20110328Qwest Communications Company.pdf

Mary S. Hobson
Attorney & Counselor
999 Main, Suite 1103
Boise, ID 83702
208-385-8666
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March 28, 2011
VIA HAND DELIVERY
Jean D. Jewell, Secretar
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702-5983
RE: Docket No. GNR-T-ll-Ol
Dear Ms. Jewell:
Enclosed for filing with this Commission are an original and seven (7) copies of the
Comments of Qwest Communcations Company LLC (QCC).
If you have any questions, please contact me.
Very trly yours,~~
Mar sQjObson
Enclosures
Mar S. Hobson (ISB. No. 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: [phone]
mar.hobsonaYgwest.com
RECEIV~fì_:..'
lDrr MAR 28 PM 4: 4'
Adam L. Sherr
Associate General Counsel, Qwest
1600 7th Avenue, Room 1506
Seattle, WA 98191
Tel: [phone]
adam.shercmqwest.com
Attorneys for Qwest Communcations Company LLC
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF AN INESTIGATION
OF AN APPROPRITE CERTIFICATION
PROCESS FOR TELECOMMUICATIONS
COMPANIES THAT DO NOT PROVIDE
BASIC LOCAL EXCHANGE SERVICE
Case No. GNR-T-II-0l
COMMENTS OF QWEST
COMMUICATIONS COMPANY LLC
Qwest Communcations Corporation (now Qwest Communications Company LLC)
(QCC) files the following comments in response to the Idaho Public Utilities Commission's
(IPUC's) Order No. 32194 dated Februar 25,2011.
BACKGROUND
In September 2002, the IPUC granted QCC's request for "authorization to provide local
service"i by approving its application for a CPCN (Cerficate No. 402). In June of2004, the
i Case No. QCC-T-02-01, Order No. 29099
1
Commission amended QCC's Cerificate, allowing QCC the "authority to provide related
serices to customers in large business markets."i The Commission noted that "QCC may have
an opportity to provide serice to large customers with remote offces that would qualify as
small businesses, and the Company stated it needed flexibility to provide basic local exchange
serice to those customers under a single corporate entity."3 Since the entr of these orders,
QCC has remained in compliance with all IPUC requirements for maintenance of its Cerificate.
On July 20, 2010 the Idaho Public Utilties Commission Staff (IPUC Staff or Staff
issued an "Access Line Audit of all Idaho CLECs" asking, among other things, for "curent
count( s)" of certain access lines being provided by QCC to residential and business customers in
Idaho. On August 16,2010 QCC responded to the audit indicating that QCC did not curently
have Idaho customers using the paricular lines in question.
On November 9, 2010 QCC received a letter from Carolee Hall of the IPUC Staff
inquiring whether QCC planed to voluntarly relinquish its CPCN or whether it had any
objections to the Commission's rescission ofQCC's Cerificate, based on QCC's line counts for
"basic local exchange serce" in Idaho. On December 15,2010 QCC responded to the letter of
November 9 indicating QCC was not prepared to voluntarly relinquish its CPCN and requesting
additional time for response. QCC completed its response by letter submitted on Januar 24,
2011, which outlined QCC's continued need for a CLEC CPCN.
QCC appreciates the opportnity presented by this docket to expand on its concers and
address some of the issues raised by a possible alternative approach.
DISCUSSION
Order No. 32194 set out four questions that the Commission wishes to have addressed in
the comments of the interested paries. QCC responds as follows:
1. Is a written certfication by the Commission necessary for companies providing
telecommunications services but not basic local exchange servce?
a. QCC is not similarly situated to Time Warner and other wholesale providers who have
recently raised the certifcation issue before the ¡PUC.
2 Case
No. QCC-T-04-l, Order No. 29514, p.l
3 Id.
2
Comments of QCC
March 28,2011
This first question posed by the Commission appears to address whether companes that
do not provide basic local exchange serice and do not intend to provide such service and/or do
not hold themselves out as being wiling to offer the same need some form of wrtten
cerfication from the Commission. QCC believes there may be others who are better-equipped
to respond directly to this point given that QCC does not fit into the assumed category. QCC is
not primarly a wholesale provider and its business plan contemplates providing retail local
serice as the IPUC's Order No. 29514 recognized in 2004. QCC urges the Commission to avoid
an overly narow focus on only a portion of the issue of certification, as this could theaten to
obscure other important aspects of this case that require Commission attention.
QCC is not similarly situated to Time Warer and other wholesale providers that have
recently raised certification issues before the IPUC. Although QCC does not presently sere any
basic local exchange customers, the provision of basic local exchange serices is one of its
business objectives and QCC holds itself out as being wiling to provide such services in QCC's
Catalog on file with the IPUC.4 Furtermore, as QCC explained in its correspondence to the
IPUC in late Januar, the Company's Networx Universal contractual agreement with the federal
governent requires that QCC file all tarffs and other regulatory filings that are required by law
or regulation and that are necessary for contract performance in any state in which the
contracting federal agency might operate. Since contract performance may require providing
local exchange servce (possibly including basic local exchange servce) in Idaho, the contract
language implicitly requires a QCC CPCN for Idaho. As noted, this fact was recognzed by the
Commission in its past order expanding QCC's CPCN.5 That order explicitly acknowledged,
QCC's need for "flexibility to provide basic local exchange servce to (large business) customers
under a single corporate entity. ,,6 QCC stil finds itself in that position and asks that the
Commission continue to allow QCC to hold a CLEC CPCN, as it has since September 2002.
b. Withdrawing QCC's CPCN creates a potential competitive disadvantage for QCC and may
diminish competitive alternatives.
4 See Section 4.3 (Contractual Service Agreements - Federal Government Service Agreements) ofQCC's Idao
Local Exchange Servces Catalog (No.2) ("QCC LES Catalog").5 See fn. 2.
6 See fn. 3
3
Comments of QCC
March 28, 2011
The Commission's possible reconsideration of its past approval ofCPCNs for companes
such as QCC raises serious concerns based on the realities of the marketplace. If QCC is not
permitted to maintain its CLEC CPCN, it could suffer substantial har. As noted, QCC's
Networx contract requires that QCC maintain all r,egulatory filings necessar to provide the
serices contemplated under the agreement. Those serces include providing basic local
exchange servce, which requires a CLEC CPCN. QCC has complied with all such provisions
including having maintained a CLEC certificate in Idaho since 2002. If QCC were to lose its
CPCN, it could be deemed out of compliance with the Networx contract requirements.
Noncompliance could trigger action by the Governent Serices Administration to find QCC in
default and to terminate the contract. If that were to occur, it would impact QCC's abilty to
compete for federal governent business not only in Idaho but nationwide. Furhermore,
competition in, and outside, Idaho could similarly be damaged by the loss of QCC and perhaps
other competitors. IfQCC's Networx contract were terinated, the total number of
telecommunications providers under N etworx would he reduced for all serices, not just basic
local exchange service.
QCC is uncerain what policy objectives may be achieved by restrcting CLEC CPCNs in
Idaho to those companies who presently have local exchange customers. However the adverse
impacts of restrcting an active company's ability to compete and the possible reduction of the
number of viable competitors should be factored in as the Commission considers how it wishes
to handle the needs of an entirely different group, i.e., companies who do not intend to provide
local serice and are not holding themselves out as potential competitors planing to provide
local serice.
2. If some sort of Commission certifcation is needed, what form or designation
might it take?
As QCC's foregoing comments descrbe, QCC believes that the continuance of a CLEC
CPCN is required to maintain its compliance with its Networx contract with the federal
governent and its competitive status as a potential serce provider under that arangement in
Idaho and elsewhere. Adopting some form of alterative cerification wil inevitably involve
difficulties that are not present under the curent Commission process that has allowed QCC to
holdaCPCN.
4
Comments of QCC
March 28,2011
a. A two-tiered system of certifcation creates a regulatory bind for companies wishing to
provide local service.
While the Commission's concers about companies holding CPCNs while not actively
serving basic local exchange customers are not fully developed in this record, there appears little
doubt that those companes that do provide local serice (at least those doing so by means of the
public switched network) are required to maintain a cerificate.
7 Thus a company such as QCC
that (potentially) does not qualify for a CPCN under some new Commission approach to the
CLEC CPCN requirements is placed in a regulatory bind if it stil wishes to hold itself out as a
potential provider oflocal serce. Assuming a two-tiered process under which active providers
are given a CPCN and others a certificate of some other kind, once a QCC customer orders local
exchange serce, QCC would be forced to a change its status from a second tier cerificate
holder to a fully certificated CLEC. Presumably this process would need to be completed before
QCC could comply with its customer's serce request. Since under its Networx contract, QCC
is obligated to provide local service, if requested, this scenaro poses a serous question
concerng QCC's ability to perform in a competitively viable way. While such a regulatory
requirement may not constitute an insurmountable obstacle to providing servce, it is easy to see
that it could cause delay and potentially degrade QCC's response to its customer. It also
involves the expenditue of time and resources by the Company and the Commission that is not
now required, without an articulated policy purose being served.
Furthermore, since under QCC's Networx agreement QCC must comply with any
regulatory requirements necessar to provide contract serices (which include basic local
exchange serce), QCC requires the ability to file and maintain tarffs/price lists reflecting that
serice. Presently QCC has this ability due to its CLEC CPCN. However, if QCC were to lose
its CPCN, it is unclear under the Idaho regulatory regime whether the IPUC would accept
tarff/price list filings for basic local exchange serice where (potentially) QCC is not authorized
to offer it. Restriction of QCC' s ability to maintain fiings that reflect its service offerings places
QCC in a position of potentially violating its contractual agreement. In addition, restrcting the
services that a CLEC is peritted to offer in its IPUC filings solely because the CLEC has not
yet captued customers seems to inappropriately limit competition while providing no offsetting
gain to the public.
7 See IPUC Procedurl Order 26665.
5
Comments of QCC
March 28, 2011
b. A two-tier certifcation process must avoid restricting competiton and provide for a ready
transition between levels of certifcation.
If the Commission were to adopt the approach that some other form of cerification be
offered companies that do not have active local exchange customers, that form of cerification, to
meet the needs of QCC, must allow the Company to fie and maintain tarffs/price lists that
describe the services it offers (including basic local exchange service) and must allow for a
simple and self-executing conversion to a full CPCN once a customer order for local serce is
received. These features are necessar so that QCC's competitive position and its ability to sere
customers (without commercially unreasonable delay) are not compromised by regulatory
requirements for the two tier process. With such featues in place, however, it becomes unclear
what useful distinctions remain between the two tiers that justify their creation.
3. What legal authority does the Commission have to issue certifcation that is a not a
Certifcate of Public Convenience and Necessity?
The Idaho Legislature has created a statutory strctue that delineates the IPUC's
authority with regard to incumbent, rate-regulated telephone corporations in Title 61, Idaho
Code. It also granted the Commission specific authority with regard to other telecommunications
providers in Title 62. Competitive Local Exchange Carers (CLECs) and telephone
corporations that do not provide basic local exchange service are subject to Title 62.8 Among the
authorities granted to the Commission in Title 62 are the broad provisions of section 62-615
which provide that the IPUC "shall have full power and authority to implement the federal
telecommunications act of 1996" 9 and that it "may promulgate rules and/or procedures
necessar to carr out the duties authorized or required by the federal telecommunications act of
1996.,,10
QCC submits that the cerification of CLECs (including those such as QCC that hold
themselves as prepared to offer local serice) falls within the scope of the authority contemplated
by section 62-615. Indeed, the federal telecommunications act of 1996 specifically contemplates
the exercise of state regulatory authority over competitive carers in such areas as
8 See e.g., Idao Code § 62-604 (a)(l)
9 Idaho Code § 62-615 (1)
10 Idaho Code § 62-615 (3)
6
Comments of QCC
March 28, 2011
"preserv(ation) and advance(ment) of universal service," protection of the ''public safety and
welfare," telecommunications service quality, and "safeguard(ing) the rights of consumers."ii
The IPUC's requirements for the issuance ofCLEC CPCNs, as contained in IPUC Commission
Order 26665, appear geared to address these areas of state regulatory interest.
QCC believes that the IPUC has adequate authority to issue CPCNs to non-incumbent
telecommunications providers under provisions of Title 62, Idaho Code. QCC fids no basis in
the statutes to limit that authority to companies that are presently providing basic local exchange
serice (or those within some initial period following certification). However, should the
Commission find that an alterative form of certification for entities not actively providing local
serce is necessar, the above-described statutory provisions are likely adequate to authorize
such cerification so long as it relates to the regulatory objectives preserved for the states under
the federal telecommunications act.
4. What can the Commission do to ensure that numbers are used efficiently by CLECs and
other telecommunications providers?
QCC views mandatory number pooling for all Rate Centers, which is already in place in
Idaho, and Area Code relief in the form of an Overlay, as key factors in number conseration and
effective use of North American Numbering Plan (NANP) resources. The historical system of
certifyng CLECs acts as an effective means of securng compliance with these measures. If the
Commission were to adopt an alterative or lesser form of certification for entities not presently
providing basic local exchange serice, the Commission should consider including such
compliance as a par of the qualifications for such certification. However, such additions to a
second form of certification once again diminish any differences between that form and the
existing CPCN and again raise the question of the need for a two tier cerification approach.
States have certain conservation authority, which is outlined in the Industr Numberng
Committee (INC) Central Office Code Assignent Guidelines (COCAG).12 These number
conservation measures include the state's access to serice providers' applications for numberng
resources (Section 2.13), and authority to investigate proof from serice providers that NXX
11 47 U.S.C. § 253(b)
12 The COCAG can be found on the ATIS web site:
ww.atis.orglinc/incguides.asp
7
Comments of QCC
March 28, 2011
codes have been activated and assignent of number has commenced (Section 8.0). The
COCAG also require those carers applying for NANP resources to (1) certify a need for NANP
numbers from provision of serice in the Public Switched Telephone Network (PSTN), Section
4.1.1, and (2) provide evidence of a license or authority issued by the FCC or a Certificate of
Public Convenience and Necessity (CPCN), Section 4.2.1. The Commission may consider
pursuing a status report from the FCC on pending waiver requests for VoIP from varous serice
providers. Where entities that are not certified by the IPUC are obtaining numbers from
companies that are so certified, the Commission may wish to consider exercising its regulatory
authority over the cerified companes to ensure their provision of numbers to other entities
meets IPUC conservation policies.
CONCLUSION
QCC submits that the IPUC's authority granted in Title 62, Idaho Code is suffcient to
perit it to issue CPCNs to companes such as QCC who offer retail local exchange servce.
QCC finds nothing in Idaho law that restrcts CLEC CPCNs to companies presently providing
basic local exchange serice. If the Commission were to adopt an alternative form of
cerification, that cerification must allow QCC to file and maintain tarffs/price lists that
describe the services it offers (including basic local exchange serce) and must allow for a
simple and self-executing conversion to a full CPCN once a customer order for local servce is
received.
Dated thi~y of March, 2011.
Respectfully submitted,
Mar S. obson (ISB. No. 2142)
999 Ma n. Suite 1103
Boise, ID 83702
Adam LSher
Associate General Counsel, Qwest
Attorneys for Qwest Communications
CompanyLLC
8
Comments of QCC
March 28, 2011