BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION ) In the Matter of Developing Rules ) for Petitions for Enforcement of ) Docket No. A-970591 Interconnection Agreements, CR-102 ) Proposed WAC 480-09-350 ) ____________________________________) Comments of GST Telecom, Inc. on the Proposed Rule Pursuant to the Notice of Proposed Rulemaking adopted on July 16, 1998 and served on interested parties on July 24, 1998, GST Telecom, Inc. (“GST”) respectfully submits its initial comments in this docket, A-970591, CR-102, concerning enforcement of interconnection agreements, proposed Wash. Admin. Code § 480-09-350 (hereinafter “PRM”). GST, as a certificated competitive local exchange carrier (“CLECs”) in the state of Washington, strongly supports the adoption of the proposed rule as an efficient means of resolving disputes arising under interconnection agreements. Efficient and rapid resolution of interconnection disputes are necessary because the markets in which GST operates require quick response to customer demands. If resolution of interconnection disputes slow GST’s ability to provide customers with service, those customers will seek other providers (more than likely the incumbent local exchange carrier (“ILEC”) and limit the growth of a fully competitive local telecommunications market. I. Statutory Background And Current Mechanisms to Address Interconnection Disputes Through Federal and State Complaint Processes. On February 8, 1996, President Clinton signed into law the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified at various sections of Title 47). That Act prescribed a new set of standards for regulation of local telephone markets in order to promote the development of a competitive local exchange marketplace. The fundamental mechanism was to mandate interconnection with ILEC facilities. Congress recognized that competing carriers would not be able to construct and duplicate the incumbent local phone company’s network to bring about the benefits of competition. See H.R. Conf. Rep. No. 104-458, 104th Cong., 2d Sess. 148 (1996). Section 251 required that ILECs negotiate interconnection agreements with competing carriers. Section 252 established procedures for conducting interconnection negotiations and obtaining state approval of the agreements. Section 252 also provided a detailed mechanism for resolving disputes concerning the negotiation of interconnection agreements. The ILEC and CLEC were initially supposed to negotiate the agreement without any intervention by a regulatory body. If the parties reached an agreement, the state commission reviewed the agreement to ensure that it complied with Federal Communication Commission (“FCC”) regulations regarding interconnection and, if so, approve the agreement. See 47 U.S.C. § 252(a)(1), (e). The negotiating parties could petition the state regulatory commission to conduct an arbitration proceeding if the parties could not reach agreement by themselves. Id. at § 252(b)-(c). The Telecommunications Act provides very specific grounds upon which the state commissions can accept or reject the interconnection agreements. Id. at § 252(e)(2). Congress also specified time deadlines for state commission approval or disapproval of the agreements. Id. at § 252(e)(4). State commission action is then subject to review in federal district court. Id. at § 252(e)(6). The statute also enables the FCC to act in the absence of state action; review of the FCC’s arbitration lies with an appropriate federal appeals court as required by the Communications Act of 1934, id. at § 402, and Administrative Orders Review Act, 28 U.S.C. §§ 2341-50. Glaringly absent from this statutory scheme is any mechanism to enforce the interconnection agreements once they have been signed and approved. Some of the interconnection agreements provide for voluntary dispute resolution by the parties or nonbinding arbitration. For example, GST’s interconnection agreement with US West provides: “[t]he parties agree, in good faith, to attempt to resolve any claim, controversy, or dispute between the Parties ... through negotiation or non-binding arbitration. This paragraph shall not be construed to waive the Parties’ rights to seek legal or regulatory intervention as provided by state or federal law.” GST Interconnection Agreement with US West, Section XXXIV, Part DD. Under § 208 of the Communications Act, the FCC attempted to fill the void by authorizing the filing of complaints to challenge a party’s compliance with the Telecommunications Act’s interconnection requirements “even if the carrier is in compliance with an agreement approved by the state commission.” Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket No. 96-98, First Report and Order, 11 FCC Rcd 15, 499, 15,564 (1996) (“Local Competition Order”). The FCC has not specifically held that the § 208 complaint process applies to the enforcement of interconnection agreements. A § 208 complaint can address any carrier’s failure to comply with any requirement of the Communications Act. Southwestern Bell v. FCC, 43 F.3d 1515, 1524 (D.C. Cir. 1995); Richman Bros. Records, Inc. v. U.S. Sprint Co., 953 F.2d 1431, 1435 (3d Cir. 1991), cert. denied, 505 U.S. 1230 (1992). This also includes a failure to comply with an interconnection agreement since the agreement exists as a requirement of the Communications Act. In that respect, an interconnection agreement is no different than a carrier’s failure to comply with the terms and conditions of its tariff and it is beyond peradventure that a carrier’s failure to comply with a tariff can be challenged in a § 208 complaint. Amendment of Rules Governing Procedures to Be Followed When Formal Complaints are Filed Against Common Carriers, Report and Order, 12 FCC Rcd 22,497, 22,503-04 (1997). In other words, it remains unclear whether a dispute over the terms of an interconnection agreement that does not reach the level of a § 251 violation can be raised in a § 208 complaint. Nor does this Commission have a specific mechanism for addressing interconnection problems. Pursuant to Rev. Code Wash. § 80.04.110, any party (or the Commission itself) may bring a complaint against any public service corporation (which includes ILECs) for violation of any law, rule, or order of the Commission. The Commission has instituted procedures for filing formal complaints and requests for adjudications. Wash. Admin. Code § 480-09-400. In addition to these formal processes, the Commission established alternative dispute resolution mechanisms, id. at § 480-09-465 and informal complaint procedures. Id. at § 480-09-150. None of these mechanisms specifically address interconnection agreement disputes; however, the approval of an interconnection order constitutes an order of this Commission, see, e.g., In the Matter of Request for Approval of an Agreement to Adopt Interconnection Agreement under the Telecommunications Act of 1996 between GST Lightwave and GTE Northwest, Docket No. UT-970324, slip op. at 3 (Rel. Aug. 27, 1997). The party’s failure to comply with the terms of an interconnection agreement, like the failure to follow any other order of this Commission, should allow the aggrieved party standing to resolve the issue through the formal complaint process. This conclusion is buttressed by the structure of § 252. Congress gave the state commissions the authority to approve interconnection agreements and arbitrate disputes concerning the adoption of these agreements. It would be strange indeed for Congress to recognize that these validly issued orders of state commissions would not be enforceable by them. Thus, the enforcement of these agreements can rest with the state commissions. II. A Need Exists for a Separate State Mechanism to Resolve Interconnection Disputes. GST is not convinced that the remedies currently available under federal law are adequate. First, the interconnection agreements are governed by Washington law. Id. This Commission certainly is more capable of interpreting Washington law than the FCC. Second, the interconnection difficulties associated with an interconnection order approved by this Commission will have occurred in Washington. This Commission is far more knowledgeable about local exchange service and the conditions surrounding interconnection in an ILEC’s central offices in Washington than the FCC sitting 3,000 miles away. For example, this Commission will be far more knowledgeable about the availability of facilities for interconnection in US West’s central offices in Vancouver, WA, than the FCC. This type of local knowledge appears to be the primary reason why Congress authorized state commissions to approve and arbitrate interconnection agreements. Third, all relevant witnesses and relevant documents are likely to be located in the state of Washington which lends further support for siting the resolution of the dispute at this Commission. Federal and state courts regularly transfer cases for the convenience of parties and witnesses. See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981); Koster v. Lumbermen’s Mut. Cas. Co., 330 U.S. 518, 527 (1947); Baker v. Hilton, 64 Wash. 2d 964, 965 (1964). Finally, federal court action under § 207 or § 401(b) of the Communications Act does not provide an expeditious or even possibly adequate remedy. Section 207 authorizes an injured party to seek monetary damages from a carrier. However, a party seeking interconnection may not want money damages but specific performance of its contractual obligations. Section 401(b) may be an inadequate remedy because the approval of the interconnection order is a state action and litigation to enforce the terms of the agreement may not be viewed by a federal court as the enforcement of a FCC order. Of course, a party seeking to enforce the interconnection agreement always could artfully plead that the failure to comply with the interconnection agreement constitutes a violation of the FCC’s Local Competition Order. The district court then would have to resolve knotty issues of federal jurisdiction before actually addressing the merits of the case. Cf. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987); Foster v. Mutual Fire, Marine & Inland Ins. Co., 986 F.2d 48, 53-54 (3d Cir. 1993) (discussing well-pleaded complaint doctrine analysis for determining federal court jurisdiction). Resolution of these complex federal jurisdiction questions only would delay the ability of a competitor to obtain interconnection and begin providing service. Nor is GST convinced that current remedies under state law provide a low-cost, effective, and speedy mechanism for resolving interconnection disputes. Since an agreement to interconnect is a contract, either aggrieved party could commence an action in a Washington state court for breach, see, e.g., G.W. Construction Corp. v. Professional Serv. Indus., Inc. 70 Wash. App. 360, 364 (1993) or seek specific performance of the contract, see, e.g., Kruse v. Hemp, 121 Wash. 2d 715, 722 (1993). However, litigation in state court certainly does not lend itself to a speedy resolution of a dispute, even if done through summary disposition. GST also is not convinced that the current adjudicative procedures, see Wash. Admin. Code §§ 480-09-400-780, are congruous with speedy and efficient resolution of interconnection disputes. For example, the brief adjudication process authorized by Wash. Admin. Code § 480-09-500 leaves it up to the discretion of the Commission to initiate that process. Presumably, the ILEC will have every reason to oppose the use of the brief adjudicative process in order to delay resolution and hinder competition. Cf. Amendment of Rules Governing Procedures to be Followed When Formal Complaints are Filed Against Common Carriers, CC Docket No. 96-238, Second Report and Order, slip op. at ¶ 9 (Rel. July 14, 1998) (citing ILEC opposition to FCC establishment of accelerated complaint procedures). GST endorses the FCC’s finding that accelerated complaint procedures “will minimize the opportunity for carriers to continue to engage in anti-competitive practices because the lawfulness of those practices will be subject to expedited review under our new procedures, and market entrants will be able to obtain adjudication of their complaints much more quickly than in the past.” Id. at ¶ 10. GST believes that the rationale applies with equal, if not greater force, to this Commission’ s resolution of interconnection disputes. The only way to assure that the Commission’s prompt resolution of the interconnection complaints in a manner that does not hinder a carrier’s ability to compete with the ILEC is to adopt the abbreviated procedures in the PRM. The need for a separate mechanism for the timely resolution of interconnection disputes also is supported by the language of § 252 of the Telecommunications Act. The Act imposes strict deadlines on state commissions to approve and/or arbitrate interconnection agreements. Congress was well aware of the need for industry to quickly implement interconnection and implicitly understood the need to quickly resolve interconnection disputes. Any other conclusion would lead to the perverse result that the state commission must act with all deliberate speed in approving an interconnection agreement but can resolve important competitive issues arising out of that agreement in a lengthy administrative proceeding thereby nullifying any benefit to a CLEC from the rapid approval of the agreement. The need for speedy enforcement of interconnection agreements also militates against arguments that abbreviated administrative procedures will result in the denial of due process. Throughout the Telecommunications Act, Congress evidenced a recognition that speedy resolution of issues is necessary including the need to adopt accelerated procedures for resolving complaints. See, e.g., 47 U.S.C. § 208(b)(2); see also Amendment of Rules Governing Procedures to be Followed When Formal Complaints are Filed Against Common Carriers, CC Docket No. 96-238, Second Report and Order, slip op. at ¶ 12 (Rel. July 14, 1998) (rejecting contention that accelerated procedures violate due process). III. The Procedures in the PRM, with Minor Modifications, will Provide CLECs with an Efficient and Timely Disposition of Interconnection Complaints. Generally, GST supports the PRM and the specific procedures set forth therein. The procedures will reduce the amount of unnecessary administrative litigation maneuvering which, in turn, will eliminate delay in resolving disputes. GST also has some suggested modifications which would enhance the goal of this Commission -- a low cost and timely resolution of disputes set forth in the notice. However, GST urges that certain changes are necessary to maximize the utility of the dispute resolution process to CLECs. GST asserts that it is quite appropriate for the petition to contain as many verified facts as possible when submitting a complaint. The most vexing problem (and the one that tends to delay adjudication) is the discovery of facts supporting mere contentions of either the complainant or defendant. By requiring significant factual disclosure at the complaint stage, it limits the arguments over the facts, if any, that will be in dispute thereby limiting the need for exhaustive discovery. In contradistinction, the current rules simply require a statement of the issues to be resolved in an adjudicatory proceeding. Wash. Admin. Code § 480-09-400. The Commission staff then reviews the application for an adjudicatory proceeding to see what other information might be needed. Id. Formal complaints require only slightly greater specification of detail. Id. at § 480-09-420. Thus, the current complaint procedures are only slightly more onerous than the basic notice pleading required in federal and state court. See, e.g., Conley v. Gibson, 355 U.S. 41, 47 (1957); Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997); State v. Adams, 107 Wash. 2d 611, 620-21 (1987). GST also supports the recommendation for same-day service on the opposing party. Interconnection disputes arise between sophisticated corporate organizations -- all of which have access to e-mail, overnight express delivery services, and telefacsimile machines. This Commission also has access to these services. Therefore, service should be authorized by any of those means on both the Commission and the opposing party. Formal copies, if the Commission believes that is necessary, should then be submitted by mail to the opposing party and the Commission. GST also recommends that the response and any other subsequent pleadings between the parties utilize these same-day (or next-day) service mechanisms. GST tries to resolve its interconnection disputes informally as set forth in its interconnection agreements. Thus, the ILEC generally is aware that a dispute exists but not that GST is ready to file a formal complaint. Thus, the prenotification in the Commission’s proposal serves as a last chance for the incumbent to resolve its problem with GST. We strongly support such a prenotification with one caveat. There may be certain circumstances in which a ten-day prenotification is not possible. For example, GST may learn that calls are not going through because of NXX loading problems. GST would immediately contact the ILEC and request resolution. If resolution is not forthcoming within 24 hours, neither GST nor its customers should be required to wait ten days before filing its complaint with the Commission. Thus, GST recommends that parties generally follow the ten-day prenotification but with the option of allowing one of the parties to plead with particularity exigent circumstances that make it necessary to file a complaint without waiting ten days. The pleading requirement in this circumstance would be akin to the civil litigation requirement in Washington that fraud be pled with particularity. Haberman v. Washington Public Power Supply System, 109 Wash. 2d 107, 165 (1987). GST does not believe that the respondent needs the opportunity to amend its answer to the complaint. Should the respondent feel amendment is necessary, it should be required to file a motion stating the circumstances for amending its response and the complainant would have five business days to respond to the motion but may do so in less time. No further responsive pleadings should be permitted. The Presiding Officer then would have only three business days from the date the complainant serves its reply on the Commission to issue a ruling. These changes would limit the amendments to extraordinary circumstances, minimize procedural maneuvering, prevent undue expansion of the issues involved in the proceeding, and ensure prompt disposition of procedural matters associated with the new complaint process. Discovery should be limited to the extent possible. Generally, dispute resolution delays arise from interminable discovery. GST recommends that the final rule strongly advise An outright prohibition on unrelated discovery is not appropriate. The Presiding Officer may have valid reasons for seeking discovery beyond those facts addressed in the complaint and response. the Presiding Officer to limit discovery only to those items directly addressing the facts set forth in the complaint and response. Should the Presiding Officer permit broad discovery, GST urges the Commission to adopt time lines that are substantially shorter than those set forth in Wash. Admin. Code § 480-09-480. GST urges that any discovery request (since the discovery request generally will be related to an identifiable incident or set of incidents) be responded to within five business days. GST also strongly recommends that the rules permit the parties to file their requests for discovery simultaneously with their complaints or responses. If the complainant filed its discovery request with the respondent simultaneous with the complaint, the respondent would have a total of seven business days to respond to the discovery request from the time of service. Similarly, if the respondent filed its discovery request simultaneously with its response, the complainant would have seven business days to comply with the discovery request after it was served. Requiring simultaneous service of discovery requests would dramatically shorten the time needed for the Presiding Officer to obtain the necessary facts to make a determination whether to hold a hearing or decide the dispute without a hearing. The Commission should consider foregoing a formal evidentiary hearing. The only time such a hearing might be necessary would be to consider the credibility of individuals. Generally, an appropriate paper trail (which should be available in the usual course of business) should obviate the need for any evidentiary hearing except in the most unusual of circumstances. Finally, GST urges that the Commission require resolution of the dispute in a time period substantially shorter than the 90 days suggested in the PRM. Market conditions simply cannot tolerate lengthy disputes concerning interconnection rights and responsibilities. For each day that GST cannot properly interconnect is one less day that it can provide service to customers. The inability to interconnect and the absence of a timely Commission process for resolving disputes hinders GST’s ability to compete. The ultimate loser is not GST; rather it is the end-user customer whose choice of competing carriers is substantially reduced and the prices that they will pay for service will be higher. In short, the public interest requires speedy resolution of interconnection disputes. With the other changes recommended by GST in these comments, the Commission generally should be able to resolve the disputes within 45 days and certainly no later than 60 days. A longer time frame will not give parties the incentive to seek resolution from this Commission. Instead, the parties will attempt to utilize the accelerated complaint procedures recently adopted by the Federal Communications Commission designed to resolve disputes among carriers within 60 days. Amendment of Rules Governing Procedures to be Followed When Formal Complaints are Filed Against Common Carriers, CC Docket No. 96-238, Second Report and Order, slip op. (Rel. July 14, 1998). IV. Conclusion GST commends the Commission for proposing the new rules for resolving interconnection disputes. As a competitive carrier, GST relies on its interconnection agreements with ILECs as an essential component of providing service, particularly as it continues to construct its own facilities-based network. GST prefers to settle these disputes amicably through informal negotiation. However, GST recognizes that disagreements may arise concerning the interpretation of these interconnection agreements. The Commission’s proposal, with the changes suggested by GST in these comments, provides GST and the incumbent with a quick and relatively cost-efficient mechanism for settling disputes. The ultimate beneficiaries will be end-user customers who will see the development of a truly competitive market in which those companies capable of providing better service at a lower price will be victorious. Dated at Vancouver, Washington, this 6th day of August, 1998. Respectfully submitted, Barry Pineles Regulatory Counsel GST Telecom, Inc. 4001 Main Street Vancouver, WA 98663 Tel: 360-906-7104 Fax: 360-906-7165