20040419PageData Motion for Expeditious Relief.pdf

JOSEPH MCNEAL
PAGEDATA
6610 Overland Rd.
Boise ID 83715
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Attorney Pro Se
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF PAGEDATA'S PETITION
FOR ARBITRATION OF INTERCONNECTION ) CASE NO. GNR-04-
RATES, TERMS AND CONDITIONS AND
RELATED ARRANGEMENTS WITH QWEST
CORPORATION PURSUANT TO SECTION 252(B)
OF THE FEDERAL TELECOMMUNICATIONS
IN THE MATTER OF W A VESENT LLC'S
PETITION OFR ARBITRATION OF INTER- CASE NO. GNR- T -04-
CONNECTION RATES , TERMS AND CONDI-
TIONS AND RELATED ARRANGEMENTS WITH
QWEST CORPORATION PURSUANT TO SECTION 252(B) OF THE FEDERAL
TELECOMMUNICATIONS ACT.
PAGEDATA'
MOTION FOR EXPEDITIOUS SUBSTANTIVE RELIEF
Joseph B. McNeal, d/b/a PageData ("PageData ), hereby submits this
Motion for Expeditious Substantive Relief to the Idaho Public Utility Commission
Commission ) under Rule 256, IPUC Rules of Procedure, IDAPA 31.01.01. PageData
includes a certificate of service with this Motion. PageData outlines below the reasons for
requesting expeditious substantive relief
PageData Motion for Expeditious Substantive Relief -
BURDEN OF PROOF
The Federal Communications Commission ("FCC") has set an extremely
high bar by federal code in which an incumbent local exchange carrier can refuse to
interconnect at a single point of presence ("SPOP"
In this particular instance Qwest Corporation ("Qwest") bears the burden
of proof to show the Commission by what legal means (such as through 47 US.c. ~~ 251
and 252, the Local Competition Order, or the 1996 Telecommunications Act) Qwest can
continue to neglect to perform one of its primary fiduciary duties to interconnect "at any
technically feasible point within the carrier s network" with PageData. (9251(c)(2) and
~251(c)(3/)
The burden of proof is on Qwest to show the Commission how Qwest'
failure to perform its fiduciary duty to route 7 NXX codes (70 000 phone numbers)
obtained by PageData from the North American Numbering Plan Administration
NANP A") will not cause PageData further delay and economic harm. If Qwest does not
activate the 12 Tis in a timely manner, PageData will be required to turn in the NXX
codes, have them removed from the LERG, and re-order new NXX codes, which requires
additional waiting periods and substantial costs to be borne by PageData.
1 47 US.c. ~251(c)(2) Interconnection - The duty to provide, for the facilities and equipment of any
requesting telecommunications carrier, interconnection with the local exchange carrier s network (A) for
the transmission and routing of telephone exchange service and exchange access; (B) at any technically
feasible point within the carrier s network; (C) that is at least equal in quality to that provided by the local
exchange carrier to itself or to any subsidiary, affiliate, or any other party to which the carrier provides
interconnection; and (D) on rates, terns, and conditions that are just, reasonable, and nondiscriminatory, in
accordance with the terns and conditions of the agreement and the requirements ofthis section and section
252 ofthis title.
47 U.C. ~251(c)(3) Unbundled access - The duty to provide to any requesting telecommunications carrier
for the provision of a telecommunications service, nondiscriminatory access to network elements on an
unbundled basis at any technically feasible point on rates, terns, and conditions that are just, reasonable
and nondiscriminatory in accordance with the terns and conditions of the agreement and the requirements
of this section and section 252 of this title. An incumbent local exchange carrier shall provide such
unbundled network elements in a manner that allows requesting carriers to combine such elements in order
to provide such telecommunications services.
PageData Motion for Expeditious Substantive Relief - 2
The burden of proof is on Qwest to show the Commission how neglecting
to perform one of its fiduciary duties to connect at any technically feasible point in the
LATA does not cause irreparable loss of market share and economic harm to PageData.
(~251(c)(2) and ~251(c)(3))
Qwest had established by letter dated June 4, 2003 (see Exhibit A) that it
was "willing to process (what Qwest called) properly submitted ASRs for interconnection
on a timely basis upon submission.Subsequently Commission staff conducted
mediation over a two-month period during the summer of 2003 for the ASR process and
the single point of presence using Type 2 numbers.
Qwest bears the burden of proof to establish how Qwest can now break its
commitment for SPOP facilities for PageData that it made during the mediation meetings
over a two-month period provided by Commission staff in the summer of 2003; by letter
dated June 4, 2003; and by the SPOP amendment in the current interconnection
agreement.
Qwest bears the burden of proof to show how Qwest's primary excuse in
John Souba s memo dated April 9, 2004, (see Exhibit A) for failing to interconnect with
PageData at a single point of presence is any different than that described by the FCC in
its Order2 discussing the right to connect at a single point of interconnection.
52. Under the Commission s rules, competitive LECs may request
interconnection at any technically feasible point. This includes the rightto request a single point of interconnection in a LATA. The
Commission rules implementing the reciprocal compensation
provisions in section 252(d)(2)(A) prevent any LEC from assessing
charges on another telecommunications carrier for telecommunications
traffic subject to reciprocal compensation that originates on the LEC'
2 FCC Memorandum Opinion and Order Released July 17, 2002 in the Matter of World com et aI, ~~52
and
PageData Motion for Expeditious Substantive Relief - 3
network. Furthermore, under these rules , to the extent an incumbent
LEC delivers to the point of interconnection its own originating traffic
that is subject to reciprocal compensation , the incumbent LEC is
required to bear financial responsibility for that traffic. The interplay of
these rules has raised questions about whether they lead to the
deployment of inefficient or duplicative networks. The Commission is
currently examining the interplay of these rules in a pending rulemaking
proceeding. As the Commission recognized in that proceeding,
incumbent LECs and competitive LECs have taken opposing views
regarding application of the rules governing interconnection and
reciprocal compensation. (Footnotes omitted)
91. Finally, we note that Verizon s concerns regarding a single point of
interconnection at one tandem office in a LATA are the subject of a
pending industry-wide rulemaking proceeding. For the reasons
previously stated, we decline to address the issues raised in that
proceeding here; instead , we decide the present petitions under the
Commission s current rules. Under those rules, new entrants may
request any technically feasible point of interconnection, including a
single point of interconnection in a LATA. Moreover, interconnection at
single tandem office location would not contravene WorldCom
commitments in this proceeding to route traffic according to the LERG
or to implement direct end office trunking at a DS-l level of traffic. As
Verizon itself argues, implementing direct end office trunks does not
entail changing the location of a tandem office point of interconnection.
(Footnotes omitted)
FIRM ORDER COMMITMENTS
Qwest issued Firm Order Commitments to PageData (see Exhibit B) to
install 12 Tis on March 15 2004 for PageData s SPOP. Qwest personnel conducted tests
on the 12 Tis in the beginning of March 2004. On March 15 2004 PageData was notified
that Qwest had put the Firm Order Commitments on indefinite legal hold.
10.By putting Firm Order Commitments for PageData s 12 Tis on indefinite
legal hold, Qwest has violated the Commission staff mediation agreement; Section 2.
of the current interconnection agreement; Section 251(c)(2)(b), (c) and (d), 251(c)(3); and
a written commitment dated June 4, 2003 , from Qwest attorney, Bob McKenna, to install
PageData Motion for Expeditious Substantive Relief - 4
PageData s SPOP facilities. Included in that letter from Mr. McKenna was a commitment
from Qwest that PageData could terminate Internet traffic as long as it did not charge
Qwest reciprocal compensation for terminating such traffic. It is PageData
understanding that Mr. McKenna s letter was just reiterating Section 2.4 of the current
interconnection agreement.
11.Qwest is claiming that PageData has ordered too many facilities for its
SPOP just to collect the flat rate 6000 MOU per trunk reciprocal compensation, despite
numerous joint-planning sessions to determine the SPOP network design with Qwest.
The Commission staff mediated these joint-planning meetings.
12.Meeting minutes and action lists are available for the Commission
review. It was decided in the meetings that WaveSent would order its facilities first
beginning with the Boise SPOP and then Qwest would install PageData s facilities.
PageData has included a joint diagram (See Exhibit C) provided to Qwest during the
Commission staff mediated joint-planning meetings, showing a three-LATA network
using Internet and continuous paging in the proprietary data cloud. The configuration of
the Boise, Idaho SPOP, including the number and locations of Tis required, was
discussed throughout the joint-planning meetings. PageData has also attached (see
Exhibit C) the initial diagrams of the Boise, Idaho SPOP prepared by Qwest personnel
for the joint-planning meetings. The diagrams show that the companies initially agreed
on 10 Tis. During the joint-planning meetings it was discussed that facilities under the
two different interconnection agreements adopted by PageData (Arch & Verizon) could
not be combined on one DS3 as proposed by PageData and WaveSent. The SPOP
PageData Motion for Expeditious Substantive Relief - 5
amendment and the meeting minutes will show that Qwest required separate trunk groups
for each local tandem in the SPOP.
13.The network design is covered by Section 2.2 and the SPOP amendment
of the current interconnection agreement. For example, a DS 1 level is the minimum
connection that Qwest would provide Verizon under its agreement.
Trunk group connections will be made at a DS 1 or multiple DS 1 level for
exchange of EAS/local, intraLA T A toll, wireless/Commercial Mobile
Radio Service, and switched access traffic. Ancillary service trunk groups
will be made below a DS 1 level, as negotiated. (Section Verizon
Wireless interconnection agreement)
Qwest is required to interconnect with PageData in the same manner under 251(a),
251(c)(2), 251(c)(3) and Section 2.6.2 of the current interconnection agreement.
U S WEST shall provide interconnection and interconnection facilities for
Paging Connection Service that are equal in quality to what U S WEST
provides itself, its affiliates, or other carriers. (Section of the current
interconnection agreement)
A similar design for PageData was agreed to in the joint planning sessions with Qwest
before Qwest accepted any ASR orders for processing from PageData.
14.John Souba (Qwest Regulatory) stated in his memo dated April 9, 2004, to
Wayne Hart (Commission Telecom Staff) (see Exhibit A) that Qwest has five service
orders from PageData for its SPOP on hold simply because Qwest does not want to pay
PageData reciprocal compensation. Based on traffic study that Qwest did on
WaveSent's (a separate legal entity from PageData) trunks that had been installed less
than 90 days showing a usage of 4.17%, Qwest has determined that it can restrict
PageData to two Type 1 Tis and confine PageData to the Boise EAS and not allow it to
provide services to Rexburg, Idaho Falls, Pocatello, Ketchum, Burley, and Twin Falls.
PageData Motion for Expeditious Substantive Relief - 6
Qwest has not explained how PageData is supposed to terminate Qwest originated local
Type 2 traffic from Rexburg, Idaho Falls, Pocatello, Burley, Ketchum, and Twin Falls at
PageData s Boise POC when Qwest refuses to turn up the 12 Tis on the DS3 necessary
to establish PageData s SPOP in Boise per the Commission staff mediated joint-planning
meetings held last summer over a two-month period with many Qwest personnel. There
is nothing in the current interconnection agreement or under the rule of law of the Act
that alleviates Qwest from its primary fiduciary duty in Sections 251(a), 251(c)(2), and
251(c)(3) to interconnect at a single point of presence.
15. Qwest has interfered with PageData s business and has put in jeopardy several
PageData acquisitions to buy other telecommunications companies. Qwest is well aware
that it is difficult, if not impossible, to commit to purchases of other telecommunications
companies if the buyer s telecommunications resources are in constant threat of being
shut off, changed, or not installed at all. This has been a continuing problem for PageData
over the six years that PageData has sought a SPOP from Qwest. Qwest has continually
invented endless obstructions and never ceasing arguments to prevent PageData from
fully entering the marketplace. Qwest has interfered with PageData s acquisitions of
these various companies and impacted PageData s market share.
LIST OF ATTACHED EXHBITS FILED UNDER SEAL
Exhibit A. Qwest SPOP Commitment Letter and Memo from John Souba
Exhibit B. Qwest Firm Order Commitment Letters for PageData s SPOP
Exhibit C. Network Diagrams
PageData Motion for Expeditious Substantive Relief - 7
REQUESTED EXPEDITIOUS SUBSTANTIVE RELIEF
16.In conclusion, it is Qwest's goal to delay, hinder, and obstruct the
installation of PageData' s SPOP , but Qwest has not met its burden of proof necessary to
deny interconnection at any technically feasible point. Qwest has broken its Firm Order
Commitments; agreements made in Commission staff mediated planning meetings; the
June 4, 2003 letter from Qwest; and the interconnection agreement; all without any legal
basis under the Act. Under Rule 256, PageData respectfully requests the Commission
order Qwest to immediately install PageData s SPOP by activating the 12 Tis by the end
of business day, Friday, April 23, 2004 per the Firm Order Commitments, the agreement
mediated by the Commission staff, Qwest's June 4, 2003 letter, the Commission-
approved interconnection agreement, and ~251(c)(2) and (3).
Respectfully submitted
se B. McNeal
PageData
6610 Overland Rd.
Boise, ID 83709
[phone]
[phone] Fax
PageData Motion for Expeditious Substantive Relief - 8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 19th day of April, 2004, I caused to be served a
true and correct copy of the foregoing by the method indicated below, and address to the
following:
Jean Jewell
Idaho Public Utilities Secretary
472 W. Washington Street
PO Box 83720
Boise ID 83720-0074
US. Mail Fax By Hand By Email
William 1. Batt
Batt & Fisher, LLP
US Bank Plaza, sth Floor
101 S. Capitol Blvd.
Boise, ID 83701
US. Mail Fax By Hand By Email
Qwest Corporation
Director - Interconnect
1801 California Street, Room 2410
Denver, CO 80202
US. Mail Fax By Hand By Email
Qwest Corporation
Bob McKenna
1801 California Street
Denver, CO 80202
US. Mail Fax By Hand .x..- By Email
PageData Motion for Expeditious Substantive Relief - 9
GNR-O4-05 / GNR-O4-
MOTION FOR EXPEDITIOUS
SUBSTANTIVE RELIEF
EXHIBITS A, B. & C ARE
CONFIDENTIAL