20050107Qwest Motion for Prehearing.pdf

Mary S. Hobson (ISB #2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ill 83702
Telephone: [phone]
Facsimile: [phone]
msho bson~stoe1. com
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UTILiTIES CDr'tt11SS10N
Adam L. Sherr (WSBA #25291)
Qwest Corporation
1600 ih Avenue Room 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
adam.sherr~qwest.com
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-04-
Comp lainants
QWEST'S MOTION FOR LEAVE TO
PROPOUND ADDITIONAL DISCOVERY
AND MOTION REQUESTING A PRE-
HEARIN G CO NFEREN CE TO REVISE
PROCEDURAL SCHEDULE
vs.
QWEST CORPORATION, a Colorado
corporation
Respondent.
INTRODUCTION
Qwest Corporation ("Qwest"), pursuant to Commission Rules of Procedure 211 and
221, LD., 31.01.01.211; 221 , moves the Commission for leave to propound additional discovery
to the AT&T Claimants and to schedule a pre-hearing conference in order to discuss revising the
schedule in this matter. Qwest asks that the schedule be revised as described herein to allow for the
QWEST'S MOTION FOR LEAVE TO PROPOUND ADDITIONAL DISCOVERY AND MOTION
REQUESTING A PRE-HEARING CONFERENCE TO REVISE PROCEDURAL SCHEDULE - Page 1
Boise-179858.1 0029164-00106
filing of testimony and the scheduling of a technical hearing. Qwest believes that a hearing is required
under several of the statutes relied upon by the AT&T Claimants for the basis of their relief, i., Idaho
Code 99 61-502 , 61-503 and 61-514. Qwest submits that either a hearing must be held, or the
Complaint must be dismissed.
Qwest has discussed this general issue with counsel for the AT&T Claimants.
Claimants have not yet responded to that inquiry. In addition, counsel for Staff has previously been
advised that Qwest would be filing this motion. Qwest believes a pre-hearing conference should be
convened to discuss scheduling.
II.DISCUSSION
The existing schedule2 calls for the parties to file cross motions for summary judgment
followed by answers and oral argument. Qwest agreed to that schedule during informal discussions
with the AT&T Claimants. At the time, Qwest believed that the case could reasonably be resolved on
cross motions for summary judgment as there would be few, if any, disputed facts. Since that time
Qwest has come to believe otherwise, and no longer consents to the matter being resolved without a
hearing.
This complaint proceeding cannot be resolved without a hearing for at least two
reasons, each of which independently supports the need for a hearing. First, the discovery process has
disclosed that the parties do, in fact, disagree on material facts, thus making an evidentiary hearing
necessary. This point was underscored by responses filed by the AT&T Claimants to additional
By reciting the Claimants' contentions as to the basis of the Commission s jurisdiction and authority to grant
relief, Qwest does not intend to suggest that it agrees with these contentions or that the Commission could, under
any set of facts proven by Claimants, grant the relief requested.
The schedule provided that these summary motions would be filed in January "if no Motions to Compel are
filed." However, on January 3 2005, Qwest and the AT&T Claimants each filed motions to compel. Hence the
deadline for filing such motions has not been established.
QWEST'S MOTION FOR LEAVE TO PROPOUND ADDITIONAL DISCOVERY AND MOTION
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Boise-179858.l 0029164-00106
discovery in a similar case currently pending before the Washington Utilities and Transportation
Commission,3 which disclosed numerous factual contentions in dispute. Second, a hearing is required
by some of the key statutory provisions under which the complaint has been brought.
Motion for Leave to Propound Discclvery.
Qwest has learned through discovery that there are material facts in dispute, or
potentially in dispute, that can only be resolved through hearing. Disputes relating to substantial
issues of fact should be resolved through an evidentiary hearing where issues may be tested with
cross-examination.
In the Washington docket, Qwest initially propounded discovery requests similar to
Qwest's first set of requests in Idaho. On December 2 , 2004, Qwest propounded a second set of
discovery requests consisting of three additional questions. A copy of Qwest's second set of requests
in Washington is attached as Exhibit A. On December 16, 2004, the AT&T Claimants in Washington
responded to two of those requests, a copy of which response is attached as Exhibit B. Qwest also
propounded a third set of discovery requests in Washington consisting of five additional questions.
copy of Qwest' s third set of discovery requests for the Washington case is attached as Exhibit C.
The additional questions propounded in Washington go to the heart of several issues in
this case. At the same time, they were limited in scope and clearly within the discovery standard
followed by this Commission. Assuming the Commission grants Qwest's motion for leave to
propound additional discovery in this case, Qwest intends to prepare discovery similar to that
propounded in sets two and three in Washington and to follow up on some of the topics covered its
AT&T Corp. and AT&T Communications o/the Pacific Northwest, Inc. v. Qwest Corp.Docket No. UT-0451394.
the Washington docket"
QWEST'S MOTION FOR LEAVE TO PROPOUND ADDITIONAL DISCOVERY AND MOTION
REQUESTING A PRE-HEARING CONFERENCE TO REVISE PROCEDURAL SCHEDULE - Page 3
Boise-179858.1 0029164-00106
earlier discovery in this Idaho case to clarify some of the positions taken by the AT&T Claimants that
relate to the disputed facts issues.
The responses in Washington, as well as those already received in Idaho, demonstrate
that there are significant issues of material fact in dispute in this case. A few examples of facts that
are or may be in dispute include: whether Qwest's predecessor had actual knowledge of the true
occupant of the conduit; how the contract rates were developed and agreed upon; and how to perform
a proper cost and pricing calculation pursuant to the applicable statutory standards. Based on the
responses to the Washington discovery requests, Qwest may also need to ask a few additional
questions in Washington and in Idaho to help clarify the issues, if possible.
Thus, based on Qwest's review of the Idaho and Washington responses , it is now clear
that there are material facts in dispute, or potentially in dispute, that can only be resolved through an
evidentiary hearing. Disputes on facts such as these should be tested through the filing of testimony
and through cross-examination.
A Hearing is Required by Statute.
10.While some cases may be decided by summary judgment whether the parties consent to
such a determination or not, there are certain types of cases where the Commission is statutorily
obligated to have a hearing before granting relief to the complainant. This is one of those cases.
11.The AT&T Claimants have brought this complaint under Idaho Code 99 61-315 , 61-
501 , 61-502, 61-503 , 61-514, and 61-641.4 Several of these statutes provide that the Commission may
grant relief only after hearing. Specifically, Idaho Code 9 61-502 provides in relevant part as follows:
Whenever the commission after a hearing had upon its own motion or
upon complaint shall find that the rates, fares, tolls, rentals, (or J charges
See Complaint, ~ 3.
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REQUESTING A PRE-HEARING CONFERENCE TO REVISE PROCEDURAL SCHEDULE - Page 4
Boise-179858.10029164-001O6
. . . charged or collected by any public utility for any service or product
or commodity. . . are unjust, unreasonable, discriminatory or
preferential. . . the commission shall determine the just, reasonable or
sufficient rates, fares, tolls, rentals, charges. . . and shall fix the same by
order. . .
(emphasis added).
Similarly, Idaho Code 9 61-503 provides in part:
The commission shall have the power upon a hearing, had upon its own
motion or upon complaint, to investigate a single rate, fare, toll, rental
charge, classification, rule, regulation, contract or practice. . . and
establish new rates, fares, tolls, rentals, charges, classifications, rules
regulations, contracts or practices. . .
(emphasis added).
Finally, Idaho Code 9 61-514 provides in relevant part:
Whenever the commission after a hearing had upon its own motion or
upon complaint of a public utility affected shall find that public
convenience and necessity require the use by one (1) public utility of the
conduits, subways, tracks, wires, poles, pipes or other equipment, or any
part thereof, on, over or under any street or highway, and belonging to
another public utility. . . and that such public utilities have failed to
agree upon such use or the term and conditions or compensation for the
same, the commission may by order direct that such use be permitted
and prescribe a reasonable compensation and reasonable terms and
conditions for the joint use. . .
(emphasis added).
12.Thus, if the Commission is to grant relief under any of these statutes, it may do so only
after hearing. Of course Qwest believes that the Commission will ultimately find that no such relief is
warranted. However, a full and fair determination of the case requires that the AT&T Claimants
present their evidence in a manner subj ect to cross examination. In addition, while it may be
appropriate to decide a case such as this on cross motions for summary determination if both parties so
QWEST'S MOTION FOR LEAVE TO PROPOUND ADDITIONAL DISCOVERY AND MOTION
REQUESTING A PRE-HEARING CONFERENCE TO REVISE PROCEDURAL SCHEDULE - Page 5
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consent, it is a violation of the applicable statutes to do so when the respondent does not consent to
such a determination.
13.Finally, this schedule change will not prejudice the AT&T Claimants. As the
Claimants, the AT&T entities are obligated to prove their case by a preponderance of the evidence at
hearing, and cannot escape that burden by the filing of a summary motion. Thus, this schedule change
places the AT&T Claimants in the position they chose and accepted when they filed a formal
complaint.
14.Qwest proposes that the details regarding the timing of pre- filed testimony and the
dates of the hearings be discussed and decided at a pre-hearing conference and requests that such
conference be scheduled as soon as possible.
RESPECTFULLY SUBMITTED this 7th day of January, 2005.
Mary S. obson
Stoel Rives LLP
Adam L. Sherr
Qwest Corporation
Attorneys for Qwest Corporation
QWEST'S MOTION FOR LEAVE TO PROPOUND ADDITIONAL DISCOVERY AND MOTION
REQUESTING A PRE-HEARING CONFERENCE TO REVISE PROCEDURAL SCHEDULE - Page 6
Boise-179858.l 0029164-00106
CERTIFICATE OF SERVICE
I hereby certify that on this ih day of January, 2005, I served the foregoing QWEST'
MOTION FOR LEAVE TO PROPOUND ADDITIONAL DISCOVERY AND MOTION
REQUESTING A PRE-HEARING CONFERENCE TO REVISE PROCEDURAL SCHEDULE
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, ill 83702
Telephone [phone]
Facsimile: [phone]
ij ewe1l~puc.state.id. us
Weldon Stutzman
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ill 83720-0074
Telephone [phone]
Facsimile: [phone]
wstutzm~puc.state.id. us
Meredith R. Harris
AT&T Corp.
One AT&T Way
Bedminster, NJ 07921
Telephone: [phone]
Robert M. Pomeroy
Holland & Hart LLP
8390 East Crescent Parkway - Suite 400
Greenwood Village, CO 80111-2800
Telephone: [phone]
Facsimile: [phone]
bpomero y~ho llandhart. com
Attorney for AT&T Corp. AT&T Comm.
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
QWEST'S MOTION FOR LEAVE TO PROPOUND ADDITIONAL DISCOVERY AND MOTION
REQUESTING A PRE-HEARING CONFERENCE TO REVISE PROCEDURAL SCHEDULE - Page 7
Boise-l 79858.1 0029164-00106
T. Scott Thompson
Brian M. Josef
Rita Tewari
Cole, Raywid & Braverman
1919 Pennsylvania Avenue NW - 2nd Floor
Washington, DC 20006
Telephone: [phone]
Attorney for AT&T Corp. AT&T Comm.
Mary V. York
Holland & Hart LLP
101 South Capitol Boulevard - Suite 1400
O. Box 2527
Boise, ill 83701
Telephone: [phone]
Facsimile: [phone]
myork~hollandhart.com
Attorney for AT&T Corp. AT&T Comm.
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Brandi L. earhart, PLS
Legal Assistant to Mary S. Hobson
Stoel Rives LLP
QWEST'S MOTION FOR LEAVE TO PROPOUND ADDITIONAL DISCOVERY AND MOTION
REQUESTING A PRE-HEARING CONFERENCE TO REVISE PROCEDURAL SCHEDULE - Page 8
Boise-179858.l 0029164-00106
EXHIBIT A
BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
AT&T CORP. and AT&T
COMMUNICATIONS OF THE PACIFIC
NORTHWEST, INC.
Complainants
Docket No. UT-041394
QWEST'S SECOND SET OF DATA
REQUESTS TO AT&T CORP. AND
AT &T COMMUNICATIONS OF THE
PACIFIC NORTHWEST, INC.
vs.
QWEST CORPORATION
Respondent.
TO: AT&T CORP. and AT&T COMMUNICATIONS OF THE PACIFIC NORTHWEST, INC.
Pursuant to WAC 480-07-400 Qwest Corporation ("Qwest") requests that AT&T Corp.
and AT&T Communications of the Pacific Northwest, Inc. provide responses to the following
data requests to the undersigned within ten (10) business days of the date of service of these
requests:
DEFINITIONS
As used herein, the following terms have the meaning as set forth below:
The terms "AT&T
" "
you " and "your" shall include AT&T Corp. and AT&T
Communications of the Pacific Northwest, Inc. and their attorneys, employees, servants, agents
and representatives, and any person acting on their behalf for any purpose.
List
" "
describe
" "
detail
" "
explain
" "
specify," or "state" shall mean to set
forth fully, in detail and unambiguously, each and every fact of which you, your company or
QWEST'S SECOND SET OF DATA
REQUESTS TO AT&T
Page 1
QWEST
1600 7th Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
your agents or representatives have knowledge which is relevant to the answer called for by the
data request.
The terms "document
" "
documents " or "documentation" as used herein shall
include, without limitation, any writings and documentary material of any kind whatsoever
both originals and copies (regardless of origin and whether or not including additional writing
thereon or attached thereto), and any and all drafts, preliminary versions, alterations
modifications, revisions, changes and written comments of and concerning such material
including, but not limited to: correspondence, letters, memoranda, internal communications
notes, reports, directions, studies, investigations, questionnaires and surveys, inspections
permits, citizen complaints, studies, papers, files, books, manuals, instructions, records
pamphlets, forms, contracts, contract amendments or supplements, contract offers, tenders
acceptances, counteroffers or negotiating agreements, notices, confirmations, telegrams
communications sent or received, print-outs, diary entries, calendars, tables, compilations
tabulations, charts, graphs, maps, recommendations, ledgers, accounts, worksheets
photographs, tape recordings, movie pictures, videotapes, transcripts, logs, work papers
minutes, summaries, notations and records of any sort (printed, electronic, recorded or
otherwise) of any oral communications whether sent or received or neither, and other written
records or recordings, in whatever form, stored or contained in or on whatever medium
including computerized or digital memory or magnetic media that:
(a)
(b)
are now or were formerly in your possession, custody or control; or
are known or believed to be responsive to these data requests, regardless of who
has or formerly had custody, possession or control.
The terms "identify" and "identity," when used with reference to a person, mean
to state his or her full name, present or last known address, present or last known telephone
number, present or last known place of emploYment, position or business affiliation, his or her
position or business affiliation at the time in question, and a general description of the business
QWEST'S SECOND SET OF DATA
REQUESTS TO AT&T
Page 2
QWEST
1600 7th Ave., Suite 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
in which he or she is engaged.
The terms "identify" and "identity," when used with respect to any other entity,
mean to state its full name, the address of its principal place of business, and the name of its
chief executive officers.
The terms "identify" and "identity," with respect to a document, mean to state
the name or title of the document, the type of document (e., letter, memorandum, telegram
computer input or output, chart, etc.), its date, the person( s) who authored it, the person( s) who
signed it, the person( s) to whom it was addressed, the person( s) to whom it was sent, its general
subject matter, its present location, and its present custodian. If any such document was but is
no longer in the possession of AT&T subject to its control, state what disposition was made of
it and explain the circumstances surrounding, and the authorization for, such disposition, and
state the date or approximate date of such disposition.
The terms "identify" and "identity," with respect to any non-written communica-
tion, mean to state the identity of the person(s) making and receiving the communication, their
respective principals or employers at the time of the communication, the date, manner and place
of the communication, and the topic or subject matter of the communication.
The term to "state the basis" for an allegation, contention, conclusion, position
or answer means: (a) to identify and specify the sources therefore; (b) to identify and specify all
facts on which you rely or intend to rely in support of the allegation, contention, conclusion
position or answer; and (c) to set forth and explain the nature and application to the relevant
facts of all pertinent legal theories upon which you rely for your knowledge, information and/or
belief that there are good grounds to support such allegation, contention, conclusion, position or
answer.
The terms "relates to" or "relating to" mean referring to, concerning, responding
, containing, regarding, discussing, describing, reflecting, analyzing, constituting, disclosing,
embodying, defining, stating, explaining, summarizing, or in any way pertaining to.
QWEST'S SECOND SET OF DATA
REQUESTS TO AT&T
Page 3
QWEST
1600 7th Ave., Suite 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
The term "including" means "including, but not limited to.10.
11.The terms "CLEC" or "competitor" means any competing local exchange carrier
not affiliated with Qwest, regardless of whether the carrier is presently providing local
telephone exchange services in the State of Washington.
12.The term "carrier" means any provider of telecommunications services.
INSTRUCTIONS
These data requests shall be deemed to be continuing. You are obliged to
change, supplement, and correct all answers to data requests to conform to available
information, including such information as first becomes available to you after the answers and
production of documents hereto are filed and made, should additional information become
known or should information supplied in the answers or documents prove to be incorrect or
incomplete.
The response to each data request provided should restate the question asked and
also identify the person( s) supplying the information.
In answering these data requests, furnish all information that is available to you
or may be reasonably ascertained by you, including information in the possession of any of your
agents or attorneys, or otherwise subject to your knowledge, possession, custody or control.
If in answering these data requests you encounter any ambiguity in construing
the request or a definition or instruction relevant to the inquiry contained within the data
request, set forth the matter deemed "ambiguous" and set forth the construction chosen or used
in answering the data request.
If you object to any part of a request, answer all parts of such requests to which
you do not object, and as to each part to which you do object, separately set forth the specific
basis for the objection.
QWEST'S SECOND SET OF DATA
REQUESTS TO AT&T
Page 4
QWEST
1600 7th Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
DATA REQUESTS
24. In AT&T's supplemental responses to Qwest Data Requests 17(c), 17(e), and
, AT&T states that AT&T Communications of the Pacific Northwest, Inc. has owned and
operated the facilities in the conduit at issue since the date on which each applicable license
was executed. AT&T further states that it believes this information "was known to Qwest or its
predecessors-in-interest from the inception of the General License Agreement for Conduit
Occupancy" (Response to 17(e)). AT&T makes similar allegations in the other referenced
responses.
Please state, in detail, the basis for AT&T's belief that Qwest or its predecessors knew
that the true occupant of the conduit was AT&T Communications of the Pacific Northwest and
not AT&T Corp., the actual licensee. In connection with this response, please provide all
documents that support or refute this contention. Further, provide the names of all persons
whether employed by Qwest or its predecessors, who AT&T contends knew of the conduit
occupancy by AT&T of the Pacific Northwest.
25. Please identify whether AT&T Corp. is in any way authorized to construct
attachments upon, along, under, or across the public rights of way. If the answer is in the
affirmative, please identify under what provision of law AT&T is so authorized. If AT&T does
not rely on a specific provision of the law, please explain AT&T's response.
DATED this day of December, 2004.
QWEST
Lisa Anderl, WSBA # 13236
Adam Sherr, WSBA # 25291
Qwest
1600 ih Avenue, Room 3206
Seattle, W A 98191
Phone: [phone]
Attorneys for Qwest
QWEST'S SECOND SET OF DATA
REQUESTS TO AT&T
Page 5
QWEST
1600 7th Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
EXHIBIT B
Before the
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
Olympia, Washington
AT&T CORP., and AT&T COMMUNICATIONS OF THE)
PACIFIC NORTHWEST, INC.
Complainants
vs.
QWEST CORPORATION
Respondent.
Docket No. UT-041394
COMPLAINANTS'
RESPONSE TO QWEST'
SECOND SET OF DATA
REQUESTS TO AT&T CORP.
AND AT&T
COMMUNICATIONS OF THE
PACIFIC NORTHWEST, INC.
AT&T Corp. and AT&T Communications of the Pacific Northwest, Inc.
(hereinafter "Claimants
),
through their attorneys and pursuant to WAC 480-07-405
submit this Response to Qwest Corporation s Second Set of Data Requests to AT&T
Corp., and AT&T Communications of the Pacific Northwest, Inc. ("Qwest's Second Data
Request") in the above-captioned matter.
GENERAL OBJECTIONS
In addition to the specific objections enumerated below, Claimants expressly
incorporate by reference the "General Objections" accompanying their initial Response to Qwest'
First Data Request, filed November 2, 2004.
II.RESPONSES TO DATA REQUESTS
Owest pata Reques~: In AT&T's supplemental responses to Qwest Data
Requests 17(c), 17(e), and 19, AT&T states that AT&T Communications of the Pacific
Northwest, Inc. has owned and operated the facilities in the conduit at issue since the date
on which each applicable license was executed. AT&T further states that it believes this
information "was known to Qwest or its predecessors-in-interest from the inception of the
General License Agreement for Conduit Occupancy" (Response to 17(e)). AT&T makes
similar allegations in the other referenced responses.
Please state, in detail, the basis for AT &T' s belief that Qwest or its
predecessors knew that the true occupant of the conduit was AT&T Communications of
the Pacific Northwest and not AT&T Corp., the actual licensee. In connection with this
response, please provide all documents that support or refute this contention. Further
provide the names of all persons, whether employed by Qwest or its predecessors, who
AT&T contends knew of the conduit occupancy by AT&T of the Pacific Northwest.
Claimants' Response
There are at least four major categories of facts that support Claimants
contention, which are set forth under the following sub-headings.
Qwest's Predecessors Knew of the Relationship With AT&T
Communications of the Pacific Northwest, Inc. Involving Use
of Conduit From the Modified Final Judgment Ordering
Divestiture and the Accompanying Plan of Reorganization
Prior to the divestiture of the regional bell operating companies ("RBOCs ) from
the American Telephone and Telegraph Company, conduit was jointly occupied by the
American Telephone and Telegraph Company and its wholly-owned subsidiaries
WUTC Docket No. UT -041394
AT &T Supplemental Response to Qwest's Second Set Of Data Requests
December 16,2004
including Qwest's predecessors the Pacific Northwest Bell Telephone Company, the
Northwestern Bell Telephone Company and the Mountain States Telephone and
Telegraph Company. After entry of the Modification of Final Judgment on August 24
19821 and upon final approval of the Plan of Reorganization on August 5, 1983 , the
American Telephone and Telegraph Company was divested of its local exchange
facilities. As part of the Plan, AT&T Communications of the Pacific Northwest, Inc. was
created on September 20, 1983 as a wholly-owned inter-exchange carrier subsidiary of
the American Telephone and Telegraph Company. The Plan of Reorganization also
called for the Pacific Northwest Bell Telephone Company, the Northwestern Bell
Telephone Company, and the Mountain States Telephone and Telegraph Company to be
consolidated into the RBOC US West.2 On January 1 , 1984, US West, Inc. was
officially created.
Pursuant to the Plan of Reorganization, each of the BOCs (e.
g.,
the Pacific
Northwest Bell Telephone Company, the Northwestern Bell Telephone Company, and
the Mountain States Telephone and Telegraph Company) created wholly-owned
subsidiaries to which each of their respective interexchange facilities were transferred.
In exchange for the transfer of the facilities, the BOCs obtained common stock of the new
See United States v. American Telephone and Telegraph Co.552 F. Supp. 131 (D.C. 1982), affd sub
nom. Marylandv. United States 460 U.S. 1001, 103 S. Ct. 1240 75 L. Ed. 2d472 (1983); see also United
States v. Western Electric Co.569 F. Stipp. 1057 (D.
),
affd sub nom. California v. United States 464
S. 1013 , 104 S. Ct. 542, 78 L. Ed. 2d 719 (1983).
See United States v. American Telephone and Telegraph Co.Civil Action No. 82-0192, Plan of
Reorganization, (Dec. 16, 1982), p. 5. (hereinafter "Plan of Reorganization
Consolidated Application of American Telephone and Telegraph Co. and Specified Bell System
Companiesfor Authorization Under Sections 214 and 310(d) of the Communications Act of 1934 for
Transfers of Interstate Lines, Assignments of Radio Licenses, Transfers of Control of Corporations
Holding Radio Licenses and Other Transactions as Described in the Application 96 F.C. 2d 18, ~ 31
(1983) Consolidated Application
WUTC Docket No. UT-041394
AT &T Supplemental Response to Qwest's Second Set Of Data Requests
December 16,2004
subsidiaries.4 The stock was then transferred to the American Telephone and Telegraph
Company, divesting the BOCs of their interexchange facilities, in accordance with the
terms of the Bell System break-up.s In approving the Plan, the Federal Communications
Commission clarified the status the interexchange subsidiaries would hold after
divestiture:
The IXC subsidiaries will retain separate corporate status within AT&T
and will not be merged into other subsidiaries or departments of AT &T.
After divestiture, interexchange carrier functions will be handled by
AT &T Communications, which will consist of a national interexchange
corporation, an interstate division of AT&T, and 22 regional
interexchange corporations. The national intetexchange corporation will
own no communications assets itself but will manage and direct AT&T'
interexchange operations. The 22 regional interexchange corporations
will operate the interLA T A assets assigned to them at divestiture and
under the direction of the national interexchange corporation, will
coordinate with the other interexchange corporations and the interstate
division.
AT&T Communications of the Pacific Northwest, Inc. is one of the 22 regional
interexchange corporations created as a result of divestiture.
Several years after divestiture, AT&T Communications of the Pacific Northwest
Inc. began entering into agreements in its corporate parent's name. Given the
incontrovertible history outlined above, Claimants believe it is clear that Qwest
understood that AT&T Communications of the Pacific Northwest, Inc. was the
interexchange carrier occupying the conduit at issue in this proceeding.
Id.
ld.
ld.~ 32 n.37.
WUTC Docket No. UT -041394
AT &T Supplemental Response to Q.west's Second Set Of Data Requests
December 16, 2004
Qwest's Predecessor Direct Participation In The Certification
Proceedings of AT&T Communications of the Pacific Northwest, Inc.
Demonstrates That It Knew Which AT&T Entity Was Occupying Its
Washington Conduit
Further evidence demonstrating that Qwest's predecessor knew which AT&T
entity was providing telecommunications services and occupying the conduit at issue in
this proceeding is the fact that it took part in certification proceedings involving AT&T
Communications of the Pacific Northwest, Inc. Claimants ' Complaint included a copy of
the Washington Utilities and Transportation Commission order classifying AT&T
Communications of the Pacific Northwest, Inc. as a competitive telecommunications
company. See In re Petition of AT&T Communications of the Pacific Northwest, Inc.for
Classification as a Competitive Telecommunications Company, 85 P.R. 4th 304 (1987)
(attached to Complaint at Exhibit 1). In that proceeding, Pacific Northwest Bell
Telephone Company participated directly as an intervenor (even cross-examining
witnesses), just over a year before entering into the July 11 , 1988 Conduit Lease
Agreement with AT&T Communications of the Pacific Northwest, Inc.s parent, the
American Telephone and Telegraph Company. Given Pacific Northwest Bell'
involvement in the proceeding, in addition to the MF J evidence discussed above and the
documentary evidence discussed below, Qwest cannot credibly claim that it was not
aware that the operating subsidiary AT&T Communications of the Pacific Northwest
Inc. was occupying and providing telecommunications services in the conduit at issue.
WUTC Docket No. UT -041394
AT&T Supplemental Response to Qwest's Second Set Of Data Requests
December 16,2004
Qwest's Status As A Party To Franchise Agreements Under Conduit
Lease Agreements During the Period In Question Provides Further
Evidence of Qwest's Knowledge That The AT&T Operating
Subsidiaries Are Actually Occupying Qwest Conduit
Qwest's predecessor entered into two Franchise Use Agreements, dated July 7
1987 and March 22 1988, with the AT&T operating subsidiary AT&T Communications
of the Mountain States, Inc. These agreements specifically referenced and incorporated
the April 10, 1987 Conduit Lease Agreement signed by the American Telephone &
Telegraph Company and Mountain States Telephone and Telegraph Company.
First, there is an "Agreement" between "The Mountain States Telephone and
Telegraph Company" and "AT&T Communications of the Mountain States, Inc.
regarding the use of Qwest conduit in Salt Lake City. The first paragraph of the
agreement defines "AT&T Communications of the Mountain States, Inc." as "AT&T"
or "Licensee The very first "Witnesseth" paragraph then states that
WHEREAS, Mountain Bell andAT&T (defined term for AT&T Communications
of the Mountain States, Inc.) have entered into an agreement for conduit
occupancy in certain portions of Utah, dated April 1 0, 1987 (i. e.the Conduit
Lease Agreement). . .." (emphasis added).
Thus, the document establishes, conclusively, that by at least July 7, 1987 Qwest'
predecessor understood that the AT&T subsidiaries, such as AT &T Communications of
the Mountain States, Inc. in Utah and AT&T Communications of the Pacific Northwest
in Washington, were parties to the Conduit Lease Agreements and were occupying
Qwest's conduit, despite the fact that the American Telephone and Telegraph is the party
named on the face of the Conduit Lease Agreement.
Similarly, there is a second document entitled "Franchise Use Agreement", which
is dated March 22, 1988 and which states that it is "by and between THE MOUNTAIN
WUTC Docket No. UT -041394
AT&T Supplemental Response to Qwest's Second Set Of Data Requests
December 16,2004
STATES TELEPHONE AND TELEGRAPH COMPANY. . . and AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES, INC." The Franchise Use
Agreement similarly defines "AT&T COMMUNICATIONS OF THE MOUNTAIN
STATES" as "(" AT &T" or "Licensee " (Emphasis added). Like the 1987 agreement
this "Franchise Use Agreement" also states in its first WHEREAS paragraph that
Mountain Bell and AT&T have entered into an agreement for conduit occupancy in
certain portions of Utah dated Apr. 10, 1987. . . ." (Emphasis added). Again, the
document on its face constitutes an admission and recognition by Qwest's predecessor
that it understood that AT &T operating subsidiaries, such as AT&T Communications of
the Mountain States, Inc. or AT&T Communications of the Pacific Northwest, Inc., are
proper parties to the Conduit Lease Agreements between the parties, and thus that Qwest
has known all along that AT&T Communications oftbe Pacific Northwest was
occupying Qwest's conduit.
This documentation provides additional evidence as to Qwest's actual knowledge
that the true occupants of Qwest-owned conduit were the individual AT&T operating
subsidiaries providing telecommunications services, while the parent corporation, the
American Telephone & Telegraph Company, simply entered into the agreements on their
behalf.
Qwest's Predecessor Employees Administering The Conduit Lease
Agreements Were Likely Aware That AT&T Communications of the
Pacific Northwest, Inc. Was Occupying The Conduit
Claimants submit that the following employees or agents of Qwest'
predecessors, the signatories to the Conduit Lease Agreement and licenses issued
thereunder, were in a position toJmow and were likely aware that AT&T
WUTC Docket No. UT-041394
AT&T Supplemental Response to Qwest's Second Set Of Data Requests
Decem ber 16, 2004
Communications of the Pacific Northwest, Inc. was the true occupant of the conduit at
issue in this proceeding: J.B. Wingert, Glenn Means, Frances M. Gunderson, Henry L.
Moschetti, and Duane McCulloch.
Answer prepared on December 15, 2004 by Brian M. Josef, Esq.
WUTC Docket No. UT -041394
AT &T Supplemental Response to Qwest's Second Set Of Data Requests
December 16, 2004
Qwest Data Request No. 25: Please identify whether AT&T Corp. is in any way
authorized to construct attachments upon, along, under, or across the public rights of
way. If the answer is in the affirmative, please identify under what provision of law
AT&T is so authorized. If AT&T does not rely on a specific provision of the law, please
explain AT&T's response.
Claimants ' Response: Claimants object to this interrogatory on the grounds that
it seeks information that is not relevant to substantial issues in the proceeding and is not
reasonably calculated to lead ~o the discovery of admissible evidence. AT&T Corp.' s
authorizations to construct attachments upon, along, Wlder, or across the public rights of
way are irrelevant in this proceeding where the issue concerns the unjust, unreasonable
and discriminatory rates Qwest is charging Claimants for leasing Qwest-owned conduit
that they already occupy. In addition, Claimants object that the request is overbroad and
unduly burdensome in seeking information without limitation to the conduit at issue - or
even the state of Washington - and without limitation as to time.
Objection and answer prepared on December 15,2004 by Brian M. Josef, Esq.
"""'" .'" """"'-".""""'" '...... ."....... .......' '. '............,........... .... .. .. "'.""'" ....... - ..... -- _... ..
WUTC Docket No. UT -041394
AT&T Supplemental Response to Qwest's Second Set Of Data Requests
December 16, 2004
DATED this 16th day of December, 2004.
AT&T CORP. AND AT&T COMMUNICATIONS OF
THE PACIFIC NORTHWEST, INC.
. Gregory J. Kopta, Esq.
2600 Century Square
1501 Fourth Avenue
Seattle, Washington 98101-1688
Phone: [phone]
Fax: [phone]
Emai1: gregkopta~dwt.com
Meredith R. Harris, Esq.
AT&T CORP.
One AT&T Way
Bedminster, New Jersey 07921
. Scott Thompson, Esq.
Brian M. Josef, Esq.
Rita Tewari, Esq.
COLE, RAYWID & BRAVERMAN, LLP
1919 Pennsylvania Ave., N.
Second Floor
Washrnngto~ D.C. 20006
Attorneys for AT&T Corp. and AT&T
Communications of the Pacific Northwest, Inc.
WUTC Docket No. UT-041394
AT &T Supplemental Response to Qwest's Second Set Of Data Requests
December 16, 2004
CERTIFICATE OF SERVICE
, Melissa Geraghty, do hereby certify that on this 16th day of December, 2004, a true and correct
copy of the foregoing has been sent by United States Mail, First Class, Postage Prepaid and by
electronic mail to the following:
Mark S. Reynolds
Senior Director-Policy & Law
Qwest Corporation
1600 7th Avenue, Room 3206
Seattle, W A 98191
E-mail: Mark.Reynol s3~qwest.com
Lisa Anderl
Qwest Corporation
1600 7th Avenue, Room 3206
Seattle, W A 98191
E-mail: Lisa.Anderl~qwest.com
Adam L. Sherr
Qwest Corporation
1600 7th Avenue, Room 3206
Seattle, W A 98191
E-mail: adam.sherr~qwest.com
Ted Smith
Stoel Rives LLP
Representing Qwest Corporation
201 South Main Street, Suite 10100
Salt Lake City, UT 84111
E-mail: tsmith~stoe1.com
Greg J. Trautman
Assistant Attorney General
WUTC
. Office of the Attorney General
PO Box 40128
Olympia W A 98504
E-mail: gtrautma~wutc.wa.gov
Simon ffitch
Assistant Attorney General
Public Counsel
Office of the Attorney General
900 4th Avenue, Suite 2000
Seattle, W A 98164
E-mail: simonf~atg.wa.gov
EXHIBIT C
requests:
BEFORE THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
AT&T CORP. and AT&T
COMMUNICATIONS OF THE
PACIFIC NORTHWEST, INC.
Docket No. UT-041394
QWEST'S THIRD SET OF DATA
REQUESTS TO AT&T CORP. AND
AT &T COMMUNICATIONS OF THE
PACIFIC NORTHWEST, INC.
Complainants
vs.
QWEST CORPORATION
Respondent.
TO: AT&T CORP. and AT&T COMMUNICATIONS OF THE PACIFIC NORTHWEST, INC.
Pursuant to WAC 480-07-400 Qwest Corporation ("Qwest") requests that AT&T Corp.
and AT&T Communications of the Pacific Northwest, Inc. provide responses to the following
data requests to the undersigned within ten (10) business days of the date of service of these
DEFINITIONS
As used herein, the following terms have the meaning as set forth below:
The terms "AT&T
" "
you " and "your" shall include AT&T Corp. and AT&T
Communications of the Pacific Northwest, Inc. and their attorneys, employees, servants, agents
and representatives, and any person acting on their behalf for any purpose.
List
" "
describe
" "
detail
" "
explain
" "
specify," or "state" shall mean to set
QWEST'S THIRD SET OF DATA
REQUESTS TO AT&T
Page 1
QWEST
1600 7th Ave., Suite 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
forth fully, in detail and unambiguously, each and every fact of which you, your company or
your agents or representatives have knowledge which is relevant to the answer called for by the
data request.
The terms "document
" "
documents " or "documentation" as used herein shall
include, without limitation, any writings and documentary material of any kind whatsoever
both originals and copies (regardless of origin and whether or not including additional writing
thereon or attached thereto), and any and all drafts, preliminary versions, alterations
modifications, revisions, changes and written comments of and concerning such material
including, but not limited to: correspondence, letters, memoranda, internal communications
notes, reports, directions, studies, investigations, questionnaires and surveys, inspections
permits, citizen complaints, studies, papers, files, books, manuals, instructions, records
pamphlets, forms, contracts, contract amendments or supplements, contract offers, tenders
acceptances, counteroffers or negotiating agreements, notices, confirmations, telegrams
communications sent or received, print-outs, diary entries, calendars, tables, compilations
tabulations, charts, graphs, maps, recommendations, ledgers, accounts, worksheets
photographs, tape recordings, movie pictures, videotapes, transcripts, logs, work papers
minutes, summaries, notations and records of any sort (printed, electronic, recorded or
otherwise) of any oral communications whether sent or received or neither, and other written
records or recordings, in whatever form, stored or contained in or on whatever medium
including computerized or digital memory or magnetic media that:
(a)
(b)
are now or were formerly in your possession, custody or control; or
are known or believed to be responsive to these data requests, regardless of who
has or formerly had custody, possession or control.
The terms "identify" and "identity," when used with reference to a person, mean
to state his or her full name, present or last known address, present or last known telephone
number, present or last known place of emploYment, position or business affiliation, his or her
QWEST'S THIRD SET OF DATA
REQUESTS TO AT&T
Page 2
QWEST
1600 7th Ave., Suite 3206
Seattle? WA 98191
Telephone: [phone]
Facsimile: [phone]
position or business affiliation at the time in question, and a general description of the business
in which he or she is engaged.
The terms "identify" and "identity," when used with respect to any other entity,
mean to state its full name, the address of its principal place of business, and the name of its
chief executive officers.
The terms "identify" and "identity," with respect to a document, mean to state
the name or title of the document, the type of document (e., letter, memorandum, telegram
computer input or output, chart, etc.), its date, the person( s) who authored it, the person( s) who
signed it, the person( s) to whom it was addressed, the person( s) to whom it was sent, its general
subject matter, its present location, and its present custodian. If any such document was but is
no longer in the possession of AT&T subject to its control, state what disposition was made of
it and explain the circumstances surrounding, and the authorization for, such disposition, and
state the date or approximate date of such disposition.
The terms "identify" and "identity," with respect to any non-written communica-
tion, mean to state the identity of the person(s) making and receiving the communication, their
respective principals or employers at the time of the communication, the date, manner and place
of the communication, and the topic or subject matter of the communication.
The term to "state the basis" for an allegation, contention, conclusion, position
or answer means: (a) to identify and specify the sources therefore; (b) to identify and specify all
facts on which you rely or intend to rely in support of the allegation, contention, conclusion
position or answer; and (c) to set forth and explain the nature and application to the relevant
facts of all pertinent legal theories upon which you rely for your knowledge, information and/or
belief that there are good grounds to support such allegation, contention, conclusion, position or
answer.
The terms "relates to" or "relating to" mean referring to, concerning, responding
, containing, regarding, discussing, describing, reflecting, analyzing, constituting, disclosing,
QWEST'S THIRD SET OF DATA
REQUESTS TO AT&T
Page 3
QWEST
1600 7th Ave., Suite 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
embodYing, defining, stating, explaining, summarizing, or in any way pertaining to.
10.
11.
The term "including" means "including, but not limited to.
The terms "CLEC" or "competitor" means any competing local exchange carrier
not affiliated with Qwest, regardless of whether the carrier is presently providing local
telephone exchange services in the State of Washington.
12.The term "carrier" means any provider of telecommunications services.
INSTRUCTIONS
These data requests shall be deemed to be continuing. You are obliged to
change, supplement, and correct all answers to data requests to conform to available
information, including such information as first becomes available to you after the answers and
production of documents hereto are filed and made, should additional information become
known or should information supplied in the answers or documents prove to be incorrect or
incomplete.
The response to each data request provided should restate the question asked and
also identify the person( s) supplYing the information.
In answering these data requests, furnish all information that is available to you
or may be reasonably ascertained by you, including information in the possession of any of your
agents or attorneys, or otherwise subject to your knowledge, possession, custody or control.
If in answering these data requests you encounter any ambiguity in construing
the request or a definition or instruction relevant to the inquiry contained within the data
request, set forth the matter deemed "ambiguous" and set forth the construction chosen or used
in answering the data request.
If you object to any part of a request, answer all parts of such requests to which
you do not object, and as to each part to which you do object, separately set forth the specific
basis for the objection.
QWEST'S THIRD SET OF DATA
REQUESTS TO AT&T
Page 4
QWEST
1600 7th Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
DATA REQUESTS
26. Please provide all documents that relate to or were referenced in AT&T'
responses to any of Qwest' s data requests. It is not necessary to provide publicly available
documents such as the MFJ, or documents that were provided with the complaint, but please
provide copies of all other documents, even if AT&T believes Qwest might already have those
in its possession.
27. If not provided in response to request #26 above, please provide all documents
referring to, relating to or regarding occupation of or access to Qwest-owned conduit in
Washington by The American Telephone and Telegraph Company, AT&T Corp., or AT&T
Communications of the Pacific Northwest, Inc., or any subsidiary or affiliate thereof, since
January 1 , 1984.
28. Please provide the name of the AT&T employee(s) or other individual(s) who
provided the factual information in each of AT&T's responses to Qwest's data requests #1-30.
29. Please provide any information AT&T has concerning how the rates in the
conduit licenses at issue in this proceeding were arrived at.
30. Ifnot already provided, please provide all documents relating to AT&T'
response to data request #29. If provided in response to another data request, please specifically
identify which document or documents are responsive to #29.
DATED this day of December, 2004.
QWEST
Lisa Anderl, WSBA # 13236
Adam Sherr, WSBA # 25291
Qwest
1600 7th Avenue, Room 3206
Seattle, W A 98191
Phone: [phone]
Attorneys for Qwest
QWEST'S THIRD SET OF DATA
REQUESTS TO AT&T
Page 5
QWEST
1600 7th Ave., Suite 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]