STAFF’S POSITION. Staff reviewed the Agreement based on the standards set forth in Section 252(e)(2) of the Act. Under this Section, the Commission may only reject an agreement, or any portion thereof, adopted by negotiation under subsection (a) if it finds that (i) the agreement, or any portion thereof, discriminates against a telecommunications carrier not a party to the agreement; or (ii) the implementation of such agreement, or a portion thereof, is not consistent with the public interest, convenience and necessity. Since this Agreement is based solely on the needs and interest of these parties, nothing in this agreement leads me to the conclusion that the agreement is inequitable, inconsistent with past Commission Orders, or in violation of state or federal law. Xx. Xxxxxxx recommends that the Commission approve this agreement. In addition, Staff recommends that the Commission require SBC Illinois to file, within five (5) days from the date upon which the Agreement is approved, with the Office of the Chief Clerk, a verified statement that the approved agreement is the same as the one as the Agreement filed in this docket with the Verified Petition. Staff also recommends that the Chief Clerk place the agreement on the Commission's web site under Interconnection Agreements. Staff's recommendations are reasonable and should be adopted.
STAFF’S POSITION. Section 21.1 of the Agreement’s General Terms and Conditions (“Intervening Law” provision) provides that Ameritech does not waive its legal rights, etc., vis-à-vis various court and FCC decisions. Staff states that the Intervening Law provision differs from Section 21.1 of the earlier version of the Ameritech standard negotiated agreement in that the earlier version contained the following additional sentence: The parties further acknowledge and agree that by executing this agreement, neither Party waives any of its rights, remedies or arguments with respect to such decisions or proceedings or any remands thereof, including its right to seek legal review or a stay pending appeal of such decisions and its rights under this Intervening Law paragraph. Staff is concerned that the absence of this sentence in the Agreement at issue here implies that Royal is waiving its rights relative to the court and FCC decisions because an express reservation of said rights was not included. During the course of discovery, Staff reports that Xxxxxxxxx refused to answer Staff’s Data Request related to this provision, although its argument implies that there is no such waiver. Staff fears that Ameritech might change its mind in the future and argue that the CLEC is waiving its legal rights vis-à-vis intervening law changes. Because the boilerplate contract language is likely – indeed, virtually certain – to repeatedly appear in future negotiated agreements, Staff insists that the issue of waiver under Section 21.1 should be formally and officially resolved in this proceeding. Staff contends that the public interest is not served if, subsequently, a dispute arises concerning the CLEC’s waiver of rights under this standard provision of Ameritech’s negotiated agreements. Likewise, Staff continues, the public interest is not served if the Commission and its Staff have to inquire into this issue in every Ameritech negotiated agreement wherein the language appears. Staff recommends that the Commission rule that the absence of the mention of the reservation of legal rights of the CLEC under Section 21.1 of this Agreement does not constitute waiver of rights by the CLEC.
STAFF’S POSITION. Staff reviewed the Amendment in this docket in the context of the Amendments contained in the dockets cited above and in the context of the criteria contained in Section 252(e)(2)(A) of the Act. Under this Section, the Commission may reject an agreement, or any portion thereof, adopted by negotiation under Subsection (a) only if it finds that (i) the agreement, or a portion thereof, discriminates against a telecommunications carrier not a party to the agreement; or (ii) the implementation of such an agreement, or a portion thereof, is not consistent with the public interest, convenience and necessity. In the Verified Statements cited in Staff’s Motion, Staff stated that the Amendments meet the standards set forth in the Telecommunications Act of 1996 since they do not discriminate against telecommunications carriers not party to the Amendments, and they are consistent with the public interest, convenience and necessity. Staff represented that the Amendment in this docket is substantially the same as the Amendments in the dockets cited above and recommended the Commission approve the Amendment in this case for the same reasons. Staff recommended in the Verified Statements that in order to ensure that the Amendment is in the public interest, SBC Illinois should implement the Amendment by filing, within five (5) days of approval by the Commission, a verified statement with the Chief Clerk of the Commission that the approved Amendment is the same as the Amendment filed in this docket with the verified petition. Staff further recommended that that the Chief Clerk place the Amendments on the Commission’s web site under “Interconnection Agreements.” These recommendations are reasonable and should be adopted in this proceeding.
STAFF’S POSITION. Staff reviewed the agreement based on the standards set forth in Section 252(e)(2) of the Act. Under this section, the Commission may only reject an agreement, or any portion thereof, adopted by negotiation under subsection (a) if it finds that (i) the agreement, or a portion thereof, discriminates against a Telecommunications carrier not a party to the agreement; or (ii) the implementation of such agreement, or a portion thereof, is not consistent with the public interest, convenience and necessity. Staff recommended that the Agreement be approved by the Commission, for the reasons set forth in the Verified Statement of Xx. Xxxxxxx. Xx. Xxxxxxx stated that the Agreement meets the standards set forth in the Act and is consistent with the public interest. Staff concluded that the Agreement does not discriminate against a Telecommunications carrier that is not a party to the Agreement and that the implementation of the Agreement would not be inconsistent with public interest, convenience or necessity. There are no contested issues in this docket. No party contended that this Agreement is discriminatory or contrary to the public interest. Staff recommends that the Commission require Ameritech to, within five days of the date upon which the Agreement is approved, modify its tariffs to reference the Negotiated Agreement. Staff states that this requirement is consistent with the Commission's orders in previous negotiated agreement dockets and it allows interested parties access to the Agreement. Staff recommends that such reference be included in the following section of Ameritech's tariffs: Agreements with Telecommunications Carriers (I.C.C. No. 21, Section 19.15). In addition, Staff recommends that the Commission require Ameritech to file a copy of the approved Agreement within five (5) days from the date upon which the Agreement is approved, with the Office of the Chief Clerk, in a separate binder. Staff's recommendations regarding implementation of the Agreement are reasonable and should be adopted.
STAFF’S POSITION. Staff contends that the 11-State Plan is against the public interest because it does not provide for Tier 2 payments to be made to the State. Staff’s concern is not alleviated by Ameritech’s statement that even for CLECs under the 11-State Plan, Ameritech would still continue to make Tier 2 payments to the state because the Remedy Plan Order requires Ameritech to make payments for all CLECs doing business in Illinois. Under that premise, Staff claims that Petitioners are required to operate under the various provisions of the Illinois Remedy Plan unless they specifically agree to the provision(s) of another remedy plan. Staff also maintains that the 11-State Plan is ambiguous with regard to its relationship with state law. Ameritech’s description of how the 11-State Plan would operate is of little value, Staff suggests, since it does not find applicable in this situation the well settled principle that a court can cure defective draftsmanship in an action for damages by supplying missing words through extrinsic evidence. Staff claims that such an action would be a material change in the contract and would allow the Agreement to effectively execute an “end run” around what the Commission intended to be put in place in Illinois. Moreover, Staff contends that Ameritech’s explanation of the 11-State Plan’s operation is in conflict with Section 2.1 of the 11-State Plan. Section 2.1, Staff argues, prohibits Ameritech from interpreting the Agreement in exactly the manner that Ameritech does so. Section 2.1 of the 11-State Plan, according to Staff, states that the payments under this plan “shall be the sole and exclusive remedy of CLEC” and shall be in lieu of any other damages CLEC might otherwise seek. Staff finds this language contradictory to what the Commission has approved in the Illinois Remedy Plan since Staff believes that it would preclude any Tier 2 payments.
STAFF’S POSITION. Staff said in its Verified Statement that it was unable to offer an opinion regarding the rates, terms, and conditions of the LWC Agreement because it had not been submitted to the Commission for approval. Staff added that they did not know the extent to which, if at all, the LWC Agreement and the Amendment were interrelated, and therefore could not form an opinion as to whether the Amendment is discriminatory or contrary to the public interest under Section 252(e)(2). Staff noted that the Federal Communications Commission (“FCC”) has encouraged commercial negotiations of the type manifested by the LWC Agreement in this docket. It explained that the FCC considers it desirable to end eight years of litigation regarding the implementation of Sections 251 and 252; the FCC also considers it important to return certainty to the wholesale telecommunications market; it recognizes that disruptions in the wholesale market would similarly disrupt the retail market; and the 60 days authorized by the USTA II1 decision for the FCC to develop new rules is inadequate. Staff concluded that, since the requisite findings necessary for approval of the Amendment cannot be based upon the filing, the proper course would be for the Commission to decline to act and allow the Amendment to go into effect 90 days after filing, pursuant to Section 252(e)(4). It explained that the Commission would not be required to make findings of fact or conclusions of law regarding the LWC Agreement, nor would it have to offer an opinion whether the LWC Agreement complies with applicable federal or state law. Moreover, the Commission would be able to take such investigative or enforcement measures as it determines are warranted, as the law requires, or as public interest demands, in the event that Joint Petitioners’ failure to seek approval of the LWC Agreement violates state or federal law.
STAFF’S POSITION. Staff asserts that a petitioner in an administrative proceeding has the burden of proof, and relief will be denied if he fails to sustain that burden. (Hamwi x. Xxxxxx, 299 Ill. App. 3d 1088, 1092-93; 702 N.E.2d 593; 234 Ill. Dec. 253 (1st Dist. 1998)) Indeed, Staff continues, the Illinois Supreme Court has gone so far as to state, “courts have uniformly imposed on administrative agencies the customary common-law rule that the moving party has the burden of proof.” (Xxxxx x. Xxxx. of Commerce and Community Affairs, 84 Ill. 2d 42, 53; 416 N.E.2d 1082 (1981)) Staff maintains that this is entirely consistent with Commission practice. In Commission proceedings, Xxxxx argues that parties seeking relief must demonstrate that they are entitled to the relief sought. (See Chicago and Eastern Illinois Ry. Co. v.
STAFF’S POSITION. Staff explains that a remedy plan is intended to provide incentives to incumbent carriers like Ameritech to provide a sufficient level of service to the public. In a remedy plan, that level of service is ensured through the potential liability at risk (i.e. potential payments it would make under a remedy plan for providing service in breach of a performance measure standard). Staff states that the public interest is protected by the potential liability inherent in a remedy plan,6 not the actual performance Ameritech provides under the current remedy plans. Just because Ameritech may be meeting more than 90% of its performance measure standards does not, according to Staff, mean that the remedy plans are providing sufficient incentive. Staff notes that Ameritech is currently making changes to its OSS to improve its wholesale service performance so as to gain long distance approval in all five Ameritech states. This approval requires Ameritech to demonstrate to the state commission that its wholesale service is adequate, which Staff states is directly linked to the improvements shown in Table 1 in Xx. Xxx’x testimony. Staff, however, finds Table 1 misleading because it is the continued future performance that a remedy plan is intended to ensure, and not the current performance that is reflected in the table. Future performance, Staff points out, is motivated by potential liability. Common sense dictates, Staff opines, that if the potential liability increases, the motivation increases for Ameritech to make changes to continue to comply with the performance measures in the future. If a remedy plan places at risk a potential liability that is less than what the Commission had ordered in the Illinois Remedy Plan, then Staff argues that the pressure to provide sufficient wholesale service in the future is less than what the Commission ordered. Therefore, Staff maintains that a reduction in potential liability is against the public interest, since the public has an interest in the potential liability at risk approved by the Commission to ensure sufficient future wholesale service. Staff maintains that the Remedy Plan Order clearly indicates the Commission’s strong view that the Texas Remedy Plan, as implemented in Illinois, is insufficient in inducing Ameritech to provide a level of service the Commission finds is appropriate. (Remedy Plan Order at 12-53) In evaluating the Texas Remedy Plan, Staff reports that the Commission stated that “Ameritech, does not appea...
STAFF’S POSITION. 93. But for the appointment of the Receiver over the personal and business assets of Kotton for the benefit of the investors and other creditors of the Titan Group, Staff would be seeking significant monetary sanctions as against Kotton greater than the $100,000 administrative penalty and $25,000 in costs as contained in sub-paragraphs 94 (h) and (i) below.
STAFF’S POSITION. As noted above, Staff opposed Nicor Gas’ original three-factor proposal for consolidated pool costs, which would have allocated Xxxxx’s costs by using a formula that averages the gross payroll, operating revenues and total asset amounts of each of the parties to the Operating Agreement relative to the averages of total gross payroll, operating revenues and total assets of all the parties. Instead, Staff advocated a two- factor formula, which is similar to the three-factor formula, but it does not include operating revenues as a factor, and therefore, it only has two factors. According to Staff, operating revenues should not be included when allocating pool costs because, if the cost of natural gas affects the revenues of Nicor Gas, increased gas costs would lead to an increase in Nicor Gas’ portion of the allocation factor and an increase in its share of the consolidated pool costs. Staff is also of the opinion that operating revenues should not be included because there would be the possibility that Xxxxx’s addition of new non-utility affiliates, which generate minimal revenues during the developmental stage, could result in an understatement of the actual activities and resources directed towards those affiliates. This, in turn, could result in less of the consolidated pool costs being allocated to the new affiliates. Moreover, Staff witness Xxxxxxx testified that the Commission should require Nicor Gas to adopt the two-factor formula because in the past, the Commission has approved the two-factor formula as a part of the operating agreements of other utilities. Staff witness Xxxxxxxx testified that the Commission is currently considering rules governing affiliate transactions involving gas utilities in Docket No. 00-0586. Staff recommends that Nicor Gas be required to refile its Operating Agreement, if, and to the extent that, the Commission adopts gas affiliate rules that conflict with the Operating Agreement’s provisions.
