BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION In the Matter of: ) ) MFS COMMUNICATION COMPANY ) Docket No. UT-960323 INC.'s ) ) Petition for Arbitration Pursuant to ) 47 U.S.C. § 252(b) of the ) Interconnection Rates, Terms and ) Conditions with U S WEST ) Communications, Inc. ) ) ) In the Matter of: ) ) Docket No. UT-960326 TCG SEATTLE ) ) Petition for Arbitration Pursuant to ) 47 U.S.C. § 252(b) of the ) Telecommunications Act of 1996 ) ) ) In the Matter of the Interconnection ) Agreement Between: ) Docket No. UT-960337 ) ELECTRIC LIGHTWAVE, INC., and ) PETITION OF TCG, NEXTLINK, AND U S WEST COMMUNICATIONS, INC., ) ELI FOR PARTIAL COMMISSION ) REVIEW OF ALJ'S INITIAL ORDER Pursuant to 47 U.S.C. § 252 ) ) TCG Seattle ("TCG"), NEXTLINK Washington, L.L.C. ("NEXTLINK"), and Electric Lightwave, Inc. ("ELI") petition the Commission to review those portions of the Initial Order on U S WEST Request for Exception From Duty to Provide Physical Collocation ("Initial Order") entered in the above-captioned dockets governing the issue of "cageless collocation," specifically the summary at pages 8-9, Findings of Fact 4-7, Conclusions of Law 11-14, and Order paragraph 1. In support of their Petition, TCG, NEXTLINK, and ELI state as follows: GROUNDS FOR REVIEW 1. Lack of Record Support. The record does not support the Initial Order's decision to allow U S WEST Communications, Inc. ("U S WEST") to deny a request for physical collocation of equipment without a cage enclosure ("cageless collocation") in the absence of an agreement between the parties. The Initial Order concludes that denial of cageless collocation "is responsive to legitimate security concerns," Initial Order at 9, but the only evidence U S WEST presented on this issue was the testimony of Mark Reynolds that U S WEST has "a concern for our own equipment." Tr. at 112-13. No evidence was presented, however, to identify or explain how a caged enclosure is necessary to address that concern. To the contrary, Michael Morris on behalf of TCG testified that U S WEST already allows access to its central offices to competitors with physically collocated equipment without requiring a separate and secure entrance -- in Mr. Morris' words, U S WEST "give[s] collocators a free run of the house." Tr. at 242-43. Cageless collocation thus presents no security risk to U S WEST's equipment because collocators already are allowed in proximity to that equipment -- cageless collocation only presents security risks to the equipment of the collocator, who should be entitled to waive that risk or minimize it in some other way. Even Mr. Reynolds testified that U S WEST was considering the possibility of granting requests for cageless collocation. Tr. at 112. U S WEST has subsequently stated "that it has determined that cageless physical collocation for CLECs is feasible" and that it "has no documents which relate to the unfeasibility of cageless physical collocation, whether on the grounds of security or other specific grounds." In re Covad Comunications Co., Docket No. UT-970376, USWC Supp. Response to Covad Data Requests at 1-2 (January 7, 1998) (a copy of which is attached to this Petition). The record, therefore, conflicts with the Initial Order and supports only the conclusion that legitimate security concerns do not justify prohibiting cageless collocation. 2. Error of Law. The Initial Order appears to rely on the FCC Local Competition Order ¶ 598 as the basis for allowing U S WEST to deny cageless collocation because the FCC concluded "that the physical separation provided by the collocation cage adequately addresses [legitimate security] concerns." That order, however, does not require the decision reached in the Initial Order. The FCC has ordered only that incumbent local exchange carriers be permitted "to require reasonable security arrangements to separate an entrant's collocation space from the incumbent LEC's facilities" and referred to a collocation cage as one such arrangement. Id.; see 47 C.F.R. § 51.323(i). The FCC nowhere required collocation cages but stated "that states should have flexibility to apply additional collocation requirements that are otherwise consistent with the 1996 Act and our implementing regulations." FCC Order ¶ 558. As discussed in paragraph 1, supra, the record in this proceeding demonstrates that for U S WEST central offices in Washington, "reasonable security arrangements" do not include collocation cages when the competitor is willing to waive such an arrangement. The Commission, therefore, may and should exercise its flexibility to reach a determination based on the record in this proceeding and to permit a competitor to obtain cageless collocation. 3. Conflict With Arbitration Decision. The Initial Order also conflicts with the Commission-approved Arbitrator's Report and Decision in Docket No. UT-960326 ("Arbitrator's Decision"), one of the consolidated dockets comprising this proceeding. The Arbitrator's Decision adopted TCG's proposals for shared space collocation and unescorted access by bonded TCG technical personnel to physically collocated equipment in U S WEST's central offices. Arbitrator's Decision at 15-16. Mr. Morris testified that these contract provisions require that U S WEST provide cageless collocation upon request. Tr. at 241-42. These provisions also allow for collocation space less than the minimum 100 square feet required by the Initial Order. See Docket No. UT-960326, Interconnection Agreement § X.B. The Initial Order allows U S WEST to deny requests for cageless collocation and impose a 100 square foot minimum for physical collocation space regardless of agreements to the contrary, thus improperly conflicting with the Arbitrator's Decision. The Arbitrator's Decision also shows that allowing U S WEST to deny cageless collocation would have the effect of prohibiting it, despite the Initial Order's provision for a contrary agreement. This Commission is well aware that U S WEST provides competitors with only that which U S WEST is required to provide. The Arbitrator's Decision, for example, adopted physical collocation and other contract provisions proposed by TCG that U S WEST simply opposed without explanation. Arbitrator's Decision at 16. 4. Conflict With Public Policy. The Initial Order provisions allowing U S WEST to deny cageless collocation and impose a minimum collocation space of 100 square feet is contrary to public policy. The record in this proceeding amply demonstrates that space in U S WEST's central offices is at a premium and that virtual collocation is an exceedingly poor substitute for physical collocation. See, e.g., Tr. at 228-43 (TCG Morris). No party disputes that cageless collocation requires significantly less space than cageless collocation or that there may be circumstances in which a requesting party does not need 100 square feet of space. See, e.g., Tr. at 155-56 (USWC Reynolds). Enabling competitors to obtain physical rather than virtual collocation allows them, rather than U S WEST, to service and control their own equipment, improving the quality and availability of services competitors can provide to their customers. See Tr. at 233-37 (TCG Morris). Requiring that competitors use only the USWC central office space they need, in turn, promotes efficient use of scarce central office space, maximizing the number of competitors that can obtain physical collocation. The Initial Order would allow U S WEST to undermine the ability of its competitors to provide quality services to their customers in the name of unspecified "security concerns" that are without factual or legal support. REQUEST FOR RELIEF TCG, NEXTLINK, and ELI, therefore, request that the Commission review and revise those portions of the Initial Order that address cageless collocation to require that U S WEST permit cageless collocation upon request, subject to reasonable security arrangements. TCG, NEXTLINK, and ELI propose the following revisions to the applicable Findings of Fact, Conclusions of Law, and Order paragraphs: Findings of Fact 4. The requirement that physically collocated equipment be physically separated from USWC equipment in central offices responds to legitimate security concerns, but such physical separation does not include a cage enclosure if the CLEC requests to physically collocate its telecommunications equipment without such an enclosure. 5. The USWC requirement of an enclosed physical collocation space does not respond to legitimate USWC security concerns. USWC did not present sufficient evidence to demonstrate that cageless collocation presents any greater security concerns than those presented by access to USWC central offices as USWC currently provides such access. 6. Unrestricted access to USWC central office equipment raises legitimate security concerns. The requirement that persons under the supervision and control of parties requesting physical collocation be bonded as a prerequisite to entry upon USWC central office premises responds to these concerns. 7. The USWC requirement of a minimum physical collocation space of 100 square feet does not respond to legitimate space requirements in all cases. A 100 square foot minimum may be an appropriate minimum for enclosed physical collocation space in the absence of a negotiated or arbitrated agreement to the contrary, but USWC did not present sufficient evidence to justify such a minimum in other circumstances or to justify the requirement that space be acquired in 100 square foot increments. Conclusions of Law 11. The requirement that physically collocated equipment be physically separated from USWC equipment is reasonable and responsive to legitimate security concerns, but such physical separation does not include a cage enclosure if the CLEC requests to physically collocate its telecommunications equipment without such an enclosure. 12. The USWC requirement of an enclosed physical collocation space in all cases is not reasonable and does not respond to legitimate USWC security concerns. Cageless collocation presents no greater security concerns than those presented by access to USWC central offices as USWC currently provides such access. CLECs requesting physical collocation should not be required to enclose their physically collocated equipment in a cage if they request cageless physical collocation. 13. The requirement that persons under the supervision and control of parties requesting physical collocation be bonded as a prerequisite to entry upon USWC central office premises is reasonable and is responsive to legitimate security concerns. 14. The USWC requirement of a minimum physical collocation space of 100 square feet is not reasonable in all cases and may not respond to legitimate space requirements. USWC is not precluded from offering 100 square feet of space as a minimum for enclosed physical collocation in the absence of a negotiated or arbitrated agreement to the contrary, but CLECs requesting physical collocation should not otherwise be required to purchase more space than they determine is necessary for their needs. Order 1. Physically collocated equipment is to be physically separated from USWC equipment in central offices, but such separation does not require a cage enclosure in all circumstances. CLECs requesting physical collocation are not required to enclose their physically collocated equipment in a cage if they request cageless physical collocation. Except as a minimum for caged physical collocation in the absence of a contrary agreement, CLECs requesting physical collocation also are not required to purchase more space in the USWC central office than they determine is necessary for their needs. RESPECTFULLY SUBMITTED this _____ day of January, 1998. DAVIS WRIGHT TREMAINE LLP Michael A. Morris Attorneys for TCG Seattle and NEXTLINK Deborah S. Waldbaum Washington, L.L.C. Karen Notsund Teleport Communications Group, Inc. 1350 Treat Blvd., Suite 500 Walnut Creek, CA 94596 By Gregory J. Kopta Deborah Whiting Jaques WSBA No. 20519 Director - Regulatory NEXTLINK ELECTRIC LIGHTWAVE, INC. 1003 Montello Avenue Hood River, OR 97031 By Timothy Peters Director Regulatory & Industry Affairs 8100 NE Parkway Drive Vancouver, WA 98662