20031211Motion to Close Case.pdf

PCI'"'I d_V I,
Mary S. Hobson (ISB #2142)
Stoe1 Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise ID 83702
Telephone: [phone]
Facsimile: [phone]
mshobson~stoel.com
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UTILITIES Co"f1i':11 SSION
Adam L. Sherr (WSBA #25291)
Qwest
1600 ih Avenue - Room 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
adam.shelT~qwest.com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF IPUC RESPONSE TO
FCC ORDER ON REVIEW OF SECTION 251
UNBUNDLING OBLIGATIONS OF
INCUMBENT LOCAL EXCHANGE
CARRIERS (CC DOCKET NO. 01-338)
Case No. GNR-03-
MOTION TO POSTPONE MASS
MARKET SWITCHING CASE AND
CLOSE DOCKET
NINE-MONTH REVIEW OF ECONOMIC
AND OPERATIONAL IMPAIRMENT
REGARDING ACCESS TO SPECIFIC UNES
MOTION
Qwest Corporation ("Qwest") hereby requests that the Idaho Public Utilities Commission
(the "Commission ) enter an order postponing its inquiry into issues related to Qwest'
obligation to provide unbundled switching for mass market customers (the "Inquiry
Accordingly, Qwest requests that the Commission close this docket or, alternatively, that the
MOTION TO POSTPONE MASS MARKET SWITCHING CASE AND CLOSE DOCKET - Page 1
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Commission defer indefinitely any action herein. Qwest asks that the Commission select one of
these alternatives subject to Qwest's right to refile or reinitiate the Inquiry at a future time. Thus
Qwest moves the Commission to vacate: (1) the schedule for hearings and the filing of prefiled
testimony, (2) all discovery (including outstanding subpoenas issued to third parties), (3) pending
motions, and (4) all other procedural requirements, subj ect to Qwest' s right to move forward
with the Inquiry in the future.
II.DISCUSSION
Grounds for Motion
Qwest submits that competition for local exchange in Idaho is vigorous and
meaningful and maintains that switching for mass market customers should not be subject to the
unbundling obligations of Section 251 ofthe Telecommunications Act. This competition
notwithstanding, however, Qwest has determined that it is not prudent or practical at this time for
it to continue to prosecute the issues associated with the Inquiry or to ask the Commission to
devote its scarce resources to the Inquiry. The reasons Qwest has reached these conclusions are
four fold:
(a)Qwest has decided to pursue unbundled switching cases for mass market
customers in only those states where it clearly meets the triggers for elimination of the
unbundling obligation as set by the FCC in the Triennial Review Order. 1 Based upon the
information in Qwest's records, the Company cannot verify unequivocally that the three switch
trigger is met in Idaho.
(b)As the mass market switching proceedings in Qwest's 14-state region have
unfolded, it has become clear that Qwest underestimated the resources required to prosecute 14
In those states where the triggers are met, Qwest also will be presenting other evidence relating to
economics, competition, and operational matters in the market demonstrating that switching for mass market
customers should not be unbundled.
MOTION TO POSTPONE MASS MARKET SWITCHING CASE AND CLOSE DOCKET - Page 2
Boise-165273.1 0029164-00097
separate state actions simultaneously. Moreover, Qwest has received voluminous discovery
requests from out-of-region states with respect to its out-of-region business, and Qwest had not
anticipated discovery of this magnitude.
(c)Qwest quite simply is presently resource-constrained, a fact well-known to
the Commission and the general public. Accordingly, Qwest must choose and prioritize carefully
where it litigates issues, including the Inquiry. With this backdrop and in view ofthe other forces
at play and described above, Qwest has decided that proceeding at this time with the Inquiry is
not in its immediate financial interests.
(d)It is well-known that many parties have appealed the Order, that these
appeals have been consolidated in the United States Circuit Court of Appeals for the D.C. Circuit
and that the D.c. Circuit has ordered the appeals be briefed and argued on an expedited basis.
While these facts do not necessarily indicate anything about the timing and substance of the D.
Circuit's rulings , many observers believe there is a significant possibility that the FCC's rulings
in the Order will be reversed and remanded to the FCC for further proceedings before that
agency. This possibility, in and of itself, would not militate in favor of a deferral ofthe Inquiry,
and Qwest will pursue mass market switching cases in many of its other in-region states;
however, when considered in combination with the foregoing factors, Qwest has concluded that
the Inquiry should not take place at the present time.
For the above and foregoing reasons, considered together, Qwest has determined
not to proceed with the Inquiry at this time and with similar proceedings in the states of
Montana, Wyoming and South Dakota. Qwest's decision at this time to request postponement of
its nine-month mass market switching case will allow it and other parties to focus their resources
MOTION TO POSTPONE MASS MARKET SWITCHING CASE AND CLOSE DOCKET - Page 3
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on other states so that those cases can be completed within the nine-month period required by the
TRO.
Qwest is simultaneously filing a similar motion with the state commissions of the
aforementioned states asking them to postpone their investigation of issues related to mass
market switching impairment and, without prejudice, to close their dockets related to that issue.
However, because of the degree of competition in Idaho, Qwest reserves its ability under the
Order to re-open these proceedings and request a commission order eliminating the unbundling
obligation for mass market switching.
Batch Hot Cut Issues
On October 31 , 2003, Qwest (on behalf of AT&T and MCI) filed a joint proposal of a
process and framework to address the batch hot cut issue.2 On November 12 2003 , consistent
with its obligations under the joint proposal, Qwest filed its proposal for a region-wide batch
loop conversion process/ wherein Qwest, among other things, summarized its proposal
regarding implementation of a process for batch hot cuts. On November 4, 2003, the
Commission issued an order approving the joint motion of Qwest, AT&T and MCI, agreeing to
participate in the multi-state forum process related to batch hot cut issues and likewise adopting
the procedural schedule proposed for batch hot cut testimony proposed by Qwest, MCI, and
AT&T.
By filing this Motion, Qwest has decided not to seek relief at this time from its current
obligation to provide unbundled switching for mass market customers in Idaho. Thus, there is no
need for the Commission to receive testimony or conduct hearings related to Qwest's batch hot
cut processes.
Joint Proposal For the Process and Framework To Be Used to Address the Batch Hot Cut Requirements of
the FCC's Triennial Review Order, October 31 2003.
Qwest's Proposal For Region wide Batch Loop Conversion Process , November 12, 2003.
MOTION TO POSTPONE MASS MARKET SWITCHING CASE AND CLOSE DOCKET - Page 4
Boise-165273.10029164-00097
This issue was recently addressed by an ALl in Washington. Several weeks ago, after
Verizon decided not to seek mass market switching relief in Washington, the ALl requested
comments on whether it was necessary for the Washington commission to conduct a batch hot
cut analysis ofVerizon. Verizon, MCI, and commission staff filed comments agreeing that "the
requirement for states to approve and implement a batch-cut process for ILECs is an integral part
of the mass-market switching analysis" under TRO, but also concluding that "there is no
obligation for ILECs or the Commission to develop a batch-cut process unless the ILEC files a
petition with the Commission contesting the FCC's findings of impairment for mass-market
switching.4 On November 19, 2003 , the ALl agreed, declining "to initiate further proceedings
at this time to address development of a batch-cut process for ILECs other than Qwest.,,5 A copy
of the ALl's decision in Washington is attached hereto as Exhibit A.
By filing this motion, Qwest hereby withdraws its request for mass market switching
relief, thus placing it in the same posture as Verizon in Washington. Thus, as the ALl concluded
in Washington, there is no need for the Commission to proceed with the batch hot cut issue and
all filing dates and hearings related to that issue should be vacated.
That said, Qwest remains committed to the batch hot cut forum and, even though no
further action should be taken on that issue in Idaho, Qwest has no objection to Commission
Staff monitoring and otherwise participating in the batch hot cut forum.
Scope of Motion
This Motion relates only to issues related to mass market switching impairment
(including batch hot cut issues). Nothing herein should be construed as Qwest's agreement to
forego or otherwise discontinue action to implement any other aspects of the TRO. In a technical
Order Declining to Initiate Proceedings to Address ILEC Batch Cut Processes; Closing Docket (Order No.
3), Docket No. UT-033025, Washington Utilities and Transportation Commission (November 19, 2003) ~ 7.
ld. ~ 14.
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sense, Qwest believes it has the unilateral right to withdraw its case that is the subject of the
Inquiry because, in the absence of such a case , the status quo favors the CLECs. That having
been said, Qwest believes that since the Commission has opened the Inquiry and initiated
proceedings, it is appropriate to request an order from the Commission memorializing the
dismissal or deferral of the Inquiry. Furthermore, since no party has filed testimony or
formalized its advocacy, there can be no prejudice flowing from Qwest's decision.
III.CONCLUSION AND CONTACT WITH OTHER PARTIES
Qwest therefore moves this commission to postpone the current proceedings relating to
switching for mass market customers by vacating: (1) the schedule for hearings and the filing of
prefiled testimony, (2) all discovery (including outstanding subpoenas issued to third parties), (3)
pending motions, and (4) all other procedural requirements, all without prejudice to the ability of
Qwest to re-open for a determination on the merits.
Qwest has contacted counsel for AT&T and MCI regarding its request, and AT&T and
MCI have represented that that they have no objection to vacating these proceedings consistent
with the request contained in the immediately preceding paragraph.
Respectfully submitted this 11th day of December, 2003.
Qwest Corporation~/h~
Mary S. bson
Stoel Rives LLP
Adam L. Sherr
Qwest
Attorneys for Qwest Corporation
MOTION TO POSTPONE MASS MARKET SWITCHING CASE AND CLOSE DOCKET - Page 6
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EXHIBIT A
to Motion to Postpone Mass Market Switching Case and Close Docket
(Service Date November 19, 2003 )
BEFORE THE WASHINGTON STATE
UTILITIES AND TRANSPORTATION COMMISSION
In the MaUer of the Implementation of
the Federal Communications
Commission s Triennial Review Order
ORDER DECLINING TO
INITIATE PROCEEDINGS TO
ADDRESS ILEC BATCH CUT
PROCESSES; CLOSING DOCKET
DOCKET NO. UT-033025
ORDER NO. 03
............. ......... ...... .......
Nature of the Proceeding: The Washington Utilities and Transportation
Commission (Commission) initiated this proceeding to implement the provisions
of the Federal Communications Commission s (FCC) Report and Order and
Order on Remand and Further Notice of Proposed Rulemaking, also known as
the Triennial Review Order, released on August 21 2003, in CC Docket Nos. 01-
338 96-98, and 98-147.
Procedural History: The Commission initiated this proceeding on August 22
2003, by issuing a notice requesting comments from all interested persons
concerning the process for implementing the FCC's Order in Washington state.
The Commission established the docket to scope and implement the
Commission s response to the Triennial Review Order. The Commission
received responses from nine telecommunications companies, Commission Staff
and Public Counsel.
The Commission convened prehearing conferences in this docket on September
26, 2003, and October 13, 2003. At these prehearing conferences, the
Commission, with the assistance of the parties to this proceeding, established a
procedural schedule for proceedings arising from the FCC's Triennial Review
Order. In Order No. 01, the first prehearing conference order in this proceeding,
the Commission required all persons interested in challenging the FCC's national
finding of no impairment for enterprise market switching to file a petition by
October 3, 2003. The Commission also required all persons interested in
challenging the FCC's national finding of impairment for mass-market switching,
DOCKET NO. UT-033025
ORDER NO. 03
PAGE 2
dedicated transport, and DSl, DS3, and dark fiber loops to file a petition with the
Commission by October 10, 2003.
No person or corporation filed a petition on October 3 2003, challenging the
FCC's enterprise market switching findings. On October 10, 2003, Qwest
Corporation (Qwest) filed a petition with the Commission in Docket No. UT-
033044 to initiate a review of the FCC's findings concerning mass-market
switching and dedicated transport. No other person or company filed a petition
with the Commission concerning mass-market switching, dedicated transport, or
loops.
In paragraph 8 of Order No. 01 , the Commission noted a disagreement between
the parties concerning a requirement in the Triennial Review Order that state
commissions approve a batch hot cut migration (batch-cut) process for
incumbent local exchange companies (ILECs) to address impairment in mass-
market switching caused by existing ILEC hot cut processes. Specifically, the
parties disagreed about the obligations of state commissions and ILECs
operating in Washington state to develop a batch-cut process within the state of
Washington. The Commission will address the development and
implementation of a batch-cut process for Qwest in Docket No. UT-033044.
On October 14, 2003, the Commission issued a notice to all parties and interested
persons requesting comments by October 21, 2003, concerning the obligations
under the Triennial Review Order of the Commission and ILECs, other than
Qwest, operating in Washington state to initiate development of a batch-cut
process within the state of Washington.
Batch Cut Migration Process. On October 21 2003, Verizon Northwest Inc.
(Verizon), MCI, Inc. (MCI), Covad Communications Company (Covad), United
Telephone Company of the Northwest d/b/a Sprint (Sprint), and Commission
Staff filed comments with the Commission. Verizon, MCI, and Staff assert that
the requirement for states to approve and implement a batch-cut process for
ILECs is an integral part of the mass-market switching analysis in the Triennial
Review Order. These companies also assert that there is no obligation for ILECs
or the Commission to develop a batch-cut process unless the ILEC files a petition
with the Commission contesting the FCC's findings of impairment for mass-
market switching.
DOCKET NO. UT-033025
ORDER NO. 03
PAGE 3
Sprint asserts that its current processes are sufficient and that a batch-cut process
is not necessary because the company does not provide UNE- P to any
competitive local exchange carrier (CLEC) and provisions only low levels of
UNE loops. Covad argues that the Commission should examine the effect of hot
cuts on line splitting when examining an ILEC's hot cut processes.
Discussion. The FCC finds that CLECs are impaired without access to
unbundled local circuit switching for mass-market customers. Triennial Review
Order, Yl459. The FCC makes this finding "based on evidence in our record
regarding the economic and operational barriers caused by the cut over (or hot
cut) process.Id. The Triennial Review Order describes a hot cut as "a process
requiring incumbent LEC technicians to disconnect manually the customer
loop, which was hardwired to the incumbent LEC switch, and physically re-wire
it to the competitive LEC switch, while simultaneously reassigning (i.porting)
the customer s original telephone number from the incumbent LEC switch to the
competitive LEC switch.Triennial Review Order, n.1293.
Specifically, the FCC requires that "state commissions, must, within nine months
from the effective date of the Order, approve and implement a batch-cut process
that will render the hot cut process more efficient and reduce per-line hot cut
costs.Triennial Review Order, Yfll423, 460. In the alternative, state commissions
must make detailed findings by geographic market to support a conclusion that
current hot cut processes do not create impairment and that a batch cut process is
unnecessary. Id.
It is not clear from the text of the Order whether the state commission approval
of a batch-cut process is independent of or an integral part of the state
commission s market-by-market analysis of CLEC impairment without
unbundled mass-market switching. The final rules adopted in the Order,
however, include state commission review of an ILEC batch-cut process as a part
of the state commission s impairment analysis. See 47 CF.R. 951.319(d)(2)(ii).
Under these final rules, state commissions need only conduct a batch-cut analysis
for an ILEC if a state commission is conducting an impairment analysis of
unbundled mass-market switching provided by the ILEC
Verizon and MCI assert that Verizon need not develop a batch-cut process
because Verizon has not filed a petition with the Commission to initiate a
DOCKET NO. UT-033025
ORDER NO. 03
PAGE 4
proceeding. The Triennial Review Order is silent concerning how state
commission proceedings should be initiated. While the Commission is not
precluded from initiating a Triennial Review Order proceeding on its own
motion, the Commission chose to require parties to petition the Commission to
initiate proceedings.
Sprint asserts that a review of its hot cut process is unnecessary, and MCI asserts
that such a review is not presently necessary for Verizon. No party or interested
party requests that the Commission initiate a mass-market switching proceeding
involving Verizon or the other ILECs operating in Washington state.
Based upon the comments filed and the discussion above, the Commission
declines to initiate further proceedings at this time to address development of a
batch-cut process for ILECs other than Qwest.
Closure of the Docket. As there are no issues remaining for the Commission to
resolve in this docket, Docket No. UT-033025 is now closed.
Dated at Olympia, Washington, and effective this 19th day of November, 2003.
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION
ANN E. RENDAHL
Administrative Law Judge
CERTIFICATE OF SERVICE
I hereby certify that on this 11 th day of December, 2003 , I served MOTION TO
POSTPONE MASS MARKET SWITCHING CASE AND CLOSE DOCKET as follows:
lean 1 ewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ill 83720-0074
Phone: [phone]
Fax: [phone]
11 ewell~puc. state.id.
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Wayne Hart
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ill 83720-0074
Phone: [phone]
Fax: [phone]
whart~puc.state.id. us
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Weldon Stutzman, Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ill 83720-0074
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Fax: [phone]
wstutzm~puc. state.id.
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Marlin D. Ard, Esq.
O. Box 2190
Sisters, OR 97759
Telephone: [phone]
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Maratty~qwest.net
Attorney for Verizon
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MOTION TO POSTPONE MASS MARKET SWITCHING CASE AND CLOSE DOCKET - Page 7
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Charles Carrathers
Verizon Northwest Inc.
1800 41 st Street
Everett, W A 98201
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chuck. carrathers~verizon. com
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Dean l. Miller
McDevitt & Miller LLP
420 West Bannock Street
O. Box 2564 (83701)
Boise, ill 83702
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i oe~mcdevitt -miller.com
Attorney for MCImetro, Time Warner
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Robert M. Pomeroy, lr.
Holland & Hart
8390 East Crescent Parkway - Suite 400
Greenwood Village, CO 80111
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bpomero v~ho llandhart. com
Attorney for AT&T
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Adam L. Sherr
Qwest
1600 ih Avenue - Room 3206
Seattle, W A 98191
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adam. sherr(2U,qwest. com
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Clay R. Sturgis
Moss Adams LLP
601 West Riverside - Suite 1800
Spokane, W A 99201-0663
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cIa vs(Q),mossadams. com
Attorney for ITA
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Brian Thomas
Time Warner Telecom
223 Taylor Avenue North
Seattle, W A 98109
Brian. Thomas~twtelecom.com
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Mary B. Tribby
Letty S. D. Friesen
AT&T Communications of the Mountain States, me.
1875 Lawrence Street - Suite 1575
Denver, CO 80202
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lsfriesen~att.com
Executed Protective Order
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Conley E. Ward
Givens Pursley LLP
277 North 6th Street - Suite 200
O. Box 2720
Boise ID 83701
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cewCiV,givenspurslev. com
Attorney for ITA
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~tt
j(?
Brandi L. Gearhart, PLS
Legal Secretary to Mary S. Hobson
Stoel Rives LLP
MOTION TO POSTPONE MASS MARKET SWITCHING CASE AND CLOSE DOCKET - Page 9
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