20090526_2575.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KEMPTON
COMMISSIONER SMITH
COMMISSIONER REDFORD
COMMISSION SECRETARY
LEGAL
WORKING FILE
FROM:CAROLEE HALL
DATE:MAY 19,2009
RE:APPLICATION FOR APPROV AL OF AN INTERCONNECTION
AGREEMENT BETWEEN QWEST CORPORATION ("QWEST") AND
NETT ALK.COM, INc. ("NETT ALK"). CASE NO. QWE- T -09-
BACKGROUND
Under the provision of the federal Telecommunications Act of 1996, interconnection
agreements must be submitted to the Commission for approval. 47 u.S.C. 9252(e)(I). The
Commission may reject an agreement adopted by negotiations only if it finds that the agreement:
(1) discriminates against a telecommunications carrier not a party to the agreement; or (2)
implementation of the agreement is not consistent with the public interest, convenience and
necessity. 47 U.C. 9252(e)(2)(A). As the Commission noted in Order No. 28427, companies
voluntarily entering into interconnection agreements "may negotiate terms, prices and conditions
that do not comply with either the FCC rules or with the provision of Section 251 (b) or ( c).
Order No. 28427 at 11 (emphasis in original). This comports with the FCC's statement that "
state commission shall have authority to approve an interconnection agreement adopted by
negotiation even if the terms ofthe agreement do not comply with the requirements of (Part 51)."
47 C.R. 9 51.3.
CURRENT APPLICATION
On April 7 2009, this Commission received a new Interconnection Agreement between
Qwest Corporation and NetTalk.Com, Inc. ("NetTalk") in Case No. QWE-09-
DECISION MEMORANDUM - 1 -MAY 19 2009
During its review Staff noticed that the Performance Assurance Plan (PAP) (Exhibit K)
was not included as part of the Agreement The PAP is a two-tiered, self-executing remedy plan
that was implemented to ensure that once Qwest was granted approval to offer in-region long
distance service under Section 271 of the Telecommunications Act of 1996, that it would also
provide quality service to competitive local exchange carriers (CLECs) to whom it provided
interconnection and other products and services. The PAP provides for penalty payments should
the Company miss certain measurements set out for the Performance Indicator Definitions
(PIDs) (Exhibit B).
The PIDs are contained in Exhibit B of the Interconnection Agreements between Qwest
and the CLECs and set out specific measurements and benchmarks that Qwest must meet when
interconnecting with competitors. If Qwest should miss a PID measurement, then there is a
subsequent PAP payment assessed for each violation.
Originally each of the Exhibits B and K were a part of Qwest' s Statement of Generally
Available Terms and Conditions (SGA T). The PIDs and the PAP played a critical role in the
Section 9 271 requirement for Qwest's FCC approval to offer in-region long distance services.
On March 17 2009, this Commission issued Order No. 30750 in Case No. QWE-08-
granting Qwest's petition to withdraw its SGAT , but directed that:
Withdrawal of the SGA does not affect any of the exhibits to the
SGAT including Exhibit A (price list), Exhibit B (PIDs) and Exhibit K
(PAP). We direct Qwest, consistent with its stated commitment, to continue
to abide by the terms of the SGA T exhibits until such time as the Commission
approves their removal, substitution or amendment ) (Emphasis added).
Staff initially was informed that NetTalk had "opted'out of Exhibit K." Qwest offered to
prepare a standardized letter for these instances where CLECs chose to decline the Exhibit K.
On April 8, 2009, Staff contacted NetTalk to confirm that the company s intent was to
opt-out out of the PAP and explained what the PAP was and how it worked in conjunction with
the PIDs (Exhibit B). NetTalk subsequently forwarded an e-mail to Qwest stating that
, "
It is not
our intention to opt out of Exhibit K. Please provide us with that Exhibit so that it may be sent
the Idaho PUC." NetTalk also requested that the Exhibit B be included in all of its Qwest state
filings. On May 8 , 2009, Qwest filed to amend the Application between the companies.
1 Idaho Public Utilities Commission Order No. 30750, March 17 2009.
DECISION MEMORANDUM - 2 -MA Y 19 2009
STAFF ANALYSIS
Staff has reviewed the Application, the amendment to the Application that contains the
PAP along with all remaining exhibits to the Agreement between the parties. Staff finds that the
interconnection agreement between Qwest and NetTalk does not appear to contain any terms or
conditions that may be considered discriminatory or contrary to the public interest. Staff
believes that with the inclusion of both Exhibits B and K the public interest requirement is
satisfied between Qwest's wholesale products it offers to NetTalk and those products it provides
to itself.
Staff further believes that the interconnection agreement, along with all exhibits, is now
consistent with the pro-competitive policies of this Commission, the Idaho Statutes, and the
federal Telecommunications Act of 1996. Accordingly, Staff believes that the Agreement merits
the Commission s approval.
COMMISSION DECISION
Does the Commission wish to approve the Interconnection Agreement?
i:udmemosl interconnection agreements/QWE- T-O9-06 Qwest and NetTalk,Com, Inc,
DECISION MEMORANDUM - 3 -MAY 19 2009