regional Company were to make a claim at the end of the ten-year guarantee period.
For the same reason, an accounting in 1992, as requested by AT & T, would be premature. Although the Regional Companies could report to the Court before January 1, 1994, that all costs have been recovered, they are under no obligation to do so or to discharge AT & T of its reimbursement obligation prior to 1994. In addition, unless a Regional Company makes a claim for reimbursement at the end of the ten-year guarantee period, it would not need to give a detailed accounting or to demonstrate its compliance with the requirements of the recovery program outlined in the proviso to the guarantee. See 569 F. Supp. at 1128. Accordingly, the Court will accept the preliminary accountings of the Regional Companies as filed, and it will not alter the equal access accounting schedule that was established in 1983.
The Court also finds that resolution of any dispute between AT & T and some of the Regional Companies as to the nature of the provisos and the accounting process would be premature at this stage.
The arguments on these issues have not been addressed by all potentially interested parties, and they may in any event be moot if the Regional Companies have no reimbursement claims to make in 1994. The appropriate time to resolve any disputes as to EANR costs is if and when any claims are made, and as the Court has previously indicated, it will do so at that time, with the assistance of the Department of Justice and the Federal Communications Commission if necessary. See 569 F. Supp. at 1068 and 1126 (n. 13).
May 8, 1990