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Edward A Garvey Chair Joel Jacobs Commissioner Marshall Johnson Commissioner LeRoy Koppendrayer Commissioner Gregory Scott Commissioner In the Matter of US West Communications, Inc.’s Compliance with Section 271 of the Telecommunications Act of 1996 Docket No. P-999/CI-96-1114 COMMUNICATIONS’ APPLICATION AND NOTICE CONCERNING §271 PROCESS The Telecommunications Resellers Association (“TRA”), on behalf of its members, and pursuant to the Minnesota Public Utilities Commission’s February 14, 2000 Notice Soliciting Comments in the above-captioned matter, responds to US West Communications, Inc.’s February 8, 2000 (“US West”) Application and Notice Concerning §271 Process (“Notice”) in the above-captioned proceeding. TRA agrees that a collaborative process, if properly formulated, can be an effective tool in evaluating US West’s compliance with the “competitive checklist” for in-region, interLATA market entry under Section 271 of the Telecommunications Act of 1996. A collaborative process, such as is proposed by US West, cannot, however, ever serve as a substitute for US West’s submission of evidence that it meets the competitive check list. On its face, US West’s proposal would effectively disregard the framework established by the Commission’s February 2, 1998 Order , which anticipated an adversarial process, including discovery and evidentiary hearings. US West, in a seeming revelation, has unilaterally concluded that the collaborative process, by itself, is the most effective course for evaluating its compliance with Section 271. US West’s Notice provides little in the way of a concrete proposal for conducting its proposed collaborative process. US West summarily proclaims that a single Section 271 filing is not the “optimum” method of addressing questions raised by a Section 271 application. Instead, U S West suggests a series of workshops to address each checklist item, seemingly in lieu of a 271 filing before the Commission as it ordered over two years ago. If this is indeed what US West is suggesting, US West’s proposal effectively bypasses the evidentiary standard contemplated by the Telecommunications Act of 1996 and the Commission’s 1998 Order, and could ultimately dismantle the integrity of the 271 evaluation process altogether, and undermine the credibility of any Commission recommendation to the FCC. TRA certainly supports the concept of a collaborative process, including issue-specific workshops that involve the Commission, U S West, and the competitive industry as participants. TRA’s experience with such collaborative 271 processes in New York and Texas have been quite favorable. In those states, industry collaborative workshops have resulted in a more thorough, substantive, and conclusive record of Bell Atlantic-New York’s and Southwestern Bell Telephone’s respective compliance with Section 271 and ultimately, in favorable state endorsements. Nevertheless, in both New York and Texas, as well as others states such as California, and more recently Massachusetts, a collaborative process has been initiated only after the regional Bell operating company has submitted an application with the state commission containing evidence of its compliance. TRA is aware of no state which has engaged in a collaborative process, much less initiated a 271 proceeding, without the filing of a complete 271 application by the RBOC which clearly sets forth RBOC evidence that it has complied with the competitive checklist for interLATA market entry. Any proposed process reviewing US West’s §271 compliance must not commence until after US West has filed a formal §271 application with the Commission. The burden of demonstrating compliance with the competitive checklist rests squarely on U S West and is not subject to negotiation, as US West itself has acknowledged. It is with this recognition in mind that the Commission issued its February, 1998 Order, which anticipates discovery and appointment of “a Commission to conduct evidentiary hearings…” No appeals or exceptions were taken to the Commission’s order by US West. For U S West to now request that it should not be required to submit a 271 filing subject to the sound evaluation procedures set forth by the Commission is nothing short of disingenuous. U S West must play its hand first. It must demonstrate how it now complies with the competitive checklist before any collaborative sessions are initiated. US West cannot achieve compliance by trial and error, i.e. by modifying its “compliance” based on the outcome of issue-specific collaborative workshops. The Federal Communications Commission has been clear on this point. Section 271 places on the applicant the burden of proving that all of the requirements for authorization to provide in-region, interLATA services are satisfied. In the Ameritech Michigan Order, the Commission determined that the ultimate burden of proof with respect to factual issues remains at all times with the BOC, even if no party opposes the BOC's application. In the first instance, a BOC must present a prima facie case in its application that all of the requirements of section 271 have been satisfied. Once the applicant has made such a showing, opponents of the BOC's entry must, as a practical matter, produce evidence and arguments necessary to show that the application does not satisfy the requirements of section 271, or risk a ruling in the BOC's favor. Nevertheless, the BOC applicant retains at all times the ultimate burden of proof that its application is sufficient [footnote references to Ameritech Michigan Order paragraphs 43 and 44 in original omitted, footnote to Ameritech Michigan Order supplied]. and In the Ameritech Michigan Order, the Commission also required that an application be complete when filed. The Commission concluded that, when a BOC presents factual evidence and arguments in support of its application for in-region, interLATA entry, such evidence must be clearly described and arguments must be clearly stated in its legal brief with appropriate references to supporting affidavits. The Commission stressed that an applicant may not, at any time during the pendency of its application, supplement its application by submitting new factual evidence that is not directly responsive to arguments raised by parties commenting on its application. This prohibition applies to the submission, on reply, of factual evidence gathered after the initial filing that is not responsive to the oppositions filed. Moreover, under no circumstance is a BOC permitted to counter any arguments made in the comments with new factual evidence post-dating the filing of those comments [footnote references to Ameritech Michigan Order paragraphs 50, 51, 55, and 60 in original omitted, emphasis in original]. RBOC compliance with the Act was not intended to be an iterative process. US West should be ready to demonstrate that it is ready to satisfy the high bar established by the FCC in its recent approval of Bell Atlantic – New York’s 271 application at the time it seeks 271 endorsement from this Board. The Commission’s February 2, 1998 Order appropriately establishes the basis under which US West’s application should be filed in Minnesota. If US West does not believe that the merits of its application will withstand Commission scrutiny, absent a collaborative process, perhaps US West should delay its application until a later date. While collaborative sessions certainly enhance the state 271 compliance evaluation process, they do not replace, nor are they intended to replace, hard RBOC evidence that its operations are in compliance with the competitive checklist. An RBOC’s application serves as the foundation for any 271 evaluation. There are no substitutes. TRA urges the Commission to reject US West’s request accordingly. Alternatively, US West should be required to provide greater specificity in its proposed approach rather than baiting the Commission and industry to test reaction. The Commission should act on an evaluation of US West’s compliance with the competitive checklist only when US West conclusively demonstrates that it has met its obligations under section 271 with hard evidence presented in the form of a formal application, consistent with the guidelines set forth by the Commission. Respectfully submitted, Telecommunications Resellers Association Andrew O. Isar Director – State Affairs 3220 Uddenberg Lane, Suite 4 Gig Harbor, WA 98335 Telephone: 253.851.6700 aisar@harbor-group.com |