Agenda Date:  May 9, 2001
Item No. :       2C  (Addendum)

Docket:  UT-010333
 Petition of  XO Washington, Inc., TCG Oregon, TCG Seattle, Pac-West Telecomm, 
Inc., Global Crossing Local Service, Inc., AT&T Communications of the Pacific 
Northwest, Inc., and Advanced TelCom Group, Inc., (‘Joint Petitioners) for 
Waiver or Modification of RCW 80.36.150 and WAC 480-120-027(3).
       
Company:  Joint Petitioners

Staff:   Glenn Blackmon, Assistant Director Telecommunications


Recommendation: 

Deny the petition for waiver or modification of the requirements of RCW 
80.36.150 and WAC 480-120-027(3)(a).

Background:

RCW 80.36.150 requires contracts for telecommunications services to be filed 
“as and when required by the commission.”  The WUTC has specific filing 
requirements for competitive services in WAC 480-120-027.  The filing 
requirements differ for companies classified as competitive relative to 
services classified as competitive:

Type of company	Filing deadline	Applicable rule
Competitive companies (such as joint petitioners)	5 days after execution of contract	
480-120-027(3)(a)
Competitive services (such as those of Qwest or Verizon)	10 days before stated effective 
date of contract	480-120-027(3)(b)

On March 8, 2001, the Joint Petitioners filed a petition asking that the WUTC 
waive the provisions of RCW 80.36.150 and WAC 480-120-027(3) or grant other 
relief and modifications of the rule as the WUTC sees fit.

On March 28, the WUTC acted on a similar petition by Electric Lightwave, Inc, 
in Docket UT-001711.  In that case, the WUTC permitted Electric Lightwave to 
file contracts 10 days before the stated effective date of the contract, which 
is the same filing requirement as applies to competitive services of incumbent 
local exchange companies.  The waiver also allows Electric Lightwave further 
flexibility to file contracts up to 15 days after their stated effective date, 
but only if the contract includes a provision permitting the WUTC to reject a 
contract within the first 15 days after it is filed.


Discussion:


Staff is hopeful that in the current review of WAC 480-120 the WUTC will 
propose and eventually adopt a revision to WAC 480-120-027 that will 
substantially reduce contract filing requirements for the competitive services 
of competitive telecommunications companies and incumbent local exchange 
companies.  However, until the rules are relaxed for all companies, a complete 
waiver of the filing requirement for Joint Petitioners could well result in an 
unfair competitive advantage to these companies.

Staff has offered to Joint Petitioners, as well as any other company subject to 
WAC 480-120-027(3)(a) or (3)(b), the waiver provision granted to Electric 
Lightwave.  This waiver would put the Joint Petitioners into a parity position 
with their incumbent local exchange company competitors.  However, despite 
extensive discussions, Staff and Joint Petitioners have been unable to arrive 
at an acceptable alternative to the current rule.

Joint Petitioners have suggested, as an alternative to a complete waiver, that 
they be permitted to file contracts 15 days after execution instead of 5 days 
after execution.  Staff opposes this alternative, because it would in most 
cases eliminate the WUTC’s ability to reject contracts when such action is 
appropriate.  RCW 80.36.150(3) states that a contract shall be enforceable 
“unless the contract has been rejected by the commission before its stated 
effective date as improper…” [emphasis added].  Unless contracts are required 
to be filed before their effective date, any extension of the filing deadline 
increases the likelihood that the contract will already be in effect when it is 
filed with the WUTC, thereby eliminating any opportunity to reject an improper 
contract.

The Electric Lightwave waiver provision preserves the WUTC’s ability to reject 
improper contracts and still provides that company with extra time to file the 
contracts.  Joint Petitioners argue that this approach would require them to 
add language to standard contracts used in many states.  Staff believes this 
argument glosses over the fact that there are many differences among states in 
filing and tariffing requirements.  Even if they choose not to use this 
alternative, the proposed filing deadline of 10 days before effective date is 
exactly the same deadline faced by their incumbent competitors.

Conclusion

Staff recommends that the waiver request be denied because it could result in 
an unfair competitive advantage and impair the WUTC’s ability to act 
appropriately on improper contracts.