20040831Qwest Answer to Complaint.pdf

Mary S. Hobson (ISB #2142)
Curtis D. McKenzie (ISB # 5591)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ill 83702
Telephone: [phone]
Facsimile: [phone]
msho bson~stoe1. com
cdmckenzie~stoel.com
C' ,"", t~ t \ r- j" t 1"'
' '-,
L ...' I-. '0 -i...;~~
fLED
nnl~fiJ If:1 L : L ,oo 'd' \. . r,'!;J ~ "1
'" :' :.. '
';.J,
" -
UflLITIES COr"IJ"JISSiON
Adam L. Sherr (WSBA #25291)
Qwest Corporation
1600 7th Avenue - Room 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
adam. sherr~qwest. com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
AT&T CORP., a New York Corporation, and
AT&T COMMUNICATIONS OF THE
MOUNTAIN STATES, INC., a Colorado
Corporati on
Case No. ATT-O4-
Comp lainants
ANSWER OF QWEST CORPORATION
TO COMPLAINT OF AT&T CORP., AND
AT&T COMMUNICATIONS OF THE
MOUNTAIN STATES, INC.vs.
QWEST CORPORATION, a Colorado
Corporation
Respondent.
Qwest Corporation ("Qwest"), by and through its attorneys, and pursuant to IDAPA
31.01.01.057., hereby answers the Complaint of AT&T Corp. ("AT&T Corp )/ and AT&T
The first named complainant is AT&T Corp. However, the general license agreement and the
individual license agreements list the AT&T entity as "The American Telephone and Telegraph
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. -
SaltLake-234907.1 0019995-00150
Communications of the Mountain States, Inc.
, ("
AT&T Mountain States ) (sometimes
collectively referred to herein as the "AT&T Idaho Claimants ) in the above captioned
proceeding.
INTRODUCTION
This Answer is organized into the following sections:
A brief section recounting the general factual information and procedural history
underlying this matter.
Qwest's answer to the specific factual allegations of the AT&T Idaho Claimants.
Qwest's affirmative defenses to the claims asserted by the AT&T Idaho
Claimants.
The relief requested by Qwest.
II.GENERAL BACKGROUND AND PROCEDURAL HISTORY
On or about August 6 2004 the AT&T Idaho Claimants filed their Complaint with the
Idaho Public Utilities Commission ("Commission
).
The AT&T Idaho Claimants filed this
Complaint with the Commission at the same time that two AT&T competitive local exchange
carriers ("CLECs ), AT&T Communications of the Midwest, Inc. and AT&T Mountain States
(the "AT&T CLECs ), are engaged in a complaint before the Federal Communications
Commission ("FCC") concerning the same or similar issues in nine of the fourteen states in
Qwest's territory. See AT&T Communications of the Midwest, Inc. and AT&T Communications
Company." (See Exhibits 2 and 3 to the Complaint). Qwest understands that "AT&T Corp" is simply a
new name for the same entity formerly known as "The American Telephone and Telegraph Company.
Thus, for purposes of this Answer, Qwest's response will assume that AT&T Corp is the same entity as
the entity that entered the general license agreement and the sublicenses. If these assumptions prove to be
untrue and "The American Telephone and Telegraph Company" and "AT&T Corp" are separate entities
Qwest reserves the right to amend its Answer.
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 2
SaltLake-234907.10019995-00150
of the Mountain States, Inc. v. Qwest Corporation; Case No EB-O3-MD-O20.
The background of the federal case sheds light both on the nature of the AT&T Idaho
Claimants' legal theories in this docket and on their motivation for filing this Complaint. What
is more, the facts underlying the AT&T CLECs' federal complaint are substantially the same as
in this docket, although the legal claims differ slightly between the two proceedings.
The federal docket involves a series of conduit license agreements that one of Qwest'
predecessors in interest, The Mountain States Telephone and Telegraph Company, negotiated
with the American Telephone & Telegraph Company during the late 1980s. This docket
involves virtually identical agreements that the Mountain States Telephone and Telegraph
Company, one of Qwest's predecessors, negotiated with the American Telephone and Telegraph
Company, now known as AT&T Corp, at about the same time. As described in paragraph 8 of
the Complaint, complainants allege that AT&T Corp voluntarily negotiated and entered into an
agreement titled "General License Agreement for Conduit Occupancy Between The Mountain
States Telephone and Telegraph and The American Telephone and Telegraph Company for the
State of Idaho" dated May 28, 1988 (the "Conduit License Agreement"). AT&T Corp also
voluntarily negotiated and entered into a series of individual conduit license agreements pursuant
to this Conduit License Agreement. Since th(:lt time, the Conduit License Agreement in Idaho
and similar facilities agreements in other states have defined the business relationship by which
Qwest has provided AT&T Corp with access to its conduit, and have established the rates and
The FCC docket involves conduit space provided by Qwest in nine of the fourteen states
encompassed in Qwest's service territory. The AT&T CLECs filed their complaint before the FCC
because the commissions in those nine states, unlike Idaho, have not attempted to certify to the FCC that
they have assumed jurisdiction over poles, ducts and right-of-way issues under section 224( )(2) of the
Communications Act, as amended, 47 V.C. 9224(c)(2). As discussed below, Qwest believes that the
Commission may not have perfected its certification with respect to Idaho.
In the late 1980s, Pacific Northwest Bell, Northwestern Bell, and Mountain Bell merged to form
V S WEST Communications, Inc. Qwest's predecessors , The Mountain States Telephone and Telegraph
Company and V S WEST Communications, Inc., will generally be referred to in this Answer as Qwest.
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 3
SaltLake-234907.1 0019995-00150
terms under which AT&T Corp has secured this access throughout Qwest's service area.
Under the conduit license agreements in Idaho, Qwest has for many years sent annual
invoices to AT&T Corp charging the negotiated rates established in the license agreements.
These invoices have been paid by AT&T Corp. It therefore came as a surprise to Qwest when
the AT&T CLECs-both of whom are separate entities from AT&T Corp-recently asserted that
they are the actual occupants of Qwest' s conduit, and that they are the beneficiaries of the
agreements. The AT&T CLECs have now made this claim in their federal complaint against
Qwest. Tacitly, AT&T Mountain States has made a similar assertion in the Complaint filed with
this Commission, although the AT&T Idaho Claimants are careful to avoid pointing out which of
the two entities they are referring to in many of their allegations in the Complaint.
The FCC docket was initiated by the AT&T CLECs after Qwest refused to grant billing
discounts to AT&T Corp from the rates established in the license agreements. Specifically, in
May and June 2003, the AT&T CLECs approached Qwest about the calculation of their conduit
rental rates and the availability of ARMIS data in connection with their internal "audit."
Subsequently, they demanded that Qwest "adjust" downward certain invoices it was sending to
AT &T Corp to reflect the discrepancy between the invoice rates and the rates established in
Qwest's Statements of Generally Available Terms and Conditions ("SGATs ), which Qwest
established on a state-by-state basis for use by CLECs. Qwest told the two AT&T CLECs that
they were entitled to the SGA T rates in their capacity as CLECs. During these and subsequent
discussions, as well as an internal review of records, however, Qwest discovered that the
invoices that the AT&T CLECs were referencing were with AT&T Corp, a different corporate
entity from the AT&T CLECs, and that the invoices at issue were under Qwest's license
agreements with AT&T Corp. It also became clear that, although the SGA T rates were readily
available to the AT&T CLECs through the Section 251 interconnection processes that Qwest had
established for CLECs with the states, the AT&T CLECs had not previously identified
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 4
SaltLake-234907.10019995-00150
themselves as occupants of Qwest' s conduit and had not at any time attempted to place an order
for access to Qwest-owned conduit pursuant to the terms of their interconnection agreements or
pursuant to the terms of Qwest's SGATs.4 Given the recently-concluded negotiations between
Qwest and the AT&T CLECs to amend their interconnection agreements (negotiations that led to
contested arbitrations in several states), during which the parties agreed to expressly reference
the SGA T rates, it is inexplicable that the AT&T CLECs were unaware of these processes.
Based upon these facts, Qwest ultimately declined to grant the AT&T CLECs' demands
for "invoice adjustments" for the conduit leased to AT&T Corp in the 1980s under the AT&T
Corp negotiated license agreements. Unilaterally, AT&T Corp then began withholding payment
from Qwest of all but the SGA T rates, based on the specious claim that Qwest had in fact agreed
to change the rates in the license agreements during its informal discussions with the AT&T
CLECs. Subsequently and separately, the AT&T CLECs5 filed their FCC complaint against
Qwest in December 2003.
The FCC found the AT&T CLECs' federal complaint to be sufficiently confusing that it
ordered two rounds of supplemental briefing to clarify both the facts and the legal claims at
issue. Since many of the facts and claims in the FCC docket are relevant to this proceeding,
Qwest believes it is necessary to describe the way in which the federal docket has evolved.
The AT&T CLECs' FCC complaint, like the Complaint by AT&T Mountain States here
Specifically, although the AT&T CLECs are (collectively) certificated and operate in the nine
states at issue in the FCC docket, and although they have interconnection agreements with Qwest in each
of these states pursuant to 47 V.C. 9251 , they have never ordered conduit access from Qwest and have
never sought to access the SGA T rates through the processes that were generally available to CLECs
even though the interconnection agreements and processes have been both public and operational for
years.
The Idaho license agreements were excluded from the FCC complaint. This is apparently
because of the belief that Idaho has asserted jurisdiction over poles, ducts and right-of-ways pursuant to
Section 224 of the Act, and the FCC therefore does not have authority to review Idaho conduit
agreements under Section 224.
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 5
SaltLake-234907.1 0019995-00150
attempts to intentionally blur the lines between AT&T's corporate entities as if there were no
legal or operational distinctions between them. By use of this fiction, the AT&T CLECs
attempted to assert that Qwest either knew (or should have known) that Qwest was dealing with
these CLECs, even though the conduit license agreements and invoices at issue are all with
AT&T Corp, an entity that is not a CLEC. Through the use of this artful and misleading method
of pleading, the AT&T CLECs then asserted that Qwest's refusal to "adjust" the invoices that
Qwest was sending to AT&T Corp was in fact "discriminatory" against the AT&T CLECs, that
Qwest had acted in bad faith in refusing to issue the billing "adjustments" that they demanded on
behalf of AT&T Corp., and that Qwest had violated section 224 of the Communications Act of
1934, as amended (the "Act,,
In their FCC complaint, the AT&T CLECs also claimed -- through a novel theory -- that
Qwest's actions were a violation of an alleged free-standing obligation owed by Qwest to lower
its conduit charges under section 224 of the Act, despite the fact that the conduit license
agreements with AT&T Corp predate the relevant provisions of, and are expressly excluded
from, section 224.7 Further, the AT&T CLECs asserted that Qwest's refusal to grant their
requested discounts amounted to both discrimination and anti-competitive conduct against them
as CLECs under Section 251 , and was a violation of Qwest's interconnection agreements with
them. On these grounds, the AT&T CLECs requested both forward-looking and retroactive
relief, dating back many years.
Qwest has denied each of the allegations in the AT&T CLECs' FCC complaint. As
Qwest has shown in the FCC proceeding, the AT&T CLECs have never requested access to
47 V.C. 9 224.
See TCG Dallas, Inc.v. Texas Uti/so Elec. Co.13 F.R. 7298, 7301 ~. 7 (1998)("The 1992
Agreement, and its 1994 Amendment, because they concern a utility and a telecommunications provider
and were in effect prior to February 8, 1996, comprise the type of agreement specifically excluded by
Congress in section 224, as amended by the (Telecommunications Act of 1996)"
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 6
SaltLake-234907.1 0019995-00150
conduit under the interconnection agreements, and had never disclosed to Qwest that they were
the parties actually using the conduit that was secured through the conduit license agreements
between Qwest and AT&T Corp, and their demands that Qwest "adjust" AT&T Corp s invoices
were improper. Qwest has no record of AT&T Mountain States ever having disclosed that it was
the AT&T entity actually using the conduit secured through the license agreement between
Qwest and AT&T Corp. Finally, AT&T Corp is not a CLEC in Idaho.
The FCC complaint remains pending at this time.
ANSWER
With respect to the specific allegations in the Complaint, Qwest admits, denies and
alleges as follows:
As to the allegations in paragraph 1 of the Complaint, Qwest lacks sufficient
knowledge to determine whether AT&T Corp is a public utility in Idaho or in any other state and
therefore denies the same. AT&T Corp is not identified as a certificated utility on the
Commission s website.8 Further, based on information and belief, Qwest affirmatively alleges
that the only AT&T entity certificated as a LEC or CLEC in Idaho is AT&T Mountain States.
As to the allegations contained in paragraph 2 of the Complaint, Qwest admits
that it is a public utility and certified local exchange company. However, no certification is
required to provide long distance services in Idaho.
The allegations of paragraph 3 of the Complaint are generally allegations of law
to which no response is required. To the extent the allegations may be construed as factual
allegations, Qwest admits that the Commission has certified to the FCC that it regulates the rates
terms and conditions for pole attachments in Idaho, but Qwest denies that the Commission has
See http://www.puc.state.id.us/FILEROOM/UTILITIES.PDF, visited August 29 2004.
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 7
SaltLake-234907.10019995-00150
jurisdiction to adjudicate this matter. Section 224 of the 1996 Act states: "a State shall not be
considered to regulate the rates, terms, and conditions for pole attachments - (A) unless the State
has issued and made effective rules and regulations implementing the State s regulatory authority
over pole attachments." To the best of Qwest's knowledge , it does not appear that the
Commission has ever issued or made effective any substantive rules or regulations implementing
the state s authority under section 224 or state statutory authority over pole attachments.
Moreover, as discussed elsewhere in this Answer, Qwest and AT&T Corp have a valid and long
standing contract under which AT&T Corp has ordered and used Qwest conduit in Idaho.
Similarly, Qwest and AT&T Mountain States have, since 1998, had interconnection agreements
in Idaho under which AT&T Mountain States has had the ability to place an order for conduit
access in Idaho, though it has never actually done so. Thus, this is not an instance where the
Commission should step in and order a remedy based upon the parties' failure to agree. Based
upon these facts, the Commission lacks jurisdiction over this dispute. Finally, based on Idaho
Code ~ 61-642, even if the Commission had jurisdiction over this matter, the Commission lacks
jurisdiction to grant the full extent of the relief sought in the Complaint.
As to the allegations contained in paragraph 4 of the Complaint, Qwest admits
that it is a public utility and certified local exchange company. However, no certification is
required to provide long distance services in Idaho. Qwest further admits that it owns and
controls conduit in Idaho and elsewhere.
As to the allegations in paragraph 5 of the Complaint, Qwest affirmatively alleges
that the AT&T entity legally authorized to occupy Qwest's conduit in Idaho that is at issue in
this matter is AT&T Corp. However, based upon the fact that AT&T Mountain States is a
The only pole-attachment-related rules that the Commission has adopted are two procedural
rules relating to "cable pole disputes.IDAPA 31.01.01.151-152. The Commission has adopted no
substantive rules related pole attachments in general, or conduit in particular.
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 8
SaltLake-234907.1 0019995-00150
named party in this matter and based upon the implication in the Complaint that it, instead of
AT &T Corp, occupies some, if not all, of the AT&T-occupied Qwest conduit in Idaho, Qwest
lacks sufficient knowledge and information to admit or deny which of the AT&T entities is the
owner of the communication facilities that occupy Qwest's conduit in Idaho.
As to the allegations in paragraph 6 of the Complaint, Qwest admits that it
directly competes with both AT&T Corp and with AT&T Mountain States.
As to the allegations in paragraph 7 of the Complaint, Qwest admits that it is
obligated to provide access to Qwest-owned conduit in Idaho under rates, terms and conditions
that are just and reasonable. However, its obligation springs from a different source of authority
as to AT&T Corp and AT&T Mountain States. AT&T Corp is entitled to such access pursuant
to the terms of the 1988 Conduit License Agreement, and has continually been granted access by
Qwest pursuant to orders placed by AT&T Corp for individual licenses (referred to in paragraph
8 of the Complaint) under that Conduit License Agreement. With respect to that Conduit
License Agreement, and the individual licenses, Qwest affirmatively alleges that the rates, terms
and conditions, all of which were voluntarily negotiated and adhered to by the parties for many
years, are just and reasonable. As for AT&T Mountain States, it is entitled to access pursuant to
Section 251 of the Act under the terms of its negotiated and arbitrated interconnection agreement
with Qwest. In addition, AT&T Mountain States is also entitled to access pursuant to Qwest's
Idaho SGAT or by opting into another CLEC's interconnection agreement pursuant to Section
252 of the Act. However, AT&T Mountain States has never placed an actual order with Qwest
for access to Qwest-owned conduit in Idaho pursuant to its interconnection agreement or by
accepting the terms of Qwest's Idaho SGAT. It now appears, however, that AT&T Mountain
States may be utilizing the communication facilities that occupy Qwest's Idaho conduit pursuant
to authorization provided by Qwest to AT&T Corp under the Conduit License Agreement and
individual licenses described above that were negotiated between Qwest and AT&T Corp.
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 9
Sa1tLake-234907.10019995-00150
the extent that AT&T Corp has assigned rights to occupy conduit to AT&T Mountain States
pursuant to the license agreement, it has done so in direct violation of "Article 18 -- Assignment
of Rights" of the license agreement:
Licensee shall not assign, transfer, or sublicense this Agreement or
any license or any authorization granted under this Agreement and
this Agreement shall not inure to the benefit of Licensor
successors or assigns, without the prior written consent Licensor.
Licensor may withhold such consent it its sole discretion.
Qwest has no record of such consent ever having been requested by AT&T Corp.
As to the allegations in paragraph 8 of the Complaint, Qwest admits that at least
one AT&T entity occupies Qwest-owned conduit in Idaho pursuant to the terms of the Conduit
License Agreement and individual licenses executed thereto between Qwest and AT&T Corp.
However, Qwest affirmatively alleges that no AT&T entity has requested occupancy under the
terms of Qwest' s interconnection agreement with AT&T Mountain States or pursuant to Qwest'
Idaho SGA T. AT&T Corp is not certificated to provide local telecommunications services in
Idaho. And, although it is certificated in Idaho, AT&T Mountain States has never placed an
order for access to Qwest-owned conduit in Idaho pursuant to its interconnection agreement or
adopted the terms and conditions of Qwest's Idaho SGAT. Accordingly, it has no legal right to
occupy Qwest-owned conduit in Idaho. If AT&T Mountain States orders conduit pursuant to its
interconnection agreement, it is entitled to the rates, terms and conditions found in Qwest'
SGA T, or in its interconnection agreement with Qwest, only on a prospective basis.
Qwest denies the allegations contained in paragraph 9 of the Complaint.
stated above, AT&T Mountain States has never placed an order for access to Qwest-owned
conduit in Idaho pursuant to the terms of its Idaho interconnection agreements with Qwest.
Moreover, AT&T Corp is not certificated to provide local services in Idaho and has never
entered into an interconnection agreement with Qwest, adopted the SGA T, or opted into another
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 10
SaltLake-234907.1 0019995-00150
interconnection agreement pursuant to Section 252 of the Act.
10.With regard to paragraph 10 of the Complaint, Qwest denies that it bills AT&T
Mountain States for use of conduit in Idaho. Qwest admits that it currently bills AT&T Corp for
the use of 138 607 feet of conduit in Idaho. Qwest does not know which AT&T entities actually
occupy the conduit.
11.Qwest admits the allegations contained in paragraph 11 of the Complaint.
12.Qwest admits that the language quoted by the AT&T Idaho Claimants in
paragraph 12 of the Complaint is an accurate quotation of language found in the Idaho
interconnection agreement between Qwest and AT&T Mountain States that was approved by the
Commission in 1998. However, Qwest and AT&T Mountain States have recently negotiated a
new provision in their successor agreement. The terms and conditions for conduit were not
disputed or arbitrated. Notably, the successor agreement includes language that expressly adopts
the SGAT rates. (See section 10.3 of Exhibit 4 to the Complaint) Qwest affirmatively alleges
that AT&T Mountain States has failed to exercise its rights with respect to Qwest-owned conduit
in Idaho pursuant to the terms of the quoted provision of the 1998 interconnection agreement
because AT&T Mountain has never placed an order with Qwest for access to conduit in Idaho
pursuant to the terms of its interconnection agreement. To the extent the allegations of paragraph
12 suggest that AT&T Corp was a party to the 1998 interconnection agreement, Qwest denies the
same.
13.As to the allegations in paragraph 13 of the Complaint, Qwest admits that its
Idaho SGA T contains a conduit rental rate and that the SGA T is on file with the Commission.
However, as set forth above, Qwest denies that its Idaho SGA T has any application to this
docket.
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 11
SaltLake-234907.1 0019995-00150
14.The allegations in paragraph 14 of the Complaint set forth legal argument and
conclusions to which no response is required. Nevertheless, Qwest affirmatively alleges that that
its innerduct occupancy fee in the SGA T is based on FCC guidelines.
15.As to the allegations of paragraph 15 of the Complaint, Qwest admits that the
language quoted by the AT&T Idaho Claimants in the first sentence of paragraph 15 of the
Complaint is an accurate quotation of language found in the Idaho interconnection agreement
between Qwest and AT&T Mountain States that was approved by the Commission in 2004.
Qwest admits the allegations of the second sentence of paragraph 15. To the extent the
allegations of paragraph 15 suggest that AT&T Corp is a party to the 2004 interconnection
agreement, Qwest denies the same.
16.As to the allegations in paragraph 16 of the Complaint, Qwest admits that earlier
this year it issued invoices to AT&T Corp pursuant to the terms and conditions of the Conduit
License Agreement and individual licenses described above, and that the charges negotiated by
the parties in the licenses and contained in those invoices ranged from $2.75 to $3.25 per foot
per year.
17.As to the allegations of the first two sentences of paragraph 17 of the Complaint
Qwest admits that its SGAT rate for innerduct occupancy is $0.31 per foot, per year and that this
rate is just and reasonable. However, AT&T Mountain States has never adopted the terms of
Qwest's Idaho SGAT or ordered access to conduit from Qwest under its interconnection
agreement or in accordance with those terms. AT&T Corp is not a CLEC in Idaho and is
therefore not entitled to the SGA T rate.
18.As to the allegations contained paragraph 18 of the Complaint, Qwest admits that
AT &T Corp has previously requested that Qwest renegotiate the conduit rental rates established
by the parties in the Conduit License Agreement and individual licenses negotiated pursuant
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 12
SaltLake-234907.1 0019995-00150
thereto. Qwest admits that inquiries regarding this issue were raised by an AT&T entity as early
as February 2000 but denies that negotiations commenced at that time. However, these
agreements predate the 1996 Telecommunications Act and are not subject to section 224 of the
ACt.10 Qwest is not legally obligated to renegotiate the terms of those agreements. As for AT&T
Mountain States, Qwest has entered interconnection agreements with it that entitle it to Qwest'
SGAT rate for access to Qwest-owned conduit in Idaho pursuant to its interconnection
agreement or Qwest's Idaho SGA T, but AT&T Mountain States has never placed an order for
access to such conduit pursuant to its interconnection agreement or adopted the terms of Qwest
Idaho SGAT. Within the past year AT&T Mountain States and Qwest negotiated a successor
interconnection agreement. In that agreement the parties agreed to language that expressly
adopts the SGAT rates for conduit access. Consequently, Qwest denies the allegation in
paragraph 18 that suggests that Qwest has refused to agree that AT&T Mountain States could
obtain conduit at the SGA T rate.
19.The allegations in paragraph 19 of the Complaint set forth legal argument and
conclusions to which no response is required. To the extent any of these allegations may be
construed as stating factual allegations, Qwest denies that any of the provisions of Idaho law
cited by the AT&T Idaho Claimants require retroactive refunds of amounts billed and paid under
valid and binding contracts between Qwest and AT&T Corp.
20.As to the allegations of paragraph 20 of the Complaint, Qwest admits that the
rates under the license agreements are higher than the SGA T rates. The remainder of the
allegations of paragraph 20 set forth legal argument and conclusions to which no response is
required. To the extent any of these allegations may be construed as stating factual allegations
Qwest denies the same.
See 47 V.C. 9224(d)(3).
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. -
SaItLake-234907.10019995-00150
21.As to the allegations in paragraph 21 of the Complaint, Qwest admits that it
competes with each of the AT&T Idaho Claimants, but denies that it has acted unjustly or
unreasonably with respect to either of these two entities. Further, Qwest denies that it forced
AT &T Mountain States to pay any rates above the Qwest Idaho SGA T rate on file with the
Commission. Qwest affirmatively alleges that these SGA T rates for access to Qwest-owned
conduit in Idaho have always been, and still are~ available to AT&T Mountain States, yet AT&T
Mountain States has failed to order such access pursuant to its interconnection agreement or by
adopting the terms of Qwest' s Idaho SGA T. The remainder of the allegations of paragraph 21
set forth legal argument and conclusions to which no response is required. To the extent any of
these allegations may be construed as stating factual allegations, Qwest denies the same.
22.The allegations in paragraph 22 of the Complaint set forth legal argument and
conclusions to which no response is required. To the extent any of these allegations may be
construed as stating factual allegations, Qwest denies the same.
23.The allegations in paragraph 23 of the Complaint set forth legal argument and
conclusions to which no response is required. To the extent any of these allegations may be
construed as stating factual allegations, Qwest denies the same.
24.To the extent Qwest has not specifically admitted or denied factual allegations
contained in paragraphs 1 through 23 of the Complaint, Qwest hereby denies those allegations.
AFFIRMATIVE DEFENSES
A. First Affirmative Defense
This Commission lacks jurisdiction over the matters set forth in the Complaint.
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 14
SaltLake-234907.10019995-00150
B. Second Affirmative Defense
The Complaint fails to state a claim upon which relief can be granted.
C. Third Affirmative Defense
The Complaint is barred by the doctrine of laches.
D. Fourth Affirmative Defense
The Complaint is barred by the doctrine of retroactive ratemaking.
E. Fifth Affirmative Defense
The portion of the Complaint seeking a refund dating back to September 15 , 1998 is
barred by the application of Idaho Code 9 61-642.
F. Sixth Affirmative Defense
Qwest reserves the right to assert any additional affirmative defenses or special defenses
that may become known through discovery or further proceedings in this matter or as may be
otherwise appropriate.
RELIEF REQUESTED
Based upon the foregoing answer and defenses, Qwest requests the following relief:
On the basis of the foregoing, an order denying the AT&T Idaho Claimants
prayer for relief, including their request for attorneys ' fees.
An order dismissing the AT&T Idaho Claimants ' Complaint with prejudice.
Such other and further relief as may be within the Commission s jurisdiction and
to which the Commission deems appropriate.
/ / /
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 15
SaItLake-234907.l 0019995-00150
RESPECTFULLY SUBMITTED this 31 st day of August, 2004.
Adam L. Sherr
Qwest Corporation Law Department
Attorneys for Qwest Corporation
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 16
SaltLake-234907.10019995-00150
CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of August 2004 I served the foregoing ANSWER
QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. upon all parties of record in
this matter as follows:
Jean D. Jewell
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
MaryV. York
Holland & Hart LLP
101 South Capitol Boulevard - Suite 1400
O. Box 2527
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
m york(q?ho llandhart. com
Attorney for AT&T Corp. AT&T Comm.
Robert M. Pomeroy
Holland & Hart LLP
8390 East Crescent Parkway - Suite 400
Greenwood Village, CO 80111-2800
Telephone: [phone]
Facsimile: [phone]
Qpomero y(q?ho llandhart. com
Attorney for AT&T Corp. AT&T Comm.
T. Scott Thompson
Brian M. Josef
Rita Tewari
Cole, Raywid & Braverman LLP
1919 Pennsylvania Avenue NW - 2nd Floor
Washington, DC 20006
Telephone: [phone]
Attorneyfor AT&T Corp. &AT&TComm.
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. - 17
SaltLake-234907.1 0019995-00150
Meredith R. Harris
AT&T Corp.
One AT&T Way
Bedminster, NJ 07921
Telephone: [phone]
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
~dI~
Brandi L. Gearhart, PLS
Legal Secretary to Mary S. Hobson
Stoel Rives LLP
ANSWER OF QWEST CORPORATION TO COMPLAINT OF AT&T CORP., AND AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC. .. 18
SaltLake-234907.1 0019995-00150