BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION


MCImetro Access Transmission Services, Inc.,

 Complainant,

       vs.

U S WEST Communications, Inc.,

 Respondent.	)
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		DOCKET NO.  UT-971158
		
		U S WEST’S ANSWER TO MCI’S PETITION FOR RECONSIDERATION 

 On February 19, 1998, the Commission entered an order in this matter granting 
U S WEST’s motion for summary determination and dismissing MCI’s complaint.  On 
February 27, 1998, MCI filed a petition for reconsideration and/or 
clarification of the Commission’s order.  This answer is submitted pursuant to 
the Commission’s notice allowing U S WEST and Staff to file answers to the 
motion.
 MCI’s petition initially states that MCI does not oppose, and in fact agrees 
with, the Commission’s policies described in Section IV. of the Order to the 
effect that:
 1. Parties should engage in negotiations to resolve interconnection issues;
 2. Interconnection contracts are the reasonable outcome of such negotiations;
 3. Pre-market testing of the systems and the processes required to provide 
local services should be provided for (sic) interconnection contracts, and;
 4. Disagreements over compliance with interconnection contracts should be 
resolved through negotiations where possible.
 MCI then goes on to take a totally inconsistent and baffling position with 
regard to the relief requested on reconsideration.  MCI essentially asks the 
Commission to change every single policy that MCI says it agrees with and asks 
the Commission to determine, notwithstanding the above, that MCI has some 
independent statutory right to unilaterally dictate the terms and conditions 
for pre-market testing.  Of course, the fundamental issue that the Commission 
decided is that MCI does not, and that the terms and conditions of such testing 
are to be negotiated between the parties and memorialized in an agreement.  
This is undeniably the correct outcome, both as a matter of law and policy, and 
the Commission should not change its order.
 MCI argues that the Commission’s rulings regarding the parties’ contractual 
rights and obligations suggest that MCI has no statutory protections or 
remedies and that the Commission has no statutory powers outside of the 
interconnection agreement.  Such an argument is both incorrect and beside the 
point.  This is because, in fact, the parties do have statutory rights and the 
Commission does have statutory authority wholly independent of the 
interconnection agreement, and not usurped by the contract.  These statutory 
rights apply to the negotiation, interpretation and implementation of the 
contract terms.  Thus, for example, the statutory protection against 
discrimination protects a carrier against a contract which is discriminatory, 
either on its face or as applied.
 Plain and simple, while MCI claims that it was discriminated against, it was 
not.  What MCI asked for, pre-market testing, was not in the contract at the 
time.  In fact, the services that MCI sought to pre-market test were still very 
much the subject of negotiations between the parties and were certainly not 
anticipated in the then existing interim agreement between the parties.  MCI’s 
statutory protections under the law enabled MCI to negotiate non-discriminatory 
terms for testing.  The Commission properly recognized that this was an item 
that the parties have the ability to negotiate.  The Commission was confirmed 
in this conclusion by the fact that the parties did actually negotiate terms 
and conditions for testing.  MCI could not claim that the contract operated to 
discriminate because MCI had not bothered to negotiate terms for testing in the 
interim agreement.  
 What is baffling here is how U S WEST could even arguably be held to be 
required to test a service when the contractual rights regarding testing are at 
that moment completely undefined and undetermined.  None of the services or 
unbundled network elements was available under the interim agreement at the 
time the requests for testing were made.  Absent a negotiated or arbitrated 
agreement concerning testing, especially for a service or a network element 
which U S WEST might argue it is not even legally obligated to provide, how can 
MCI assert a right to test that service?  The answer is that it cannot, and the 
Commission so decided.  MCI did not find it important enough to include testing 
language in either the 1995 or the 1996 interim agreements, and thus cannot 
assert an independent right outside the agreement to testing.  
 What is even more important is that it is totally inconceivable that U S WEST 
should be required to test as yet undefined and, certainly, uncontracted 
services.  Nothing in the Commission’s order suggests that MCI does not have 
rights under state law, but the order does properly conclude that MCI’s rights 
under state law allow it to negotiate an interconnection agreement which 
includes terms and conditions for testing.  The fact that MCI did not do so is 
what is fatal to the complaint.
 U S WEST described in its earlier pleadings that its practices are completely 
consistent with prior Commission decisions about how carriers should do 
business with each other.  The Commission’s decision in the interconnection 
docket, cited by the Commission in its order in this case, is the essential 
point that MCI seems to miss or ignore.  The Commission expected (and required) 
that carriers would enter into contracts or agreements with each other 
governing the specifics of an interconnection agreement.  The Commission 
discussion on this issue is instructive:
We agree with USWC that it is appropriate to require a contract to memorialize 
matters unique to a specific interconnection.  The Commission’s interconnection 
orders have emphasized negotiations.  This approach is consistent with the 
approach of the recently-passed federal Telecommunications Act of 1996.  
Details such as specific locations of meet points, deadlines, penalties, 
methods of accounting for toll and local traffic, etc., require negotiation 
between the two carriers, and a contract is a reasonable outcome of such 
negotiation. . . .  The Commission has ordered the tariffing of terms and 
conditions that the parties were unable to resolve satisfactorily through 
negotiation and that are general in nature.  Further disagreement over details 
shall be handled through mediation and arbitration consistent with federal law.

WUTC v. U S WEST, Docket Nos. UT-941464, et al., (Ninth Supplemental Order, 
page 24, March 13, 1996).  Thus, almost six months prior to the agreement 
between MCI and U S WEST, and 16 months prior to the complaint in this matter, 
the Commission had already clearly and correctly determined that carriers’ 
relationships and obligations are defined by tariff or contract, not by general 
reference to state law and not through complaint prior to negotiation.
 U S WEST must also reassert its position that its obligations under the Act 
are to be fulfilled through specific agreements reached by arbitration or 
negotiation.  If the Commission were to determine that U S WEST is required to 
test with any carrier under any circumstances, it would not only gut the 
requirements of the Act, but also provide ample room for mischief on behalf of 
U S WEST’s competitors.  The Act is clear that an incumbent LEC’s duties under 
251(b) and (c) are to be fulfilled through an agreement, not through unilateral 
demands made by the requesting carrier.
 As already noted in this case, just such an agreement has now been arbitrated 
between U S WEST and MCI.  Business processes were an area of significant 
dispute between the parties.  It is unreasonable to expect U S WEST to perform 
functions such as testing resold services before those processes are defined by 
agreement.  If MCI were allowed to unilaterally impose requirements for testing 
on U S WEST prior to the existence of any agreement, it would allow MCI to 
circumvent the requirements of the Act that provide for arbitrated or 
negotiated interconnection agreements.  Thus, a Commission order requiring 
testing prior to the effective date of an interconnection agreement would be 
inconsistent with the provisions of the Act and would violate sections 
251(d)(3) and 261. 
CONCLUSION
 U S WEST believes that MCI has misinterpreted the requirements of state law, 
and the rights and obligations which each party has under the law.  MCI’s right 
regarding pre-market testing is the right to negotiate an agreement which 
defines the testing obligation and which is non-discriminatory and otherwise 
consistent with the requirements of state and federal law.  The Commission 
should deny reconsideration and reaffirm its earlier ruling that absent an 
approved interconnection agreement providing for testing orders, and defining 
the terms and conditions under which testing will be required, and the services 
for which testing will be required, U S WEST was under no obligation to accept 
or fill those orders from MCI.  
 Respectfully submitted this 25th day of March, 1998.

      U S WEST Communications, Inc.


      ________________________________
      Lisa A. Anderl, WSBA No. 13236