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-980323
		
		U S WEST’S ANSWER AND AFFIRMATIVE DEFENSES

 Answering the numbered paragraphs in the petition for declaratory order, now 
designated by the Commission as a formal complaint, U S WEST states as follows:
Except as otherwise expressly pleaded, U S WEST denies each and every 
allegation in the complaint.
 1. On information and belief, U S WEST admits the allegations in paragraphs 1 
and 2, except that U S WEST’s correct zip code in Seattle is 98191.
 2. Paragraph 3 asserts legal conclusions to which no responsive pleading is 
required.  Nevertheless, U S WEST affirmatively states that MCIm incorrectly 
predicates its allegations of jurisdiction on some state statutes and rules 
which do not confer such jurisdiction, nor authorize the relief requested.
 3. With regard to paragraph 4, U S WEST admits that Section 251(c)(3) of the 
Telecommunications Act of 1996 requires “access to network elements on an 
unbundled basis”. The provisions of the Act speak for themselves and U S WEST 
denies all allegations inconsistent with the statute.
 4. U S WEST admits the allegations contained in paragraph 5.
 5. U S WEST denies the allegations contained in paragraph 6 except as 
specifically set forth herein.  Dedicated transport is a network element 
identified by the FCC in 47 CFR 51.319(d).  U S WEST is required, pursuant to 
the Act, the FCC’s rules, and the Commission-approved interconnection agreement 
in UT-960310, to provide nondiscriminatory access to this element on an 
unbundled basis.  Attachment 3 to the agreement between U S WEST and MCImetro 
is entitled Unbundled Access/Elements.  That attachment sets forth the 
definitions of the various network elements to be provided, including loops, 
switching, and transport. 
 6. Section 7 of Attachment 3 to the interconnection agreement is entitled 
Dedicated Transport.  The definition of dedicated transport is as set forth in 
MCIm’s complaint:
Dedicated Transport is an interoffice transmission path between MCIm designated 
locations to which MCIm is granted exclusive use.  Such locations may include U 
S WEST central offices or other locations, MCIm network components, other 
carrier network components, or subscriber premises (emphasis added).

 MCIm’s interpretation of that definition for purposes of this complaint leaves 
out the essential term of that definition.  As set forth in MCIm’s complaint, 
the dedicated transport service which has been requested by MCIm is not an 
interoffice transmission path, but rather is a path between MCIm customer 
premises and U S WEST wire centers.  However, under the clear terms of the 
contract, dedicated transport is, in fact, an interoffice transmission path, 
not a path to a subscriber.  Every part of the definition thereafter is 
controlled and modified by the designation “interoffice”.  Thus, while MCIm 
relies upon the later language “MCIm designated locations”, it is clear that 
MCIm can only designate locations if those locations are offices.  The language 
which identifies “subscriber premises” is inconsistent with the concept of an 
“interoffice” path and cannot control to read the “interoffice” requirement out 
of existence.  The definition of dedicated transport is an MCIm definition.  
MCIm (and AT&T) have routinely proposed similar or identical contract language 
in this and other states.  Any ambiguity or vagueness should be construed 
against the party who drafted the language.  Berg v. Hudesman, 115 Wn.2d 657, 
801 P.2d 222 (1990).  
 7. MCIm’s proposed interpretation of the contract at this point is wholly 
inconsistent with the testimony of MCIm in the arbitration proceeding which 
resulted in this agreement.  MCIm supported the need for dedicated transport 
through the prefiled testimony of Ms. Mazzullo.  There, MCIm described the 
dedicated transmission facilities that it sought as follows:  “Dedicated 
transmission facilities are transport facilities used exclusively for the 
requesting carrier’s traffic and connect one or more of the following points:  
ILEC end offices, ILEC tandems, ILEC serving wire centers, other carrier wire 
centers or switching centers, IXC points of presence, collocated equipment at 
any ILEC end or tandem office.”  Mazzullo testimony at pages 25-26.  This 
definition is consistent with U S WEST’s definition and with the FCC’s 
definition.
 Furthermore, MCIm’s proposed interpretation of dedicated transport in this 
case is wholly inconsistent with MCIm’s advocacy in the generic cost and 
pricing proceedings, Docket Nos. UT-960369, 370, 371.  In those combined 
dockets, the Commission is investigating the cost of network elements and will 
establish prices to replace the interim prices from the arbitrations.  In that 
proceeding, MCIm sponsored Dr. Robert Mercer as a witness.  Dr. Mercer 
presented a network diagram, which identified various network elements.  (RAM-1 
to Dr. Mercer’s rebuttal testimony in that docket, included as Attachment A to 
this Answer).  Dedicated transport is represented on that document (by the 
dotted lines) as an interoffice transmission path.  Dr. Mercer also described 
how the costs for dedicated transport were calculated (Attachment B).  The 
transport cost calculation description contained in the Hatfield Model 
describes investment and demand associated with interoffice transport only.  
Nowhere in the Hatfield model is there substantiation for the position that 
dedicated transport extends from an ILEC wire center to an end-user’s 
premises.  Distances and investment related to the cost calculation for 
dedicated transport are all described as interoffice.  Thus, costs and prices 
established in both the arbitration and the generic proceeding will not reflect 
the “dedicated transport” to which MCIm now claims it is entitled.
 8. Regarding paragraphs 7 through 10, U S WEST admits that the parties have 
exchanged letters on this issue, and that those letters speak for themselves.  
U S WEST specifically denies that MCIm has included all the relevant 
correspondence between the parties, or that MCIm’s representations in those 
letters are in any way determinative of the issue in this matter.  U S WEST 
further denies that its conduct was illegal or that U S WEST was or is in 
breach of its obligations under the interconnection agreement.
 9. U S WEST admits the first sentence of paragraph 11.  U S WEST denies the 
remainder of that paragraph. 
 10. U S WEST denies that expedited treatment as requested in paragraph 12 is 
proper.
 11. U S WEST denies that the relief requested in paragraph 13 is appropriate.
 12. Regarding paragraphs 14 and 15, U S WEST denies that it has violated the 
Telecommunications Act or the interconnection agreement, or that any other 
relief is appropriate.  U S WEST affirmatively states that the Commission 
should enter an order clarifying the definition of dedicated transport in the 
interconnection agreement so that it is consistent with the Act and with MCIm’s 
own testimony as set forth above.
 
AFFIRMATIVE DEFENSES
 13. MCIm fails to state a claim upon which relief can be granted.
 14. MCIm’s claim is barred by the doctrines of estoppel, waiver, and laches.
 15. The dedicated transport which MCIm is requesting is a combination of 
dedicated interoffice transport and an unbundled loop as defined in the 
interconnection agreement, Attachment 3.  This is a service which is available, 
and which MCIm has ordered in the past, from U S WEST’s tariffs.  This service 
is not available under the interconnection agreement, and is not an unbundled 
element.
 16. MCIm is attempting to obtain a finished dedicated transport service, not 
an unbundled element.  Such a request cannot be granted under the terms of the 
interconnection agreement.  Further, any order compelling U S WEST to provide a 
finished service based on MCIm’s request for recombined elements would be in 
violation of the Telecommunications Act and the 8th Circuit’s decision.  Thus, 
the Commission is barred by the doctrine of preemption from enforcing 
provisions of the interconnection agreement that would require such 
recombinations.  MCIm’s request for a finished service will be granted if such 
a request is made pursuant to applicable tariffs which provide for that service.
 U S WEST requests that MCIm’s complaint be dismissed with prejudice, and that 
the Commission enter a clarifying order defining dedicated transport as set 
forth in MCIm’s prefiled testimony.
 Respectfully submitted on June 26, 1998.
 
 U S WEST Communications, Inc.


 By_____________________________
 Lisa A. Anderl, WSBA # 13236