ORDER NO. 97-448

ENTERED NOV 20 1997

This is an electronic copy.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

ARB 38

DISPOSITION: AGREEMENT APPROVED

On September 9, 1997, U. S. Long Distance, Inc., (USLD) and U S WEST Communications, Inc., (U S WEST) filed a Negotiated Interconnection and Service Resale Agreement with the Commission. The parties seek approval of the agreement under Section 252(e)(2) of the Telecommunications Act of 1996.

Under the Act, the Commission must approve or reject an agreement reached through voluntary negotiation within 90 days of filing. The Commission may reject an agreement only if it finds that:

the agreement (or portion thereof) discriminates against a telecommunications carrier not a party to the agreement; or

the implementation of such agreement or portion is not consistent with the public interest, convenience, and necessity.

The Commission provided notice of the request for approval and an opportunity to comment to a list of persons who have participated in arbitration proceedings under the Act. United Communications, Inc., (UNICOM) and the Commission Staff filed comments.

Based on a review of the negotiated agreement and the parties’ comments, the Commission enters the following:

FINDINGS AND OPINION

Positions of the Parties

UNICOM opposes Commission approval of the negotiated agreement for two reasons. First, UNICOM contends that USLD is not providing "equal access" in violation of Section 251(b) of the Act and numerous Commission orders. UNICOM cites USLD’s policy regarding the resale of U S WEST’s Centrex Plus service—one that requires a purchaser of the service to also subscribe to the company’s long distance service.

Second, UNICOM notes that USLD has recently entered into an agreement to be purchased by LCI International (LCI). UNICOM is concerned with LCI’s ability to obtain authority to provide local exchange services in Oregon, because LCI recently received a fine by the Federal Communications Commission (FCC) for slamming. UNICOM does not believe that it would be in the public interest for this Commission to grant LCI competitive carrier status, by virtue of their purchase of USLD, without having to submit themselves to Commission scrutiny through the application process.

Staff contends that the Commission should approve the negotiated agreement. After its review, Staff concludes that the agreement does not appear to discriminate against telecommunications carriers who are not parties to the agreement and does not appear to be inconsistent with the public interest, convenience, and necessity.

Staff adds that the concerns raised by UNICOM are not specific criticisms of the agreement between USLD and U S WEST, but rather concerns about purported wrongdoing by USLD. Staff contends that such issues should be raised in a complaint proceeding. Staff further states that it has not conducted a thorough review of UNICOM’s "equal access" allegations, and consequently, has no comment on that issue at this time.

Resolution

The Commission has reviewed the agreement and the comments. We conclude that there is no basis under the Act to reject the agreement. We agree with Staff that the issues raised by UNICOM do not concern the agreement, but rather the conduct of one party to the agreement. If UNICOM believes that USLD is violating Commission orders and the Telecommunications Act of 1996, UNICOM may pursue those concerns by filing a complaint.

Furthermore, the issue raised by UNICOM regarding the purchase of USLD is beyond the scope of this docket. The sole purpose of this proceeding is to determine whether the negotiated agreement submitted by USLD and U S WEST should be approved under Section 252(e)(2) of the 1996 Act. The certification of a carrier to provide local exchange service is determined in a CP docket initiated under ORS 759.020 and 759.050.

CONCLUSIONS

There is no basis for finding that the agreement discriminates against any telecommunications carrier not a party to the agreement.

There is no basis for finding that implementation of the agreement is not consistent with the public interest, convenience, and necessity.

The agreement should be approved.

ORDER

IT IS ORDERED that the agreement between U. S. Long Distance, Inc., and U S WEST Communications, Inc., is approved.

Made, entered, and effective ________________________.

A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A request for rehearing or reconsideration must be filed with the Commission within 60 days of the date of service of this order. The request must comply with the requirements in OAR 860-014-0095. A copy of any such request must also be served on each party to the proceeding as provided by OAR 860-013-0070(2). A party may appeal this order to a court pursuant to applicable law.

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