BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION In the Matter of Repealing ) ) DOCKET No. A-970591 Chapters 480-35, 480-69 and 480-150 WAC ) ) COMMENTS OF GTE Relating to Limousine Charter Party ) NORTHWEST INCORPORATED Carriers, Railroad Companies - Track ) Scales, and Compliance with Economic ) Stabilization Act of 1970. ) _____________________________________ ) COMMENTS OF GTE - 1 GTE appreciates the opportunity to offer comments on the proposed new rule, WAC 480-09-427 (the “Rule”). This Rule would establish a procedure for parties to an interconnection agreement to bring a petition for enforcement to the Commission. With all respect, this Rule is not necessary. The Rule should defer to whatever dispute resolution procedure the parties to the interconnection agreement have devised. If the Commission is intent on adopting such a Rule, certain changes are necessary --GTE does not lightly challenge Commission-proposed procedures as violative of the constitutional guarantee of due process, but this Rule does fail that critical test. Finally, GTE suggests that the Commission engage in a workshop or similar procedure so that all participants may fully address this procedure. 1. No Need for Such a Rule Has Been Demonstrated. GTE is unaware of any complaints against it arising under any of the nineteen interconnection agreements it has entered into in the state of Washington. Indeed, GTE is aware of no interconnection agreement administration disputes involving any of the independent telephone companies in the state. In the absence of any widespread need for such a procedure, the Commission should not conflict with our state’s general public policy by issuing unnecessary rules of general application. As the legislature declared, “Washington’s regulatory systems must not impose . . . unnecessary obligations.” Regulatory Reform Act of 1995, 1995 Laws Ch. 403, Section 1(1)(c). In light of this clear public policy, the Commission should not issue the Rule in the absence of a demonstrated need. 2. The Rule Should Defer to Interconnection Agreements. The Rule purports to establish a procedure for addressing disputes arising out of an interconnection agreement, without addressing the fact that an interconnection agreement might already contain a dispute resolution procedure. Certainly GTE’s approved interconnection agreements routinely contain a detailed process for resolving any disputes which might arise between the parties. See, e.g., GTE-MCI Inter-connection Agreement (approved April 1, 1997, Docket No. UT-960338), Article III, Section 40; GTE-AT&T Interconnection Agreement (approved August 25, 1997, Motion for Partial Reconsideration Granted, Part March 16, 1998, Docket No. UT-960307), Attachment 1. Indeed, under those agreements, the dispute resolution procedure set out in the agreement is the exclusive remedy for disputes under the agreement. GTE-MCI Agreement, Section 40.1; GTE-AT&T Agreement, Attachment 1, Section 2.1. This Commission was specifically advised of these exclusive remedies, and approved those agreements. No. UT-960338, Transcript pp. 683-685 (Open meeting on contract approval) (copy attached). Thus, if either party to those agreements utilized the procedure specified in the Rule, they would technically be in breach of the Agreement. The parties should be permitted to utilize the dispute resolution procedure they have agreed upon. This is simple common sense; a dispute resolution procedure which the parties have agreed upon is one which is more likely to lead to results agreeable to the parties. This common-sense approach can readily be achieved within the context of the proposed Rule by making a slight modification to section (1): (1) Petitions for enforcement. A telecommunications company that is a party to an interconnection agreement with another telecommunications company may petition under this rule for enforcement of the agreement, if the agreement does not contain a procedure for dispute resolution which by its terms is the exclusive or sole remedy for disputes arising under the agreement. Any dispute arising from an interconnection agreement with such a procedure will be subject to such alternative forms of dispute resolution as are established in the agreement. By adopting language such as this, the Commission will not just further the common sense notion of binding the parties to their own agreements -- the Commission will also be furthering the fundamental procedural policy of the Telecommunications Act of 1996. That policy is straightforward: at every opportunity, Congress sought to encourage the voluntary negotiation of interconnection agreements. Act, Section 251 (c)(1); Section 252(a). Clearly, nothing will promote genuine bona fide negotiation more than the knowledge that a deal once struck -- assuming it complies with the require-ments of Section 252(d) -- will be respected by the regulatory commissions Moreover, respecting these agreements will preclude difficult issues of federal preemption arising over the ability of the Commission to supersede a valid agreement approved under the Act’s procedures.. The Commission should defer to dispute resolution procedures, if the interconnection agreement at hand contains one. 3. If the Rule is to be Adopted, Revisions Are Necessary. If the Commission concludes that this Rule is necessary, several changes should be made so that it implements an even-handed procedure. A. Contents of the Petition. In two regards, section 1(a) should be modified. First, subsection (ii) is too narrow. An interconnection contract, like any contract in Washington, must be considered as a whole. Thus, the record in any such proceeding should contain the entire agree-ment, not just excerpts. The petition should then just identify the provisions the petitioner believes to be at issue. Second, the requirement for sworn statements in support of the petition should be eliminated. Washington’s civil practice has long abandoned the requirement for verified pleadings in the type of commercial disputes such as those raised by the Rule. See Rules for Superior Court, Civil Rule 11. The Commission should not attempt to recreate such a procedure. (To the degree that this requirement is an attempt to further the suggestion implied from Section 3(b) that these disputes can readily be resolved without hearings, GTE will address that issue there). B. Service of the Petition. In view of the importance of disputes such as these, and the short time frame to respond, the Commission’s Rule should ensure that the petition is likely to be received in a timely fashion. GTE therefore recommends that section (1)(b) It appears that the text of the Rule attached to the Notice may contain a ministerial error. The final sentence of Section (3)(b) appears out of place; GTE assumes it was intended as the final sentence of (1)(a). Even if that sentence was intended to be part of (1)(a), GTE would continue to believe that its proposed revision will better ensure the critical requirement that the appropriate personnel of respondent obtain timely notice of the filing of a petition. be revised as follows: (b) How to serve the petition. The petitioner must serve the petition for enforcement on the responding party on the same day the petition is filed with the Commission. For purposes of this section, service must be effected on (i) the responding party’s authorized representative, attorney of record or designated agent for service of process; (ii) the representatives of responding party with whom the petitioner conducted the negotiations addressed in rule (a)(i), above; and (iii) all parties designated in the agreement to receive notices. A provision along these lines will insure that the appropriate personnel of the responding party will actually promptly receive the petition. Given the short time-lines contemplated by the Rule, any difficulty these requirements pose to a petitioning party are more than outweighed by the substantial potential prejudice raised by ineffective service. C. Contents of the Answer. Two aspects of the Rule are extremely troubling, and should be revised. First is the statement that the responding party “waives the opportunity to present any matter that is not raised by the answer.” Given the overall construct of the Rule, this provision is patently unfair. The Commission must remember the real world in which disputes such as this may occur. The petitioner is the party which has chosen when to commence this proceeding. Such a petition may have been weeks -- maybe even months -- in the drafting. The responding party and its counsel must then, helter-skelter, gather responsive documents and prepare pleadings and (under the current version of the Rule) affidavits. To bar the respondent from ever raising an issue which it was unable to identify in the initial rush of responding to a petition -- such a rule is simply unfair, to the point of violating parties’ due process rights. Far more even-handed would be a provision expressly addressing amendment of the pleadings. GTE suggests that the standards utilized under CR 15 are well established, understood by all practitioners, and fair to all parties. The second concern is in subsection 2(a). The Commission should delete the requirement that the answer be supported by sworn statements, for all the reasons identified in section A, above. D. Filing of the Answer. Even if the Commission adopts GTE’s suggestions regarding service of the petition and the contents of the answer, 5 business days is simply insufficent time to prepare an answer as contemplated by the Rule. Responding parties must gather relevant facts; they must confer with counsel; they must deliberate on the strategy and tactics on how best to prepare their case; they must prepare pleadings -- and they must do all of this in five business days. Again, this is to respond to a petition prepared under no such constraint. A five day response will thus substantially impair a respond-ing party’s ability to present its case -- the hallmark of a violation of the right to due process. In this regard, the Commission should again be guided by the procedural rules of the superior courts. After all, those rules fairly and effectively govern all types of disputes -- including complicated commercial contractual disputes between businesses, the precise subject of this Rule. As in superior court, the respondent should have at least twenty days to answer the petition. See CR 12 (a)(1). E. Avoidance of a Hearing. Section 3(b) appears to suggest that the presiding officer can summarily decide the dispute at a prehearing conference, without a hearing. In a word, this is wholly inappropriate, for two different reasons. First, substantively the rule reflects an assumption that disputes under an interconnection agreement are generally going to be simple, mundane matters. GTE rejects that assumption. Commercial contractual disputes are sometimes complicated, contentious and difficult. Sometimes they are simple. Expressing a rule, however, with the initial required determination being whether a hearing is even necessary predetermines that issue, and makes light of the notion that two reasonable parties to a contract may disagree as to its meaning, or application. Second, procedurally, just two years ago, the Commission adopted new procedural rules permitting parties to file motions if they believed they were entitled to summary adjudication. WAC 480-09-426. Is the “determination” contemplated by section 3(b) to be made according to those standards, or some other? The Rule does not say. Again, with all respect, GTE submits that this provision of the Rule, as drafted, violates constitutionally guaranteed rights to due process. The Rule should merely refer to or incorporate the Commission’ s standard prehearing conference procedure, WAC 480-09-460. F. Timing of Resolution. GTE recommends the deletion of the requirement of a recommended decision within 75 days of the filing of the petition. Once a presiding officer has been appointed and a contract dispute put before him or her, the presiding officer should be given the latitude to permit the full and fair hearing of the dispute, without an arbitrary artificial constraint. Merely requiring a recommended decision within 21 days of the last hearing or submission should be perfectly adequate. 4. Request for Workshop and/or Hearing. The Notice calling for these comments appeared to indicate that the Rule was intended to be included in a package of “housekeeping” revisions, and submitted to the Commission in May. GTE respectfully suggests that this plan be revised. As should be clear from these comments, the proposed Rule raises substantial substantive and procedural concerns. GTE believes that it could be dramatically improved by a thorough vetting with all industry participants. Thus, GTE recommends that the Commission schedule a workshop on this Rule before it is submitted for the CR-102 process. Respectfully submitted this 17th day of April, 1998. GTE NORTHWEST INCORPORATED Timothy J. O’Connell Its Attorney 1800 41st Street WA0105LE Everett, WA 98201 Phone: 425/261-5008 J:\LEGAL\TIMO\970591.CMT