ORDER NO. 97-123

ENTERED APR 03 1997

This is an electronic copy.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

ARB 8

DISPOSITION: ADDITIONAL ISSUES RESOLVED

On September 6, 1996, Western Wireless Corporation, dba VoiceStream (WW), filed a petition with the Public Utility Commission of Oregon (Commission) to arbitrate a contract for network interconnection with GTE Northwest Incorporated (GTE). The petition was filed pursuant to 47 U.S.C. §§ 251 and 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996 (Act). On October 1, 1996, GTE filed a response. On December 30, 1996, Lowell Bergen, an Administrative Law Judge and Arbitrator for the Commission, issued his decision on the issues properly raised by the parties. On January 24, 1997, the Commission issued Order No. 97-034 adopting the Arbitrator’s decision.

On February 26, 1997, WW filed a proposed interconnection agreement pursuant to the terms of the Commission’s decision. However, the proposed interconnection agreement was not executed because the parties did not agree on two issues that arose during the writing of the interconnection agreement. The proposed interconnection agreement contains alternative language recommended by each party on the disputed issues. The parties ask the Commission to resolve the conflict on the two issues by selecting the appropriate alternative language. WW submitted written argument in favor of its position with the proposed interconnection agreement. GTE filed a responsive argument on March 14, 1997.

The Act does not include a procedure for resolution by the Commission of issues raised after an arbitration hearing has been held and a Commission order issued. However, the Commission will consider the request to resolve the two issues to be in the nature of an application for reconsideration under ORS 756.561, and help the parties execute an interconnection agreement by issuing this order resolving the two disputed issues.

EFFECTIVE DATE OF AGREEMENT

WW and GTE disagree as to when the interconnection agreement should become effective. WW contends that it should become effective immediately upon approval by the Commission. GTE contends that it should become effective five business days after it receives written notice of approval by the Commission.

WW points out that in all of its interconnection agreements with U S WEST, the effective date is the date the agreement is approved by the state commission. GTE argues that the agreement should not become effective until it has a reasonable amount of time to notify its employees to accommodate the terms of the new agreement.

The Commission elects to make the interconnection agreement effective a few days after the Commission signs the order approving the agreement. This will give the parties time to notify their employees and make the necessary changes to their equipment and records. However, rather than choose a date that does not appear in the record (the date the parties receive notification of the order’s issuance), the effective date will be five business days after the order is signed by the Commission. Section 25.1 of the proposed interconnection agreement shall read as follows: "This agreement shall become effective five business days after approval by the Commission."

LOCAL TRAFFIC FACTOR

The second issue the parties ask the Commission to resolve relates to non-local traffic transported between WW and GTE. It is expected that not all traffic transported between the parties will be local calls. The dispute centers on how to account for mobile-to-land and land-to-mobile non-local calls. GTE proposes that a factor of five percent non-local traffic in each direction be used. WW contends that no non-local traffic factor should be used, and states that it will report any non-local traffic it transports to GTE.

As a preliminary matter, the Commission notes that this issue was not raised in the petition for arbitration nor in the response to the petition. The Commission normally would decline to resolve an issue not raised in the petition or response. However, in this proceeding, the parties agreed to submit the issue for Commission resolution, in effect waiving any argument that the Commission is going beyond the authority granted to it by Section 252(4) of the Act. In addition, this dispute is a relatively minor part of a contract on which the parties have reached substantial agreement; the Commission can expeditiously resolve the minor dispute and bring the arbitration to conclusion.

GTE does not have the capability to track non-local land-to-mobile calls. It is not clear that WW has the capability to track non-local mobile-to-land calls, either. WW and other wireless carriers have not had to track and record such calls in the past. The Commission deems it best to use an administrative factor at this time. The parties are encouraged to work out a system that identifies and records non-local calls, so they can use a system utilizing actual data. In the meantime, the Commission adopts the percentage of local traffic language proposed by GTE in the interconnection agreement.

ORDER

IT IS ORDERED that the two disputed issues presented by the parties are resolved as stated above.

Made, entered, and effective ________________________. 

A party may appeal this order to a court pursuant to applicable law.