20050104Motion to Compel.pdf

Mary York, Esq. (ISB No. 5020)
HOLLAND & HART, LLP
Suite 1400, U.S. Bank Plaza
101 South Capitol Boulevard
Post Office Box 2527
Boise, Idaho 83701
Telephone: [phone]
Facsimile: [phone]
T. Scott Thompson, Esq.
Brian M. Josef, Esq.
Rita Tewari, Esq.
Cole, Raywid & Braverman, LLP
1919 Pennsylvania Ave., N.
Second Floor
Washington, D.C. 20006
Telephone: [phone]
Meredith R. Harris, Esq.
AT&T Corp.
One AT&T Way
Bedminster, New Jersey 07921
[phone]
Robert M. Pomeroy, Esq. (CSB No. 7640)
HOLLAND & HART, LLP
8390 E. Crescent Parkway
Suite 400
Greenwood Village, CO 80111-2800
Telephone: [phone]
Facsimile: [phone]
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Attorneys for AT&T Corp. and AT&T
Communications of the Mountain States, Inc.
BEFO RE THE ID AH 0 PUBLIC UTILITIES CO MMISSI 0 N
AT&T CORP., a New York Corporation;
AT&T COMMUNICATIONS OF THE
MOUNTAIN STATES, INC., a Colorado
Corporati on
Complainants
vs.
QWEST CORPORATION, a Colorado
Corporati on
Respondent.
Case No. ATT-O4-
CLAIMANTS' MOTION TO
COMPEL
Case No. ATT-04-
CLAIMANTS' MOTION TO COMPEL
January 4, 2005
Pursuant to the Notice of Procedural Schedule entered by the Commission in this
case on November 9 2004, Claimants AT&T Corp. and AT&T Communications of the
Mountain States, Inc. Gointly "AT&T") move the Commission for an order compelling
Respondent Qwest Corp. to respond to AT&T's data request number 9.
AT&T's Interrogatory
On November 22, 2004, AT&T served on Qwest their first set of requests for data
and production of documents. AT&T's data request number 9 asked
Identify and describe the terms, conditions, procedures and rates
governing the rental and occupancy of Qwest conduit or support structures
by all persons in Idaho other than Claimants. To the extent that such
terms, conditions, procedures and rates may vary within Qwest's Idaho
service territory, identify and describe any such differences. To the
extent that such terms, condition, procedures and rates may differ
currently from past terms, conditions, procedures and rates, please identify
and describe these differences.
A copy of AT&T's first set of requests for data and production of documents is attached
hereto. This request is relevant to AT&T's claim that Qwest is and has discriminated
against AT&T by charging it rates for conduit occupancy that are greater than the rates
charged to others. (See, e.
g.
Complaint ~~ 20, 22).
II.Qwest's Response
In response to data request number 9, Qwest stated, in part, that:
Third, with respect to non-CLECs, Qwest has entered into negotiated
agreements allowing such parties access to conduit. However Qwest
objects to providing these privately negotiated agreements because they
are not relevant to the AT&T Corp. General Conduit License Agreement
or the issues presented by Claimants in this docket, and as such, the
privately negotiated agreements are not calculated to lead to the discovery
of admissible evidence in this docket.
Case No. ATT-04-
CLAIMANTS' MOTION TO COMPEL
January 4, 2005
A copy of Qwest' s response in its entirety is attached hereto. Thus, Qwest has admitted
that responsive documents exist, but refuses to produce them.
Qwest's objection as to "non-CLECs" and "privately negotiated agreements" is
misplaced. Such agreements are relevant to AT&T's claim that Qwest's conduit
occupancy rates are discriminatory. Neither the Idaho statute nor the federal statute
under which the State draws its power and scope of regulation, is limited to Qwest'
conduit charges to "CLECs." Idaho Code ~~ 61-502, 61-503 and 61-514; 47 U.C. ~
224. Qwest is trying to draw an artificial and legally irrelevant distinction between
CLECs and other telecommunications providers or public utilities. Yet, the rates that
Qwest charges other entities is highly relevant to AT&T's claims of discrimination
regardless of the regulatory definition that Qwest chooses to impose upon them. Indeed
AT &T Communications of the Mountain States, Inc. is authorized by the Commission to
act as both a CLEC and interexchange carrier.
Qwest's other agreements may reveal charges substantially less than those
imposed on AT&T. They are relevant to AT&T's claims and the request is reasonably
calculated to lead to the discovery of admissible evidence.
Case No. ATT-04-
CLAIMANTS' MOTION TO COMPEL
January 4, 2005
WHEREFORE, AT&T respectfully requests that the Commission order Qwest
to produce all documents responsive to data request number 9 , including those related to
agreements with "non-CLECs.
January 4, 2005
Respectfully submitted
Mary r , Esq. B No. 5020)
0 L D & H T, LLP
Suite 0, U.S. ank Plaza
101 South Capitol Boulevard
Post Office Box 2527
Boise, Idaho 83701
Telephone: [phone]
Facsimile: [phone]
T. Scott Thompson, Esq.
Brian M. Josef, Esq.
Rita Tewari, Esq.
Cole, Raywid & Braverman, LLP
1919 Pennsylvania Ave., N., Second Floor
Washington, D.C. 20006
Telephone: [phone]
Meredith R. Harris, Esq.
AT&T Corp.
One AT&T Way
Bedminster, New Jersey 07921
Telephone: [phone]
Attorneys for AT&T Corp. and AT&T
Communications of the Mountain States, Inc.
Case No. ATT-04-
CLAIMANTS' MOTION TO COMPEL
January 4, 2005
CERTIFICATE OF SERVICE
, Mary V. York, hereby certify that on the 4th day of January, 2005 , an original
seven (7) true and correct copies, and an electronic copy of COMPLAINANTS'
MOTION TO COMPEL were hand-delivered to:
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83720-0074
jj ewell~puc. state.id. us
Weldon Stutzman
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83720-0074
wstutzm~puc.state.id.
Mary S. Hobson
Curtis D. McKenzie
Stoel Rives LLP
101 S. Capitol Blvd., Suite 1900
Boise, Idaho 83702
msho bson~stoel. com
and UPS Overnight, postage prepaid thereon, to:
Adam L. Sherr
Qwest Corporation
1600 7th Avenue - Room 3206
Seattle, W A 98191
adam.sherr~qwest.com
" ".... ,.."", .., ,..", .,
Idaho
Case No. ATT-T-04-1
AT&T 01-009I
INTERVENOR:AT&T Corp. and AT&T Communications of the Mountain States, Inc.
REQUEST NO:0091
Identify and describe the terms, conditions, procedures and rates governingthe rental and occupancy of Qwest conduit or support structures by all
persons in Idaho other than Claimants. To the extent , that such terms,conditions, procedures and rates may vary within Qwest ~s Idaho serviceterri tory, identify and describe any such differences. To the extent thatsuch terms, condition, procedures and rates may differ currently from pasttermsconditions, procedures and rates, please identify and describe thesedifferences.
RESPONSE:
Qwest objects to this data request on the ground that it is overly broad,
unduly burdensome and is not calculated to lead to the discovery of
admissible evidence and on the ground that it purports to impose a burden
disclosing information not' readily available to Qwest and/or equallyavailable to Claimants. Without waiving these objections, Qwest provides the
following response.
The terms, conditions, procedures, and rates governing the rental and
occupancy of Qwest conduit in Idaho, fall into a few basic categories.
First, Qwest has entered into numerous interconnection agreements with CLECs
in Idaho, including with AT&T Communications of the Mountain States, Inc.
Those agreements are filed as a matter of public record with the Idaho Public
Utilities Commission and are available for review at the Commission. Many,
if not all, of these agreements address the terms and conditions related to
access to Qwest conduit. Qwest refers the Claimants to those agreements,
which speak for themselves.
Second, if a CLEC has not entered into an interconnection agreement with
Qwest, it Can opt into the Statement of Generally Available Terms ("SGAT")
that has been on file with the Idaho Public Utilities Commission for severalyears. In this case, the SGAT then becomes' the interconnection agreementbetween Qwest and the CLEC. ~ach of Qwest's Idaho SGATs is a matter of
public record in Idaho,' as are the ~xhibit A's to the SGATs which establish
price terms for certain elements, including access to conduit. The current
Qwest SGAT can be accessed at the following location:
http: / /www.qwest.com/wholesale/clecs/sgatswireline.html
Third, with respect to non-CLECs, Qwest has entered into negotiated
agreements allowing such parties access to conduit. However, Qwest objects
to providing these privately negotiated agreements because they are not
relevant to the AT&T Corp. General Conduit License Agreement or the issues
presented by Claimants in this docket, and as such, the privately negotiated
agreements are not calculated to lead to the discovery of admissible evidencein this docket.
Respondent: Qwest Legal Department