April 20, 1998 VIA MESSENGER Paul Curl, Acting Secretary Washington Utilities and Transportation Commission 1300 S. Evergreen Park Drive S.W. P.O. Box 47250 Olympia, WA 98504-7250 Re: Discussion Draft, Interconnection Agreement Petition for Enforcement, Docket No. A-970591 Dear Mr. Curl: Pursuant to the Commission's Notice of Opportunity to File Comments (April 17, 1998) ("Notice") in the above-referenced docket, NEXTLINK Washington, L.L.C. ("NEXTLINK"), TCG Seattle ("TCG"), Electric Lightwave, Inc., and Frontier Local Services, Inc. ("Frontier") provide the following comments on the discussion draft rule. NEXTLINK, TCG, and Frontier strongly support the Commission's efforts to establish expedited procedures for dealing with intercompany complaints. In addition to a few suggested revisions to the existing language, NEXTLINK, TCG, ELI, and Frontier propose that the draft rule address two additional issues: (1) Commission jurisdiction to resolve enforcement complaints when the parties have included a dispute resolution/arbitration provision in their agreement; and (2) intervention in an enforcement proceeding by third parties. Jurisdiction The discussion draft rule provides, "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." Draft 480-09-427(1). This statement implies broad jurisdiction to resolve intercompany complaints, but as the Commission is aware, U S WEST Communications, Inc. ("U S WEST"), has taken the position in past complaint proceedings that the Commission is without jurisdiction when the parties have included a dispute resolution/arbitration provision in their agreement. The Commission has rejected that position, but the rule should preclude similar claims in the future. The Eighth Circuit Court of Appeals recently clarified the Commission's responsibility for enforcement of interconnection agreements under the Telecommunications Act of 1996 ("Act"). That court stated that state commissions have the primary authority to enforce agreements they have approved: We also believe that state commissions retain the primary authority to enforce the substantive terms of the agreements made pursuant to sections 251 and 252. . . . We believe that the state commissions' plenary authority to accept or reject these agreements necessarily carries with it the authority to enforce the provisions of agreements that the state commissions have approved. Iowa Utils. Bd v. FCC, 120 F.3d 753, 804 (8th Cir. 1997), cert. granted, 118 S. Ct. 879 (1998). Commission retention of primary jurisdiction over substantive intercompany disputes is consistent with Washington public policy, as well as the requirements of the Act. A commercial arbitrator may be well equipped to resolve a number of disputes regarding the general operation of the agreement, as would be true with any other commercial contract. The Commission alone, however, is in the best position to resolve any claims that relate to the law and public policy underlying the terms of the agreement, including, for example, carriers' obligations to provide services and facilities to enable them to compete and allow their customers to communicate with each other. It would be contrary to the public interest for a commercial arbitrator to resolve issues that fundamentally impact the public switched network and the development of competition in this state's telecommunications market. Accordingly, NEXTLINK, TCG, ELI, and Frontier propose that the following sentence be added to subsection (1) of the discussion draft rule: Notwithstanding any provision to the contrary in the parties' agreement, the Commission retains the primary authority to enforce the substantive terms of agreements made and approved by the Commission pursuant to 47 U.S.C. §§ 251 and 252. Intervention The discussion draft rule does not address intervention by third parties in the enforcement proceeding, and the Commission has denied intervention in past intercompany complaint actions. Several carriers, however, have opted into interconnection agreements negotiated or arbitrated by other carriers. For example, NEXTLINK opted into the arbitrated agreement between TCG and U S WEST, and ELI and Frontier opted into the agreement between MFS Intelenet and U S WEST. To the extent that the agreements are the same and a third party is experiencing the same problems raised in the petition, allowing that third party to intervene in the enforcement proceeding would facilitate efficiency and consistency. The Commission also may benefit from information about whether and how a carrier is performing the same obligation for different carriers. Accordingly, NEXTLINK, TCG, and Frontier propose that the Commission add the following language to the discussion draft rule as a new subsection (3): Intervention. Any third party who has opted into the agreement between the parties may petition to intervene in the enforcement proceeding. A petition to intervene must be filed and served on both parties prior to the prehearing conference, and the third party seeking intervention must appear at the prehearing conference. The presiding officer may deny or limit intervention if the third party's participation would broaden the issues or delay the proceedings. Suggested Revisions to Existing Language NEXTLINK, TCG, ELI, and Frontier also suggest the following revisions to the language of the discussion draft rule: § (2)(b) -- Add "the answer to" in the sixth line between "a copy of" and "the petition". § (3)(a) -- This provision should be clarified to require that the prehearing conference take place within 10 business days of the filing of the petition. The first sentence, therefore, should state, "The presiding officer shall schedule a prehearing conference to be conducted within 10 business days after the petition is filed." § (3)(b) -- Delete the last sentence in this subsection (it duplicates the last sentence in subsection (2)(b)). § (4)(b) -- The commission should establish the presumption that enforcement proceedings will be expedited and will result in an initial decision no later than 75 days after the petition is filed absent extenuating circumstances. Accordingly, the second sentence in this subsection should be amended to provide as follows: "The presiding officer shall serve a recommended decision on the parties within 75 days of the date the petition for enforcement was filed. This deadline may be extended by order of the presiding officer only for good cause and shall not exceed 21 days after the last hearing session or submission." § (7) -- State judicial review of enforcement actions that are not adjudicative proceedings under the APA may be problematic. In addition, the Eighth Circuit opined that "the enforcement decisions of state commissions would also be subject to federal district court review under subsection 252(e)(6)." Iowa Utils. Bd, 120 F.3d at 804 n.24. At a minimum, therefore, the following phrase should be added to the end of the last sentence: "in addition to any federal judicial review available under 47 U.S.C. § 252(e)(6)." NEXTLINK, TCG, ELI, and Frontier appreciate the opportunity to provide comments to the Commission on these issues. Please contact me if you have any questions about these comments. Sincerely yours, DAVIS WRIGHT TREMAINE LLP Gregory J. Kopta Attorney for NEXTLINK Washington, L.L.C., TCG Seattle, Electric Lightwave, Inc., and Frontier Local Services, Inc. cc: Deborah Jaques Deborah Waldbaum Karen Notsund Tim Peters Gena Doyscher bcc: Dan Gonzalez