COMMISSION ---------------------------------) JOHN C. PARSONS, ) Complainant, ) vs. ) DOCKET NO. UT-971304 U S WEST COMMUNICATIONS, INC., ) VOLUME 1 Respondent. ) Pages 1 - 29 ---------------------------------) A pre-hearing conference in the above matter was held on October 27, 1997 at 9:00 a.m., at 1300 Evergreen Park Drive Southwest, Olympia, Washington, before Administrative Law Judge ROBERT WALLIS. The parties were present as follows: JOHN C. PARSONS, Complainant, by JOHN C. PARSONS, pro se, (via bridge), 4876-B Woodspur Road, Colville, Washington 99114. U S WEST COMMUNICATIONS, INC., by PETER J. BUTLER and LISA A. ANDERL, Corporate Counsel, 1600 Seventh Avenue, Room 3206, Seattle, Washington 98191. THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION STAFF, by ANN E. RENDAHL, Assistant Attorney General, 1400 South Evergreen Park Drive Southwest, P.O. Box 40128, Olympia, Washington 98504-0128. Kathryn T. Wilson, CCR Court Reporter P R O C E E D I N G S JUDGE WALLIS: Let's be on the record, please. Will this pre-hearing conference please come to order. This conference is being held in Olympia, Washington on October 27, 1997, pursuant to due and proper notice to all interested persons. My name is Bob Wallis, and I'm the presiding administrative law judge. I'd like to begin the conference today by asking for appearances and ask individuals to state their name, the name of the client that they're representing, and their business address for the record, and being you're the Complainant, Mr. Parsons, I'm going to begin with you. MR. PARSONS: My name is John C. Parsons. My business address is 4876-B Woodspur Road, Colville, Washington 99114. JUDGE WALLIS: For the Respondent? MS. ANDERL: Lisa Anderl appearing on behalf of U S West Communications, Inc. My business address is 1600 Seventh Avenue, Room 3206, Seattle 98191. Also appearing on behalf of U S West Communications is Pete Butler, who is present in the hearing room with me today. JUDGE WALLIS: For Commission Staff? MS. RENDAHL: Ann Rendahl representing Commission Staff. My address is P.O. Box 40128, Olympia, Washington, 98504-0128. JUDGE WALLIS: We have engaged in some pre-conference discussions and have identified several areas to talk about this morning during the conference. One is invoking the discovery rule. The second has to do with data requests. Third has to do with the possible need for protective order. Fourth has to do with the form of testimony that would be received in this proceeding, and fifth, scheduling the hearing. If anything further comes out during our discussions, than we will be able to address that before we conclude. I would like to begin with the question of whether the discovery rule is to be invoked and ask for comments of the parties on that. MS. ANDERL: U S West would consent to the discovery rule being invoked and the use of written data requests in this matter. MS. RENDAHL: And Staff believes it's an appropriate use of procedural discovery in this matter. JUDGE WALLIS: Mr. Parsons, do you have any objection to that? MR. PARSONS: I'm sorry. I had a little trouble with hearing some of that. That was Ms. Rendahl speaking? MS. RENDAHL: I basically said it was appropriate to use the discovery rule in this matter. MR. PARSONS: Okay. I have no objection to that, no. JUDGE WALLIS: That will permit the procedure by which you submit requests to the Company and the Company responds or requests to Staff or Staff requests to you or the Company. MR. PARSONS: Okay. JUDGE WALLIS: I will note for the record that those requests should be addressed directly to Mr. Parsons or to the attorneys representing each of the participants, and no copy, either of the request or the answer, would be addressed or sent to the Commission. MR. PARSONS: Okay. JUDGE WALLIS: In the preliminary discussions, we did talk a little bit about data requests. What would parties like to have stated for the record at this time? MS. ANDERL: Your Honor, on behalf of U S West, I'm happy to represent on behalf of maybe -- Mr. Parsons, if you don't mind me speaking as to the agreement that you and I have reached with regard to some data that we've already agreed to provide to you. Is that okay? MR. PARSONS: I'd be happy to have that on the record. MS. ANDERL: U S West and Mr. Parsons have been attempting to negotiate a settlement and a related request for public records that Mr. Parsons made, and I believe we have reached an agreement wherein upon the entry of a protective order in this docket and Mr. Parsons assigning the appropriate Exhibit A or Exhibit B to that protective order and returning it to us. I do have a letter from Mr. Parsons dated October 15th, 1997. The attorney general and Ms. Dutton also received a copy of that, and I am happy to treat that as a data request which we will respond to in this docket; although, we should probably try to formalize how the data requests are going to be numbered so that there is no confusion. But essentially, what we have agreed to do is to provide to Mr. Parsons, under the protective order, the trouble reports that U S West has filed with the Commission from May of 1993 through current for the towns of Colville, Northport, Marcus, Orient and Laurier, and also to provide him with some method of reading those trouble reports, to the extent it's not evident on their face, we will provide him with a key or code. Like I said, I'm happy to treat that as Data Request No. 1 and any other requests for data that Mr. Parsons wants to submit should be starting No. 2 thereafter and sent to me in accordance with the process that we outlined before we went on the record. MR. PARSONS: Okay. That's agreeable to me. JUDGE WALLIS: Just so the record is clear, Ms. Anderl, could you describe that process? MS. ANDERL: Yes. Mr. Parsons has been corresponding with both me and various other employees and officers at U S West over the course of the summer, and in some of his letters he has made specific requests for information or responses for data. What we talked about before we went on the record was that to the extent that he wishes responses to any of these requests or questions, now that we're in the formal hearing process, he will set those forth as separately numbered requests and send them to me with a copy to Ms. Rendahl of the data requests, and that I will process those or ensure their proper distribution and routing within the company in order that U S West provide a response in accordance with the discovery rule, and that those responses will be in hard copy mailed back to Mr. Parsons. JUDGE WALLIS: Is there anything further regarding discovery, data requests, or protective order? In light of the parties' comments, I will see that a protective order is entered in this proceeding. I expect that will be done by the end of this week. MR. PARSONS: Very good. May I ask a question regarding this? JUDGE WALLIS: Certainly. MR. PARSONS: The protective order will then be sent to me or will I need to request one? JUDGE WALLIS: Every order or piece of correspondence that the Commission sends out to any party will be sent to all parties. MR. PARSONS: Then I will not need to seek a separate form in order to accomplish this protective order? JUDGE WALLIS: No, that's correct. MR. PARSONS: That's all understandable to me. JUDGE WALLIS: Is there anything else regarding discovery? MR. PARSONS: Unless someone else has something, may I quickly review my notes here? JUDGE WALLIS: Certainly. MR. PARSONS: There is some stipulations about if there's groups of more than five pages of requests, which I believe there will be substantially more in this case, that they be in electronic format. I'm sure that it's understood that I'm not capable of providing them in an electronic format. Is that going to be any problem? JUDGE WALLIS: I don't believe that it will. MR. PARSONS: If you'll just bear with me one more minute here. I think I'm clear on all of this now. JUDGE WALLIS: Okay, very good. Let's move on and discuss the form of testimony. By that, Ms. Rendahl, I believe that you're bringing to us the question of whether the testimony should be written and distributed in advance of the hearing; is that correct? MS. RENDAHL: That is correct. I had a discussion with Mr. Parsons in discussing setting up this pre-hearing conference and explained to him the various methods of preparing testimony before the Commission including oral testimony versus preparing written pre-filed testimony, and it's my understanding -- and Mr. Parsons, you can correct me if I'm wrong -- that you would prefer to prepare written pre-filed testimony in this matter. MR. PARSONS: It is. That's a correct representation of our discussion. JUDGE WALLIS: Ms. Anderl? MS. ANDERL: We have no objection to that and, in fact, would suggest that all of the testimony from all of the parties, both direct and rebuttal, could be pre-filed prior to a hearing. JUDGE WALLIS: What we often do in a situation where there is written testimony, Mr. Parsons, is have the person with the burden of proof -- and that's you in this proceeding as the Complainant -- file your evidence. Then the Respondent here, U S West and other parties -- here, the Commission Staff -- would file their testimony and documentary evidence, and then you would have a chance to respond to that by filing other evidence that addresses issues that are raised in the responses. MR. PARSONS: Okay, that's clear. JUDGE WALLIS: And after all that is done, after all that paper moves from place to place, then we would have an oral hearing in which parties would have a chance to ask you questions about your testimony -- call it cross-examination -- and you would have a chance to ask questions of the witnesses for the Company and Commission Staff. MR. PARSONS: I see, okay. This would transpire prior to a hearing? JUDGE WALLIS: That would be the hearing, the oral hearing. MR. PARSONS: Okay, very good. That's understandable. JUDGE WALLIS: I perceive that we have agreement on the process, if that's acceptable to everyone. MS. RENDAHL: That's acceptable to Staff. MS. ANDERL: And to U S West. MR. PARSONS: And to Mr. Parsons, the Complainant. JUDGE WALLIS: Now why don't we talk about scheduling. Let's start off by asking how long we expect the exchange of data requests and answers to take. MS. ANDERL: Mr. Parsons, let me just tell you, it sounds like you're familiar with the discovery rule, but just so you know, U S West has 10 days after receipt of your data requests to respond to them, and I'm assuming that you will want to see some of the data that we're going to provide to you before you prepare your testimony. So you just might want to bear that in mind when you tell the administrative law judge how much time you want before you file your first round of testimony. MR. PARSONS: Yes, and I appreciate you bringing that up. Am I interrupting? JUDGE WALLIS: No. Go ahead. MR. PARSONS: That was one of my concerns. I did note that there was a 10-day response time limit, and as you know, as a layperson, it takes me quite some time to be able to go through some of the material and organize it properly and coordinate it with the proper Washington Administrative Code or the proper State statutes. I have some concerns about the time that I'm going to be maybe slowing things down a little bit, but am I to understand that we need to have a date certain of when my response is going to be and when my written testimony is going to be entered? JUDGE WALLIS: What I would like to do at this point, Mr. Parsons, is to have everybody make their best guesses on how long it's going to take. That way we can kind of block in some time for the various stages. Now, it's always possible that a surprise will come up and that there's a delay of one kind or another, whether it's a delay in getting the answers or delay in one or another phase, and that's okay. If that happens, then as soon as anyone recognizes that it's happening, they can get back to me and we can relook at the questions of scheduling. But for our purposes right now, what I would like would be as realistic as we can, given what we know and don't know at this point, schedule for the various stages of the hearing. MR. PARSONS: Okay. So that is initially addressed to me; am I correct? JUDGE WALLIS: That's correct, and I'm also going to say, based on my experience, that you might want to make your best estimate and then extend it by at least 50 percent. MR. PARSONS: Very good. I appreciate that advice. I would say that we're looking at least the very minimum 30 days. MS. RENDAHL: I would say yes. Probably maybe a minimum 60 days. If you factor in the time it would take you to mail in your request to U.S. West and then 10 days after they receive it to respond, and then time for you to evaluate it, and then time for you to prepare your written testimony, that's what we're looking at. MR. PARSONS: Okay. Then I would say that Mr. Wallis's formula proves true already, but you should probably double that 30 days and make it 60 days with the caveat that we can modify it somewhat if it proves appropriate to do so. JUDGE WALLIS: 60 days would put it right in the middle of the holiday season, so I'm going to suggest that we extend that until -- how would the 5th of January sound or the 9th of January? MR. PARSONS: Let me check my calendar here. The 5th is an excellent day for me. JUDGE WALLIS: Okay. We'll say that your pre-file testimony would be due in the Commission offices no later than 5:00 p.m. on January 5th. MR. PARSONS: If you'll hold for just one moment here. Very good. 5:00 p.m., January 5th for my pre-filed testimony. JUDGE WALLIS: Now, for the other parties direct presentations? MS. ANDERL: Your Honor, is that a Monday, January 5th? JUDGE WALLIS: It is a Monday, yes. MS. ANDERL: Could I ask if Staff knows whether they will be filing on January 5th or during the second round? MS. RENDAHL: We were just discussing that, and I think we would definitely not be filing in the first round. I think we would need to see what Mr. Parsons has to say, and we're also debating whether it is appropriate for us to wait until after U S West has filed its response to know if it's appropriate for Staff to take a position in the matter. So if it's acceptable to the parties, we may reserve filing until the rebuttal time; although, that does leave a problem possibly for U S West in responding to our presentation. MS. ANDERL: Sure. But we've dealt with that kind of issue before, and if there's anything we feel is adverse that we feel needs to be responded to, I guess there's two ways to handle that. One is to allow us a brief rebuttal filing, and the other would be to simply allow us to do oral rebuttal at the time of the hearing. And if the parties are open and flexible to that, we can play it by ear and see how it turns out in February or March. MS. RENDAHL: But I guess at this point, in response to your question, I don't believe we would be filing in January, and our wish would be to file anything, if we are going to file something, after U S West files its response. MS. ANDERL: Certainly four weeks for us to file our direct testimony after we receive Mr. Parsons' testimony should be enough, which would make our filing due on Monday, February 2nd. MR. PARSONS: May I interject here? JUDGE WALLIS: Yes, Mr. Parsons. MR. PARSONS: I am clear up to the point of if the Staff chooses to take a position that they would do so after the testimony of U S West, and then I'm a little off at that juncture how things will proceed. JUDGE WALLIS: Well, the next step after the Company files its direct case is your opportunity to present additional evidence in response to that direct case, and we call that rebuttal. It sounds like it would work if the Commission Staff also filed on that date, if they choose to file anything. MS. RENDAHL: That's acceptable. JUDGE WALLIS: So the question to you at this point is, after you see the Company's case, how much time would you like to prepare a response to it? MR. PARSONS: I would think at that time of the year that we could close in on that -- why don't we say 21 days. JUDGE WALLIS: That would be February 23rd. MS. RENDAHL: I think Staff would request an additional week. If we could have it filing on March the 2nd, which is a Monday, that would be helpful to Staff. MR. PARSONS: That's no problem with me. JUDGE WALLIS: So we'll call that March 2nd for rebuttal and Commission Staff, if any. MS. RENDAHL: Correct. MR. PARSONS: Am I interrupting something now? JUDGE WALLIS: No. MR. PARSONS: If I might ask, on deposition of witnesses, does that complicate the written testimony situation whatsoever, or does that only happen at the hearing, or does that happen in the written testimony phase? MS. RENDAHL: Do you want me to respond to that? MS. ANDERL: I'm happy to respond. I wanted to see if Judge Wallis wanted to talk to that issue. JUDGE WALLIS: The ordinary course would be that the hearing would be an opportunity to ask questions of the witnesses who are presenting the Company and Staff case and yourself, or any witnesses that you may have on your behalf. Depositions are perhaps an exceptional tool and are used in some of the more complex cases that the Commission hears. In a deposition, you and the Company's witness and the lawyers would get together, and it would be a chance for you to ask questions of those witnesses. You would have the chance to ask those questions at the hearing. Does that answer your question? MR. PARSONS: Yes, it does. Particularly the fact of the deposition being utilized for complex issues. Part of this Complaint and Answer revolves around 480-120-515, which has some relatively complex technical information and requirements. There's some problems with the Respondent's answer as far as the accuracy, and I've brought this up to Ms. Anderl before, and I expect that those problems would be amended because they complicate the issue of addressing that section of the answer. The other thing is that it's very likely that we're going to need a live technical expert to help decipher for all of us, including myself, some of the technical nature of 515, and I'm not certain of other than deposing an expert what the best process would be to do that. If I could have some comments on that issue. JUDGE WALLIS: Perhaps we could go off the record at this point and have an informal discussion. MR. PARSONS: I'm very willing to do that. MS. ANDERL: That's fine with me. MS. RENDAHL: That's fine. (Discussion off the record.) JUDGE WALLIS: We engaged in a brief discussion regarding depositions while we were off the record. Let me ask if there's anything that anyone wants to state for the record? MR. PARSONS: Mr. Parsons has nothing right at the moment. JUDGE WALLIS: Thank you, Mr. Parsons, and I see no comments from others who are here. MS. ANDERL: Except, I guess, your Honor, I would like it confirmed on the record that we're not planning on doing depositions, that none of the parties at this point is either asking that any be scheduled or planning any at this point. JUDGE WALLIS: Is that correct? MS. RENDAHL: Staff is not. MR. PARSONS: I find that a difficult question to be able to address right at the moment. Am I bound by a statement of whether or not that depositions will be made at this juncture? MS. ANDERL: I'm not asking you to commit, Mr. Parsons, for all time. I'm simply asking to confirm my understanding of the discussion off the record that no depositions had either been formally requested or scheduled at this time. MR. PARSONS: I will agree to that. MS. ANDERL: Thank you, and the same holds true for U S West. JUDGE WALLIS: Very well. Do we have the schedule on the record? MS. RENDAHL: I have a question on the schedule. We had gotten as far as March 2nd, which is Mr. Parsons' rebuttal filing and my filing by Staff. Do we need to schedule a response to Staff by either Mr. Parsons or U.S. West, or do we wish to leave that open at this point? MR. PARSONS: I'm sorry. I'm having some trouble hearing here. MS. RENDAHL: I apologize. I do tend to have a soft voice. I was just asking whether we needed to schedule some time for any response to any filing that the Commission Staff may make? JUDGE WALLIS: There are two ways to approach that. One would be to allow a further written response, and the other would be to schedule the hearing and allow responses at the time of the hearing. MR. PARSONS: May I make a comment there? JUDGE WALLIS: Mr. Parsons? MR. PARSONS: I would be very much in favor of seeing the Staff's position before the hearing, if that's what we're discussing here. JUDGE WALLIS: Yes. You would see the Staff's position, if they have one -- MS. RENDAHL: If we have one. JUDGE WALLIS: -- before the hearing, and the question at this point is whether you and the Company would like to respond to that in writing in the form of pre-filed evidence, or whether you would respond at the time of the hearing and not have that additional step. MR. PARSONS: Okay. Well, I would refrain from my input on that. MS. ANDERL: We would like at least an opportunity to respond, and we might as well do it in writing because then everything is before all the parties before we get to the hearing, and it perhaps makes things a little bit smoother. Once we get to the hearing, there are no surprises. So we will go ahead and ask that a date be scheduled by which we could respond to Staff's position, and if we decide not to respond because we feel that no response is necessary or if it were consistent with our position, I'm sure that we wouldn't feel a need to file a response saying, "Oh, yes." We would send in a letter saying that we weren't going to respond, and I'm sure if we had two weeks that would be plenty of time to just review Staff's testimony and make a determination. MR. PARSONS: I don't think I would make an objection to that. JUDGE WALLIS: So March 16th would be the deadline for the Company's and your response, if any, to Staff's position, if any. So the next question is, when should we pencil in our hearing, and let me say that ordinarily the hearing can follow relatively closely the last filing date, so we could be looking at something during the weeks of March 23rd or March 30th. MS. RENDAHL: I've just been informed that Pat -- and she is likely to be a witness, if, in fact, Staff does file testimony -- would be unavailable from the 26th through the 31st. I don't have a problem with a hearing those two weeks, but I think we need to keep in mind those dates. MS. ANDERL: April 2nd would work for me. As I understand it, we would be traveling east for the hearing. At least that's what I've heard would be contemplated, and that April 2nd date is on a Thursday. MR. PARSONS: That's no problem with me. MS. RENDAHL: That's not a problem for Staff. JUDGE WALLIS: All right. What I will do then is ask our support staff to schedule a hearing. Do the parties want to have the hearing itself in Colville or in Spokane? What are our preferences? MS. RENDAHL: Either would work for Staff. MR. PARSONS: I would be very grateful, and it would be very helpful to me to have this hearing in Colville, if at all possible. MS. ANDERL: I'll be honest. Spokane would be more convenient, but we don't oppose a Colville location, so that's fine. JUDGE WALLIS: We'll approach it this way, Mr. Parsons. I will ask Staff to see about finding a location. MR. PARSONS: If I could be of any assistance there, I would be completely open to that. JUDGE WALLIS: We'll certainly check in with you if Staff has a problem. Just to be on the safe side, not that I'm expecting a long hearing, what I'm going to ask them to do is reserve a facility for both Thursday and Friday. When we issue the notice of hearing, it would just be for the starting time. But that way, if a surprise happens, and it does go more than one day, we'll be sure that we have the facility for it. MR. PARSONS: Once again, I would just reiterate that I may have some inside knowledge about being able to provide the facility, to make sure that it's done well enough ahead of time to reserve a couple of days. If you want to talk to me about providing facilities or what might be the proper facilities, I will certainly be open to give any help I can provide there. JUDGE WALLIS: Thank you, Mr. Parsons. I will let you know that our hearing scheduler does have a list of facilities statewide that is gathered through the efforts of a number of agencies, and sometimes that's not sufficient and we have to go beyond that, and if we do, then we'll certainly keep your offer in mind. The last thing that I would like to mention for the record is the number of copies that would be required. Answers to data requests and the data requests themselves are not filed with the Commission. So only the original need to be provided to opposing party and a copy to the other party and nothing filed with the Commission. When we file pleadings or direct evidence, then the Commission needs to have an original and three copies, and the assistant attorney general needs individual service of those documents, just one copy. MS. RENDAHL: Correct, and U S West needs service. JUDGE WALLIS: And U S West needs service of one copy. Is there anything else that anyone wants to bring up this morning? MR. PARSONS: Nothing here from Mr. Parsons. JUDGE WALLIS: Let me explain what our process is going to be now. I'm going to take my notes and put together a short pre-hearing conference order. I will have that served, I'm sure, by the end of this week, and there's a provision for those orders that if I get something wrong, my notes are wrong or whatever, the parties have 10 days to get back to us -- of course with a copy to everybody else -- for any objections for anything that's in that pre-hearing conference order. Because everyone has agreed on everything, I don't think that there's going to be a lot of controversy about the content, but my note taking is not infallible, and I certainly invite folks if I do get something wrong to let us know about it and we'll make corrections. MR. PARSONS: That's understood. MS. ANDERL: Your Honor, before we go off the record and maybe -- I don't know if this bears talking about or not at this point, but as I understand it, one of the purposes for which we can have a pre-hearing conference is to either narrow or more clearly define the issues, and I didn't know if it would be productive to talk to Mr. Parsons about that at this point in time or not. It has been my understanding that the primary basis for his Complaint, which is fairly general as it's stated now, is his inability to use a fax machine on his telephone line, and I guess I would like to know if it would be worthwhile to talk about whether that is, in fact, the essence of the Complaint or not. Kind of before we go forward into some broad based discovery, I think it would be helpful for U S West to really know what the basis for his Complaint is in a bit of a more narrow or refined way, if the parties think that might be helpful to discuss that. MR. PARSONS: May I respond? JUDGE WALLIS: Yes. MR. PARSONS: My response to that is -- JUDGE WALLIS: Mr. Parsons, I'm sorry. I'm having trouble hearing you again. MR. PARSONS: Sorry. My response to that is is that's not an accurate representation of my Complaint; that my Complaint is that I do not have adequate, modern, sufficient, efficient telecommunications service. MS. ANDERL: I was simply attempting to narrow the issues somewhat and was hopeful that we would be able to do that. MR. PARSONS: If I may, am I interrupting? JUDGE WALLIS: No. MR. PARSONS: To narrow the issue would be helpful, and I would like to narrow the issue by I have an intention of amending my Complaint, and in doing so, I believe that I will narrow this somewhat and particularly on the issues of adequate responses to my inquiries. I feel that that's -- although I'm not pleased with how that went, I don't think it would be fruitful to gaining with the belief I'm actually seeking, which is to add modern, efficient, adequate and sufficient telecommunications service, so I will be narrowing that, and the issues of how U S West responded to my inquireis previously will be narrowed, and there may be some other narrowing, and I have an intention, if it's appropriate to mention it at this time, of amending the Complaint in that regard. MS. RENDAHL: May I also make a suggestion? This is Ann Rendahl. After you have filed an amended Complaint, if you choose to do so, it may be approp