20060905_1656.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER SMITH
COMMISSIONER HANSEN
COMMISSION SECRETARY
COMMISSION STAFF
LEG AL
FROM:CECELIA A. GASSNER
DATE:AUGUST 30, 2006
SUBJECT:AT&T COMMUNICATIONS OF THE MOUNTAIN STATES, INC.
COMPLAINT AGAINST QWEST CORPORATION; CASE NO. QWE-
06-
On August 21 , 2006, AT&T Communications of the Mountain States, Inc. filed a
Complaint with the Commission against Qwest Corporation. The Complaint asserts that Qwest
failed to file certain interconnection agreements with third parties, to the detriment of AT&T.
THE COMPLAINT
According to the Complaint, AT&T and Qwest entered into an interconnection
agreement in or about August 1998 (the "AT&T Agreement"
).
Pursuant to the federal
Telecommunications Act of 1996, incumbent telecommunications carriers are required to enter
into interconnection agreements with those telecommunications carriers who request access to
the incumbent carrier s network facilities and service.47 U.C. 9251-252.The
interconnection agreement is to be submitted to the appropriate state utilities commission for
approval. 47 U.C. 9 252(a), (e). The state commission must make all approved agreements
available for public inspection. 47 U.C. 9 252(h). After approval , a carrier must make
available any interconnection, service or network element provided under the agreement to any
other requesting carrier at the same rates , terms and conditions as provided in the approved
agreement. 47 US.C. 9252(i).
AT&T alleges that Qwest violated federal and state law by not filing certain
interconnection agreements for approval by the Commission. According to the Complaint
beginning in or about February 2000, Qwest entered into interconnection agreements with
Eschelon Telecom (the "Eschelon Agreements ), and that beginning in April 2000, Qwest
DECISION MEMORANDUM
entered into interconnection agreements with McLeodUSA Telecommunications Services, Inc.
(the "McLeod Agreements
).
AT &T alleges that Qwest did not file the "secret" Eschelon and
McLeod Agreements with the Commission for approval. Complaint at ~ 3. Because of the
alleged failure to file these agreements (or otherwise provide copies of them to AT&T), AT&T
did not know about the discounted rates offered to Eschelon and McLeod. AT&T asserts that
had it known of the Eschelon and McLeod Agreements, it would have demanded the same rates.
The Complaint also contains a claim of breach of contract, in which AT&T alleges
that Qwest breached implied covenants of good faith and fair dealing arising from the AT&T
Agreement. AT&T asserts that Qwest breached such covenants by failing to comply with Idaho
law prohibiting telecommunications companies from granting preferences to other
telecommunications carriers, from subjecting any telephone corporation to any prejudice or
competitive disadvantage with respect to prices or charges for providing access to its local
exchange network, and from establishing or maintaining any unreasonable difference with
respect to its prices or charges for access to its local exchange network. Idaho Code 9 62-609(2).
AT&T requests that the Commission: (1) find that Qwest breached the Agreement
(2) enforce the terms of the AT&T Agreement, and (3) order Qwest to reimburse AT&T the
aggregate amount of the price differential between what AT&T paid and what it should have
paid Qwest had it had the opportunity to opt into the discounted rates of the Eschelon and
McLeod Agreements. AT&T alleges that its damages exceed $650 000.
MOTIONS FOR LIMITED ADMISSION
Pursuant to Rule 43 , out-of-state counsel for AT&T has filed Motions for Limited
Admission with the Commission for the purpose of appearing in this matter. Those filing are:
Daniel Thomas Foley
General Attorney & Assistant General Counsel
AT&T West
PO Box 11010
645 E. Plumb Lane, B 132
Reno, NY 89520
Theodore A. Livingston
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Dr.
Chicago, IL 60606
Dennis G. Friedman
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Dr.
Chicago, IL 60606
DECISION MEMORANDUM
Each Motion avers that a copy of it and the requisite fee have been submitted to the Idaho State
Bar. IDAPA 31.01.01.43.05(c), Bar Rule 222(j).
ST AFF RECOMMENDATION
Staff recommends that a Summons be issued to Qwest to answer the Complaint.
Staff further recommends that the Motions for Admission be granted.
COMMISSION DECISION
Does the Commission desire to issue a Summons to Qwest? Does the Commission
desire to grant the Motions for Admission?
Cecelia A. GaSSner
M:QWE-O6-17 _
DECISION MEMORANDUM