February 6, Mary Jo Kunkle, Executive Secretary Michigan Public Service Commission 6545 Mercantile Way P.O. Box Lansing, MI 48911

Transcription

1 February 6, 2004 Mayer, Brown, Rowe & Maw LLP 190 South La Salle Street Chicago, Illinois Main Tel ( Main Fax ( Dennis G. Friedman Direct Tel ( Direct Fax ( Mary Jo Kunkle, Executive Secretary Michigan Public Service Commission 6545 Mercantile Way P.O. Box Lansing, MI Dear Ms. Kunkle: Re: MPSC Case No. U Enclosed for filing are an original and five copies of SBC Michigan s Response to TruComm Corporation s Motion to Certify the Record to Include the Transcript of the December 17, 2003 Oral Presentations in This Matter, in the above-referenced matter. SBC Michigan makes this filing electronically by posting the enclosed documents onto the Commission s website at: Thank you for your assistance. Very truly yours, DGF/ds Enclosures cc: All Counsel of Record Dennis G. Friedman

2 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the Petition of TruComm Corporation for arbitration if Interconnection Rates, Terms and Conditions and Related Arrangements with Michigan Bell Telephone Company d/b/a SBC Michigan, pursuant to Section 252 (b of the Telecommunications Act of Case No. U SBC MICHIGAN S RESPONSE TO TRUCOMM CORPORATION S MOTION TO CERTIFY THE RECORD TO INCLUDE THE TRANSCRIPT OF THE DECEMBER 17, 2003 ORAL PRESENTATIONS IN THIS MATTER Michigan Bell Telephone Company, d/b/a SBC Michigan ( SBC Michigan respectfully submits its Response to TruComm Corporation s ( TruComm Motion to Certify the Record to Include the Transcript of the December 17, 2003 Oral Presentations in This Matter ( Motion. The live presentations that take the place of evidentiary hearings in interconnection agreement arbitrations before this Commission have never been treated as evidence and have never been considered part of the arbitration record. The Commission should not (and cannot properly, under the Commission s rules make the ad hoc change to that practice that TruComm proposes. 1 The Commission should deny TruComm s request to include the transcript and exhibits from the December 17, 2003 live presentation in the evidentiary record in this proceeding, for two reasons: First, the Commission s rules governing arbitrations under Section 252 of the Telecommunications Act of 1996 ( 1996 Act require the Commission to base its decision on the information contained in TruComm s Petition and the testimony filed with the Petition, and 1 Arbitrator Kern himself acknowledged at the live presentation that in Section 252 arbitration proceedings historically transcripts are not taken and they are not provided as part of the record evidence to the Commission. TruComm Motion, Conf. Attachment A, pp. 4-5.

3 on SBC Michigan s Response and the testimony filed with the Response. Second, the live presentations permitted by the Commission s rules are not evidentiary proceedings in any event. I. The Evidentiary Record In This Proceeding Is Limited To TruComm s Petition And SBC Michigan s Response And The Testimony Filed With Those Pleadings. In MPSC Case Nos. U and U-13774, this Commission established specific rules governing the procedure for Section 252 arbitrations. Those rules unequivocally require that the evidentiary record in this proceeding be limited to TruComm s Petition and the testimony filed with the Petition, and SBC Michigan s Response and the testimony filed with the Response. Among other things, the Commission s procedural rules expressly require that: The petition shall specify the issues for which arbitration is sought and the positions of the parties on each of those issues. The requesting party shall file with the petition all information upon which it intends to rely to support its position. Within 25 days of the filing date, the other party shall file a response, which shall include all information upon which that party intends to rely. MPSC Order, Case No. U-13774, p. 2 (May 2, 2003 (emphasis added. Those rules lead inevitably to the conclusion that the parties live presentations cannot be part of the evidentiary record because, by definition, they were not filed along with the petition or the response. TruComm contends, however, that the Commission s rules give it the right to offer and make the transcript and exhibits part of the record. Motion, p.3. In particular, TruComm asserts that the Commission should include the transcript from the live presentation in the evidentiary record under Rule (1 and that the Commission is in fact required to include the transcript in the evidentiary record under Rule (2. Id. at 3-4. TruComm is wrong. As the title of Rule ( Evidence Generally indicates, Rules (1 and (2 set forth the evidentiary rules applicable to Commission proceedings generally. However, in MPSC Case Nos. U and U-13774, the Commission chose to establish 2

4 different rules to specifically apply to Section 252 arbitration proceedings. And as noted above, those rules required TruComm to submit all information upon which it intend[ed] to rely to support its position with its Petition and the testimony filed with the Petition. TruComm s contention that the general evidentiary rules in Rule (1 and (2 somehow supersede the Commission s specific rules applicable to Section 252 arbitrations is absurd. Indeed, it is crystal clear that the Commission s general evidentiary rules do not apply in arbitrations. Those rules permit the cross-examination of witnesses (Rule (3, yet the Commission s rules for Section 252 arbitrations expressly prohibit the cross-examination of witnesses. MPSC Case No. U-13774, p. 3 (May 2, 2003 (at live presentations any questioning shall be accomplished by the panel rather than the parties. No one has ever contended (or could plausibly contend that the general rule allowing cross-examination trumps the arbitrationspecific rule that prohibits cross-examination; likewise, no one could plausibly contend that the general rule that makes transcripts part of an evidentiary record trumps the arbitration-specific rule that all the evidence a party relies on must be presented at the time it files its arbitration petition or response. In short, the Commission has exercised its authority to establish specific rules of procedure applicable to Section 252 arbitrations, and with respect to the evidentiary record upon which the Commission can base its decision in this proceeding, those rules are clear: the evidentiary record is limited to the Petition and the testimony filed with the Petition, and the Response and the testimony filed with the Response. II. The December 17 Live Presentation Was Not An Evidentiary Proceeding. The Commission should also deny TruComm s motion because the live presentation was not an evidentiary proceeding. The Commission s rules governing Section 252 arbitrations state that such live presentations are not patterned after contested case proceedings, but [are] designed to inform the [arbitration] panel. MPSC Case No. U-13774, p. 3 (May 2,

5 (emphasis added. Indeed, in contrast to Commission hearings where [t]he rules of evidence as applied in nonjury civil cases in circuit court shall be followed as far as practicable (Rule (1, no evidence rules at all apply to live presentations in MPSC arbitration proceedings. The December 17 live presentations in this proceeding differed from an evidentiary proceeding in virtually every fundamental way one could imagine, including: the presentations were not testimony (questions and answers; they were speeches; the presenters were not sworn; legal counsel for TruComm made a presentation; lawyers presentations are not evidence they are arguments; Michael Starkey, who did not file testimony, was permitted to make a presentation beyond the scope of TruComm s prefiled testimony; no evidentiary objections to any aspect of either party s presentation were permitted, notwithstanding that many of the statements made by both parties would be inadmissible under the rules of evidence; there was no cross-examination; exhibits that the parties distributed were not moved into evidence, and no objections to the admission of any exhibit was or would have been permitted; None of that would or could occur in a Commission hearing where [t]he rules of evidence as applied in nonjury civil cases in circuit court applied. Therefore, it would be improper for the Commission to include the transcript from the live presentation in the evidentiary record in this proceeding. Because the live presentation was not an evidentiary proceeding, TruComm s alternative request to submit the transcript and exhibits from the December 17 live presentation as an offer of proof pursuant to Rule is also misplaced. While TruComm acknowledges that the language in Rule 337 clearly sets forth the necessity and procedure for allowing 4

6 TruComm to make an offer of proof (Motion, p. 4 TruComm ignores the fact that that rule expressly states: An offer of proof shall be made in connection with an appeal of a ruling excluding evidence. The offer of proof shall be made on the hearing record. Rule (3 (emphasis added. TruComm s request to submit the transcript and exhibits as an offer of proof under Rule 337 fails for three obvious reasons. First, and foremost, the live presentations and exhibits are not evidence, for the reasons stated above. Second, there was no ruling excluding anything; Arbitrator Kern allowed TruComm to make its presentations without limitation. And third, TruComm did not make an offer of proof on the hearing record, as Rule 337 requires, because (a there was no hearing, and (b if TruComm is mistakenly thinking the live presentations constituted a hearing within the meaning of Rule 337, no offer of proof was made during the live presentations in any event. III. Conclusion For the reasons explained above, the Commission should deny TruComm s request to certify the evidentiary record in this proceeding to include the transcript and exhibits from the December 17, 2003 live presentation or in the alternative, to submit the transcript and exhibits as an offer of proof under Rule

7 Dated: February 6, 2003 Respectfully submitted, SBC MICHIGAN By: One of its Attorneys Joseph Tocco (P SBC MICHIGAN 444 Michigan Avenue Room 1750 Detroit, MI ( Dennis G. Friedman Angela D. O Brien MAYER BROWN ROWE & MAW, LLP 190 South LaSalle Street Chicago, IL (

8 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the Petition of TruComm Corporation for arbitration of Interconnection Rates, Terms and Conditions, and Related Arrangements with Michigan Bell Telephone Case No. U Company, d/b/a SBC Michigan, Pursuant to Section 252(b of the Telecommunications Act of 1996 PROOF OF SERVICE The undersigned certifies that a copy of SBC Michigan s Response to TruComm Corporation s Motion to Certify the Record to Include the Transcript of the December 17, 2003 Oral Presentations in This Matter was served upon the parties listed below via electronic mail at their respective addresses on the 6th day of February, 2004: John P. Kern Leland R. Rosier Kern & Associates, Inc. Haran C. Rashes 2300 N. Barrington Road Clark Hill, PLC Suite Woodlake Circle Hoffman Estates, IL Okemos, MI kern@voyager.net lrrosier@clarkhill.com hrashes@clarkhill.com Henry T. Kelly Michael W. Ward Joseph E. Donovan Michael W. Ward, P.C. Kelley, Drye & Warren, LLP 1608 Barclay Boulevard 333 West Wacker Drive Buffalo Grove, IL Suite 2600 mnward@dnysy.com Chicago, IL hkelly@kelleydrye.com jdonovan@kelleydrye.com Dennis G. Friedman