1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 U S WEST’s Comments - 1 - a:\comments.doc WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION PETITIONS FOR ENFORCEMENT OF INTERCONNECTION AGREEMENTS, WAC 480-09-427 ) ) ) ) ) ) ) Docket No. A-970591 U S WEST'S COMMENTS U S WEST, Inc. 1600 7th Ave., Suite 3206 Seattle, WA 98191 Telephone: (206) 343-4000 Facsimile: (206) 343-4040 These comments address the Discussion Draft Rule noticed out by the Commission as WAC 480-09-427, entitled “Petitions for Enforcement of Interconnection Agreements.” U S WEST believes in general that a rule defining and clarifying the procedures for seeking enforcement of an interconnection agreement is a good idea, and U S WEST supports the concept of such a rule. Following are specific comments with regard to the proposed language. However, one important factor that should not be overlooked in the promulgation or adoption of this rule is that some of the existing interconnection agreements, for example the agreement between U S WEST and TCG, do not permit a complaint to the Commission regarding enforcement of the interconnection agreement. Those agreements specifically provide for binding arbitration as the only dispute resolution available. The Commission’s rule should somehow recognize that not all interconnection agreements may be enforced under the terms of this rule. This is true by the terms of the agreements themselves as negotiated or arbitrated between the parties, and the rule should not supplant that independent agreement reached by the parties. Both subsections (1) and (2) of the Discussion Draft Rule define how service should be accomplished. U S WEST believes that filing and service of both the petition and the answer should be accomplished in the same manner and that service of the petition and service of the answer should, in this particular case, be defined as receipt of the petition or answer. It appears as though subsection (3)(b) may contain some language which should have been placed under subsection (1)(b) - concerning how to serve the petition. If that change is made, service of the petition and service of the answer appear to parallel each other and such provisions are acceptable. Subsection (2) states that the respondent waives the opportunity to present any matter that is not raised in the answer. U S WEST believes that the respondent should be given an opportunity to amend its answer or to answer generally and present specific facts and allegations as the proceeding develops. The statement that the respondent waives matters not raised in the answer appears to substantially limit the rights of the respondent and may be prejudicial. Further, it encourages answers that are overly broad. U S WEST suggests that if the intent of this sentence is to limit or clearly define the scope of the proceedings early on, the language proposed might accomplish the opposite result. However, the parties can certainly undertake to define the scope of the proceedings at the prehearing conference. U S WEST believes that the general rules concerning answers and the content thereof should continue to apply in these types of proceedings. Concerning subsection (2)(b), U S WEST believes that filing of the answer within five business days after service of the petition is an unnecessarily short timeframe and further disadvantages the respondent. It must be noted that the petitioner will have had as much time as the petitioner desires to draft the petition for enforcement, and that there may be many facts and circumstances alleged which the respondent will have to investigate before being able to prepare an answer which responds to the allegations with any specificity. U S WEST believes that the standard interval for an answer, which is 20 calendar days, is appropriate in this matter also and should be retained in accordance with the Commission’s general procedural rules. Concerning subsection (3)(a), U S WEST believes that a prehearing conference is an appropriate next step procedurally. However, such prehearing conference should be scheduled within ten days after the answer is filed. In this way, the prehearing conference will not be held until the positions of the parties have been defined by both the petition and the answer. Regarding subsection (5), U S WEST believes that this section regarding review of the recommended decision should be clarified. The rule should clearly define that presentations at the open public meeting will be limited to arguments of the parties. The rule does state that the open public meeting is for the purpose of hearing the arguments or comments of the parties. However, the rule should be clear that only the parties, not others who are not parties, may address the issues. Further, if the Commission does in fact conduct the public meeting within ten days after the date of the recommended decision, this might unnecessarily constrain the parties’ ability to present written comments to the Commission prior to that meeting. The Commission may wish to establish a longer or more flexible schedule in order to allow adequate time for written comments prior to the presentations. With regard to subsection (6)(d) and (e), U S WEST believes that those provisions are already in existence in other statutes and rules under which the Commission already operates. Those provisions are likely unnecessary to this rule and redundant. With regard to subsection (7) of the Draft Rule, U S WEST believes that further discussion is necessary to determine whether the statement in subsection (7) is factually or legally correct. U S WEST would welcome an opportunity to discuss this issue at a workshop or in subsequent rounds of comments on this rule. On this issue, it may be helpful to hear the comments of the other parties and to discuss the matter with representatives of the Commission to determine what is sought to be accomplished with this language and whether the language is either necessary or desirable in the rule. As noted above, U S WEST looks forward to the scheduling of a workshop or additional rounds of comments to discuss this rule. Respectfully submitted this 17th day of April, 1998. U S WEST Communications, Inc. ____________________________________ Lisa A. Anderl, WSBA No. 13236