Please note that Exhibit A and B were not submitted electronically. BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION MCImetro Access Transmission Services, Inc., Complainant, vs. U S WEST Communications, Inc., Respondent. ) ) ) ) ) ) ) ) ) ) DOCKET NO. UT-971158 MOTION FOR SUMMARY DETERMINATION I. RELIEF REQUESTED U S WEST Communications, Inc. (U S WEST) hereby brings this motion for summary determination pursuant to WAC 480-09-426(2). That rule provides that a party may move for summary determination if the pleadings filed in the proceeding, together with any properly admissible evidentiary support, show that there is no genuine issue as to any material fact and the moving party is entitled to summary determination in its favor. In considering a motion made under WAC 480-09-426(2), the Commission will consider the standards applicable to a motion made under Civil Rule 56 of the Civil Rules for Superior Court. CR 56 is the summary judgment rule. CR 56(b) provides that a party against whom a claim is asserted may move with or without supporting affidavits for summary judgment in his favor as to all or any part thereof. Summary judgment is appropriate where, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); see also Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). The Commission must view the evidence in a light most favorable to a non-moving party; however, the non-moving party may not rely upon speculation or on argumentative assertions that unresolved factual issues remain. White v. State, 131 Wn.2d 1, 7, 929 P.2d 396 (1997). A mere scintilla of evidence is not enough to establish the existence of a material fact; rather, a party must set forth specific facts which disclose the existence of a material fact. Id. at 22-23. When there are no factual issues and the dispute can be resolved by answering questions of law, as in the present case, summary judgment is favored as an important part of the process of resolving the dispute. Id. at 6. U S WEST asks the Commission to consider the pleadings in this matter together with the exhibits appended hereto in its determination of this motion. II. STATEMENT OF THE FACTS U S WEST and MCImetro Access Transmission Services, Inc. (MCI) are both registered telecommunications companies under Washington law. MCI filed its formal complaint in this matter on July 16, 1997. At that time, and at all times material to any of the allegations raised in the complaint, U S WEST and MCI were interconnected with each other for the purposes of exchanging traffic pursuant to an Interim Interconnection Agreement dated August 26, 1996. That agreement, attached hereto as Exhibit A, was effective through August 20, 1997. That agreement governed only the interconnection of the parties' respective facilities and networks, and mutual compensation for completing traffic originated on each other's networks. The agreement contained no provisions whatsoever regarding resold local service or the provision of unbundled network elements. Nor did the agreement address or create any obligation to provide for testing of telecommunications services. During this same period of time, i.e., August 1996 through August 1997, MCI and U S WEST were engaged in negotiations and arbitration pursuant to the Federal Telecommunications Act of 1996. As a result of those negotiations and arbitration proceedings, in Docket No. UT-960310, U S WEST and MCI reached an arbitrated agreement pursuant to the Act which was approved by the Washington Commission to be effective August 20, 1997. That agreement has provisions which govern provisioning and testing of resold services. However, that agreement was not effective at any time material to the allegations raised in this complaint. U S WEST has a tariff, effective in Washington, identified as WN U-35, which governs resold local service. A copy of that tariff is attached hereto as Exhibit B. The specific terms of that tariff, as approved by the Washington Commission and as effective December 26, 1996, state that the resold local services are available only pursuant to the terms of a contract with another telecommunications company approved by the Washington Commission or pursuant to a tariff. WN U-35 identified a number of local exchange services which are available for resale. Residential local exchange service is a service available under the tariff. There is no provision for testing orders in that tariff. On or about June 3, 1997, MCImetro placed testing orders with U S WEST for resold residential service in Washington. U S WEST rejected the residential resale testing orders on the basis that MCI did not have a contract for resold local service with U S WEST. Those orders were resubmitted on July 7, 1997 by MCI to U S WEST. U S WEST again rejected those orders on the basis that no effective contract was yet in existence. MCI has also requested testing orders for a recombination of unbundled elements, as set forth in the complaint. U S WEST has rejected those orders. The facts pertaining to the placing of testing orders are essentially as alleged by MCImetro in its complaint. U S WEST does not dispute these essential facts. These are the only factual questions which are material to a determination in this matter. III. STATEMENT OF THE ISSUES 1. Does U S WEST have any obligation under the August 26, 1996 Interconnection Agreement to fill testing orders for either resold local services or recombinations of unbundled network elements? 2. Does U S WEST have any obligation under the Telecommunications Act of 1996 to fill testing orders for either resold local services or recombinations of unbundled network elements prior to State commission approval of an arbitrated or negotiated interconnection agreement? 3. Does U S WEST have any obligation under its state tariffs to fill testing orders for resold local services or recombinations of unbundled network elements to MCI prior to the effective date of a contract or interconnection agreement providing for those services? 4. Does U S WEST's refusal to provide testing and to accept testing orders prior to the effective date of any contract requiring it to do so violate either state or federal law which prohibits undue preference, unreasonable discrimination or anticompetitive behavior when U S WEST has treated all similarly situated carriers in the same manner? IV. EVIDENCE RELIED UPON U S WEST relies upon the pleadings in this matter and the exhibits attached hereto. V. LEGAL AUTHORITY A. Recombination of Unbundled Elements. U S WEST would first like to address the allegation that U S WEST's failure to fulfill orders (much less test systems for such orders) for recombined unbundled network elements is a violation of either state or federal law. In addressing this question, U S WEST reiterates the arguments set forth in its answer and affirmative defenses of August 6, 1997. There, U S WEST argued that because MCI had chosen the process of a negotiated and arbitrated agreement under the Federal Telecommunications Act, it could not rely upon any other process for obtaining resold local services or unbundled network elements. The interim interconnection agreement is clear on its face – there is no provision for the purchase by MCI of unbundled network elements under that agreement. Nor can MCI point to any state law authority which would enable it to purchase unbundled network elements absent a specific contract with U S WEST to do so. In fact, the Commission recognized, in the interconnection docket (UT-941464, et al.) that carriers would enter into contracts or agreements with one another for interconnection, and for the purchase of unbundled network elements. At the time that this complaint was filed, U S WEST and MCI were in the process of finalizing just such an agreement which was approved by the Commission to be effective August 20, 1997. Thus, there can be no suggestion that U S WEST was under any obligation, under either state or federal law, to provide MCImetro with unbundled network elements prior to the effective date of an agreement governing the same. Further, and even more importantly in this instance, the Eighth Circuit decisions issued on July 18, 1997 and October 14, 1997 Iowa Utils. Bd. v. FCC, 1997 U.S. App. LEXIS 18183 (8th Cir. July 18, 1997). Iowa Utils. Bd. v. FCC, 1997 U.S. App. LEXIS 28652 (8th Cir. October 14, 1997). clearly state that no incumbent LEC is under any obligation whatsoever pursuant to the Federal Telecommunications Act to provide recombined unbundled network elements. In its October order, the Court stated that "Section 251(c)(3) requires an incumbent LEC to provide access to the elements of its network only on an unbundled (as opposed to a combined) basis. Stated another way, Section 251(c)(3) does not permit a new entrant to purchase the incumbent LEC's assembled platform(s) of combined network elements (or any lesser existing combination of two or more elements) in order to offer competitive telecommunications services." Because MCI's orders in 1997 for unbundled network elements were specifically for recombined unbundled network elements, it is now clear that those orders were in direct violation of the Telecommunications Act of 1996 and that U S WEST was not obligated to fill those orders and was not in violation of any provision of that Act when it refused to fill those orders. As such, U S WEST is entitled to summary determination as a matter of law that the complaint does not state a basis for relief when it alleges failure to fulfill testing orders for recombined unbundled network elements. B. Resold Services. U S WEST is entitled to judgment as a matter of law that under the facts presented in the MCI complaint, it was not obligated to provide any resold local services for testing prior to the time that MCI had an agreement with U S WEST for the provision of such services. U S WEST's resale tariffs, attached hereto as Exhibit B, clearly state that resold local services will be provided only pursuant to an effective contract or tariff. MCI placed testing orders for resold local services for residential customers, and those services are not included in that resale tariff, WN U-35. As such, under the tariff obligation, U S WEST was obligated only to offer testing for resold local services when and if MCI had a contract providing for the resale of those services. U S WEST admits that MCI now has such an agreement which addresses resold services and testing, effective August 20, 1997. However, at all times material to the allegations in this complaint, MCI had no such contract. The Washington Utilities and Transportation Commission recently addressed the issue of which agreement should apply to a complaint if a complaint raised issues which might span the effective date of more than one agreement. In Docket UT-971063, the Commission entered an order on October 2, 1997, holding that an interim agreement which was entered into between the parties controls causes of action which arose during the time period that the interim agreement was effective. See, Order Denying U S WEST Communications, Inc.'s Motion to Dismiss in Docket UT-971063, p. 12. Because the interim agreement that was effective between the parties at all times material to the allegations raised in this complaint did not provide for resold local services or for testing resold local services, U S WEST had no obligation to do so. U S WEST's obligation to provide carrier-to-carrier services, if such obligation arises under the Telecommunications Act of 1996, is an obligation which becomes effective only upon the effective date of an agreement approved by the State commission. See, Section 252(c)(3) requiring an implementation schedule in any arbitrated agreement, and 252(e) requiring Commission approval of agreements. If U S WEST's obligation to provide carrier-to-carrier services arises under state law, that obligation arises only pursuant to an effective and appoved tariff or pursuant to a contract between the parties. There was no contract or tariff which obligated U S WEST to provide testing of resold local service to MCImetro during June and July of 1997. C. State and Federal Law U S WEST would like to specifically address the various statutory sections that MCImetro claims were violated in this complaint. U S WEST believes that the Commission should conclude as a matter of law that no violations have been established in this matter. MCI suggests that RCW 80.36.080, which requires adequate and sufficient facilities, and RCW 80.36.140, which allows the Commission to order adequate and sufficient facilities, are violated by U S WEST's failure to provide resold local services or recombined unbundled network elements. U S WEST believes that the facts as established in this matter do not show that U S WEST has failed to provide adequate and sufficient facilities. The facts simply establish that MCI has not properly ordered or been entitled to the services it has requested. MCI also suggests that RCW 80.36.170, which allows the Commission to remedy an undue preference or advantage, may have been violated in this matter. However, the facts as alleged by MCI entirely fail to establish that any carrier, including U S WEST itself, was given an advantage or preference by U S WEST's treatment of MCImetro. U S WEST has provided service to those customers and carriers who were reasonably entitled thereto, including as a prerequisite the existence of a valid contract for the provision of those services. This same analysis also addresses the argument that U S WEST engaged in anticompetitive behavior. This is patently ridiculous. U S WEST has simply required that carriers ordering services from it be in compliance with the federal requirements that an interconnection agreement and an agreement governing unbundled network elements and resold local services be in place prior to fulfilling any orders for those services. This behavior is not anticompetitive, rather, it places all of the competitors on equal ground in requesting services and facilities from U S WEST. Finally, MCImetro suggests that U S WEST has failed to provide it with parity in testing, which is discriminatory in violation of 47 U.S.C. § 271 and a barrier to entry in violation of 47 U.S.C. § 253. Of course, prior to being able to prevail on any federal claim, MCI would have had to have had an effective agreement with U S WEST providing for testing of unbundled network elements and/or resold local services. The lack of such an effective agreement must result in a conclusion that MCI has failed to state a claim for relief under any provisions of the Telecommunications Act. VI. CONCLUSION Based on the evidence presented in this case, U S WEST believes that the allegations raised in the complaint fail to state a claim upon which relief can be granted and that U S WEST is entitled to a summary determination in this matter and is entitled to judgment as a matter of law. Specifically, the Commission should determine that absent an approved interconnection agreement providing for testing orders, U S WEST was under no obligation to accept or fill those orders from MCI. With regard to MCI's orders (testing or otherwise) for recombinations of unbundled elements, the Commission should determine that those orders are contrary to and in violation of the Telecommunications Act of 1996 and that U S WEST was under no obligation to accept or fill those orders. Respectfully submitted this ___ day of November, 1997. U S WEST Communications, Inc. ________________________________ Lisa A. Anderl, WSBA No. 13236