GTE Comments/Commission Responses

1. Add to proposed Rule 77.7(f) a provision to waive public review and comment for all resolutions related to advice letter filings by all telecommunications service providers (and modify proposed Rules 77.7(a)(i), 77.7(a)(9), 77.7(c), and 77.7(d) to conform with this addition). (Opening Comments, pp. 4, 6-9.)

[Pacific Bell supports; AT&T supports in part and opposes in part; MWCOM, ORA, and TURN oppose.]

Response: Reject. Such a waiver would be substantially overbroad. See also Response to AT&T Comment #1.

2. Add to proposed Rule 77.7(f) a provision to waive public review and comment for resolutions responding to advice letters implementing a specific prior Commission decision. (Opening Comments, pp. 8-9.)

[Pacific Bell supports; TURN opposes]

Response: Reject. Where a Commission decision gives very precise instructions to a utility, the utility's implementing advice letter typically would not be protested at all, or the protest could be disposed of by Commission staff, in both of which cases there would not need to be a resolution, and hence no delay, as feared by GTE. On the other hand, where a Commission decision gives broad policy direction, the implementing advice letter may fairly (and appropriately) raise specific issues on how to apply the policy direction. In these instances, public review and comment on the draft resolution, as contemplated by SB 779, is both necessary and appropriate.

3. Change definition of "party" in proposed Rule 77.7(a)(6) to state that for resolutions on advice letters, a "party" is one who has filed a meritorious protest or response. (Opening Comments, pp. 6-7.)

Response: Reject. A protest whose rejection would be ministerial (e.g., it is based on a mathematical error by the protestant or is otherwise defective on its face) would be subject to disposition by Commission staff, and there would be no need for a Commission resolution (and hence no need for further public review and comment) where an advice letter is protested solely on such basis. If, on the other hand, an exercise of discretion is necessary to determine whether a protest is "meritorious," the Commission itself would have to address the substance of the protest, and the draft resolution presented for the Commission's consideration should be subject to public review and comment.

4. Clarify intended application of provisions in proposed Rule 77.7(d), and the related definition in proposed Rule 77.7(a)(9), regarding resolutions without "party." (Opening Comments, pp. 7-8.)

Response: No change necessary. See generally OIR at pp. 4-5. The Commission has used "resolution" to label Commission orders issued outside formal proceedings. Formerly, there were no "parties" to resolutions. However, SB 779 requires that, prior to the Commission's voting on a decision (including for these purposes, a resolution), the decision "be served on parties." Section 311(g)(1). In implementing SB 779, the Commission has described how it will identify "parties" to resolutions where such identification is reasonably feasible. Proposed Rule 77.7(d) addresses foreseeable situations involving a resolution where there may be no close analogy to "party" as the term is used in relation to formal proceedings. See also Response to GTE Comment #5.

5. Proposed Rule 77.7(d), regarding resolutions without "parties," seems internally inconsistent with its operative definition, i.e., proposed Rule 77.7(a)(9). (Opening Comments, p. 8.)

Response: No change necessary. The Commission does not perceive any inconsistency. For example, a resolution establishing a rule or setting a fee schedule may not have any "parties" as contemplated in proposed Rule 77.7(a)(9), either because Commission staff preparing the draft resolution for Commission consideration had not solicited prior comment or had received no response to the solicitation. In such instances, the Commission believes that under the letter and spirit of SB 779, the draft resolution should still be subject to a public review and comment period.

6. When considering "regulatory efficiency," the first SB 779 criterion for possible waiver or reduction of the public review and comment period, the Commission should note issues raised and proposals submitted regarding the handling of advice letters in the Commission's rulemaking on that subject (R.98-07-038). (Opening Comments, p. 2.)

Response: Agree (no change necessary). The Commission is aware of the interplay between this OIR and the advice letter rulemaking, and is reviewing the records in both proceedings to ensure policy consistency.

7. When considering "the need for adequate prior notice and comment," the second SB 779 criterion for possible waiver or reduction of the public review and comment period, the Commission should note the opportunities for notice and comment already provided for advice letters. (Opening Comments, p. 3.)

Response: Agree (no change necessary). However, the focus of review and comment under SB 779 is not primarily on the request for Commission action (e.g., an advice letter, application, or complaint) but on the Commission's proposed disposition of such requests. Thus, the Commission's proposed decision or resolution may need public review and comment even where there has been opportunity for review and comment earlier in the process.

8. The telecommunications market is highly competitive. Undue delay in allowing a tariff to go into effect is harmful to competition. (Opening Comments, pp. 3-4.)

Response: Agree (no change necessary). To smooth the handling of advice letters and other tariff-related filings, the Commission is closely coordinating this rulemaking with its rulemaking on advice letters. However, the presence of competition is not determinative in considering limitations on public review and comment. For example, there is little if any competition among water utilities, yet it is decisions affecting this industry that the Legislature broadly exempted from public review and comment under SB 779. Furthermore, not all sectors of the telecommunications industry are fully competitive. Moreover, reasonable people have sometimes disagreed over the correct implementation of some of the Commission's policy directives on competition. In these circumstances, public review and comment on draft Commission orders may alert the Commission to ambiguities or policy implications that might otherwise have to be addressed in later rulemakings or enforcement proceedings. In short, there is no clear correlation between the degree of competition that exists in a utility industry and the need for public review and comment regarding Commission decisions that relate to that industry.

9. Proposed changes to Rule 77.1 provide beneficial clarification and appear reasonable. (Opening Comments, p. 5.)

Response: Agree (no change necessary).

10. Proposed changes to Rule 77.2 lighten regulatory burdens and are reasonable. (Opening Comments, p. 5.)

Response: Agree (no change necessary).

11. Proposed changes to Rule 77.6 provide beneficial clarification. (Opening Comments, pp. 6-7.)

Response: Agree (no change necessary).

12. Use of electronic media in conjunction with advice letter process is beyond the scope of this rulemaking. (Reply Comments, pp. 3-4.)

Response: Agree (no change necessary).