COMMISSION WASHINGTON UTILITIES AND ) TRANSPORTATION COMMISSION, ) Docket No. UT-961638 Complainant, ) Volume 1 ) vs. ) Pages 1 - 22 ) U S WEST COMMUNICATIONS, INC., ) Respondent. ) ----------------------------- ) A pre-hearing conference in the above matter was held on September 19, 1997 at 1:30 p.m. at 1300 South Evergreen Park Drive Southwest, Olympia, Washington, before Administrative Law Judge TERRENCE STAPLETON. The parties were present as follows: U S WEST COMMUNICATIONS, INC. by Lisa Anderl, Attorney at Law, 1600 7th Avenue, Room 3206, Seattle, Washington 98191. MCIMETRO by CLYDE MACIVER, Attorney at Law, 4400 Two Union Square, 601 Union Street, Seattle, Washington 98101-2352. GTE NORTHWEST, INCORPORATED, by TIMOTHY J. O'CONNELL, Attorney at Law, 1800 41st Street, Everett, Washington 98201. FOR THE PUBLIC, SIMON FFITCH, Assistant Attorney General, 900 Fourth Avenue, Suite 2000, Seattle, Washington 98164. WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION STAFF, BY GREGORY TRAUTMAN, Assistant Attorney General, 1400 South Evergreen Park Drive Southwest, Olympia, Washington 98054. Cheryl Macdonald, Court Reporter APPEARANCES (Cont'd.) SPRINT COMMUNICATIONS COMPANY, LP, by CAROL MATCHETT, Attorney at Law, External Affairs, 1850 Gateway Drive, San Mateo, California 94404. TRACER, by ARTHUR BUTLER, Attorney at Law, 5450 Two Union Square, 601 Union Street, Seattle, Washington 98101. WITA, by RICHARD FINNIGAN, Attorney at Law, 2405 Evergreen Park Drive Southwest, Suite B-3, Olympia, Washington 98502. I N D E X WITNESSES: (None.) EXHIBITS: MARKED T-1 21 P R O C E E D I N G S JUDGE STAPLETON: Let's be on the record, please. This is a pre-hearing conference in docket No. UT-961638 which was set by due and proper notice of the Commission dated August 29, 1997 in the matter of the Washington Utilities and Transportation Commission complainant vs. U S WEST Communications, Incorporated, respondent. Today's date is September 19, 1997. We are convened in Olympia, Washington before Administrative Law Judge Terrence Stapleton. Let's begin by taking appearances of the parties, please, and let's begin with the company. MS. ANDERL: Thank you, Your Honor, Lisa Anderl, appearing on behalf of U S WEST Communications, Inc. My business address is 1600 Seventh Avenue, Room 3206, Seattle, Washington, 98191. Did you want our phone and fax? JUDGE STAPLETON: Voice, fax and E-mail address, please. MS. ANDERL: Phone 206-343-4052. Fax 206-343-4040. My E-mail address is landerl@uswest.com. JUDGE STAPLETON: Thank you. For Commission staff. MR. TRAUTMAN: Greg Trautman, assistant attorney general for Commission staff. My address is 1400 South Evergreen Park Drive Southwest, Post Office Box 40128, Olympia, 98504. My telephone number is 360-664-1187. My fax number is 360-586-5522, and my E-mail address is greg@wutc.wa.gov. JUDGE STAPLETON: Thank you. Public counsel. MR. FFITCH: Simon ffitch, assistant attorney general public counsel section. 900 Fourth Avenue, Suite 2000, Seattle, 98164. Phone number 206-389-2055. Fax number 206-389-2058. E-mail address is simonf@atg.wa.gov. JUDGE STAPLETON: Thank you. And then let's just go from my right to left. Mr. MacIver. MR. MACIVER: Thank you, Your Honor. My name is Clyde MacIver. I am representing MCImetro from the law firm of Miller Nash. The address is 4400 Two Union Square, 601 Union Street. Telephone number area code 206-622-8484. Fax number area 206-622-8485. E-mail address is maciver@millnash.com. MR. BUTLER: Arthur A. Butler, appearing on behalf of TRACER, and my address is Ater Wynne Hewitt Dodson and Skerritt, LLP, 601 Union Street, Suite 5450, Seattle, 98101-2327. Telephone number is 206-623-4711. Fax number 206-467-8406. E-mail address aab@aterwynne.com. MR. FINNIGAN: Richard A. Finnigan, appearing on behalf of Washington Independent Telephone Association, 2405 Evergreen Park Drive Southwest, Suite B-3, Olympia, Washington 98502. Telephone is 360-956-7001. Fax is 360-753-6862. E-mail is rickfinn@yelmtel.com. MR. O'CONNELL: Timothy J. O'Connell on behalf of GTE Northwest, Incorporated. Business address is 1800 41st Street, Everett, Washington 98201. Telephone 425-261-5008. Fax number is 425-258-9275. E-mail address is timothy.oconnell@ telops.gte.com all lower case and, please, no apostrophe between the O and C in O'Connell in the Internet address. MS. MATCHETT: Carol Matchett appearing for Sprint Communications Company LP. My business address is Sprint External Affairs 1850 Gateway Drive, San Mateo, California 94404. My voice number is 650-513-2712. My fax number is 650-513-2737. My E-mail address is carol.l.matchett@sprint.sprint.com. JUDGE STAPLETON: All right, thank you. Let's begin with intervention, please. Mr. MacIver on behalf of MCImetro. MR. MACIVER: Thank you, Your Honor. MCImetro would move to intervene under WAC 480-09-430. MCImetro in its capacity as a competitive local exchange company operates within the territory served by U S WEST. It offers special access in switched local service. It is both a competitor and customer of U S WEST; and number two, MCImetro definitely does not seek or wish to expand the issues in this proceeding by its intervention. It is not completely sure of the scope of the issues in this proceeding. It is concerned about the general regulations filed with this tariff concerning the application for service and concerning U S WEST's obligation to provide service subject to the availability of facilities of U S WEST. We have in mind that this may be inconsistent with prior orders of this Commission; for example, in docket 941464, the interconnection docket, and service quality rules and 80.36.090 which relates to service on demand obligation to provide service on demand. This Commission in prior dockets in which MCI was a party ruled that in the ninth supplemental order in the interconnection docket that every local exchange company, including U S WEST, has an obligation to provide whatever facilities are necessary on its side of the meet point to complete local calls. Commission further stated, and I quote, "The Commission will not allow any carrier to condition its obligation to interconnect at meet point and to complete local calls delivered by originating carrier on the availability of facilities." We are concerned that the issues presented in this proceeding may have an effect on these prior rulings and may have an effect on MCI as a customer or competitor of U S WEST. These rules may effect U S WEST's obligation to take a customer back which leaves U S WEST to go to a competitor and, if it were not obligated to provide facilities, to take a customer back. That could have a very anticompetitive impact on CLECs. So with the understanding we do not intend to broaden the issues, and quite candidly, not knowing for sure where the issues in this proceeding are going to go, we would request that we be allowed to intervene to represent our interests as they may appear in this proceeding. JUDGE STAPLETON: Thank you. Ms. Anderl. MS. ANDERL: Yes, Your Honor. I would like to inquire as to whether MCImetro opposes U S WEST's proposed tariff changes in this matter. I believe the rules on intervention do require an intervenor to state their position on the issues, and I am not at all clear from Mr. MacIver's description of what his interests are as to what their position is. MR. MACIVER: Well, I believe I have stated my interests to the extent I can, based on this tariff filing, Your Honor, relative to the obligations to serve and the requirements to take customers back who may at the outset leave U S WEST's network to go to a competitor, and from the Commission's prior orders as a customer and competitor of U S WEST we believe we may be affected by this tariff, and, as I said earlier, by reading the general terms and conditions of this tariff I am not completely clear on the extent of the impact or the policies that this Commission may wish to address in this proceeding, but we will not broaden the issues and will limit our participation in this proceeding to the extent these issues may impact us. MS. ANDERL: I understand what Mr. MacIver's interests are. I am simply inquiring their position on the issues, and I believe the rules on intervention gives me the right to know that. JUDGE STAPLETON: Let me confess that in my three-inch thick binder I have about six sheets of paper, three of which are the cover letter and three revised tariff sheets of the company, and the other is a two-page notice of hearing and two-page petition to intervene by WITA, and I don't know that anybody knows what the issues are in this case. You have not prefiled your testimony, and I am wondering if on any other basis you might begin testing the intervention by MCI. MS. ANDERL: Well, I would -- I guess I'm also curious, then, as to whether MCI thinks that their rights and relationship between U S WEST and MCI are governed by the tariffs or by the interconnection agreement that they have with us, and if they believe that their relationship with U S WEST is governed by the interconnection agreement between the two companies as telecommunications companies, then I would question whether they have stated any interest at all. And if they believe that their relationship with U S WEST is governed by the tariffs -- well, I guess I would like a clarification there. And, as I said, I am not sure that MCI really has stated an interest in intervening in this proceeding. MR. MACIVER: Your Honor, as I stated, I'm trying to do the best I can given the limited information that we have at the moment available on this file. I believe that we can be, definitely our customers as well as MCI can be, impacted by this tariff, and to the extent that is true and to the extent this Commission is addressing policies that could affect MCImetro itself on obligations to serve, which appear to be very significant issues being raised by this tariff, we would have an interest. I have not seen the prefiled testimony. I do not know all the positions that U S WEST is taking nor do I know whether this Commission -- how it's going to frame the issues that they're going to address in this case at this point, so I've done the best I can. This isn't a summary judgment proceeding here on a motion to intervene, but I've tried to state the issues the best that I can based on the tariff filed, and my understanding of the prior orders of the Commission. JUDGE STAPLETON: Do you have any direct response to Ms. Anderl's inquiry whether or not MCImetro feels itself subject to the provisions of the tariffs for which tariff sheets have been filed in this proceeding? MR. MACIVER: Well, MCImetro, definitely its relationship is defined by the contract it has with U S WEST. It could well be impacted by this tariff because it is a competitor of U S WEST, and as I mentioned earlier, if customers, for example, that leave U S WEST to go to MCImetro should be denied the right to return to U S WEST for any reason, based on lack of facilities or in U S WEST's sole discretion, which I read this tariff as saying, that could have a very adverse competitive effect on MCImetro or any other company seeking to compete with U S WEST in its territory, but again, I'm not sure how the Commission is going to define these issues of obligations to serve and how they will affect CLECs at the moment, which is why we seek to intervene as our interests may appear. JUDGE STAPLETON: Anything further, Ms. Anderl? MS. ANDERL: No. JUDGE STAPLETON: Commission staff have any comment on this petition? MR. TRAUTMAN: Well, in general, and this would be with some of the other interventions as well, it seems, as Your Honor pointed out, that the scope of this hearing has not really been defined, and it could be limited -- it could be interpreted in a very limited way as affecting U S WEST and its retail customers, or it could be interpreted in a very broad sense, and we haven't really gotten to this point, but if it were interpreted in a broader sense bringing in all different companies beyond the retail customers, perhaps the hearing should be converted to a rulemaking. That might be a better forum than using these particular tariff sheets as a way of trying to deal with obligation to serve on a broad scaled basis. So I think staff would just -- particularly with the time constraints that we have in this hearing, if it is converted into a broad-based hearing with multiple intervention beyond the retail customers, perhaps it would be better converted to a rulemaking. JUDGE STAPLETON: Does the company have a response to that? MS. ANDERL: Well, I think Mr. Trautman raises a good point. I mean, we're not intending to withdraw the tariff and initiate a rulemaking, although certainly anybody would be free to initiate a rulemaking at any time. We would still like a Commission decision on our particular tariff filing, but it may be that it is more appropriately limited to the issues as they pertain to U S WEST, and U S WEST's retail end user customers. Certainly, I suppose, the comment that Mr. MacIver made to the extent that they do state a basis for intervening and they relate to any company's obligation to serve, even MCI's obligation to serve and whether they are obligated to take a customer back from U S WEST if that customer wants to move the other way, maybe there are issues out there that are more global in terms of carrier's obligation to serve that could be addressed in a rulemaking, then that may be a way to address all of the other carriers' interests in this proceeding without allowing them to intervene necessarily. JUDGE STAPLETON: All right. I'm going to grant the oral motion to intervene by MCI. Ms. Anderl, as to your basic inquiry of MCImetro, I assume that you intend to raise that same question with each of the other parties who are appearing today to intervene that you're likely to get the same response, and certainly I will allow you to do that on the record individually for each individual party. However, I will ask you to consider the discussion that has just taken place about the knowledge level of each party appearing here, and including the bench and ask you to take that into account as we proceed through each of these motions. Mr. Butler. MR. BUTLER: Yes. TRACER is an association of large business retail customers of U S WEST. Its members have facilities located in virtually every part of the state, including some very important facilities located in remote areas. The availability of services is critical to TRACER members, as well as the quality of the services that are ordered by them from U S WEST and delivered, and on that basis, I believe TRACER is directly impacted by the proposed change in the obligation to serve provisions of this general tariff. We do not seek to broaden the issues in the proceeding. We do not have the company's prefiled testimony, so we can't say with particularity the full scope of what the company's position is and what the issues are that are raised by these provisions, but I will note that they are extremely broad and ambiguous in their phrasing, and could have numerous implications for end user customers, and as we understand them as written today we are opposed to these changes. On that basis, I request intervention. One other item that I guess I need to mention is TRACER's address is the same as the address that I gave for my firm. Thank you. JUDGE STAPLETON: Ms. Anderl. MS. ANDERL: No objection. JUDGE STAPLETON: The motion of TRACER to intervene is granted. Mr. Finnigan. MR. FINNIGAN: We did file a written petition for intervention in this matter. The Washington Independent Telephone Association is a nonprofit organization who represents companies that offer local exchange service in the state of Washington. We are interested in the issues that are at least presented on the surface of this matter in probably two respects. The first respect is that to the extent that what U S WEST has filed may have an impact on the toll services it provides as the intraLATA carrier, as the designated carrier for intraLATA services to the customers of the independent companies' service areas, that there may be issues there related to the ability of our customers to have access to those services. It is not clear on its surface where the language applies, and that issue is in the same tariff as the toll services that WITA's members concur in and fix the obligations for carriers of last record. And I noticed in some of the provisions specifically do relate to intraLATA toll services, some of the new language that is proposed in the tariff brings those into question. The other of course is the issue of service, the obligation to provide service under the federal act. To some extent we've had the experience in recent years of decisions applying to U S WEST applying to other incumbent companies, and while we have raised objections to that along the line we also are pragmatic, and if there are also going to be principles established we would like to have a voice in that. JUDGE STAPLETON: Ms. Anderl. MS. ANDERL: I guess, subject to my standing request that we have a direct statement of whether the intervenor would support or oppose the tariff filings and understanding that not everybody thinks they can state that on the record, we would have no objection. MR. FINNIGAN: At this time I can make that statement after I've had a chance to get my board's position known. At this time I've had authority to intervene, but we have not been able to get our board together to take a formal position. JUDGE STAPLETON: Staff have any comment on this motion? MR. TRAUTMAN: No objection. JUDGE STAPLETON: The motion of WITA to intervene will be granted. Mr. O'Connell. MR. O'CONNELL: Thank you, Your Honor. GTE Northwest did file a written motion to intervene shortly before this hearing commenced, move so now as well. GTE Northwest is the second largest incumbent local exchange carrier in the state, and similar to the sentiments Mr. Finnigan just expressed, we believe the same issues raised by the carrier of last record obligations, which will be addressed by U S WEST's filing, will impact GTE Northwest's operations in those regards. Additionally, GTE Northwest is a customer of U S WEST for the end user services that are at issue here, and of course we have those interests as well. We will not be broadening the issues beyond those raised by U S WEST's petition and request leave to intervene. JDUGE STAPLETON: Any comment on the position with regard to the opposing or other position taken on the tariff filing itself? MR. O'CONNELL: Your Honor, I don't have a definitive statement at this time. My understanding is that we would be inclined to support but we have to review the testimony. JUDGE STAPLETON: Ms. Anderl. MS. ANDERL: No objection. JUDGE STAPLETON: The petition to intervene by GTE will be granted. Ms. Matchett. MS. MATCHETT: Thank you, Your Honor. I would like to move to intervene on behalf of Sprint Communications Company LP. Sprint is authorized as a carrier of both toll and local exchange services in Washington, and in U S WEST's service territory we are awaiting a Commission decision on our petition for competitive classification, so we're not at this time offering local exchange services in U S WEST's territory. However, the concerns that Mr. MacIver raised on behalf of MCImetro are obviously concerns that Sprint shares. In reviewing the materials that are available in this case so far, which are the tariff and the order suspending the tariff, there's not a lot of information yet for Sprint to be able to formulate a definitive position. What does seem to be a possible outcome of this case is that potentially important policy decisions could be made regarding obligations to serve, relationships of interconnection among carriers in Washington, and to the extent that these changes happen they may shape the competitive marketplace and Sprint would like to, at a minimum, monitor this case. At this point we're not clear if we would want to be an active participant, but if these issues come to the fore we definitely want to be following them and to take a position if it turns out that these are going to have more far reaching implications than is obvious from the documents that are available so far. JUDGE STAPLETON: And are you able to express a position on the tariff as it is filed by U S WEST at this point? MS. MATCHETT: No, not at this time. JUDGE STAPLETON: Ms. Anderl. MS. ANDERL: Subject to my earlier comments, no objection. JDUGE STAPLETON: The motion to intervene by Sprint will be granted. Let's be off the record. (Recess). JUDGE STAPLETON: Let's be back on the record. While we were off the record the parties discussed amongst themselves a procedural framework for this case and have adopted the following procedural schedule: That on October the 10th General Telephone and any other party proposing to support the tariff filing by U S WEST will prefile a statement of position. On October the 31st, staff, public counsel and any intervenor opposing the company's tariff filing will file its statement in opposition. On November 21, U S WEST will file its rebuttal testimony. On December the 19th, parties will file a summary memorandum, and the Commission would issue an order not later than January 16, 1998. The company has waived its right to an initial order and has extended the statutory suspension date to January 16th. As a further condition of the interventions granted earlier this afternoon, all parties will provide a statement of a position according to the schedule just announced. The Commission has marked as Exhibit T-1 the direct testimony of Theresa Jensen in this proceeding. (Marked Exhibit T-1.) JUDGE STAPLETON: Is there anything else to come before us at this time? MR. MACIVER: I just had a question. I thought I heard the date the 12th. You say the 12th for briefs. Is it the 19th? JUDGE STAPLETON: I'm sorry, it is December the 19th. I had marked off December 19th but I may have said December the 12th. So it is 19 for summary memoranda. MR. FFITCH: Your Honor, the discovery issues. JUDGE STAPLETON: I'm sorry. The Commission will invoke the discovery rule 480-09-480, and the company has agreed to a 10 calendar day response to data requests. The Commission will enter a protective order early next week as soon as I have sufficient number of bodies to sign such document. The parties have discussed a prospect of either issues list or a standard briefing format. I will appreciate that informally that kind of discussion take place between now and December the 19th and that some standard way of addressing, at least to the extent that positions have become clear by that time, some standard way of addressing those. Is there anything else to come before us? We'll stand adjourned thank you very much. (Pre-hearing conference adjourned at 2:55 p.m.)