WSR 98-15-094

PROPOSED RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[Commission Docket No. A-970591--Filed July 16, 1998, 3:30 p.m.]



Original Notice.

Preproposal statement of inquiry was filed as WSR 97-17-047.

Title of Rule: Petition for enforcement of interconnection agreements, WAC 480-09-530.

Purpose: This proposed rule is designed to provide an expedited means of resolving disputes arising out of interconnection agreements between local exchange companies and others, which provide the basis for interconnections to serve telecommunications traffic of each that must be routed over the other's facilities.

Statutory Authority for Adoption: RCW 80.01.040, 80.04.160, section 2, chapter 337, Laws of 1998.

Summary: This proposed rule would establish a process designed to provide a forum for parties to interconnection agreements to get speedy yet studied decisions to resolve disputes arising under those agreements.

Reasons Supporting Proposal: Disputes arising under interconnection agreements have characteristics that are different from many other kinds of disputes that the commission resolves in adjudicative settings. These include the existence of an interconnection agreement; the availability of arbitration under federal law at the origin of the agreement a history of parties dealing with each other under the agreement; quite often, a provision in the interconnection agreement requiring the parties to discuss and negotiate problems relating to the agreement; and a perceived need to gain a speedy resolution of the dispute. Those factors support adoption of a rule specifically designed for such disputes.

Name of Agency Personnel Responsible for Drafting: C. Robert Wallis, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, (360) 664-1142; Implementation and Enforcement: Carole J. Washburn, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, (360) 664-1174.

Name of Proponent: Washington Utilities and Transportation Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: This proposed rule would provide a specific process for enforcement of interconnection agreements -- contracts between telephone companies for the transportation of messages on each others' facilities, which are entered pursuant to the federal Telecommunications Act of 1996. Carriers faced with the need for enforcement of such an agreement need a speedy forum and one that can evaluate parties' contentions fairly and knowledgeably. This proposal is intended to afford speedy and fair enforcement of interconnection agreements.

Proposal does not change existing rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This proposal would impose no, or only minimal, additional costs on affected businesses.

RCW 34.05.328 does not apply to this rule adoption. The law is not mandatory for rules of the Utilities and Transportation Commission, and this rule is not one of the sort to which the law applies.

Hearing Location: Commission Hearing Room, Second Floor, Chandler Plaza, 1300 South Evergreen Park Drive S.W., Olympia, WA 98504, on August 26, 1998, at 9:30 a.m.

Assistance for Persons with Disabilities: Contact Pat Valentine by August 24, 1998, TDD (360) 586-8203, or (360) 664-1133.

Submit Written Comments to: Carole J. Washburn, Secretary, P.O. Box 47250, Olympia, WA 98504, e-mail to <records@wutc.wa.gov>, fax (360) 586-1150, by August 7, 1998. Please include both Docket No. A-970561 and "Interconnection enforcement petition rule making" in your communication.

Date of Intended Adoption: August 26, 1998.

July 14, 1998

Terrence Stapleton

for Carole J. Washburn

Secretary

OTS-2285.1

NEW SECTION



WAC 480-09-530  Petitions for enforcement of interconnection agreements. (1) Petitions for enforcement. A telecommunications company that is party to an interconnection agreement with another telecommunications company may petition under this rule for enforcement of the agreement.

(a) What the petition must contain. Each petition for enforcement must contain the following elements:

(i) A statement, including specific facts, demonstrating that the parties engaged in good faith negotiations to resolve the disagreement, and that despite those negotiations the parties failed to resolve the issue.

(ii) A copy of the provision of the interconnection agreement that the petitioner contends is not being complied with.

(iii) A description of facts demonstrating failure to comply with the agreement. The description must be supported by one or more affidavits, declarations or other sworn statements, made by persons having personal knowledge of the relevant facts.

(b) How to serve the petition. The petitioner must serve the petition for enforcement on the responding party on the same day the petition is filed with the commission. For purposes of this section, service must be effected on:

(i) The responding party's authorized representative, attorney of record or designated agent for service of process;

(ii) The responding party's representatives with whom the petitioner conducted the negotiations addressed in (a)(i) of this subsection; and

(iii) All parties designated in the interconnection agreement to receive notices.

If the petitioner chooses to serve the respondent by mail, a copy of the petition for enforcement and all supporting documents must be faxed or hand-delivered to the responding party's attorney of record, or if the party has no attorney, to the responding party, on the same day as filed with the commission.

(c) At least ten days prior to filing a petition for enforcement at the commission, the petitioner must give written notice to the respondent that the petitioner intends to file a petition for enforcement. The notice must identify the contract provision the petitioner alleges was violated, and the exact behavior or failure to act that petitioner alleges violates the agreement. Service of the written notice must be accomplished in the same manner as set forth in (b) of this subsection. The petitioner must include a copy of this notice with its petition for enforcement.

(2) Answering a petition. The respondent may answer the petition. The respondent waives the opportunity to present any matter that is not raised in the answer, except that the answer may be amended under subsection (3) of this section.

(a) Contents of the answer. The answer to a petition for enforcement must respond to each allegation of failure to comply with the terms of the interconnection agreement, stating relevant facts. Any facts relied upon must be supported by affidavits, declarations or other sworn statements by persons having personal knowledge of the facts.

(b) Filing and service of the answer. The respondent must file the answer with the commission and serve it on the petitioner within five business days after service of the petition for enforcement. Service must be accomplished so that a copy of the response to the petition for enforcement and all supporting documents must reach the petitioner's attorney, or the person who signed the petition, if petitioner has no attorney, on the same day the answer is filed with the commission. If the respondent chooses to serve the petitioner by mail, a copy of the petition for enforcement and all supporting documents must be delivered to the person identified above on the same day as filed with the commission.

(3) Amendment of petition and answer. In the discretion of the presiding officer, for good cause shown, and to avoid substantial prejudice to the responding party that is not caused by the fault of the responding party, the responding party may amend its answer to the petition. In the discretion of the presiding officer, either party may amend its petition or answer to conform to the evidence presented during the proceeding. In determining whether to permit amendment of the petition or answer to conform to the evidence, the presiding officer may refer to, but is not bound by, civil rule 15(b).

(4) Prehearing conference. The commission will conduct a prehearing conference regarding each petition that is filed for enforcement of an interconnection agreement.

(a) Schedule; mandatory attendance. The presiding officer will within ten days after the petition is filed schedule a prehearing conference. Both the petitioner and the respondent must attend the prehearing conference. At the discretion of the presiding officer, the prehearing conference may be conducted by telephone.

(b) Procedural determination. At the prehearing conference, the presiding officer will determine, based on the petition and the answer, together with all supporting documents filed by the parties and the parties' oral statements, whether the issues raised in the petition can be determined on the pleadings and submissions, without further proceedings. The presiding officer may ask the parties to submit written briefs on the issues of the petition.

(c) Means of obtaining additional information. If the presiding officer determines that further proceedings are necessary, the presiding officer will establish a schedule for receiving additional facts or evidence and may, in the discretion of the presiding officer, schedule an enforcement hearing session to explore the facts and issues raised in the petition and the answer. If shown to be essential to the requesting party, the presiding officer may, in his or her discretion, allow discovery pursuant to WAC 480-09-480. To comply with the time lines of this rule, the presiding officer may alter the discovery time lines in WAC 480-09-480.

(5) Appointment and powers of the presiding officer; recommended or final decision. The commission will appoint an administrative law judge to preside over the proceeding. The commissioners may, in their discretion, preside over the enforcement proceeding.

(a) In any proceeding to enforce the provisions of an interconnection agreement, the presiding officer has broad discretion to conduct the proceeding in a manner that best suits the nature of the petition, including, but not limited to, converting the proceeding into a complaint proceeding under RCW 80.04.110. The presiding officer may limit the record in the enforcement proceeding to written submissions or may schedule an enforcement hearing session. The presiding officer may limit the number of exhibits and witnesses and the time for their presentation.

(b) The enforcement proceeding concludes when the presiding officer has sufficient information to resolve the issues. The presiding officer shall serve a recommended decision on the parties within seventy-five days of the date the petition for enforcement was filed, or twenty-one days after the last hearing session or submission, whichever is later. The recommended decision is subject to the approval of the commission. If the commission presides over the enforcement proceeding, it may serve a final decision within the time requirements applicable to recommended decisions.

(6) Review of the recommended decision. After the presiding officer serves the recommended decision, the commission will hear the arguments or comments of the parties regarding the recommended decision at a regular or special open public meeting. The parties may submit written comments to the commission prior to the meeting on a schedule established in the initial order. The commission may, in its discretion, request a presentation at the meeting from commission staff. The commission will conduct this session within ten days after the date of the recommended decision, or as soon thereafter as the commissioners' schedules permit.

(7) Commission decision on petition for enforcement.

(a) Extent of commission discretion. The commission will serve a final decision on the parties, in the form of a commission order, resolving the issues. The commission may adopt, modify or reject all or part of the recommended decision.

(b) Time of service of order. The commission will serve its order on the petition for enforcement no later than ninety days of the date the petition is filed or fifteen days after the meeting at which it reviews the recommended decision, whichever is later. The commission may extend this time for lack of resources or for other good cause.

(c) Petition for reconsideration. Within ten days after the commission serves its order on the petition for enforcement, the parties may petition for reconsideration. A petition for reconsideration is denied unless the commission by separate decision grants it within ten days after the petition for reconsideration is filed, or such longer time established by the commission secretary. If a party files a petition for reconsideration, the commission may, in its discretion, request that an answer be filed or call for additional comments, briefing, evidence, or argument from the parties. Filing a petition for reconsideration of the order does not stay the effect of the order.

(d) Failure to comply with the order. Any party who fails to comply with the terms of the commission's final order on petition for enforcement is subject to penalties under RCW 80.04.380 and any other penalties or sanctions as provided by law. A company against whom a penalty is assessed may challenge the penalty or the facts on which it is based, or seek mitigation of the penalty, pursuant to pertinent law and commission rules.

(8) Nature of the proceeding. Because the commission is exercising authority consistent with federal law when resolving disputes involving interconnection agreements, the proceeding is in the nature of an arbitration and is not an adjudicative proceeding under the Washington Administrative Procedure Act, chapter 34.05 RCW.



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