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PUBLIC UTILITIES COMMISSION OF THE STATE OF SOUTH DAKOTA In Re: Application for InterLATA Relief of US West Communications, Inc. Pursuant to Section 271 of the TElecommunciations Act of 1996 Docket No. TC-00-011 COMMUNICATIONS’ MOTION FOR ALTERNATIVE PROCEDURE TO MANAGE THE §271 PROCESS The Telecommunications Resellers Association (“TRA”), on behalf of its members, responds to US West Communications, Inc.’s February 8, 2000 (US West”) Motion to Modify Procedures (“Motion”) 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 in its December 16, 1996 Order Requiring Filing, which requires US West to file its Section 271 application with the South Dakota Public Utilities Commission together with “all supporting documentation.” US West in a seeming revelation, has reconsidered its position and now unilaterally concludes that the collaborative process, by itself, is the most effective course for evaluating its compliance with Section 271. US West’s Motion is void of any substantive proposal for conducting its suggested collaborative process. US West merely proclaims that a single Section 271 filing is not the “optimum” method of addressing questions raised by a Section 271 application. Instead, US West proposes two alternatives to a traditional §271 process. Under its first proposal, US West would have the Commission conduct a series of workshops to address each checklist item, either under a state-specific process or via a multi-state collaborative process. Under the second proposal put forth by US West, the company claims the Commission could “take administrative notice of the substantial progress made in ongoing workshops in other states.” Either proposal is made seemingly in lieu of the formal 271 filing and evidentiary hearings before the Commission contemplated in its December, 1996 Order. 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 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. Further, in any state in which a collaborative process has been undertaken, that process has remained state- specific. Although some commonality exists in U S West’s operations support systems (OSS) throughout its operating territory, there are deviations between states given differing procedures, staffs, and capabilities. It would be a dangerous presumption for this or any other commission to believe that a regional view alone is sufficient to determine U S West’s actual compliance in each state. The Act intended that each state would conduct its own section 271 evaluation. Certainly regional OSS testing, such as will be conducted under the auspices of the U S West regional oversight committee, offers certain efficiencies. Yet there can be no substitute for state-specific testing and evaluation. Wholesale acceptance of a regional evaluation is insufficient for this commission to make an informed and accurate assessment of U S West’s actual 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. Nor is TRA aware any state or group of states in which a multi- state collaborative process has been undertaken, in which it is contemplated that state commissions will take administrative notice of checklist compliance in other states, rather than requiring a state-specific evidentiary showing by the RBOC proving compliance with all of the Act’s requirements for in-region interLATA entry. Any proposed process reviewing US West’s §271 compliance must remain state-specific, and 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 December, 1996 Order. This Order, issued over three years ago, suggests the Commission contemplated a formal Section 271 investigation, complete with an evidentiary hearing. No appeals or exceptions were taken to the 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 in its Order 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. U S 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. U S 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 Commission. The December, 1996 Order appropriately establishes the basis under which U S West’s application should be filed in South Dakota. If U S West does not believe that the merits of its application will withstand Commission scrutiny, absent a collaborative process, perhaps U S 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 U S West’s request accordingly. Alternatively, U S 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 U S West’s compliance with the competitive checklist only when U S 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 |