See Ex. The e-mail notice will include a link to the applicant’s Background Check Report and a copy of the criminal record information that the applicant self-disclosed at the time he or she applied. MSG will send a follow-up, reminder e-mail to all applicants four (4) days later which will provide a second link to the applicant’s Background Check Report and a copy of the criminal record information that the applicant self-disclosed at the time he or she applied. In determining whether an applicant who did not fully and accurately disclose his or her criminal conviction history will be offered employment, MSG will consider whether the applicant provides MSG with information to MSG’s satisfaction that the applicant did not intentionally misrepresent his or her criminal conviction history. In such review, MSG will consider, among other factors, the extent to which the applicant demonstrates with credible explanation, that the applicant was confused about the applicant’s criminal conviction history and/or that the applicant made a good faith effort to fully and accurately disclose such history. For example, MSG will consider as an important factor that the applicant disclosed his or her most serious criminal conviction(s).
See Ex. SPP-1 (highlighted pages of non-conforming terms and conditions in the AEP Agreement).
See Ex. E at DEF000212-13, DEF000234-236 (Declaration of Xxxxxxx X. Xxxxxxxx, CPA, CVA, Oct. 30, 2020 (“Metcalfe Declaration”) ¶¶ 18-22, Ex. E-1, Ex. E-2).
9. DEF admits that the Commission revised its ILEC complaint rule in 2018 to create two rebuttable presumptions applicable to “pole attachment contracts entered into or renewed after [March 11, 2019]”: (1) that an ILEC is similarly situated to a CATV and non-ILEC telecom carrier; and (2) that an ILEC may be charged a rate no higher than a rate determined in accordance with the Commission’s telecom rate formula.13 DEF denies that its joint use agreement with AT&T is either a “pole attachment contract” or that it was “entered into or renewed after [March 11, 2019].” The joint use agreement has an effective date of June 1, 1969. The most recent amendment to the agreement (which adopted the cost-sharing provisions currently in-place) had an effective date of January 2, 1990. Neither party has terminated the agreement, and neither party requested renegotiation of the cost sharing provisions in the 1990 Amendment at any time prior to May 22, 2019. DEF denies any remaining allegations in the first sentence of paragraph 9. With respect to the second sentence in paragraph 9, DEF denies that it “offered no valid basis to rebut that presumption, only positing a handful of possible and undocumented competitive advantages that do not in fact exist.” In two separate face-to-face meetings between representatives of the parties, DEF offered numerous valid reasons to retain the existing cost- sharing relationship, including but not limited to, the three specific reasons set forth in paragraph 8 above.14 They are not “possible” competitive advantages—they are actual, quantifiable competitive advantages. Though DEF had not, at the time of those face-to-face meetings, endeavored to perform any kind of precise economic quantification of those competitive advantages, it made clear to AT&T that it would do so if the parties were unable to reach an 13 47 C.F.R. § 1.1413(b). 14 See Ex. B at DEF000153-54 (Xxxxxxx Declaration ¶ 9). amicable resolution.15 AT&T appears to be creating a construct that would justify its refusal to negotiate unless and until an electric utility presents its entire “case in chief” before a complaint is even filed. Good faith negotiation demands more. Good faith negotiation demands a level of vision and intellectual honesty that allows both parties an opportunity to achieve an efficient resolution of a dispute....
See Ex. Liberty Utilities-1, at 4-1:1–4-8:13. 10
See Ex. DPU-Gas 2-1. They dismiss the New York ConEd gas demand response pilot based on its pilot status, without discussing any reasons why it would not make sense to run a parallel Massachusetts pilot. Id. The gas PAs also dismiss the concept of interruptible service tariffs as unworkable because an interruptible gas tariff is typically backed up by delivered fuels on the customer’s end. Id. However, they make no mention of even having considered a demonstration that makes use of air source heat pumps installed cost effectively for cooling purposes, see Ex. DPU-Comm 5-7, as the backup heating technology and replacement of gas- powered appliances with electric. The gas PAs already acknowledge the potential for gas savings associated with heat pump installations intended primarily for cooling for their customers. Ex. DPU-Comm 2-5 (“In the event that a gas heat customer installs heat pump technologies that reduce natural gas usage, the Program Administrators may offer incrementally higher incentive levels based upon gas savings.”).
See Ex. SPP-1 (highlighted pages of non-conforming terms and conditions in the Western Farmers Agreement).
See Ex. A at DEF000128 (Declaration of Xxxxxxx Xxxxx Xxxxxxxx, Oct. 30, 2020 (“Xxxxxxxx Declaration”) ¶ 4). 2 See id. such right exists with respect to existing joint use poles. The agreement only allows for termination with respect to future jointly used poles.3 For this reason, there is no such thing as a “renewal” with respect to existing joint use poles, because neither party has a corresponding right of termination with respect to existing joint use poles.4 DEF further admits that the parties share approximately 67,500 jointly used poles, with DEF owning approximately 62,300 and AT&T owning approximately 5,200. DEF denies any remaining allegations in paragraph 3.
See Ex. 3 at DEF000266 (1990 Amendment, Section 10.4(b)); see also Ex. A at DEF000129-30 (Xxxxxxxx Declaration at ¶ 7).
See Ex. A at DEF000130 (Xxxxxxxx Declaration ¶ 8). 31 See id. at DEF000132 (Xxxxxxxx Declaration ¶ 12).
See Ex. E at DEF000234 (Metcalfe Declaration, Ex. E-1). incumbent local exchange carrier over other telecommunications carriers or cable television systems...” The evidence submitted by DEF herewith satisfies this burden.38 Moreover, since it first asserted jurisdiction over the rates, terms and conditions for ILEC attachments on electric utility poles, the Commission has consistently found that the joint use agreement at issue provided net benefits to the ILEC complainant.39
14. DEF denies the allegations in the first sentence of paragraph 14. AT&T cites the 2011 Order for the proposition that “the electric utility must weigh and account for all of the different rights and responsibilities placed on the ILEC as compared to its competitors” (emphasis in original) and specifically quotes paragraph 216 n.654 of the 2011 Order as follows: “A failure to weigh, and account for, the different rights and responsibilities in joint use agreement[s] could lead to marketplace distortions.” DEF completely agrees that “[a] failure to weigh, and account for, the different rights and responsibilities in joint use agreement[s] could lead to marketplace distortions.” The Commission’s point in this statement, which immediately followed a lengthy 38 AT&T’s complaint glosses over the fact that the new presumptions and new burden of proof apply only with respect to AT&T’s claim for post-March 11, 2019 relief. No such presumptions exist for the period prior to March 11, 2019, and the burden of proof for that period lies with AT&T. See 47 C.F.R. § 1.1424 (2011) (“In complaint proceedings where an incumbent local exchange carrier (or an association of incumbent local exchange carriers) claims that it is similarly situated to an attacher that is a telecommunications carrier (as defined in 47 U.S.C. 251(a)(5)) or a cable television system for purposes of obtaining comparable rates, terms or conditions, the incumbent local exchange carrier shall bear the burden of demonstrating that it is similarly situated by reference to any relevant evidence, including pole attachment agreements.”) (emphasis added).
