4.2.5 Burden of Proof

Joint Petitioners contend that the DAR failed to apply the proper burden of proof. Rather, Joint Petitioners say that the DAR required CLCs to make a "compelling" showing. According to Joint Petitioners, "a party is only required to submit evidence demonstrating that it is more likely than not that its position is correct." (Statement dated June 7, 2000, page 13.) Joint Petitioners conclude that the Arbitrator placed a much higher and inappropriate burden of proof on CLCs. Joint Petitioners are mistaken.

First, the DAR cited several reasons in support of selecting the ILECs' proposed forms of appendices and amendments over those proposed by CLCs. One reason was that line sharing is on the ILECs' systems, and "absent compelling reasons to adopt an amendment offered by others, the amendments offered by the ILECs are preferable." (DAR, page 7.) Joint Petitioners rely on this reason in support of their assertion regarding the improper burden of proof. Joint Petitioners correctly note, however, that this reason was not used in the FAR regarding the selected forms of appendices and amendments. Joint Petitioners point to no improper burden adopted anywhere in the FAR.

Second, to the extent a "compelling" showing, or the lack thereof, was used in the FAR, it was defined as meaning one that on balance demonstrates the party's position is more likely than not to be correct. (FAR, page 26, footnote 16.) This is the burden of proof recommended by Joint Petitioners. Joint Petitioners point to no citation supporting the use of a standard different than the one they recommend.

Third, all parties, were held to the same standard. A compelling showing or argument, or the lack thereof, was discussed in relation to presentations made by all parties, including both ILECs and CLCs.¹⁴ A different and higher standard was not adopted for CLCs than for ILECs.