Part II. Public Utility Commission of Texas

Chapter 22. Practice and Procedure

Subchapter Q. Post-Interconnection Agreement Dispute Resolution

16 TAC §§22.322, 22.323, 22.326

The Public Utility Commission of Texas (commission) adopts amendments to §22.322 relating to Definitions and §22.323 relating to Filing of Agreement with no changes to the proposed text as published in the March 5, 1999 Texas Register (24 TexReg 1519), and adopts amendments to §22.326 relating to Formal Dispute Resolution Proceeding with changes to the proposed text as published in the March 5, 1999 Texas Register (24 TexReg 1519). Project Number 17709 is assigned to this proceeding.

The amendment to §22.322 removes the reference to the definitions in Procedural Rules, Subchapter P, §22.302 as these definitions have been moved to §22.2 of this title (relating to Definitions). Section 22.302 has been repealed. The definitions in Procedural Rules, Subchapter Q, remain in this subchapter as subchapter specific definitions. The definitions have also been numbered to comply with the requirements of the Texas Register as adopted in 1998. The amendment to §22.323 clarifies filing procedures for substitution pages to an interconnection agreement. The amendment to §22.326(k) rearranges sentences for clarity, extends the time for the arbitrator to file the written decision from 15 days after the close of the hearing to 15 days after the filing of post-hearing briefs, and requires the arbitrator to notify parties when the arbitrator's decision is final. The extension of time is necessary to allow for sufficient review of the issues.

The Appropriations Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to Government Code, Chapter 2001. Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The commission had invited specific comments regarding the Section 167 requirement, as to whether the reason for adopting these rules continues to exist, in the comments on the proposed amendments. MCI Worldcom, Inc. commented that the rules in Subchapter Q are critical to the development of a competitive telecommunications marketplace in Texas. The commission finds that the reason for adopting these sections continues to exist.

The commission received comments on the proposed amendments from MCI Worldcom, Inc. (MCIW).

MCIW opposes the proposed change to §22.326(g) that extends the time for the hearing to commence to address the complaint from 50 days to 75 days. MCIW states that this change, coupled with the proposed change in §22.326(k) which extends the time for the arbitrator's written decision from 15 days after the close of the hearing to 15 days after the filing of post-hearing briefs, lengthens the process from 65 days to over 100 days. MCIW advises that competitive local exchange carriers (CLECs) cannot wait this long for a decision on an issue that is critical to their operations. MCIW supports the change to subsection (k), acknowledging that the practical reality of issuing a decision 15 days after the conclusion of the hearing is impossible. MCIW recommends shortening the timeframe for the setting of the hearing to 45 days, stating that although this recommended change would lengthen the timeframe to 75 days, this change reflects the current practical application of the rule. MCIW asserts that the availability of the expedited ruling and/or interim ruling processes to provide CLECs avenues for prompt resolution of issues of great importance to CLEC operations misses the mark, as the form of dispute resolution ultimately available to CLECs is not within their control.

The commission recognizes the need to complete proceedings under §22.326 on a timely basis. However, the commission's experience has been that competitors and incumbents alike request extensions, usually agreed to by the parties. Therefore, the commission does not believe it is practical to reduce the time to commence the hearing to 45 days as suggested by MCIW. The commission modifies the proposed amendment to subsection (g) to retain the 50-day timeframe established in the original rule.

The commission makes a correction to proposed §22.326(k)(2). The proposed paragraph contained a reference to Subchapter P, §22.305(r)(4)-(6). There are no paragraphs (4)-(6) in subsection (r). The correct reference is to §22.305(s)(4)-(6).

These amendments are adopted under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon 1998) (PURA) which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; and the federal Telecommunications Act of 1996 which authorizes the commission to engage in negotiation, arbitration, approval, and enforcement of agreements for interconnection, services or network elements.

Cross-Index to Statutes: Public Utility Regulatory Act §14.002 and §14.052.

§22.326.Formal Dispute Resolution Proceeding.

(a)-(f)

(No change.)

(g)

Notice and hearing. Unless §22.327 or §22.328 of this title apply, the arbitrator shall make arrangements for the hearing to address the complaint, which shall commence no later than 50 days after filing of the complaint. The arbitrator shall notify the parties, not less than 15 days before the hearing, of the date, time, and location of the hearing. The hearing shall be transcribed by a court reporter designated by the arbitrator.

(h)-(j)

(No change.)

(k)

Decision.

(1)

The written decision of the arbitrator shall be filed with the commission within 15 days after the filing of post-hearing briefs and shall be mailed by first-class mail to all parties of record in the dispute resolution proceeding. On the same day that the decision is issued, the arbitrator shall notify the parties by facsimile that the decision has been issued. To the extent that the decision involves 9-1-1 issues, the arbitrator shall also notify the Advisory Commission on State Emergency Communications (ACSEC) by facsimile on the same day.

(2)

The decision of the arbitrator shall be based upon the record of the dispute resolution hearing, and shall include a specific ruling on each of the disputed issues presented for resolution by the parties. The arbitrator may provide for later implementation of specific provisions as addressed in the arbitrator's decision. The decision may also contain the items addressed in Subchapter P, §22.305(s)(4)-(6) to the extent deemed necessary by the arbitrator to explain or support the decision.

(3)

Within three business days from the date the arbitrator's decision is issued, any commissioner may place the arbitrator's decision on the agenda for the next available open meeting. If the decision is scheduled for open meeting, then the decision shall be stayed until the commission affirms or modifies the decision.

(4)

If no commissioner places the arbitrator's decision on the open meeting agenda within three business days, the arbitrator's decision is final and effective on the expiration of that third business day. The arbitrator shall notify the parties when the arbitrator's decision is deemed final under this paragraph.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 10, 1999.

TRD-9903435

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Effective date: June 30, 1999

Proposal publication date: March 5, 1999

For further information, please call: (512) 936-7308

16 TAC §22.341

The Public Utility Commission of Texas (commission) adopts an amendment to §22.341 relating to Approval of Amendments to Existing Interconnection Agreements with changes to the proposed text as published in the March 26, 1999 Texas Register (24 TexReg 2122). The amendment delegates to staff the authority to approve uncontested amendments to interconnection agreements through the administrative review process in order to expedite the approval of these amendment applications. This amendment is adopted under Project Number 20531.

The Appropriations Act of 1997, HB 1, Article IX, Section 167 (Section 167) requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to Government Code, Chapter 2001. Such reviews shall include, at a minimum, an assessment by the agency as to whether the reason for adopting or readopting the rule continues to exist. The commission had invited specific comments regarding the Section 167 requirement, as to whether the reason for adopting this rule continues to exist, in the comments on the proposed amendment. No interested persons commented on the Section 167 requirement. The commission finds that the reason for adopting these sections continues to exist.

The commission received comments on the proposed amendment from the Office of Public Utility Counsel (OPC) and Southwestern Bell Telephone Company (SWBT).

OPC is concerned that the proposed amendments to permit administrative approval of uncontested amendments to interconnection agreements through an administrative review process may deny OPC the opportunity to fully protect the interests of its clients. OPC states that the proposed amendment creates a bifurcated process by which the presiding officer alone may review and approve an application without input from interested parties. OPC also requests that the commission clarify that the administrative review process contemplated by this amendment applies only to "uncontested" amendments to interconnection agreements.

All interested persons will have the opportunity to comment on the proposed interconnection agreement amendment, whether it is approved through the administrative review process or the formal review process. Notices of all applications for an amendment to an existing interconnection agreement are published in the Texas Register for comment. Also, notice of all administratively approved applications is filed in the commission's Central Records on the first and fifteenth day of each month. Motions for reconsideration of the administratively approved application may be filed within ten days of the notice filed on the first and fifteenth days. The commission strongly encourages interested persons to file comments prior to administrative approval, so that the presiding officer will have the opportunity to consider the comments in making a decision. The commission modifies subsection (c)(1) to clarify that comments may be filed by interested persons and that only amendments to interconnection agreements that are in compliance with the federal Telecommunications Act of 1996 and uncontested by the parties may be administratively approved.

SWBT submits that §22.341(h)(2) is not clear regarding who has standing to file a motion for reconsideration seeking review of an amendment that is administratively approved or denied and submits that only parties to the amendment may file a motion for reconsideration. SWBT recommends that subsection (h)(2) be modified to state that "Parties to the amendment may file" motions for reconsideration.

The opportunity to file a motion for reconsideration of administrative approval is intended to parallel the public comment process contained in the formal approval process and includes "interested persons" as well as parties. Interested persons who file a motion for reconsideration are not entitled to participate as parties, but may bring to the commission's attention any specific allegations that the agreement, or some portion thereof, is in violation or not consistent with the federal Telecommunications Act of 1996. The commission has added the language "motions for reconsideration filed by non-parties will be considered as comments filed by an interested person" to clarify the process.

SWBT submits that the interim approval provision in §22.341(h)(3) should be removed because (1) the proposed language conflicts with §22.341(d) which permits interim approval only when the parties have agreed to interim approval; (2) the presiding officer will have already denied the application for approval of the amendment (thus necessitating the motion for reconsideration), making interim approval inappropriate; and (3), as drafted, the provision is not clear as to the effective date of such interim approval.

The interim approval in subsection (d) is intended to permit the parties to proceed with the terms of the application for an amended interconnection agreement during the review process. Subsection (h)(3) is intended to clarify that the agreement is approved on an interim basis pending any motions for reconsideration of an application approved under the administrative review process. The interim approval in subsection (h)(3) is intended to allow the parties, if they so choose, to proceed with the terms of the agreement pending commission decision on any motions for reconsideration. The commission adds language to clarify that the effective date of the interim approval is the date the presiding officer issues the notice of approval in an administratively approved amendment to an interconnection agreement.

Proposed subsection (i) (existing §22.341(g)) requires the parties, upon approval of the amendments, to file a complete amended interconnection agreement with the commission's filing clerk, if one has not already been filed, within ten days of the commission's decision. SWBT states that in practice, the commission has ordered parties to file 13 copies of anything relating to interconnection agreements. SWBT submits that in this case, the only purpose for filing the complete amended agreement would be to ensure that a conformed agreement is on file and not for the commission to review the entire agreement again in toto for re-approval. Therefore 13 additional copies of the complete agreement is not necessary.

The commission agrees with SWBT. Subsection (i) has been modified to require three copies of the complete agreement, one file copy, one unbound copy for scanning, and one copy for the Office of Policy Development. The commission has also added language requiring that the complete agreement be clearly marked with the control number assigned to the proceeding and the language "Complete amended interconnection agreement as approved on (insert date)" to assist Central Records in determining that only three copies of this document are required.

This amendment is adopted under the Public Utility Regulatory Act, Texas Utilities Code Annotated §14.002 and §14.052 (Vernon 1998) (PURA) which provides the commission with the authority to make and enforce rules reasonably required in the exercise of its powers and jurisdiction, including rules of practice and procedure; and the federal Telecommunications Act of 1996 which authorizes the commission to engage in negotiations, arbitration, approval, and enforcement of agreements for interconnection, services or network elements.

Cross-Index to Statutes: Public Utility Regulatory Act §14.002 and §14.052.

§22.341.Approval of Amendments to Existing Interconnection Agreements.

(a)-(b)

(No change.)

(c)

Proceeding.

(1)

Administrative review and approval.

(A)

To be considered for administrative review and approval an application shall:

(i)

be uncontested by the parties; and

(ii)

meet the requirements of FTA96 §252.

(B)

The presiding officer may determine that a formal review of the application is appropriate pursuant to paragraph (2) of this subsection.

(C)

At a minimum, the commission will allow interested persons, the Office of Regulatory Affairs, and the Office of Policy Development to file comments pursuant to subsection (e) of this section.

(2)

Formal review. The presiding officer may determine that a formal review is necessary to determine if the negotiated agreement meets the requirements of the FTA96 §252. At a minimum, the commission will allow interested persons and the Office of Regulatory Affairs to file written comments, provided the comments are filed within 25 days of the filing of the application.

(d)

(No change.)

(e)

Comments. An interested person or the Office of Regulatory Affairs may file comments on the amended agreement by filing 13 copies of the comments with the commission's filing clerk and serving a copy of the comments on each party to the agreement within 20 days of the filing of the application. The comments shall include the following information:

(1)-(3)

(No change.)

(f)

(No change.)

(g)

Final Decision.

(1)

Administrative approval. The commission delegates its authority to the presiding officer to administratively approve or deny any interconnection agreement amendments subject to the administrative review process in subsection (c)(1) of this section. The notice of approval or denial shall be issued within 35 days of the filing of the application. If a notice of denial is filed, the notice of denial shall include written findings indicating any deficiencies in the agreement.

(2)

Formal approval. When an amendment to an interconnection agreement is subject to the formal review process in subsection (c)(2) of this section, the commission will issue its final decision on the amendment within 90 days following the filing of the application. The commission's final decision may reject the amendment as submitted, approve the amendment as submitted, or approve the amendment with modifications necessary to establish or enforce compliance with other requirements of state law. If the commission rejects the amendment, the final decision will include written findings indicating any deficiencies in the amendment.

(h)

Rehearing regarding administratively approved amendments to existing interconnection agreements.

(1)

On the first and fifteenth day of each month the presiding officer shall file a monthly status report, in a project created for that purpose, listing all of the amendments to existing interconnection agreements administratively approved since the previous report.

(2)

Motions for reconsideration seeking commission review of any amendment in a status report shall be filed within ten days of the filing of that report. All motions for reconsideration shall state any claimed error with specificity. Motions for reconsideration filed by non-parties will be considered as comments filed by an interested person.

(3)

Upon the filing of a motion for reconsideration, the Office of Policy Development shall send separate ballots to each commissioner to determine whether the docket should be placed on an open meeting agenda. If a majority of commissioners ballot to reconsider the motion within five days of its filing, the amendment shall be considered at the next open meeting for which notice of the docket may properly be made. The administratively approved agreement shall be considered approved on an interim basis from the date the presiding officer filed the notice of approval until the time to file motions for reconsideration has expired, or if a motion for reconsideration is filed, until considered at open meeting.

(i)

Filing of agreement. If the commission approves the amendments to the agreement, the parties to the agreement shall file three copies, one unbound, of the complete amended interconnection agreement with the commission's filing clerk, if one has not already been filed, within ten days of the commission's decision. The copies shall be clearly marked with the control number assigned to the proceeding and the language "Complete amended interconnection agreement as approved on (insert date)."

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 10, 1999.

TRD-9903434

Rhonda Dempsey

Rules Coordinator

Public Utility Commission of Texas

Effective date: June 30, 1999

Proposal publication date: March 26, 1999

For further information, please call: (512) 936-7308