Agenda Date:  November 30, 1999
Item No.:      

Docket:  UT-990355
Company:  Petition of Advanced Telecom Group, Inc., Nextlink Washington, Inc., 
Electric Lightwave, Inc., Frontier Local Services, Inc., and Frontier 
Telemanagement, Inc., for a Declaratory Order or Interpretive and Policy 
Statement on 47 U.S.C. § 252(i) and 47 C.F.R. § 51.809

Staff:   Jing Roth, Regulatory Consultant
Glenn Blackmon, Assistant Director - Telecommunications 
   

Recommendation: 

Adopt the attached Interpretive and Policy Statement (“ Policy Statement”) to 
implement Section 252 (i) of the Telecommunications Act of 1996.

Discussion:

Procedural Background 

On June 15, 1999, the above-named competitive local exchange companies (CLECs), 
as joint petitioners, filed with the Commission a petition for declaratory 
order or a Commission interpretive and policy statement pursuant to RCW 
34.05.240 and WAC 480-09-200 and 480-09-230 (Petition).  On June 29, 1999, the 
Commission served notice on interested persons calling for a statement of fact 
and law on the matters alleged in the Petition, and the applicability of the 
cited federal statutes and FCC rules to the request for a Commission 
declaratory order or interpretive and policy statement.  Commission Staff is 
generally persuaded by comments received in this matter that the Commission 
should issue an interpretive and policy statement. 
 
The Commission released a draft policy statement on October 15, 1999, and asked 
for supplemental comments.  In response, the Commission received comments from 
the Joint Petitioners, Airtouch Paging, U S WEST, GTE, American Telephone 
Technology, Inc. (ATTI), Coved Communications Company ( Coved), MCI Worldcom, 
Inc. and Level 3 Communications, Inc. (MCI), and Sprint Communications Company 
L.P. and United Telephone Company of the Northwest d/b/a/ Sprint (Sprint).   

Contemporaneous with the adoption of an interpretive and policy statement, 
Commission Staff recommended that the Commission initiate a rulemaking to 
consider whether rules are necessary to implement 47 U.S.C. § 252(i) and 47 
C.F.R. § 51.809, and if so, what rules might be necessary.  The Commission has 
asked for comments by December 3, 1999.

Commission Staff’s Response to Commenters’ Requests for Modifications to the 
Recommended Interpretive and Policy Statement

Staff believes that the proposed policy statement is reasonable.  Staff 
appreciates the 
interested parties’ efforts to address their concerns regarding the policy 
statement.  Although Staff did not make any substantive changes to the draft 
policy statement, Staff did make several textual changes to the policy 
statement.    

The majority of the comments centered on Principles 3, 6, 7, and 8 of the 
policy statement. Some parties expressed concern that Principles 6 and 7 are 
inconsistent.  For example, the Joint Petitioners have suggested that the 
Principle 7 be eliminated because it conflicts with Principle 6 and it is 
inconsistent with federal law.  (Joint Petitioners’ Comments, at 2).  Staff 
disagrees. Principles 6 and 7 address two different issues the Commission is 
facing with arbitrations, and in enforcement proceedings pursuant to WAC 
480-09-530.

Principle 6 provides that any interconnection arrangements in existing 
agreements be made available by incumbent local exchange carriers (ILECs) for 
“pick and choose” by competing carriers.  In this instance, Staff interprets “a 
reasonable period of time” as the entire duration of the interconnection 
agreement before the expiration date.   

On the other hand, Principle 7 addresses the “subsequently” negotiated and 
arbitrated arrangements between ILECs and CLECs.  In this instance, a CLEC with 
an existing, effective interconnection agreement may amend its agreement by 
picking and choosing arrangements that were not available when the CLEC 
negotiated or arbitrated its existing agreement.  These arrangements are new 
because they were subsequently negotiated and/or arbitrated.  

Staff also believes that the proposed Principle 7 is consistent with the 
federal law.  47 C.F.R. §51.809(c) states that “individual interconnection, 
service, or network element arrangements shall remain available for use by 
telecommunications carriers pursuant to this section for a reasonable period of 
time after the approved agreement is available for public inspection under 
252(f) of the Act.”  Staff understands the phrase “a reasonable period of time” 
to mean that state commissions should not only be flexible in quantifying the 
time period but also should maintain competitive neutrality.  Therefore, Staff 
believes that the proposed Principle 7 is consistent with federal law.    

Some parties have suggested modifications to Principles 3 and 8.  After 
considering the suggested modifications, Staff recommends no change to 
Principle 3 because Staff believes that any amendments to an existing 
agreements should not automatically be applied to a CLEC who has adopted the 
original agreement.  In addition, Staff believes that the newly amended 
arrangement should be made available for pick and choose. 

Staff has eliminated the last two sentences in its recommended Principle 8.  
The fundamental purpose of Principle 8 is to limit the availability of 
interconnection arrangements to the time period during which they are available 
under the agreement from which they are selected.   This is to ensure 
non-discriminatory treatment of carriers and to create incentives for good 
faith negotiation.

Conclusion:

Issuing an interpretive and policy statement as recommended by staff will 
enhance local competition, and the policy statement will serve as guidelines 
for the Commission in developing its opinions and decisions regarding 
interconnection agreements.  Therefore, Staff recommends that the Commission 
adopt and issue the policy statement attached to this memorandum. 

Attachment