WSR 98-21-042

PERMANENT RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[Docket No. A-970591, General Order No. R-451--Filed October 14, 1998, 11:28 a.m.]

In the matter of adopting WAC 480-09-530, relating to petitions for enforcement of interconnection agreements.

statutory or other authority: The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 98-15-094, filed with the code reviser on July 16, 1998. The commission brings this proceeding pursuant to RCW 80.01.040.

statement of compliance: This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 43.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

date of adoption: The commission adopted this rule on August 26, 1998.

concise statement of purpose and effect of the rule: The rule will provide an expedited procedural mechanism to address requests for enforcement of the terms of interconnection agreements between telephone companies that is tailored to the agreements.

reference to affected rules: This rule repeals, amends, or suspends the following sections of the Washington Administrative Code: None.

preproposal statement of inquiry and actions thereunder: The commission filed a preproposal statement of inquiry (CR-101) on August 14, 1997, at WSR 97-17-047.

additional notice and activity pursuant to preproposal statement: The statement advised interested persons that the commission was considering entering a rule making to establish an expedited process for enforcement of interconnection agreements. The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3) and by sending a copy of the notice to all attorneys on the commission's list of attorneys practicing before the commission. Pursuant to the notice, the commission did receive comments and did engage in one workshop at which interested persons discussed the issues among themselves and with commission staff.

notice of proposed rule making: The commission filed a notice of proposed rule making (CR-102) on July 16, 1998, at WSR 98-15-094. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 98-15-094 at 9:30 a.m., Wednesday, August 26, 1998, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

meetings or workshops; oral comments: The commission received an oral comment from US WEST Communications.

commenters (written comments): The commission received written comments from GTE, Worldcom, and GST Telecommunications.

rule making hearing: The rule proposal was considered for adoption, pursuant to the notice, at a rule making hearing scheduled to coincide with the commission's regularly scheduled open public meeting on August 26, 1998, before Chairwoman Anne Levinson, Commissioner Richard Hemstad, and Commissioner William R. Gillis. The commission heard oral comments from Robert Wallis, representing commission staff, in support of the proposal. No other person made oral comments.

suggestions for change that are rejected: Commenters asked that the five-day deadline for answering a petition be extended. The commission rejected the request because of the expedited nature of the process, the familiarity of participants with the issues, the provision in the rule requiring ten days' advance notice to the respondent of filing a petition, and the likelihood that the requirement will provide incentives for negotiation and settlement.

GTE asked that the commission enforce any contract provisions referring such disputes to alternate dispute resolution, such as mediation or arbitration, and refuse to hear enforcement requests. The commission disagreed, because parties may not contract to deprive the commission of its statutory jurisdiction.

GST asked for the flexibility to avoid the notice period if circumstances warrant; this is rejected because persons already have the authority to do so.

GST asks that the rule provide for service by electronic means; this is rejected because the proposal is not authorized by statute.

Commenters argued variously for increased or for reduced opportunity to amend pleadings. These are rejected because the proposal strikes the right balance between flexibility and expedition. Commenters also argued that the time for action should be reduced to accommodate petitioners' need for swift decisions. This is rejected because the proposal properly balances the need for expedition with the need for fairness, and because it expresses a maximum and not a minimum time.

Worldcom suggested a limitation on parties' post-hearing submissions; such a limit is not needed because extraneous or irrelevant submissions will not extend the time for a final order. GTE contended that any time limit for producing an order is inappropriate. Its proposal to remove the time limit is rejected because the rule must indicate the time for action if the rule is to expedite the hearing and decision process.

GTE suggested that the rule require inclusion of the entire interconnection agreement between the parties, rather than only the provisions that the parties believe relevant. This is rejected because the inclusion of irrelevant provisions impedes a swift and concise decision. Parties have the opportunity to offer any portions of the agreement that they believe relevant.

commission action: After considering all of the information regarding this proposal, the commission adopted the proposed rule with the changes noted below.

changes from proposal: The commission adopted the proposal with the following changes from the text noticed at WSR 98-15-094, in response to comments that it received.

Electronic notice of filing a petition for enforcement is permitted, in response to comments, but in response to a comment from US WEST Communications, Inc., the commission added the requirement that if notice is made by electronic mail, it must be sent to the electronic mail address that the receiving party has previously designated.

The rule provides standards for the presiding officer to consider in determining whether or not an oral hearing will be used to receive evidence. Although the standards are not exclusive, they provide an appropriate indication of elements to be considered.

Discovery is limited to facts directly at issue, recognizing the expedited and focused nature of the proceeding, and parties may request discovery in their petitions or answer, stating the matters to be inquired into.

Finally, the concluding subsection of the original proposal is deleted. It stated the legal conclusion that matters under this rule are not adjudications under the state APA but arise under federal law and state authorization to resolve matters under federal law. It is deleted in response to comments because it is not needed -- it cannot change the law and it is unnecessary to state the status of the law.

statement of action; statement of effective date: In reviewing the entire record, the commission determines that WAC 480-09-530 should be adopted to read as set forth in Appendix A, as a rule of the Washington Utilities and Transportation Commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

O R D E R

the commission orders:

1. WAC 480-09-530 is adopted to read as set forth in Appendix A, as a rule of the Washington Utilities and Transportation Commission, to take effect on the thirty-first day after the date of filing with the Code Reviser pursuant to RCW 34.05.380(2).

2. This order and the rule set out below, after being recorded in the register of the Washington Utilities and Transportation Commission, shall be forwarded to the Code Reviser for filing pursuant to chapters 80.01 and 34.05 RCW and chapter 1-21 WAC.

3. The commission adopts the commission staff memoranda, presented when the commission considered filing a preproposal statement of inquiry, when it considered filing the formal notice of proposed rule making, and when it considered adoption of this proposal, in conjunction with the text of this order, as its concise explanatory statement of the reasons for adoption and for rejection of proposed changes, as required by RCW 34.05.025.

dated at Olympia, Washington, this 13th day of October, 1998.

Washington Utilities and Transportation Commission

Anne Levinson, Chair

Richard Hemstad, Commissioner

William R. Gillis, Commissioner

APPENDIX "A"

OTS-2285.2

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 petitioner 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 or parcel delivery service, it must deliver, a copy of the petition for enforcement and all supporting documents by hand delivery, telefacsimile, or electronic mail (to the e-mail address specified by the recipient for the purpose of receiving a copy of the petition) 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. In determining whether to schedule an oral enforcement hearing session, the presiding officer will consider, but is not limited to considering, the preferences of the parties and the reasons they advance, the need to clarify statements by means of asking questions, whether the issues are largely factual, largely legal, or involve questions of fact and law, the apparent complexity of facts and issues, the need for speedy resolution, and the completeness of information presented. 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 of facts relating to matters directly at issue pursuant to WAC 480-09-480. The party filing the complaint or answer may file with the complaint or answer a request for discovery, stating the matters to be inquired into and their relationship to matters directly at issue. 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 recommended decision. 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.

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