20040817Amendment.pdf

JOSEPH MCNEAL
AGED AT A AND
W A VESENT LLC
6610 Overland Rd.
Boise, ill 83715
[phone]
Attorney Pro Se
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF PAGEDATA'S PETITION
FOR ARBITRATION OF INTERCONNECTION
RATES, TERMS AND CONDITIONS AND
RELATED ARRANGEMENTS WITH QWEST
CORPORATION PURSUANT TO SECTION 252(B)
OF THE FEDERAL TELECOMMUNICATIONS
ACT
IN THE MATTER OF W VESENT LLC'
PETITION FOR ARBITRATION OF INTER-
CONNECTION RATES, TERMS AND CONDI-
TIONS AND RELATED ARRANGEMENTS WITH
QWEST CORPORATION PURSUANT TO
SECTION 252(B) OF THE FEDERAL
TELECOMMUNICATIONS ACT.
) CASE NO. GNR- T -04-
CASE NO. GNR-04-
WAVESENT ANDPAGEDATA'
AMENDMENT TO PETITION
1. On March 25 , 2004 and March 23 , 2004 WaveSent LLC ("WaveSent") and
Joseph B. McNeal d/b/a PageData ("P ageD ata ), respectively, submitted complaints
(Case No. GNR- T -04-6 and Case No. GNR- T -04-5) to the Idaho Public Utility
Commission ("Commission ) requesting negotiations under ~~ 252 and 251 and Rule 66
IPUC Rules of Procedure IDAPA 31.01.01. WaveSent and PageData submitted an
Amendment to Petition on April 12, 2004.
WaveSent and PageData Amendment to Petition -
2. These Petitions were filed at the Commission because Qwest a) threatened to
disconnect facilities necessary for interconnection and b) refused to install a single point
of presence for PageData.
3. WaveSent and PageData wish to exercise their statutory rights at the
Commission to a) have the Commission determine whether or not WaveSent and
PageData can terminate Internet traffic under the current interconnection agreements and
whether or not Qwest can renege on the commitments made in their letter issued June 4
2003 (attached in previous submittals to the Commission), to Wave Sent, PageData, and
the FCC Enforcement Bureau; b) if the Commission finds that WaveSent and PageData
are in violation of the interconnection agreements, they wish to correct it by adopting the
Verizon ISP-Bound Traffic Amendment on file at the Commission under ~ 252(i) (Pick
and Choose) and paragraph 13.29 from their current interconnection agreements; and c) if
the Commission rules against WaveSent and PageData in options A and B, then
WaveSent and PageData wish to exercise their statutory rights under ~ 252(b) to have the
Commission arbitrate a new interconnection agreement.
4. In the previous Petitions in these cases, WaveSent and PageData requested to
adopt the Verizon ISP-Bound Traffic Amendment well before the FCC issued their new
All or Nothing" rule I under ~ 252(i) and re-assert those requests before the effective
date of the rule.
5. In its Petitions WaveSent and PageData submitted to the Commission that it
could act in a time frame less than 135 days from initiation of interconnection agreement
negotiations because Qwest was not negotiating in good faith and had not filed all
See Second Report and Order Review of the Section 251 Unbundling Obligations of Incumbent Local
Exchange Carriers CC Docket No. 01-338 (July 13 , 2004)(codified at 47 C.R. ~ 51.809 (effective Aug.
, 2004)
WaveSent and PageData Amendment to Petition - 2
negotiations because Qwest was not negotiating in good faith and had not filed all
interconnection agreements in the state of Idaho as outlined in the FCC's Notice of
Apparent Liability ("NAL") in the Matter of Qwest Corporation ("Qwest") Apparent
Liability for Forfeiture on March 12, 2004. This costs Idaho consumers and Idaho
carriers more money because it increases the cost of competition by giving preferential
carriers terms and conditions not available to other competitive carriers. To date these
interconnection agreements have not been filed in Idaho. It is WaveSent and PageData
belief that good faith negotiations cannot occur until these agreements are available for
adoption under ~ 252(i).
Qwest's Response and Motion to Dismiss
6. WaveSent and PageData have presented a logical and cost-effective way to
proceed by addressing the original interconnection agreements first, then proceeding to ~
252(i) (Pick and Choose) and finally ~ 252(b). This is the procedure outlined by the
Telecommunications Act.
7. The FCC'Order on Reconsideration that Qwest presented to the
Commission in Qwest's Response and Motion to Dismiss is actually in WaveSent and
PageData s favor when read and understood in its entirety. According to paragraph 22 of
the FCC's Order on Reconsideration, Pacific Bell could not indefinitely deny Z- Tel's
request. Pacific Bell could have issued a letter of understanding, but it was under no
obligation to do so. Z- Tel could receive what it wants if it files a "Bona Fide Request
under option C in their interconnection agreement.
In the AJatter of CoreComm Communications, Inc., and Z- Tel Communications, Inc. v. SBC
Communications Inc., Southwestern Bell Telephone Company, Pacific Bell Telephone Company, Nevada
Bell Telephone Company, The Southern New England Telephone Company, Illinois Bell Telephone
Company, Indiana Bell Telephone Company, Alichigan Bell Telephone Company, The Ohio Bell Telephone
Company, and Wisconsin Bell, Inc.FCC 04-106, Order on Reconsideration, released May 4 2004.
WaveSent and PageData Amendment to Petition - 3
8. Unlike Pacific Bell, Qwest actually voluntarily issued (in response to informal
complaints filed by WaveSent and PageData with the FCC Enforcement Bureau) a letter
dated June 4, 2003, to WaveSent, PageData, and the FCC Enforcement Bureau, stating
that Qwest would install Wave Sent and PageData facilities under the existing
interconnection agreement and if WaveSent and PageData were to terminate Internet
traffic then WaveSent and PageData were not to bill Qwest for reciprocal compensation
of such traffic.
9. This letter issued to the FCC Enforcement Bureau by Qwest further
substantiates a) that WaveSent and PageData are not in violation of their current
interconnection agreements; b) Qwest volunteered that it would deliver such traffic; and
c) Qwest is obstructing and interfering with WaveSent and PageData s businesses.
10. Qwest' s Motion to Dismiss is moot since 135 days have passed.
11. In ruling on a motion to dismiss under Rule 12(b)( 6), the Commission is to
accept the well-pleaded factual allegations in the complaint as true and construe them
most favorable to the Petitioner.
Mediation
12. For the past several months the Commission has fostered mediation between
Qwest, WaveSent, and PageData. Qwest delayed installing facilities promised to
PageData in the June 4, 2003 letter (to resolve informal complaints filed with the FCC
Enforcement Bureau) until the Commission got involved with the mediation. These
mediation talks are breaking down. To date, Qwest is still trying to renege on delivery of
Internet traffic.
WaveSent and PageData Amendment to Petition - 4
Qwest is Rehashing the Informal Complaint Filed at the FCC
Qwest is Rehashing the TSR and Mountain Orders
13. WaveSent and PageData s cases before the Commission are not complicated.
This is a simple case of Qwest trying to renege on the interconnection agreements that
were approved by the Commission and a Qwest letter issued to the FCC Enforcement
Bureau, WaveSent, and PageData (to resolve informal complaints filed with the FCC
Enforcement Bureau) stating that WaveSent and PageData could terminate Internet traffic
as long as neither company charged Qwest for termination of such traffic.
14. This is an elaborate scheme to reverse the TSR Order paragraphs 21 and 22
and Mountain Order to force WaveSent and PageData into new interconnection
3 TSR Order
, 21. (Footnotes omitted) We disagree that any conflict exists here between the Order and the
rules. Section 51.701(e) must be read in conjunction with the rest of the Order and section 51.703(a).
Section 51.703(a) states that "(e)ach LEC shall establish reciprocal compensation arrangements for
transport and termination of local telecommunications traffic with any requesting telecommunications
carrier." Like the text of the Order, which states that "paging carriers" shall be entitled to request reciprocal
compensation arrangements, section 51.703(e) draws no distinction between one-way and two-way
carriers. Indeed, section 51. 703(a) specifically states that any... telecommunications carrier" may request
a reciprocal compensation arrangement with a LEe. As stated previously, paging carriers, including those
that provide only one-way service, are "telecommunications carriers" under the Act. Absent a specific
exclusion in the rules, there is no basis upon which to presume that such carriers should not be included
within the scope of these provisions. Section 51.701(e) does not, as Defendants argue, require that
compensation actually flow in both directions between carriers. It requires only that, to the extent that local
telecommunications traffic originates on the network facilities of one carrier and terminates on the facilities
of another, compensation shall be paid to the terminating carrier. In fact, the Commission s regulation
defining reciprocal compensation and its interpretation of those regulations was recently upheld in Pac(fic
Bell v. Cook Telecom, Inc. The Ninth Circuit concluded that the Commission s "interpretation of
reciprocal' (was) a plausible and permissible interpretation of an ambiguous statutory term " and that our
interpretation was entitled to deference. Accordingly, we reject Defendants' arguments that section
5 1. 703 (b) of the Commission s rules does not apply to one-way carriers.
22. The Local Competition Order states that paging providers "transport
" "
switch " and
terminate" traffic. Moreover, our rules do not require that a carrier possess a particular switching
technology as a prerequisite for obtaining reciprocal compensation. Section 51.701 (d) defines termination
as "the switching of local telecommunications traffic at the terminating carrier s end office switch
equivalent facility, and delivery of such traffic to the called party's premise." By using the phrase "switch
or equivalent facility," the rules contemplate that a carrier may employ a switching mechanism other than a
traditional LEC switch to terminate calls. A paging terminal performs a termination function because it
receives calls that originate on the LEC's network and transmits the calls from its terminal to the pager of
the called party. This is the equivalent of what an end office switch does when it transmits a call to the
telephone of the called party. To perform this function, the terminal first directs the page to an appropriate
transmitter in the paging network, and then that transmitter delivers the page to the recipient's paging unit.
The terminal and the network thus perform routing or switching and termination. Because a paging
terminal performs switching functions akin to an end office switch, we find unpersuasive Defendants
WaveSent and PageData Amendment to Petition -
agreements wherein WaveSent and PageData are obligated to pay more each month to
Qwest than Qwest is obligated to pay WaveSent and PageData. To this end Qwest has
threatened disconnect WaveSent and PageData facilities necessary for
interconnection.
PRAYER FOR RELIEF
15. To save the parties involved a substantial amount of time and resources
WaveSent and PageData reiterate the requests in the previously filed Petitions in these
cases for the following:
16. The Commission should address whether or not WaveSent and PageData are
in violation of their existing interconnection agreements before the Commission assigns a
hearing examiner for any arbitration under ~ 252(b). The interconnection agreement and
letter of understanding language are quite clear and it is evident that WaveSent and
PageData are not in violation of their current interconnection agreements. The
Commission needs to make a ruling on the interconnection agreements in such a manner
that Qwest cannot manipulate the contracts so Petitioners find themselves back in front of
the Commission over a dispute of these same issues.
17. Qwest's Motion to Dismiss should be denied because the 135-day period has
now passed. WaveSent and PageData believe the Commission had the authority to act in
less than 135 days. This issue is now moot.
18. Since 135 days has passed for both Wave Sent and PageData, to cover any
legal anomalies and in order to save time and resources WaveSent and PageData request
argument that a paging terminal does not qualify as a "switch or equivalent facility" as defined by the
Commission s rules. Consequently, we reject Defendants' argument that Complainants fall outside of our
reciprocal compensation framework because paging terminals allegedly do not perform a switching
function, and, therefore, do not constitute a "switch or equivalent facility" as defined in the Commission
rules.
WaveSent and PageData Amendment to Petition - 6
the Commission count the Petitions and Amendments already filed in this case as being
resubmitted as of today' s date.
19. The only topic not covered in the Petitions presently before the Commission is
whether or not Qwest is compensated for all toll facilities in the local calling areas by
extra payments made by Qwest customers in the extended calling area. It is WaveSent
and PageData s belief that Qwest is already double billing. By billing paging carriers, this
would make Qwest triple billing. The arbitrator would need to address this during the
252(b) process.
20. In the unlikely event the Commission finds that WaveSent and PageData are
in violation of their current interconnection agreements, then WaveSent and PageData
wish to exercise their statutory rights under ~ 252(i) (Pick and Choose) and the current
interconnection agreements4 and adopt the ISP-Bound Traffic Amendment from the
Verizon interconnection agreement. Wave Sent and PageData also request the
Commission make a ruling on the flat rate 6000 MOD per trunk being deemed local
paging traffic under that amendment.
21. If the Commission rules that WaveSent and PageData cannot adopt the ISP
amendment from the Verizon interconnection agreement under ~ 252(i), paragraph 13.
of the interconnection agreements, and the Commission s Order No. 291405 then
WaveSent and PageData exercise their rights under ~ 252(b) and request the Commission
4 Interconnection Agreement, Paragraph 13.29 - Section 252(i) Election - Paging Provider shall have the
right under 47 V.C. Section 252(i) to elect terms and conditions from other approved agreements
consistent with 47 C.R. Section 51.809.
5 Idaho Commission Order No. 29140 In the lIJatter of the Joint Petition of Robert Ryder, dba Radio
Paging Service, Joseph McNeal, dba PageData and InterPage of Idaho, for a Declaratory Order and
Recovery of Overcharges from us WEST Communications, Inc.Case No. VSW-99-, page 21
WaveSent and PageData Amendment to Petition - 7
arbitrate a new interconnection agreement by accepting the language in its entirety
submitted by Wave Sent and PageData previously.
22. Additionally, WaveSent and PageData request that the Commission formally
remind Qwest that it cannot shut off any facilities of WaveSent and PageData during the
time period that these complaints are before the Commission.
Dated this 12th day of August, 2004.
Respectfully submitted
os h B. McNea
PageData and
WaveSent LLC
6610 Overland Rd.
Boise, ID 83709
[phone]
[phone] Fax
WaveSent and PageData Amendment to Petition -
CERTIFICA TE OF SERVICE
I HEREBY CERTIFY that on the 12th day of August, 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 ill 83720-0074S. Mail Fax By Hand By Email
William J. Batt
Batt & Fisher, LLP
US Bank Plaza, 5
th Floor
101 S. Capitol Blvd.
Boise, ill 83701
S. Mail Fax By Hand By Email
Qwest Corporation
Director - Interconnect
1801 California Street, Room 2410
Denver, CO 80202S. Mail Fax _By Hand _ByEmail
Qwest Corporation
Bob McKenna
1801 California Street
Denver, CO 80202
S. Mail Fax _By Hand By Email
WaveSent and PageData Amendment to Petition - 9