ORDER NO. 97-307

ENTERED AUG 15 1997

This is an electronic copy

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UM 773

DISPOSITION: Application for Reconsideration Denied

On June 16, 1997, US WEST Communications, Inc., (USWC) filed an application for reconsideration of Order Nos. 97-190 and 97-145. AT&T of the Pacific Northwest (AT&T) and MCI Telecommunications Corporation (MCI) filed a joint response opposing the application. PUC Staff also filed a response opposing the application.

BACKGROUND

Order No. 97-145, issued April 16, 1997, adopted cost studies filed by USWC in accordance with a Stipulation approved by the Commission in Order No. 96-284 (UM 773). During a review and audit process following the issuance of Order No.96-284, Staff and USWC had agreed to the adoption of cost studies submitted by USWC except as they pertain to Paragraph 16 of the Stipulation. Staff modified the portion of USWC cost studies pertaining to Paragraph 16 to conform it to Staff’s interpretation of the paragraph and presented the studies as modified to the Commission for adoption. USWC disagreed with Staff’s modification. The Commission considered the matter at its public meeting on April 1, 1997. It reviewed a report submitted by Staff explaining Staff’s position on Paragraph 16. USWC stated its position on the interpretation of that Paragraph, and presented argument by an expert. The Commission adopted Staff’s view of Paragraph 16 and accepted the cost studies as modified by Staff.

Order No. 97-190, issued May 29, 1997, denied a request by USWC for a "hearing" on the matter of the interpretation of Paragraph 16.

The Application for Reconsideration

USWC’s requests for relief may be summarized as follows:

(1) USWC asks that the Commission reconsider its conclusions in Order No. 97-145 to adopt the cost studies presented by Staff. USWC argues that the approved costs do not conform to the Stipulation in Order No. 96-284 or to the UM 351 cost principles.

(2) USWC asks that the Commission allow the parties to the Stipulation (Staff and USWC) to reform the Stipulation to insure its consistency to the UM 351 cost principles.

(3) USWC requests that the Commission reconsider its decision in Order No. 97-190 denying USWC’s request for a hearing to contest the Commission’s "findings" approving the cost studies.

(4) USWC requests that the Commission extend the effective date for compliance with Order No. 97-190.

The Interpretation on Paragraph 16. USWC asserts that the Commission’s conclusion in Order No. 97-145 regarding Paragraph 16 of the Stipulation is wrong. It claims, first, that this interpretation is "wholly inconsistent with the understanding originally reached between Staff and the Company when the Stipulation was agreed upon." It cites nothing in the record from UM 773, however, to support its claim regarding some "original" agreement. Instead, USWC discusses the procedure that was followed by the parties to review the cost studies submitted by USWC in compliance with Order No. 96-284. It cites alleged changes in position by Staff during that review process and supposed inconsistencies in the positions of other parties involved in that process. It also makes claims that some of the "circumstances" involved in that review process were irregular and perhaps improper.

In both Order Nos. 97-145 and 97-190 we discussed our conclusions regarding Paragraph 16 and how we arrived at those conclusions. We will not restate that discussion. We will simply repeat that we conclude that the interpretation recommended to us by Staff and adopted by us is correct. We are not concerned with the discussions and negotiations that occurred during the review and audit process. It is our conclusion which is in question here, not Staff’s conclusion or the positions taken by other parties in the proceeding. USWC offered nothing of a substantive nature to convince us that our conclusion is wrong. Its allegation of possible improprieties involving contact between our Staff and a former employee is of no consequence. It is our decision that is in question and we believe that decision is correct.

USWC argues that it should be allowed to use the provisions of Paragraph 17 of the Stipulation to prove its contentions regarding Paragraph 16. As Staff points out in its response, however, the provisions of Paragraph 17 do not override or modify the provisions of Paragragh 16. The agreement set out in Paragraph 16 as to the use of feeder fill factors as a surrogate for distribution and drop fill is the controlling provision. Staff notes that providing costs in the Paragraph 17 format "would have had no effect on the parties’ fundamental point of contention—the level of NAC costs." USWC’s argument on this issue is not persuasive.

Request for Hearing. USWC asks us to reconsider our decision in Order No. 97-190 to deny its request for a hearing on the interpretation of Paragraph 16 and the adoption of the cost studies. We considered that request at considerable length in Order No. 97-190. We cited the extensive process which led up to the adoption of the cost studies. We will not repeat that discussion here. We agree with Staff and MCI/AT&T that the filing of the cost studies was a compliance filing and that the cost study review process provided by the Stipulation does not require an evidentiary hearing. In any event, USWC has been afforded an opportunity to present its arguments to the Commission in writing and at the public meeting of April 1, 1997. Nothing in USWC’s subsequent filings suggest that any relevant evidence or argument has not been presented to the Commission. USWC’s claim that it must have an opportunity to "confront and rebut the entire opposing case" is unconvincing. It has had a chance to do so and has availed itself of that opportunity. In any event, the decision involved is the Commission’s decision, not that of Staff or any of the other parties to this case. We believe that we are well apprised of all USWC’s bases for "confronting and rebutting" our position. We affirm our decision to deny the hearing request.

Request for Extension for Time to Comply with Order No. 97-190. USWC does not amplify this request. We find no deadlines or time schedules set out in Order No. 97-190, which denied USWC’s request for further hearing on Paragraph 16. We do not know what USWC means by its request for an extension of time and we will therefore deny it.

OPINION

Our standard for reconsideration is set out in OAR 860-014-0095(3). That rule sets out the grounds for reconsideration or rehearing as follows:

(a) New evidence which is essential to the decision in which is unavailable and not reasonably discoverable prior to issuance of the order;

(b) A change in the law or agency policy since the date the order was issued, relating to a matter essential to the decision;

(c) An error of fact or law in the order which is essential to the decision; or

(d) Good cause for further examination in the matter essential to the decision.

USWC’s application for reconsideration has not satisfied any of these criteria. There is no basis for granting reconsideration or rehearing.

CONCLUSION

USWC has not established any basis for reconsideration or rehearing and the application should be denied.

ORDER

The application for reconsideration filed by USWC is denied.

Made, entered, and effective_____________________________.

A party may appeal this order pursuant to ORS 756.580.