BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION

In the Matter of the Investigation )
Into U S WEST Communications Inc.'s ) DOCKET NO. UT-970300
Compliance with Section 271 of the )
Telecommunications Act of 1996 ) TCG SEATTLE REPLY COMMENTS
 ON DRAFT PROCEDURAL ORDER


 TCG Seattle ("TCG") provides the following Reply Comments on the draft Order 
on Investigation and Policy Statement ("Draft Order") in this docket.  These 
comments address the two issues that dominated the recent workshop:  (1) the 
nature of the showing the Commission will require of U S WEST and the procedure 
for evaluating that showing; and (2) the effect of pending appeals on any 
Section 271 application.  
COMMENTS
 A. Implementation of Performance Measures and Reporting Is Critical to 
Development of a Comprehensive Factual Record and Should Begin Well in Advance 
of the 90 Day Review Period.

 TCG shares the Commission's concern for establishing an efficient Section 271 
consultation process that will enable the Commission to review U S WEST's 
evidence and reach a fully informed decision within 90 days.  Too much of TCG's 
and other parties' resources have already been (and, unfortunately, will 
continue to be) devoted to compelling U S WEST to comply with the requirements 
of the Telecommunications Act of 1996 ("Act"). The Commission, however, cannot 
lose sight of its responsibility under the Act to consult with the FCC to 
verify U S WEST's compliance with Section 271.  The paper proceeding U S WEST 
envisions simply cannot develop the "comprehensive factual record" the FCC will 
be looking to the Commission to compile.  TCG, therefore, reluctantly agrees 
that a contested case proceeding as proposed in the Draft Order represents the 
most reasonable procedure for Commission review of a Section 271 filing and 
that the Commission, like the Oregon Commission, should detail the issues it 
expects U S WEST to address as part of its filing.
 The Draft Order, however, should also address the critical issue of what form 
the evidence U S WEST provides must take.  U S WEST should be required not just 
to provide some evidence in response to prescribed issues but to compile and 
produce underlying data, as required by the FCC, that will prove whether U S 
WEST is currently complying, and will continue to comply, with Section 271:
It is not enough that the BOC prove it is in compliance at the time of filing a 
section 271 application; it is essential that the BOC must also demonstrate 
that it can be relied upon to remain in compliance.  This may be demonstrated 
in various ways.  For example, we must be confident that the procedures and 
processes requiring BOC cooperation, such as interconnection and the provision 
of unbundled network elements, have been sufficiently available, tested, and 
monitored.  Additionally, we will look to see if there are appropriate 
mechanisms, such as reporting requirements or performance standards, to measure 
compliance, or to detect noncompliance, by the BOCs with their obligations.

In re Application of Ameritech Michigan, CC Docket No. 97-137, FCC 97-298 
Memorandum Opinion and Order ¶ 22 (Aug. 19, 1997) (emphasis added).  No such 
means of measuring compliance or detecting noncompliance currently exist in 
Washington, and U S WEST cannot expect to satisfy the FCC (or Commission) 
review process without them.  
 TCG previously proposed performance measures and reporting requirements that 
would establish appropriate mechanisms to measure U S WEST's compliance or 
noncompliance with its obligations.  The Commission, however, cannot wait until 
U S WEST initiates the 90 day Commission review period to begin gathering such 
data.  The Act's parity requirement requires more than a single snapshot at the 
time of U S WEST's Section 271 filing.  U S WEST has a current and ongoing 
obligation to provide services and facilities that are at least equal in 
quality to those it provides to itself.  U S WEST should begin to provide data 
on its provisioning of service and facilities to competitors as soon as 
possible to build a track record on which the Commission and the FCC can 
reasonably predict U S WEST's continued compliance after it is allowed entry 
into Washington interLATA markets.  As a practical matter, moreover, proper 
measurement and analysis of service provisioning to CLECs is likely to take 
some time and practice to develop and the Commission, U S WEST, and affected 
parties should have the opportunity to adjust and modify this process before 
having to rely on the results.  TCG, therefore, urges the Commission to 
establish appropriate compliance measurement and reporting mechanisms as part 
of its order in this proceeding and require that U S WEST begin to implement 
those mechanisms now, in advance of the 90 day review period.  Only immediate 
implementation of compliance mechanisms will allow development of the requisite 
factual record, as well as enable the Commission to determine empirically 
whether U S WEST is satisfying its legal obligations under Section 271. 
 B. The Draft Order Properly Interprets "Binding Agreements."

 A substantial portion of the workshop and U S WEST's comments on the draft 
order were devoted to whether the term "binding agreement" requires that the 
agreements not be subject to modification on appeal.  Contrary to U S WEST's 
hyperbole, TCG is not "delirious with happiness over [its] profound good luck 
in achieving such an incredible interpretation of 'binding agreement' from the 
Commission."  U S WEST Comments on Draft Order at 7. Whatever merit is in U S 
WEST's sweeping allegations that its competitors are only interested in 
precluding U S WEST from entering interLATA markets, such allegations are 
inapplicable to TCG, which only began its own entry into interLATA toll markets 
last month and has no significant market share to protect by excluding U S 
WEST.  TCG's sole concerns are full implementation of its arbitrated 
interconnection agreement with U S WEST and assurance that U S WEST irrevocably 
opens its local markets to competition.  U S WEST's federal court complaints 
inhibit both implementation of arbitrated agreements and the development of 
effective competition, and the Draft Order properly recognizes that fact.
 The Draft Order also recognizes the inherent inconsistency in U S WEST's 
attempts to rely on agreements to prove compliance with Section 271 while 
challenging those same agreements as inconsistent with the Act.  U S WEST 
acknowledged in earlier comments that the competitive checklist in Section 271 
mirrors the requirements in Sections 251 and 252. U S WEST Opening Comments at 
22-23.  To the extent that U S WEST challenges aspects of agreements as 
inconsistent with Sections 251 and 252, therefore, law, logic, and common sense 
dictate that U S WEST cannot rely on those provisions to satisfy Section 271.  
 As a concrete example, U S WEST must prove, among other requirements, that the 
access and interconnection it provides under agreements with competitors 
satisfies the competitive checklist in Section 271(c)(2)(B).  Three of those 
checklist items --interconnection, unbundled network elements, and reciprocal 
compensation -- all require that pricing be consistent with Section 252(d)(2).  
47 U.S.C. § 271(c)(2)(B)(i), (ii) & (xiii).  U S WEST's federal complaints 
challenge the portions of its arbitrated agreement with TCG (and other CLECs) 
that address these checklist items claiming that the prices established are 
inconsistent with Section 252(d)(2).  See, e.g., U S WEST v. TCG Seattle, et 
al., No. C97-354WD, Amended Complaint Count I (W.D. Wash.).  U S WEST cannot 
plausibly claim that these provisions comply with Section 252(d)(2) for the 
purposes of Section 271, but violate Section 252(d)(2) for purposes of its 
federal court complaint.
 TCG agrees with U S WEST that it should have the opportunity to demonstrate 
compliance with Section 271.  U S WEST has no other incentive to implement its 
obligations under its agreements and the Act, and the impossibility of 
obtaining Section 271 authority has the same effect of eliminating that 
incentive as granting such authority too soon.  In this case, however, the 
obstacles to interLATA relief are of U S WEST's making.  Whether as part of the 
definition of "binding agreement" or as part of the requisite demonstration in 
the competitive checklist, U S WEST should not be permitted to satisfy its 
burden to prove compliance with Section 271 by relying on agreements that U S 
WEST has challenged in federal court and that remain subject to modification 
based on the outcome of that court action. Nor should U S WEST be permitted to 
evade this restriction by relying on agreements it has negotiated with a 
favored CLEC, or by picking and choosing among agreements subject to appeal to 
cobble together a demonstration of compliance with the competitive checklist.  
If U S WEST is not providing appropriate access and interconnection to all 
requesting CLECs, it is not satisfying its obligation to provide 
nondiscriminatory access to, and interconnection with, its network that is at 
least equal to the service and facility quality U S WEST provides to itself -- 
an express requirement of at least the first two items in the competitive 
checklist. 47 U.S.C. § 271(c)(2)(B)(i) & (ii).
CONCLUSION
 TCG believes that the Draft Order represents an important initial step in 
establishing the procedure and requirements for a Section 271 filing in 
Washington.  The Commission should take the additional step of incorporating 
into that order the performance measures and reporting requirements proposed by 
TCG.  Such compliance mechanisms should be implemented as soon as possible -- 
and in advance of the 90 day review period -- to ensure a sufficiently 
comprehensive factual record for Section 271 purposes and to establish the 
means by which the Commission, the FCC, and U S WEST's competitors can 
determine whether U S WEST is complying -- and will continue to comply -- with 
its obligations under the Act and interconnection agreements.
 DATED this _____ day of October, 1997.

      Davis Wright Tremaine LLP
      Attorneys for TCG Seattle



      By       
       Gregory J. Kopta
       WSBA No. 20519

      Michael A. Morris
      Karen Notsund
      Deborah S. Waldbaum
      Teleport Communications Group, Inc.
      201 North Civic Drive, Suite 210
      Walnut Creek, CA  94596