A Texas arbitration panel has told SBC Communications that it cannot charge co-located competitive carriers for redundant electrical power furnished to their cages. 

According to a complaint filed in March 2003 by AT&T and Birch Telecom, SBC Texas (nee Southwestern Bell) arbitrarily began to charge for 40 amps of power even though it can only provide 20 amps at any moment in violation of the tariff. SBC had argued, according to court documents, that the “unambiguous terms” of the tariff allowed it to charge for the total power distributed over the “A” (actual) and “B” (redundant) feeds.

The arbiters ruled that since the tariff distinguishes between the actual recurring power consumption and the non-recurring power arrangement, it would be inappropriate to allow SBC to charge for the total capacity rather than actual usage, either retroactively or on a going-forward basis.

The retroactive aspect of the order is important, said John Ivanuska, Birch Telecom’s vice president of carrier relations, as the carrier is disputing about $2.5 million in past charges. “This matter is big bucks for Birch,” Ivanuska said.

Similar complaints have been filed in Missouri, Kansas and Oklahoma, all of which are in the former Southwestern Bell footprint. According to Ivanuska, the tariffs currently in effect in those states were a “direct outgrowth” of the co-location agreements developed for Texas.

“I feel this ruling on what SBC is entitled to charge in Texas will be a very useful precedent as we work through our complaints in the remaining three states,” he said.

Birch has disputed previous power charges totaling $600,000 in Oklahoma, $1 million in Kansas and $450,000 in Missouri.

SBC spokesman Bill Noble countered by saying the RBOC built a power supply into the co-location area at the request of the CLECs to meet their needs, and that basing compensation solely on usage at this point would leave SBC with “hard costs we incurred on their behalf.” He added that there was little disagreement on the way this compensation was being structured when the parties hammered out the co-location agreements. “It was only after the fact when those real costs were coming in that there was a move to change the way that it would be paid for,” said spokesman Bill Noble.

Noble added that SBC isn’t concerned that a precedent has been set with this ruling. “Each state has its own unique regulatory approach and rules and regulations,” he said. “They might look at what another state has done, but I think each state decides on the merits in its own state.”