ORDER NO. 99-334

ENTERED May 18 1999

This is an electronic copy. Appendices and footnotes may not appear.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

ARB 106

DISPOSITION: PETITION FOR RECONSIDERATION DENIED

On April 9, 1999, ECI Communications, Inc. (ECI) filed a petition for reconsideration. ECI asks us to set aside our Order No. 99-107 approving the voluntary interconnection agreement between ECI and U S WEST Communications, Inc. (USWC). ECI also asks us to issue a new order requiring an interconnection agreement in the form of the Commission approved interconnection agreement between USWC and GST, which provides for reciprocal compensation from USWC for internet service provider (ISP) calls.

In its petition, ECI details the history of its negotiations with USWC and explains that it had requested a different base contract than the one USWC sent it, which it signed and submitted to the Commission for approval. ECI did not read the contract it signed. After the contract was signed and approved, ECI discovered that the contract did not contain a clause providing for reciprocal compensation from USWC for ISP calls.

ECI alleges bad faith negotiations against USWC. ECI also makes policy arguments in favor of the Commission revisiting and revising the contract and asserts that because there was no meeting of minds, no contract came into being.

Since this is a petition for reconsideration, we may grant reconsideration only under certain circumstances, set out in OAR 860-014-0095(3):

The Commission may grant an application for rehearing or reconsideration if the applicant shows that there is:
(a) New evidence which is essential to the decision and which was unavailable and not reasonably discoverable before 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 law or fact in the order which is essential to the decision; or
(d) Good cause for further examination of a matter essential to the decision.

Petitioner here asserts that the omission of the provision for reciprocal compensation for ISP calls is an error of fact.

The lack of a reciprocal compensation provision is not an error of fact under our rule, as ECI claims. The error of fact under (c) above must be an error in the order, as the rule explicitly states. The order, however, merely approves the interconnection agreement. The Commission’s charge in approving voluntary interconnection agreements is extremely limited. Under the Telecommunications Act of 1996 (the Act), 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 Act, Section 252(e)(2).

In Order No. 99-107, the Commission recited that the agreement between ECI and USWC had been filed; recited its mandate under the Act; stated that it had provided requisite notice of the agreement and an opportunity to comment; and recited Commission Staff’s conclusion 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. The order concluded that there is no basis for rejecting the agreement, and determined that the agreement should be approved.

As is clear from the above, it is not the Commission’s role with respect to voluntary interconnection agreements to inquire into matters not contained in the contract. From the Commission’s limited role in approving voluntary agreements, it follows that parties submitting their contract for Commission approval have the responsibility to see that what is submitted reflects their agreement. The Commission merely satisfies itself that the contract meets the criteria set out in the Act. If the contract meets those criteria, the Commission must approve it

The text of Order No. 99-107, therefore, contains no error of fact. The error to which petitioner refers is not part of the order and could not be, since it was an error of omission in the submitted contract. The rule explicitly states that the error of fact must be in the order. That is not the case here.

ECI has not set out grounds on which reconsideration may be granted. Consequently, its petition for reconsideration is denied. This order makes the motion to strike ECI's response to USWC’s answer moot.

IT IS ORDERED that the petition for reconsideration filed by ECI Communications, Inc., is denied.

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.