COMMISSION WASHINGTON UTILITIES AND ) TRANSPORTATION COMMISSION, ) ) Complainant, ) DOCKET NO. UT-970010 vs. ) VOLUME 1 U S WEST COMMUNICATIONS, INC., ) PAGES 1 - 18 ) Respondent. ) -------------------------------) A pre-hearing conference in the above matter was held on July 2, 1997 at 9:30 a.m., at 1300 South Evergreen Park Drive Southwest, Olympia, Washington, before Administrative Law Judge LARRY BERG. The parties were present as follows: U S WEST COMMUNICATIONS, INC., by LISA A. ANDERL, Senior Counsel, 1600 Seventh Avenue, Room 3206, Seattle, Washington 98191. ELECTRIC LIGHTWAVE, INC., by PENNY BEWICK, Manager of Compliance and Product Support, 8100 Northeast Parkway Drive, Suite 150, Vancouver, Washington 98662. WASHINGTON INDEPENDENT TELEPHONE ASSOCIATION by RICHARD A. FINNIGAN, Attorney at Law, 2405 Evergreen Park Drive Southwest, Suite B-3, Olympia, Washington 98502. SPRINT COMMUNICATIONS COMPANY, L.P., by RICHARD L. GOLDBERG (for CAROL MATCHETT), Regulatory Attorney, 1850 Gateway Drive, Seventh Floor, San Mateo, California 94404-2467. MCI TELECOMMUNICATIONS CORPORATION, MCI METRO ACCESS TRANSMISSION CORPORATION, and METRONET SERVICES CORPORATION, by DAVID HACKETT, 4400 Two Union Square, 601 Union Street, Seattle, Washington 98101. Kathryn T. Wilson, CCR Court Reporter APPEARANCES (Cont'd.) AT&T COMMUNICATIONS, TCG SEATTLE, and NEXTLINK WASHINGTON, LLC, by PATRICIA RASKIN, Attorney at Law, 1501 Fourth Avenue, Suite 2600, Seattle, Washington 98101. FOR THE PUBLIC, SIMON J. FFITCH, Assistant Attorney General, 900 Fourth Avenue, Suite 2000, Seattle, Washington 98164. THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, by SHANNON SMITH, Assistant Attorney General, 1400 South Evergreen Park Drive Southwest, Olympia, Washington 98504. Kathryn T. Wilson, CCR Court Reporter P R O C E E D I N G S JUDGE BERG: This is a pre-hearing conference in UT-970010 entitled Washington Utilities and Transportation Commission versus U.S. West Communications, Inc. by order entered January 29th 1997. The Commission suspended the operation of tariff revisions, which were filed herein on January 3rd, 1997, pending hearings concerning their justness and reasonableness. The ultimate issue before us is whether an increase of charges and rates for telecommunications services and interconnection by the respondent, U.S. West, would injure public rights and interests. The Commission set this pre-hearing conference by notice served June 9th, 1997. Today is July 2nd, 1997. My name is Larry Berg. I am the administrative law judge assigned to this proceeding. As indicated on the notice of pre-hearing conference, we'll be taking appearances, considering any petitions to intervene, formulating issues, and setting evidentiary hearings. In the course of today's conference, we will also be dealing with discovery and other preliminary matters pursuant to notice. No party needs to distribute testimony and exhibits at this time. With that, let's go ahead and take appearances beginning with the Company. MS. ANDERL: Thank you, your Honor. Lisa Anderl, in-house counsel representing U.S. West Communications. MS. SMITH: Shannon Smith, assistant attorney general, 1400 South Evergreen Park Drive Southwest, P.O. Box 40128, Olympia, Washington 98504, representing Commission staff. MR. FFITCH: Simon ffitch, assistant attorney general, office of public counsel, Washington Attorney General's office, 900 Fourth Avenue, Suite 2000, Seattle, 98164. My phone is (206) 389-2055. The fax is (206) 389-2058. JUDGE BERG: Ms. Anderl, why don't you go ahead and state the mailing address that U.S. West would like to use for this proceeding. MS. ANDERL: 1600 Seventh Avenue, Room 3206, Seattle, Washington, 98191. JUDGE BERG: I have received petitions to intervene on behalf of Nextlink, TCG, AT&T, and there may be other parties here today looking to make a motion to intervene. What I would like to do is go ahead and move around the room, again, clockwise fashion, just letting all attorneys who intend to participate here today enter their appearance, and then we'll come back in the next discussion and address the petitions to intervene one at a time. MS. BEWICK: My name is Penny Bewick, B-E-W-I-C-K. I represent Electric Lightwave. The address is 8100 Northeast Parkway Drive, Vancouver, Washington 98662. MR. FINNIGAN: Richard A. Finnigan appearing on behalf of the Washington Independent Telephone Association. My address is 2405 Evergreen Park Drive Southwest, Suite B-1 -- as of the 15th, it will be Suite B-3 -- 98502. MR. GOLDBERG: Richard L. Goldberg appearing on behalf of Carol L. Matchett. We represent Sprint Communications Company, L.P. The address is 1850 Gateway Drive, Seventh Floor, San Mateo, California, 94404-2467. Ms. Matchett's phone number is (415) 513-2712. Fax number is (415) 513-2737. MR. HACKETT: David Hackett representing MCI Telecommunications, Corp.; MCI Metro Access Transmission, Corp.; and Metronet Services Corp. My address is 4400 Two Union Square, 601 Union Street, Seattle, Washington 98101. My phone number, (206) 622-8484, and fax number, 622-7485. JUDGE BERG: Mr. Hackett, will it be all right if we collectively refer to your clients as MCI? MR. HACKETT: That would be acceptable, yes. MS. RASKIN: Patricia Raskin on behalf of AT&T Communications Pacific Northwest, Nextlink, and Teleport Communications Group. My address is Davis, Wright, Tremaine, 1501 Fourth Avenue, Suite 2600, Seattle, 98101. My phone number is (206) 628-7745, and fax is (206) 628-7040. JUDGE BERG: Is there anyone else in the room who intends to file petition or make a motion to intervene other than the parties who are seated at the table? All right. Thank you, everyone. The first order of business then will be the petitions to intervene. Prior to this pre-hearing conference, the Commission received written petitions from TCG Seattle, AT&T Communications of the Pacific Northwest, Inc., which we'll refer to as AT&T, and Nextlink Washington LLC, which we'll refer to as Nextlink. Have the parties, that being U.S. West and Commission staff counsel, had an opportunity to review the petitions? MS. ANDERL: Yes. MS. SMITH: Yes. JUDGE BERG: Ms. Raskin, seeing how you represent all three parties at this point in time, is there anything else that you wish to add to your petitions? MS. RASKIN: No. My position is adequately stated in the petition. JUDGE BERG: Does U.S. West or any other party object to the participation of TCG in this proceeding? MS. ANDERL: No. JUDGE BERG: Does U.S. West or any party object to the intervention of AT&T? MS. ANDERL: No. JUDGE BERG: Same thing for Nextlink. MS. ANDERL: No. JUDGE BERG: Then those petitions to intervene shall be granted. At this time, I'll allow other parties in the room to state their oral request to intervene, again, beginning with you, Ms. Bewick, if in fact that's your intent here today. MS. BEWICK: Electric Lightwave would request to intervene in this proceeding. They were a part of the joint commentors on the filing on January 23rd. The company is authorized to do business in the State of Washington -- is doing business in the State of Washington today -- as a telecommunications provider and would be directly impacted by the filing proposed by U.S. West in this proceeding, and based on those grounds, would request to be granted intervention in this proceeding. JUDGE BERG: I know it will sound like a somewhat repetitive litany for the parties who are at the end of the line, but I think what we'll do is just go around the room and let each of the parties requesting intervention to state their request, and then we'll come back to U.S. West to see if they have any objections to those requests. MR. FINNIGAN: Thank you. The Washington Independent Telephone Association is a nonprofit association whose members provide local telecommunication services within the State of Washington. Its members, in particular GTE Northwest, Incorporated, have received interconnection requests of various types. GTE Northwest is in a position where it has fully negotiated agreements and arbitrated agreements that have been approved by the Commission, and GTE and other WITA members are very interested in the outcome of this case and may well be affected by the precedent set in this case. JUDGE BERG: Thank you, Mr. Finnigan. Mr. Goldberg? MR. GOLDBERG: Thank you, your Honor. Sprint is also authorized to do business as a telecommunications provider in the State of Washington and is currently doing business in the State of Washington and has an approved arbitration interconnection agreement with U S West. Sprint would be directly impacted by the implementation of the advice letter in this proceeding, and therefore requests authorization to intervene. JUDGE BERG: All right. Mr. Hackett? MR. HACKETT: MCI, MCI Metro, and MCI Metronet are also authorized and registered to do telecommunications business in the State of Washington. Each company would also be directly impacted by the proposed filing. JUDGE BERG: Thank you. Ms. Anderl, are there any objections to the parties that have orally presented their request to intervene not to do so? MS. ANDERL: No, no objection. JUDGE BERG: Thank you. In that case, the request to intervene on behalf of all the parties, which are on the record seeking to intervene, is granted. I'd like to confirm that the individuals who are here representing the parties will also be the contact persons for distributions. That would also be Ms. Anderl? MS. ANDERL: Yes. JUDGE BERG: Ms. Bewick? MS. BEWICK: Yes. JUDGE BERG: Mr. Finnigan? MR. FINNIGAN: Yes. JUDGE BERG: Mr. Goldberg? MR. GOLDBERG: I'm actually here on behalf of Carol Matchett, who is a senior regulatory attorney for Sprint. She will be handling this case. She was just not able to be here today. JUDGE BERG: And the address that you've provided, that would also be a contact address for Ms. Matchett? MR. GOLDBERG: That is the same address, and I've given Ms. Matchett's phone number. JUDGE BERG: And Mr. Hackett? MR. HACKETT: The contact person for my client should be Brooks Harlow, who is at the same address as I am located. JUDGE BERG: Very good. Ms. Raskin, will there be separate contact people for AT&T, TCG, and Nextlink? MS. RASKIN: No. The contact person is myself. JUDGE BERG: And the parties will note that Mr. Ffith will be the contact person for the attorney general's public counsel office, and Ms. Shannon Smith will be the contact person for the Commission staff counsel. Is that an appropriate way to refer to your position here? MS. SMITH: Yes. JUDGE BERG: I've sent around a list for the parties to write down their names and fax numbers so the Commission will be able to access those quickly. Actually, it's so that I will be able to access your numbers quickly. Even though the parties have been providing their names, parties they represent, phone numbers, and fax numbers on the record, I'd appreciate your making sure that that information is on the sheet I've circulated. According to my script, we will now set the discovery rules, and we'll address discovery schedule issues later. Do the parties want the Commission's rule relating to methods for obtaining data in adjudicative proceedings to be invoked; that is, WAC 480-09-480? Does anybody so move? MR. FFITCH: Counsel will so move at this time. JUDGE BERG: Are there any comments on the motion to invoke the discovery rule? In that case, the motion will be granted. The methods for obtaining data provided in WAC 480-09-480 will be available in this proceeding. As always, the parties are also encouraged to use informal discovery. I need to advise you that responses to Commission staff discovery requests need to be sent directly to counsel for Commission staff, that being Ms. Smith. Do not send those materials through the Commission secretary. Is any of the parties going to request a protective order in this matter? MS. ANDERL: Yes, your Honor. U.S. West would move for the entry of the Commission's standard of protective order. JUDGE BERG: Are there any other comments on a protective order? Let the record reflect that there are no other comments. I will grant the request for protective order. It will be patterned after the order in Docket UT-901029, also referred to as the Electric Lightwave matter. The Commission will enter that order as soon as possible. I'll also remind the parties that protected materials need to be kept segregated upon receipt. I just wanted to do that. Do not distribute anything that is protected material to anyone who hasn't signed the protective order. The script also has a prompt here for hearing or paper record. Mr. ffitch, does that sound familiar to you? Are you familiar with what is meant by "hearing or paper record" here? MR. FFITCH: Well, I suspect that that's an opportunity for the parties to discuss whether they want to proceed with the understanding that we would potentially have the standard type of cross-examination hearing with live witnesses, or whether we would want to go with the less common procedure of paper record. I think the default is the hearing. It may even be premature to discuss that at this point if we're going to discuss, for example, having an opportunity to address legal issues in a first round. You might be able to defer the question of the nature of the hearing at this point. JUDGE BERG: All right. In terms of a discussion regarding the hearing or paper record, would any of the parties have anything else they would like to add to public counsel's perspective? All right, I think the parties can also tell I am taking advantage of public counsel's prior experience, or possibly his lack of experience in doing this as well. At this time, I think it might be helpful to go off the record to discuss scheduling. Do any of the parties object to going off the record at this time? All right. We will be off the record (Off-the-record discussion at 9:55 a.m.) (Back on the record at 10:30 a.m.) JUDGE BERG: There's been a discussion off the record as to whether there were dispositive legal issues to be addressed in this proceeding. U.S. West indicated that it perceived this to be a tariff filing like any other where it had a burden come forward and present evidence in support of its tariff being just and reasonable. U.S. West did make some references to an order that was submitted in Oregon and stated off the record that number one, it felt the Oregon decision was wrong under Oregon law, but under no circumstances should Oregon law be considered binding in the State of Washington, and the Commission understands that and certainly agrees with the fact that orders from other states are not binding in this jurisdiction. There was further discussion as to whether or not there should be a first round of briefing to deal with what are being referred to as the "dispositive issues." The parties generally agreed that there were dispositive issues that should be addressed prior to incurring the expense associated with discovery in presentation of evidence. WITA did state its position -- I should say Mr. Finnigan, on behalf of his client WITA, did state that he felt the matter should be addressed on its merits, that a factual record needs to be developed in order to fully address the legal issues. Mr. Finnigan also stated that it's important to look at this proceeding parallel to the generic case. There was follow-up discussion with U.S. West regarding whether or not a discovery schedule should be established and initiated at the same time that a briefing schedule on these threshold issues would be undertaken. The Commission agrees with U.S. West that it would be unfair to U.S. West to require them to engage in discovery, particularly in responding to a request for discovery and to develop its evidentiary case at the same time that the Commission was considering issues that might otherwise prevent that discovery and evidentiary record from being made. There was discussion by the ALJ that he believes these threshold issues to be unavoidable and that the Commission has a preference for dealing with these issues before incurring the expense of developing its evidentiary case the same as the parties expressed on their behalf. A discussion ensued regarding a briefing schedule on threshold issues, and the following schedule has been agreed to by the parties. Dispositive motions shall be filed with the Commission on or before August the 29th. Filing and service on U.S. West -- MR. FFITCH: Excuse me, your Honor, you missed a month there. JUDGE BERG: I'm sorry. We'll go in fast rewind. The date on which dispositive motions are to be filed is July 31st. Dispositive motions can be fax filed with the Commission and fax served on that date to U.S. West. The delivery date of dispositive motions to all other parties in the proceeding shall be August the 1st. Then we get to August the 29th, which is the date for responses to the dispositive motions to be filed. August the 29th shall be a filing and delivery date. Delivery can be made by facsimile transmission. WITA shall be authorized to be a responding party in this proceeding. The final date regarding the schedule will be September the 12th for the filing of briefs in strict reply, and the September 12th date shall be a date for filing and/or delivery and filing or delivery by facsimile to be immediately followed up with hard copy and shall also be authorized by the Commission. Are there any aspects to the briefing schedule that I may have missed that the parties want to bring to my attention? Okay. Let's briefly go off the record again. (Off-the-record discussion at 10:39 a.m.) (Back on the record at 10:43 a.m.) JUDGE BERG: There's been additional discussion off the record regarding the statutory date upon which matters are to be concluded in this docket. The parties agree that that date is December 3rd, 1997. The administrative law judge has represented to the parties that he has no known conflicts at this time with generating a quick resolution of the disputed issues to be briefed. However, he exercises his discretion in not setting any definite date to file that order at this time. I will complete my work as soon as possible giving it the attention that it deserves. The parties also agree that it would be inappropriate to attempt to establish a schedule for discovery and evidentiary hearings at this time. If such scheduling is necessary, there will be a noticed follow-up pre-hearing conference. I would expect that additional pre-hearing conference would come up on short notice. If it does, we will certainly make every opportunity for the parties to appear by way of teleconference if they're unable to be here in person. Are there any other issues that we need to cover at this time? Ms. Anderl, anything else you can think of? MS. ANDERL: Nothing I can think of. JUDGE BERG: Ms. Smith? MS. SMITH: No. JUDGE BERG: Mr. ffitch? MR. FFITCH: None, your Honor. JUDGE BERG: Any other parties? All right. I will issue a pre-hearing conference order after today's pre-hearing conference. The pre-hearing order rule states that if you do not object to a portion of the pre-hearing conference order within 10 days, then those are the rules we will proceed under in this case. There being nothing further, I will adjourn today's pre-hearing conference. Thank you, everyone, for your help here this morning. We are off the record. (Pre-hearing conference concluded at 10:45 a.m.)