20040504Qwest Response to Pagedata Motion.pdf

William J. Batt
James B. Alderman
Batt & Fisher, LLP
U S Bank Plaza, 5th Floor
101 South Capital Blvd.
Boise, Idaho 83702
[phone]
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, WA 98191
[phone]
Attorneys for
Respondent Qwest Corporation
RECEiVED
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UTILfflES COMMISSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
JOSEPH B. MCNEAL, d/b/a P AGEDA T A
, )
Petition for Arbitration of Interconnection
Rates, Terms and Conditions and Related
Arrangements with Qwest Corporation
Pursuant to Section 252(b)
W A VESENT LLC
Petition for Arbitration of Interconnection
Rates, Terms and Conditions and Related
Arrangements with Qwest Corporation
Pursuant to Section 252(b)
Case No. GNR-04-
Case No. GNR-04-
QWEST CORPORATION'
RESPONSE TO PAGEDATA'
MOTION FOR EXPEDITIOUS
SUBSTANTIVE RELIEF
OR\G\NAL
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 1
Overview and Back2round
These consolidated matters matter and the instant "Motion for Expeditious Substantive
Relief' are the latest legal ploys in the long history of litigation brought by Joseph McNeal d/b/a!
PageData ("PageData ) against Qwest Corporation ("Qwest"). Qwest hereby responds to the
Motion for Expeditious Substantive Relief.
PageData and its affiliate WaveSent, LLC ("Wave Sent ) each opted in to the Paging
Connection Agreement between Qwest and Arch Paging. They did this in Idaho and the 13 other
Qwest states. The Commission approved the Pagers' adoption on February 25 , 2003?
In the summer through the fall of 2003, Qwest and the Pagers discussed the provisioning
of facilities pursuant to the adopted Arch agreements. Difficulties arose and the Commission
staff provided excellent help in working through many technical issues.Eventually the
facilities ordered by WaveSent were provisioned and remain operational today, although as
explained below, Qwest has indicated its intention to review the configuration to determine
whether the facilities in place are necessary for the delivery of Qwest-originated paging traffic.
Facilities for PageData were provisioned but have not been "turned up" because of
continuing disputes between the parties.
I Qwest will reply separately to the Petitions for Arbitration and Amendments thereto, as provided in the
Commissions Orders and as set out in more detail below.
2 The Commission approved PageData s and WaveSent's adoptions of the Arch Agreement on February
, 2003. 2003. See In the Matter of the Joint Application of Qwest Corporation and Joseph B. McNeal
dba PageDatafor Approval of a Paging Connection Agreement Pursuant to 47 USe. 252(i), Case No.
QWE- T -03-, Order No. 29198; In the Matter of the Joint Application of Qwest Corporation and
WaveSent, LLC for Approval of a Paging Connection Agreement Pursuant to 47 USe. 252(i), Case
No. QWE-03-, Order No. 29198. Although the Pagers adopted the Arch agreements in 14 states, they
do business only in Idaho today, to Qwest's knowledge.
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 2
The disputes are several:
1. Can the Pagers obtain reciprocal compensation for Internet-bound or other
Enhanced Services Traffic, as defined in the adopted Arch Paging Connection
Agreement?
2. Can the Pagers obtain reciprocal compensation based on assumed minutes of use
either (i) if there is in actually no traffic; or (ii) if the type of traffic (.g. Internet
traffic) is excluded from reciprocal compensation by the terms of the Agreement?
3. Can Qwest reconfigure its facilities, as provided in the Agreement, if the facilities
are not necessary for the delivery of Qwest-originated traffic?
4. Can the Pagers unilaterally modify their adopted Agreements to provide
reciprocal compensation for such traffic (or no traffic), or to restrict Qwest's
ability to reconfigure its facilities used to deliver Qwest-originated traffic?
In the midst of this dispute, and despite the utter lack of any interconnection negotiations
or discussion of potential amendments to their existing Paging Connection Agreements, the
Pagers filed what purported to be Petitions for Arbitration under Section 252 of the
Telecommunications Act of 1996.
The Commission ordered the Pagers to provide legal support for their Pagers' claim that
the Commission could entertain Section 252 arbitration petitions prior to the 135 th day after
negotiations are requested. The Pagers did not comply with the Commission s Order; instead
3 Petition of Joseph B. McNeal, d/b/a PageData filed a Petition for Arbitration ofInterconnection Rates
Terms and Conditions and Related Arrangements with Qwest Corporation Pursuant to Section 252(b),
filed March 23 , 2004; Petition of Wave Sent, LLC for Arbitration ofInterconnection Rates, Terms and
Conditions and Related Arrangements with Qwest Corporation Pursuant to Section 252(b), filed March
, 2004. Mr. McNeal acts as "Attorney Pro Se" for both Petitioners.
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 3
they filed "Amendments" to their petitions in which they ask the Commission to "first decide
the reciprocal compensation dispute between the parties, and to decide the Section 252 issues
only if Qwest prevailed on the existing interconnection agreement dispute.
Qwest will file its Response to the Petitions for Arbitration, as amended, by May 7, 2004
as ordered by the Commission.4 Meanwhile, however, Qwest submits that the Pagers
' "
Motion
for Expeditious Substantive Relief' simply describes the existing disputes that each of them has
under their adopted Arch Paging Connection Agreements. Accordingly, those disputes are not
the proper subjects of arbitrations under Section 252 of the Act, but should be determined by the
dispute resolution procedures of the existing interconnection agreements.
The Disputes in More Detail
Although the Pagers appeared to initially request the arbitration of a new interconnection
agreement with Qwest under Section 252(b) of the Act, what the Petitioners really seek by their
Petitions and their recent Motion for Expeditious Substantive Relief is favorable resolution of
their current disputes with Qwest under their current interconnection agreements.The
Commission in its most recent Order acknowledged that Petitioners are seeking resolution of
current disputes under their current interconnection agreements:
Before the Commission embarks in arbitrating the 252(b) issues and reviewing
the proposed "pick and choose" terms under 252(i), the Pagers request the
Commission "first make a ruling on the current interconnection agreement ( s) and
whether" the agreements would allow reciprocal compensation of the termination
of Internet traffic and enhanced services traffic.
4 Order No. 29477, April 16, 2004.
Id. p. 2.
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 4
The Commission s conclusion is fortified by an examination of the interactions of
the Parties. The following table provides a summary of those interactions. Relevant
correspondence is attached to this Response as Exhibits.
Exhibit Date Description
PageData letter to Qwest complaining that it was denied a single point of
presence and suffered other wrongs by Qwest, that Qwest is using mail to
deliver unlawful billings, that it wants its billings corrected, wants
someone with authority to agree to zero out account balances, refund all
monies paid, and pay PageData retroactive reciprocal compensation.
17-PageData letter to Qwest complaining that PageData is not being paid
reciprocal compensation. PageData states that all past balances are being
formally disputed through litigation in federal and state courts, and Qwest
is continuing the old policies that have been overruled by the courts.
17-Qwest should not dispute assumed MOUs in ICA. Qwest does not
realize technological advances that are subject to reciprocal
WaveSent Qwest compensation
, "
continuous paging" and "paging naught.
Qwest personnel has not seen WaveSent's proprietary continuous
paging, which sends compressed data 24 hours per day.
WaveSent is therefore not scared to bill actual usage, which would
greatly exceed the assumed MOU.
Wave Sent also provides vehicle location, alarm monitoring, vending
machine accounting, voicemail, Internet, and email retrieval, all of
which are subject to reciprocal compensation.
Threats: new RICO lawsuit, complaints with FCC/ PUC, and filing
for arbitration to obtain true termination costs.
WaveSent billed assumed MOUs to avoid dispute with Qwest, but
can begin billing actual MOUs, but WaveSent's continuous paging
will generate massive amount ofMOUs.
Many ICAs have not been filed in Idaho.
IPUC's failure to investigate portrays Qwest with false image in
PageData to Mr. Howell community that it has been following the law. Qwest's lawlessness is
putting Idaho businesses out of business.
Small paging companies deserve same treatment as Arch and
PageNet, which is they got back all the money they ever paid Qwest.
Qwest zeroed out their accounts and allowed them to change their
networks. Qwest's legal and billing departments know that unfiled
agreements mean millions of dollars of fraudulent billing every month
to paging companies that have not had the opportunity to adopt those
agreements. This is criminal activity.
Qwest has not put this to rest in Idaho and should be fined $50 million
by IPUC. We will be augmenting our previous complaint that the
IPUC put on hold.
Something is seriously wrong at Qwest. Qwest underestimated
PageData s resolve about a single POP and instead of settling with
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 5
PageData for $650 thousand, they paid millions in fines to state
PUCs.
If Notebaert knew those investigations started here in Idaho there
would be many changes at Qwest. I believe you should set up a
meeting between Notebaert and myself.
The traffic described in Wave Sent's letter of February 17 , such as
Continuous Paging," vehicle location, alarm monitoring, vending
Qwest Letter to Wave Sent machine accounting, and Internet traffic, is not legitimate paging
and PageData traffic and is not subject to reciprocal compensation under the
WaveSent/ PageData - Qwest ICAs.
Qwest has learned that some of the numbers registered to PageData
and Wave Sent are Internet access numbers.
Qwest disputes Wave Sent! PageData s reciprocal compensation bills
until it can be determined which if any of the traffic is legitimate
paging traffic under the ICAs.
Qwest may revise or reconfigure the facilities as necessary to deliver
legitimate paging traffic.
Qwest is discriminating against Wave Sent by threatening to
reconfigure facilities. Qwest is not filing all ICAs. Qwest is paying
WaveSent Letter to Qwest reciprocal compensation to other carriers for the traffic on which it
will not pay WaveSent.
WaveSent could not avail itself of more favorable terms and
conditions available to other carriers.
Fourth Circuit says ICA terms that violate Act are unenforceable.
Because of this Wave Sent is going to avail itself of new terms under
Section 252(i). Wave Sent proposed deleting restrictions on types of
traffic.
Wave Sent also proposes restricting changing from flat rated
reciprocal compensatIOn.
Wave Sent is impatient. This letter serves as notice Qwest has 10 days
to present offer to resolve this issue or Wave Sent will initiate
arbitration under Section 13. 14, Dispute Resolution.
12-Qwest disputes entire amount of reciprocal compensation billing until
WaveSent breaks down traffic between legitimate paging traffic and
Qwest to Wave Sent enhanced services traffic.
WaveSent cannot unilaterally change its agreement. Amendment must
be agreed to by both parties.
Wave Sent must abide by the terms of its current interconnection
agreement.
There is no change in the agreement warranted by a "change in law.
Qwest proposes that Wave Sent issue a revised invoice, delineating
enhanced services traffic minutes such as "continuous paging" traffic
MOUs of traffic terminating to an ISP and actual minutes of
termination for Paging Connection Service. Qwest will review the
revised invoice, pay undisputed amounts for PagIng Connection
Service reciprocal compensation, and work with Wave Sent to
reconfigure the facilities to WaveSent to be consistent with the
Agreement and applicable tariffs and law.
Qwest has determined that some telephone numbers which are
registered to PageData are actually terminating to ISPs. Therefore, it
is Qwest's position that facilities that PageData may attempt to
QWEST CORPORATION'S RESPONSE TO P AGEDA T A'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 6
provision for termination of enhanced services traffic and traffic
bound for an ISP are not appropriately provisioned under the
applicable agreement with PageData.
3/16/04 Qwest is in violation of act by reneging on firm order commitments.
PageData does not have to comply with ICA because its terms are
PageData to Qwest illegal and unenforceable.
PageData attaches new proposed ICA for use in all states. PageData
not interested in long drawn-out negotiation. If Qwest does not
respond timely PageData will file for arbitration.
Qwest accused of not negotiating in good faith.
Qwest must respond by end of day March 19 with affidavit from
executive certifying that Qwest was in good faith and has filed all
ICAs in Idaho.
Qwest must submit proposed revisions to ICA by March 26.
18-Wave Sent is not claiming reciprocal compensation for termination of
ISP traffic. Continuous paging is not enhanced or Internet traffic.
WaveSent to Qwest Wave Sent wants to stay with assumed MOUs. WaveSent rejects
Qwest's proposal that it bills segregate types of traffic.
WaveSent initiates negotiation of a new agreement.
25-Wave Sent letter to Qwest reveals that despite previous statements that
WaveSent provided "continuous paging" services; in fact WaveSent has
no continuous paging customers.
NOT 25-PageData Petition for Arbitration
ATTACHED
NOT 27-WaveSent Petition for Arbitration
ATTACHED
30-The tenant of rule of law is the lawbreaker cannot be advantaged by non-
compliance. The simple fact is Qwest is not in compliance with 47 US.
Tick tock" Email from Mr.Sections 251 and 252, and Qwest and their conspirators have been
McNeal to Mr. Howell substantially advantaged. Qwest is guilty of white collar crime. Qwest'
own vice presidents would not self-certify that all interconnection
agreements have been filed in Idaho when requested by Page Data. This in
itself should s eak volumes. I believe that extraordinary circumstances
exist and the Idaho PUC should issue Qwest a hefty fIne to reflect the
manipulation of the process in sum of no less than $10 000 000.
Wave Sent must delineate which traffic is actual paging traffic and
which is Enhanced Services Traffic.
Qwest to WaveSent Qwest will not pay reciprocal compensation on idle trunks. Qwest has
the right to reconfigure facilities.
Qwest is willing to negotiate but attempts to opt into language
without legitimately related provisions are not proper.
Redline of Wave Sent's proposed language attached.
Qwest is available for negotiations next week, please contact to
schedule a time that would allow us to begin negotiations.
Communications on WaveSent's reciprocal compensation have reached an
impasse and need to be addressed during the arbitration proceedings.
Wave Sent to Qwest Discussions on termination ofInternet traffic have blinded the eye of your
writer. Qwest is intentionally mixing the responsibilities of the
permissions to continue its policy of creating litigious situations with
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 7
WaveSent's management to justify its illegal stances. The flat rate billing
of 6000 MOU per trunk does not require ill!Y delineation of the minutes.
Wave Sent submits its interconnection agreement amendments under
Section 252(i). Wave Sent encloses its instant and retroactive ISP
Wave Sent to Qwest Amendment that purports to clear up all back issues of terminating
Internet and enhanced services traffic.
Qwest rejects 252(i) adoptions as stated in 4-7 email. WaveSent is
taking an approved amendment and changing the language of that
Qwest to Wave Sent agreement. This is called "pick and change" and is not appropriate
under 252(i).
Wave Sent must adopt the amendment and related language without
changes. IfWaveSent wants to make changes to the amendment after
approval Qwest will certainly entertain those negotiations.
Qwest is concerned and confused by WaveSent's "shotgun" approach
to negotiations.
PageData and Wave Sent have opened windows for negotiations under
251/252. Qwest acknowledged these requests and sent back a redline
of WaveSent' s proposed contract.
There has been no attempt by either WaveSent or PageData to contact
Qwest and begin negotiations.
On the other hand, Qwest has received numerous adoption requests
for amendments from WaveSent! PageData under the guise of 252(i).
This is confusing. Are we negotiating new agreements or are we
amending existing agreements?
Staying focused with one approach would be more productive. Qwest
favors negotiating new agreements to clarify and quantify the
disputed issues between Qwest and WaveSent and PageData.
As stated in Qwest's last correspondence , Qwest is available at your
earliest convenience to begin negotiations.
Noting from Qwest's red-lined agreement under 252(b) that Qwest
has already agreed to the new dispute resolution clause and the ASR
WaveSent to Qwest Ordering Process.
This gets us back to what the dispute has always been about--carriers
that Qwest considers paging only cannot terminate Internet or
enhanced traffic.
No matter how much bloviating Qwest does, WaveSent is in
compliance with the ICA, and this is an exercise to delay and hinder
WaveSent from exercising its statutory rights under the 1996 Tel Act
to terminate any Qwest-originated traffic.
Wave Sent has not provided Qwest an adoption of terms and
conditions under 252(i) that Qwest could reject. This is a stalling
tactic by Qwest to postpone and hinder WaveSent from immediately
adopting the ISP-Bound Traffic amendment.
WaveSent is simply rebutting this presumption now and establishing
that 6000 MOU per trunk is deemed local paging traffic. This should
be included with this amendment to avoid Wave Sent and Qwest going
back to the PUC about this issue.
The Idaho PUC might as well establish the flat rate paging minutes of
use and the continuous paging issues at the same time. When the
Idaho PUC establishes that continuous paging is a local paging call, I
am quite sure that Qwest is going to want to do flat rate billing.
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 8
WaveSent has voluntarily done this to prevent future conflict. Qwest
trying to establish continuous paging as enhanced services is like
Qwest redefining voice paging as enhanced traffic.
If Qwest is serious about negotiating, then Qwest should blue-line the
252(i) interconnection agreement WaveSent provided Qwest for its
comment. Wave Sent will be asking the Idaho PUC to accept this
agreement in its entirety.
If you are available for negotiations give a specific time, date, and
phone number of your availability. I am available either Tuesday,
April 13 , 2004 at 10:00 am or Wednesday, April 14 at 10:00 am
(m.t.).
15-I have been out of the office for the last three days. I am therefore
suggesting some times next week to begin negotiations. They are April 21
Sanderson (Qwest) to Mr.11 or 1-3 PDT, April 22, 1-3 PDT, or April 23, 8-10 PDT. Please let me
McNeal know if one of these times works. We can also use my conference bridge
which is: 877-550-8688 PIN 7983819#. Qwest sent its changes to you in
an electronic copy on April 6. You also received a hard copy on Friday,
April 2. That redline clearly shows Qwest's proposed language and is
sufficient to begin these negotiations. Thank you.
NOT 19-Wave Sent and PageData s Amendment to Petition. WaveSent and
ATTACHED PageData believe that the current interconnection agreement allows for the
termination ofInternet and enhanced traffic. Wave Sent and PageData seek
to amend the Petition to request that the Commission first make a ruling
on the current interconnection agreement and whether WaveSent and
PageData s position is correct or whether Qwest's position is correct , and
then if necessary proceed with the 252(i) and 252(b) requests.
This history shows that the parties have several defined disputes under their current
interconnection agreements. The dispute resolution provisions of the Arch Agreement, as
adopted by the Pagers, provide for arbitration of all disputes between Petitioners and Qwest
concerning agreements. 6
6 Arch Paging Connection Agreement, ~ 13.14:
If any claim, controversy or dispute between the Parties, their agents, employees, officers
directors or affiliated agents ("Dispute ) cannot be settled through negotiation, it shall be
resolved by arbitration under the then current rules of the American Arbitration Association
AAA"). The arbitration shall be conducted by a single neutral arbitrator familiar with the
telecommunications industry and engaged in the practice of law. Such arbitrator shall not be a
current or former employee, agent, contractor, officer or director of either Party or its affiliates
or subsidiaries or related in any way to a current or former employee, agent, contractor, officer
or director of either Party or its affiliates. The Federal Arbitration Act, 9 V.C. Secs. 1-, not
state law, shall govern the arbitrability of all Disputes. The arbitrator shall not have authority to
award punitive damages. All expedited procedures prescribed by the AAA rules shall apply and
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 9
Moreover, Idaho law strongly favors the enforcement of contractual arbitration clauses.
Like the Idaho courts , the Commission should favor the enforcement of contractual arbitration
provIsIons.
CONCLUSION
Based on the foregoing, Qwest respectfully requests that the Commission deny the
Motion for Expeditious Substantive Relief.
DATED this ay of May, 2004.
Respectfully Submitted
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, WA 98191
and
tJ\ L--,
William J. Batt
James B. Alderman
Batt & Fisher, LLP
U S Bank Plaza, 5th Floor
101 South Capital Blvd.
Boise, Idaho 83702
[phone]
the rules used shall be those for the telecommunications industry. The arbitrator s award shall
be final and binding and may be entered in any court having jurisdiction thereof. The prevailing
Party, as determined by the arbitrator, shall be entitled to an award of reasonable attorneys ' fees
and costs. The arbitration shall occur at a mutually agreed upon location. Nothing in this
Section shall be construed to waive or limit either Party's right to seek relief from the
Commission or the FCC as provided by state or federal law.
7 Idaho Code ~ 7-901-922; International Assoc. of Firefighters, Local No 672 v. City of Boise 136
Idaho 162; 30 P.3d 940; 2001 Ida. LEXIS 36 (2001).
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 10
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this ?Ji-day of May, 2004, I served the foregoing upon
all parties of record in this proceeding as indicated below.
Jean Jewell
Idaho Public Utilities Commission
472 W. Washington Street
Boise, ID 83702-5983
) Certified Mail
) First Class Mail
[phone]
Hand Delivery
) Facsimile
Joseph McNeal, d/b/a PageData
O. Box 15509
Boise, ID 83715
) Certified Mail
~First Class Mail
[phone] ) Hand Delivery
) Facsimile
(Jv
William J. Batt
QWEST CORPORATION'S RESPONSE TO PAGEDATA'S MOTION FOR EXPEDITIOUS SUBSTANTIVE
RELIEF, P. 11
Exhibit Date Description
PageData letter to Qwest complaining that it was denied a single point of
presence and suffered other wrongs by Qwest, that Qwest is using mail to
deliver unlawful billings, that it wants its billings corrected, wants
someone with authority to agree to zero out account balances, refund all
monies paid, and pay PageData retroactive reciprocal compensation.
17-PageData letter to Qwest complaining that PageData is not being paid
reciprocal compensation. PageData states that all past balances are being
formally disputed through litigation in federal and state courts, and Qwest
is continuing the old policies that have been overruled by the courts.
17-Qwest should not dispute assumed MOUs in ICA. Qwest does not
realize technological advances that are subject to reciprocal
WaveSent Qwest compensation
, "
continuous paging and "paging naught.
Qwest personnel has not seen WaveSent s proprietary continuous
paging, which sends compressed data 24 hours per day.
Wave Sent is therefore not scared to bill actual usage, which would
greatly exceed the assumed MOU.
WaveSent also provides vehicle location, alarm monitoring, vending
machine accounting, voicemail, Internet, and email retrieval, all of
which are subject to reciprocal compensation.
Threats: new RICO lawsuit, complaints with FCC/ PUC, and filing
for arbitration to obtain true termination costs.
Wave Sent billed assumed MOUs to avoid dispute with Qwest, but
can begin billing actual MOUs, but WaveSent's continuous paging
will generate massive amount of MOUs.
Many ICAs have not been filed in Idaho.
IPUC's failure to investigate portrays Qwest with false image in
PageData to Mr. Howell community that it has been following the law. Qwest's lawlessness is
putting Idaho businesses out of business.
Small paging companies deserve same treatment as Arch and
PageNet, which is they got back all the money they ever paid Qwest.
Qwest zeroed out their accounts and allowed them to change their
networks. Qwest's legal and billing departments know that unfiled
agreements mean millions of dollars of fraudulent billing every month
to paging companies that have not had the opportunity to adopt those
agreements. This is criminal activity.
Qwest has not put this to rest in Idaho and should be fined $50 million
by IPUc. We will be augmenting our previous complaint that the
IPUC put on hold.
Something is seriously wrong at Qwest. Qwest underestimated
PageData s resolve about a single POP and instead of settling with
PageData for $650 thousand, they paid millions in fines to state
PUCs.
IfNotebaert knew those investigations started here in Idaho there
would be many changes at Qwest. I believe you should set up a
meeting between Notebaert and myself.
The traffic described in Wave Sent's letter of February 17 , such as
Continuous Paging," vehicle location, alarm monitoring, vending
Qwest Letter to Wave Sent and machine accounting, and Internet traffic, is not legitimate paging
PageData traffic and is not subject to reciprocal compensation under the
Wave Sent/ PageData - Qwest ICAs.
Qwest has learned that some ofthe numbers registered to PageData
and Wave Sent are Internet access numbers.
Qwest disputes Wave Sent! PageData s reciprocal compensation bills
until it can be determined which if any of the traffic is legitimate
paging traffic under the ICAs.
Qwest may revise or reconfigure the facilities as necessary to deliver
legitimate paging traffic.
Qwest is discriminating against Wave Sent by threatening to
reconfigure facilities. Qwest is not filing all ICAs. Qwest is paying
Wave Sent Letter to Qwest reciprocal compensation to other carriers for the traffic on which it
will not pay Wave Sent.
Wave Sent could not avail itself of more favorable terms and
conditions available to other carriers.
Fourth Circuit says ICA terms that violate Act are unenforceable.
Because ofthis Wave Sent is going to avail itself of new terms under
Section 252(i). WaveSent proposed deleting restrictions on types of
traffic.
WaveSent also proposes restricting changing from flat rated
reciprocal compensation.
WaveSent is impatient. This letter serves as notice Qwest has 10 days
to present offer to resolve this issue or WaveSent will initiate
arbitration under Section 13 ., Dispute Resolution.
12-Qwest disputes entire amount of reciprocal compensation billing until
Wave Sent breaks down traffic between legitimate paging traffic and
Qwest to Wave Sent enhanced services traffic.
WaveSent cannot unilaterally change its agreement. Amendment must
be agreed to by both parties.
WaveSent must abide by the terms of its current interconnection
agreement.
There is no change in the agreement warranted by a "change in law.
Qwest proposes that Wave Sent issue a revised invoice, delineating
enhanced services traffic minutes such as "continuous paging" traffic
MOUs of traffic terminating to an ISP and actual minutes of
termination for Paging Connection Service. Qwest will review the
revised invoice, pay undisputed amounts for Paging Connection
Service reciprocal compensation, and work with Wave Sent to
reconfigure the facilities to Wave Sent to be consistent with the
Agreement and applicable tariffs and law.
Qwest has determined that some telephone numbers which are
registered to PageData are actually terminating to ISPs. Therefore, it
is Qwest's position that facilities that PageData may attempt to
provision for termination of enhanced services traffic and traffic
bound for an ISP are not appropriately provisioned under the
applicable agreement with PageData.
3/16/04 Qwest is in violation of act by reneging on firm order commitments.
PageData does not have to comply with ICA because its terms are
PageData to Qwest illegal and unenforceable.
PageData attaches new proposed ICA for use in all states. PageData
not interested in long drawn-out negotiation. If Qwest does not
respond timely PageData will file for arbitration.
Qwest accused of not negotiating in good faith.
Qwest must respond by end of day March 19 with affidavit from
executive certifying that Qwest was in good faith and has filed all
ICAs in Idaho.
Qwest must submit proposed revisions to ICA by March 26.
18-Wave Sent is not claiming reciprocal compensation for termination of
ISP traffic. Continuous paging is not enhanced or Internet traffic.
WaveSent to Qwest Wave Sent wants to stay with assumed MOUs. WaveSent rejects
Qwest's proposal that it bills segregate types of traffic.
WaveSent initiates negotiation ofa new agreement.
25-WaveSent letter to Qwest reveals that despite previous statements that
WaveSent provided "continuous paging" services; in fact WaveSent has
no continuous paging customers.
NOT 25-PageData Petition for Arbitration
A TT ACHED
NOT 27-Wave Sent Petition for Arbitration
ATTACHED
30-The tenant of rule of law is the lawbreaker cannot be advantaged by non-
compliance. The simple fact is Qwest is not in compliance with 47 U.
Tick tock" Email from Mr.Sections 251 and 252, and Qwest and their conspirators have been
McNeal to Mr. Howell substantially advantaged. Qwest is guilty of white collar crime. Qwest'
own vice presidents would not self-certify that all interconnection
agreements have been filed in Idaho when requested by PageData. This in
itself should s eak volumes. I believe that extraordinary circumstances
exist and the Idaho PUC should issue Qwest a hefty fine to reflect the
manipulation of the process in sum of no less than $10 000 000.
Wave Sent must delineate which traffic is actual paging traffic and
which is Enhanced Services Traffic.
Qwest to Wave Sent Qwest will not pay reciprocal compensation on idle trunks. Qwest has
the right to reconfigure facilities.
Qwest is willing to negotiate but attempts to opt into language
without legitimately related provisions are not proper.
Redline of Wave Sent's proposed language attached.
Qwest is available for negotiations next week, please contact to
schedule a time that would allow us to begin negotiations.
Communications on Wave Sent's reciprocal compensation have reached an
impasse and need to be addressed during the arbitration proceedings.
WaveSent to Qwest Discussions on termination ofInternet traffic have blinded the eye of your
writer. Qwest is intentionally mixing the responsibilities of the
permissions to continue its policy of creating litigious situations with
WaveSent's management to justify its illegal stances. The flat rate billing
of 6000 MOU per trunk does not require ill!Y delineation of the minutes.
4- 7-WaveSent submits its interconnection agreement amendments under
Section 252(i). WaveSent encloses its instant and retroactive ISP
WaveSent to Qwest Amendment that purports to clear up all back issues ofterminating
Internet and enhanced services traffic.
Qwest rejects 252(i) adoptions as stated in 4-7 email. WaveSent is
taking an approved amendment and changing the language of that
Qwest to Wave Sent agreement. This is called "pick and change" and is not appropriate
under 252(i).
Wave Sent must adopt the amendment and related language without
changes. IfWaveSent wants to make changes to the amendment after
approval Qwest will certainly entertain those negotiations.
Qwest is concerned and confused by Wave Sent's "shotgun" approach
to negotiations.
PageData and Wave Sent have opened windows for negotiations under
251/252. Qwest acknowledged these requests and sent back a red line
of W aveSent' s proposed contract.
There has been no attempt by either Wave Sent or PageData to contact
Qwest and begin negotiations.
On the other hand, Qwest has received numerous adoption requests
for amendments from Wave Sent/ PageData under the guise of252(i).
This is confusing. Are we negotiating new agreements or are we
amending existing agreements?
Staying focused with one approach would be more productive. Qwest
favors negotiating new agreements to clarify and quantify the
disputed issues between Qwest and Wave Sent and PageData.
As stated in Qwest's last correspondence, Qwest is available at your
earliest convenience to begin negotiations.
Noting from Qwest's red-lined agreement under 252(b) that Qwest
has already agreed to the new dispute resolution clause and the ASR
WaveSent to Qwest Ordering Process.
This gets us back to what the dispute has always been about--carriers
that Qwest considers paging only cannot terminate Internet or
enhanced traffic.
No matter how much bloviating Qwest does, WaveSent is in
compliance with the ICA, and this is an exercise to delay and hinder
Wave Sent from exercising its statutory rights under the 1996 Tel Act
to terminate any Qwest-originated traffic.
WaveSent has not provided Qwest an adoption of terms and
conditions under 252(i) that Qwest could reject. This is a stalling
tactic by Qwest to postpone and hinder Wave Sent from immediately
adopting the ISP-Bound Traffic amendment.
Wave Sent is simply rebutting this presumption now and establishing
that 6000 MOU per trunk is deemed local paging traffic. This should
be included with this amendment to avoid Wave Sent and Qwest going
back to the PUC about this issue.
The Idaho PUC might as well establish the flat rate paging minutes of
use and the continuous paging issues at the same time. When the
Idaho PUC establishes that continuous paging is a local paging cal\, I
am quite sure that Qwest is going to want to do flat rate billing.
Wave Sent has voluntarily done this to prevent future conflict. Qwest
trying to establish continuous paging as enhanced services is like
Qwest redefining voice paging as enhanced traffic.
If Qwest is serious about negotiating, then Qwest should blue-line the
252(i) interconnection agreement WaveSent provided Qwest for its
comment. WaveSent will be asking the Idaho PUC to accept this
agreement in its entirety.
If you are available for negotiations give a specific time, date, and
phone number of your availability. I am available either Tuesday,
April 13, 2004 at 10:00 am or Wednesday, April 14 at 10:00 am
(m.t.).
15-1 have been out of the office for the last three days. I am therefore
suggesting some times next week to begin negotiations. They are April 21
Sanderson (Qwest) to Mr.11 or 1-3 PDT, April 22, 1-3 PDT, or April 23, 8-10 PDT. Please let me
McNeal know if one of these times works. We can also use my conference bridge
which is: 877-550-8688 PIN 7983819#. Qwest sent its changes to you in
an electronic copy on April 6. You also received a hard copy on Friday,
April 2. That redline clearly shows Qwest's proposed language and is
sufficient to begin these negotiations. Thank you.
NOT 19-WaveSent and PageData s Amendment to Petition. WaveSent and
ATTACHED PageData believe that the current interconnection agreement allows for the
termination of Internet and enhanced traffic. Wave Sent and PageData seek
to amend the Petition to request that the Commission first make a ruling
on the current interconnection agreement and whether WaveSent and
PageData s position is correct or whether Qwest's position is correct , and
then if necessary proceed with the 252(i) and 252(b) requests.
EXHIBIT
SENT VIA FACSIMILE AND EMAIL
February 5, 2004
Cindy Minor
Qwest
Billing Department
Salt Lake City, UT
800-955-6714 Ext. 4983
801-239-4149 Fax
RE: Billing Corrections
Dear Cindy:
Per your request we have included with this fax a copy ofthe letter sent to initiate disconnection
of unnecessary facilities. The facilities became non-usable by virtue of the move from Meridian
to Boise.
I do not believe from the responses that we have been getting from Qwest that our problems are
being handled by someone at Qwest's vice-president's level with the authority to override all the
departments involved to fully straighten out these accounts. We do know that the legal
department has taken PageData off unofficial provisioning hold and the installation
PageData s new facilities has been proceeding as negotiated.
One of the primary questions that need to be answered by Qwest is when was Qwest obligated to
provide a single point of presence to CMRS carriers that Qwest considered paging only. The
FCC and the courts have said Qwest was obligated to do this since 1996. If someone at Qwest
would acknowledge this I believe the rest of what we are talking about would fall into place.
Until recently it was Qwest's policy that CMRS carriers , that Qwest considered paging only, had
to locate in each one of Qwest' s local calling areas. Also, it was Qwest's policy that paging
carriers' local calling area was Qwest's 20-mile local calling area and not the LATA. Qwest
erected barriers so that paging carriers had to set up their network as such. (See Sheryl Fraser
paging network diagram submitted to the FCc.) Qwest's policies were contrary to FCC and court
rulings. This is the reason why PageData had DID lines, leased lines, T -, frame relay, and POTS
lines scattered throughout the LATA. These were facilities that Qwest was responsible for
bearing the cost for delivering Qwest originated traffic. Each of the following accounts falls into
this category:
PO Box 15509
Boise, Idaho 83715
Telephone [phone]
Facsimile [phone]
6610 Overland Road
Boise, Idaho 83709
Page 2
208 R55-2312 312
208 R51-0454 454
208 R51-0485 085
208-642-8000-188B
208-D08-6826-826
6058670 (old Act # 178793)
208-111-1770-117M
208-111-1771- 7718
208-111-1769- 7698
208-373-9000-260B
208-375-9003-192B
208-375-9844-00-
208-375-8896-00-
PageData requested and was denied a single point of presence network because of Qwest'
policies. PageData has had a LATA wide network and for efficiency s sake that network should
have been designed similar to PageData s single point of presence network that is being installed
now.
Qwest has been using the u.S. postal service or common carrier to deliver unlawful billings to
paging carriers such as PageData. Qwest has not corrected the billing to reflect the 1996
Telecommunications Act and is still trying to collect these unlawful charges (because of Qwest'
past policies) for delivering Qwest originated traffic. PageData was forced to stay in the small
business group and had to hire an attorney before Qwest would switch PageData over to carrier
services because at that time Qwest did not recognize paging carriers with Type 1 lines as
terminating carriers. Qwest's policy at that time was that Qwest terminated the traffic at their end
office switch and paging carriers were not co-carriers entitled to the statutory rights and
privileges granted in the 1996 Telecommunications Act. Qwest would not give reciprocal
compensation to paging companies until AirTouch forced the issue at arbitration. That
arbitration is the basis ofthe AirTouch/Arch interconnection agreement that PageData adopted.
These are the problems that PageData is still dealing with today.
We do not believe that we are going to get the billing corrected through normal Qwest means
because Qwest is trying force PageData to pay for unlawful policies Qwest had in place. It
appears also that the paperwork that PageData had previously submitted to Qwest several times
is not all in one location because this is information that should already be available in
PageData s file. Each time this gets handed off to a new rnanager the whole process starts all
over again while he or she has to catch up to what is going on. This is a very inefficient way to
correct these problems. Qwest has failed to respond to the change of law provision in the first
interconnection agreement between PageData and Qwest and when Qwest was obligated to
provide PageData a single point of presence network configuration. These issues resolve the bulk
of the billing disputes.
It was unusual in the 1998 time frame for PageData to hand anything in to Qwest in writing
because everything was done verbally over the phone with the small business group or the paging
services group. PageData never had to complete any ASRs for facilities or numbers. Anytime
PageData had a problem or a request we would call either the representative at the small business
group or later we would call Rhonda, Doug, or Velvet, but Rhonda Belka was our primary
contact person.
Page 3
We have attached the letter, dated September 30, 1998, concerning moving and disconnecting
facilities. This was part of a multi-step process and a vast majority of it was done verbally.
During that move, Qwest was not providing a single point of presence according to the 1996
Telecommunications Act and made PageData change all its Meridian numbers to Boise numbers
because Qwest would not transfer numbers from one end office to another end office without
charging mileage.
By PageData s calculations, according to the 1996 Telecommunications Act and Qwest'
concessions at the D.c. Court of Appeals, all the accounts mentioned above should be zeroed out
and PageData should receive a refund of all money paid to Qwest and payment of reciprocal
compensation from the first date of PageData terminating Qwest originated traffic.
What is the name and authority level of the person with cross-department authority that Qwest
has assigned to correct the billing errors that continue in PageData s accounts?
Sincerely,
Joseph B. McNeal
Attachment
cc:Vickie Boone, Qwest
Sheila Pedersen, Qwest
Bryan Sanderson, Qwest
EXHIB IT
SENT VIA EMAIL
February 17, 2004
Lori Lydon
Lexcis Payables
Qwest
900 Keo Way - 4 South
Des Moines, IA 50309
515-241-1202
515-286-4023 Fax
RE: PageData Reciprocal Compensation Payments
Dear Ms. Lydon:
Sharon informed me of the email she received from you yesterday. This do nothing policy is
unacceptable.
We were informed through coITespondence with Qwest that you were the person designated to
handle this, but now we find that is not so and we are getting the Qwest run-around again. Who
specifically at Qwest is making these decisions so he or she can be held accountable? This
shadowy person needs to come forth.
PageData already has an ICA with Qwest. There are no scheduled negotiations between
PageData and Bryan Sanderson of Qwest at this time.
To date PageData has not received any reciprocal compensation payments. This is in direct
violation of the ICA. Qwest has claimed that it is crediting PageData s accounts BAN 208 R51-
0454-454 and 208-375-8896, but PageData has not seen Qwest issue credits for the reciprocal
compensation to these accounts and invoices designated by PageData. Every month that
PageData receives invoices from Qwest the balances are increasing, but the balances should be
zero if the reciprocal compensation has been applied. Who specifically is responsible for
crediting these accounts? This individual's failure to credit these accounts only exacerbates the
billing problems in the other Qwest billing departments.
It is Qwest's non-responsiveness that is creating an illusionary billing crisis at Qwest. Since
PageData received its first facilities from Qwest, the reciprocal compensation due and owing
PageData has always offset any lawful charges due Qwest by PageData. Qwest has failed to
recognize this point. That is what this billing crisis is about.
PO Box 15509
Boise, Idaho 83715
Telephone [phone]
Facsimile [phone]
6610 Overland Road
Boise, Idaho 83709
Page 2
Qwest is expecting payment from PageData while Qwest continues to unlawfully hold reciprocal
compensation from PageData for terminating Qwest originated traffic. This is inconsistent with
resolving the problems on a going forward basis.
Qwest cannot have it both ways. Qwest must either issue payment for reciprocal compensation
directly to PageData or it must apply the reciprocal compensation to BAN 208 R51-0454-454 for
corrected invoices from March 2003 to date and 208-375-8896 from October 2003 to date. Note
that any so-called balances prior to March 2003 on BAN 208 R51-0454-454 and all other
accounts up to date are under active, formal dispute in federal and state court. PageData cannot
be penalized in any way for disputing unlawful charges, as Qwest is attempting to do.
The indecisiveness of the individual(s) at Qwest is generating meetings for meetings and endless
paperwork going nowhere rather than resolving the issues. It was our understanding that the
relationship between PageData and Qwest was going to be normalized on a going forward basis
and each party would start paying each other according to the ICA.
Qwest has created this illusionary billing crisis through its old, entrenched, unlawful policies that
were carried out by the previous paging product manager, Sheryl Fraser, in contradiction of the
1996 Telecommunications Act. The recent US Court of Appeals District of Columbia Circuit
decision on January 16 2004, in the Mountain Communications, Inc. vs. Federal Communication
Commission (Case No. 02-1255) and the US Court of Appeals Fourth Circuit decision on
December 18, 2003 in the MCI Metro Access Transmission Services Inc. vs. Bell South
Telecommunications (Case No. 03-1238) have further substantiated PageData s interpretation of
the 1996 Telecommunications Act and rejected Sheryl Fraser s group s interpretation ofthe 1996
Telecommunications Act. Qwest itself is rejecting its old policies with the availability of the new
ICAs that are more in line with the 1996 Telecommunications Act by including a single point of
presence option and reciprocal compensation. However, individuals inside and outside Qwest are
advising Qwest to continue trying to collect money from PageData for past Qwest billing policies
that the courts have deemed unlawful.
Qwest's withholding of reciprocal compensation is unlawfully penalizing PageData for
exercising its rights to dispute charges and is the source of the imaginary billing crisis because
Qwest is aware that the reciprocal compensation will be redistributed back to Qwest to pay for
accounts BAN 208 R51-0454-454 and 208-375-8896. Correcting the billing starts with the
reciprocal compensation. Qwest has refused to correct the billing through an external process by
paying PageData directly or through an internal process of applying the credits to the accounts
and invoices designated by PageData.
In Conclusion
Your letter dated December 19 2003, that you emailed Sharon on February 12 2004, is unlawful
for two very important reasons: 1) under the ICA, Qwest must issue reciprocal compensation
payments directly to PageData; and 2) Qwest has no legal authority to apply reciprocal
compensation due and owing PageData to actively disputed accounts that are before federal and
state court. Further, your letter claims that Qwest has applied monies owed PageData to offset
Page 3
balances, but this has not been done. Why would Qwest issue a legally binding letter and not
apply the credits to the accounts that PageData designates?
We expect this situation to be corrected. According to Idaho law, if an ILEC such as Qwest is
holding money, Qwest must apply the credits to accounts and items that PageData designates.
The next invoices PageData receives for accounts BAN 208 R51-0454-454 and 208-375-8896
should be zero if Qwest follows through on either one of the two promises it made to PageData
through either your unlawful letter or the ICA.
Sincerely,
Isl Joseph B. McNeal
Joseph B. McNeal
cc:Bryan Sanderson
Sheila Pederson
Vickie Boone
Cindy Minor
EXHIBIT
6610 Overland Rd
Boise, ID 83709
[phone]
[phone] Fax
SENT VIA EMAIL
February 17 2004
Bryan Sanderson
Qwest
Seattle, W A
RE: Technological Advances
Dear Mr. Sanderson:
WaveSent received an email from Lori Lydon today claiming that Qwest is disputing its
own contract language in the ICA in regard to the minutes of use (MOD) per trunk in
WaveSent's recent invoices. How can Qwest dispute what Qwest itself wrote? In the first
1/2 months there is nothing to investigate. We believe this email is a ruse to delay and
hinder Qwest's obligation to pay reciprocal compensation. Is Qwest disputing the invoice
under the dispute resolution clause? What Qwest is disputing has already been clearly
outlined in the ICA itself and therefore is a non-disputable item.
Lori Lydon s email is in direct contradiction to Appendix A, paragraph 2(a) ofthe ICA
which clearly states that Qwest will pay 6000 MOU per trunk as a flat rate until an
actual three month average is established. Paragraph 2(b) says upon establishment of
an actual three month average Minutes of D se per trunk group type, Qwest willcompensate at a flat rate times the actual average MOD per trunk. Obviously, an
establishment of the actual minutes of use over a three month period cannot possibly be
done in the first 40 days of receiving the facilities. According to the ICA, switching to
actual minutes of use cannot occur until a minimum of 4-1 12 months has passed. Based
on paragraph 2(b) WaveSent can provide new average MOD every 3 months.
During meetings last summer for the installation of the facilities in Idaho, it is my
understanding that Qwest and WaveSent discussed using the flat rate of 6000 MOD
average per trunk rather than actual MOD to prevent future disputes. Now we are
receiving contrary information.
This letter is about technological advances in the paging industry that are subject to
reciprocal compensation. One is called "paging naught" and another is called "continuous
paging," which we will describe below. Both technologies accumulate a massive amount
ofMOu.
WaveSent has no qualms about billing Qwest for actual minutes of use per trunk group if
that is the methodology that Qwest chooses to use because of the manner in which
WaveSent provides CMRS services. WaveSent's actual average minutes of use will far
exceed an average of 6000 MOO per trunk.
Qwest's personnel are still thinking human intervention, analog paging. Qwest hasnot seen the type of paging technology that WaveSent provides such as continuous
paging. Continuous paging is a technology that has been stifled for quite some time.
Continuous paging allows a corporation or an individual to send compressed data on a
24-hour, 7-day a week continuous stream through a modem connection to the paging
terminal to update data on a continuous basis to readily available pagers with specialized
proms that have been flashed with special software. This means that one company or
individual that utilizes this paging service will be connected 1,440 minutes per day, every
day of the month. Multiply this by the number of trunks that WaveSent has and you can
see WaveSent is not scared of billing by actual usage. It would take less than four
customers per T1 with continuous paging to exceed the average of 6000 MOO per trunk.
See figures below:
288 trunks x 6000 MOO = 1 728 000 MOO monthly
-----------------------------------------------------------------
60 minutes x 24 hours = 1 440 MOO daily
1,440 MOO per day x 30 days x 40 customers = 1 728 000 MOO monthly
-------------------------------------------------------------------
In this high tech era, it is not difficult to obtain 40 customers in southern Idaho that are
interested in receiving real time updates to data on a pager such as ham radio operators
day traders, computer geeks, etc.
We have discussed this proprietary continuous paging technology with you and Bill Batt
(Qwest's attorney) in several meetings during legal proceedings. I do not know if you
were really concentrating on what I was talking about. It was not a priority to you
because of what the meetings were about.
Continuous paging fits in Qwest's most conservative definition of paging. As a CMRS
carrier, WaveSent provides other telecommunications services that are subject to
reciprocal compensation under the ICA, such as vehicle location, alarm monitoring,
vending machine accounting, voicemail, internet, and retrieval of email messages through
voicemail and alphanumeric pagers. Those services have not been taken into
consideration in the above example of figuring minutes of use.
Page 2
It has been my experience that if this dispute is not resolved quickly, WaveSent would
best be served by taking three simultaneous steps: 1) filing a federal lawsuit with RICO
charges; 2) filing a formal complaint with either the FCC or the State PDC for violations
of the ICA; and 3) filing for arbitration to determine WaveSent's actual costs for
terminating Qwest originated traffic, which are considerably higher than the rate included
in the ICA.
To avoid a fight in the future requiring arbitration or a court order, WaveSent has
invoiced the flat rate of 6000 MOD per trunk in the ICA rather than the massive amounts
of MOD WaveSent will be accumulating subject to reciprocal compensation.
If Qwest is unhappy with its own contract language in Appendix A, paragraph 2(a) of the
ICA for a flat rate average of 6000 MOD per trunk, in 4-1/2 months WaveSent can begin
invoicing using actual average MOD according to paragraph 2(b). At that time
WaveSent should not receive any complaints from Qwest about the massive amount of
MOD that will be on the system subject to reciprocal compensation because we have
explained that using Qwest's most conservative definition of paging, which WaveSent
does not agree with, the reciprocal compensation will be considerably higher because of
WaveSent's continuous paging technology.
Sincerely,
Isl Joseph B. McNeal
WaveSent LLC
Joseph McNeal, Its Manager
cc:Bill Batt, Marshall Batt & Fisher
Lori Lydon, Qwest
Barbara Newman, Qwest
Mami Fetters, Qwest
Sheila Pederson, Qwest
Vickie Boone, Qwest
Cindy Minor, Qwest
"8z~
Page 3
EXHIBIT
SENT VIA EMAIL
March 1 , 2004
Don Howell
Idaho PUC
472 W. Washington
Boise ID 83702
RE: CO PUC Staff Report
Dear Don:
Attached is a copy of the Colorado PUC Staffs Appendix M - Unfiled Agreement Matrix, which
was released on Friday, February 27 2004. In it you will find many unfiled interconnection
agreements from companies that also do business in Idaho under agreements that have not been
filed at the Idaho PUc. I believe these unfiled agreements have cost the Idaho consumers
millions and millions of dollars. I have only isolated two agreements that affect PageData.
The Colorado PUC Staff on item number 5 , considered the Arch Confidential Billing Settlement
Agreement as an Interconnection Agreement. This same agreement was voluntarily filed in Iowa
. by Qwest as an interconnection agreement. In item number 55 , the PageNet COnfidential Billing
Settlement Agreement, which I do not have the full copy of because I wanted to get it through
, public sources, has been considered an interconnection agreement by the Colorado PUC staff.
Qwest also filed the PageNet agreement in Iowa as an interconnection agreement.
I believe that the Idaho PUC's lack of investigating Qwest for unfiled interconnection agreements
portrays a false image of Qwest in the community that Qwest has been following the law, when
in fact Qwest's lawlessness is putting Idaho businesses out of business. This lack of investigation
is what emboldened the Idaho legislature to consider deregulating Qwest.
PageData, Radio Paging, and Tel-Car deserve the same treatment as Arch and PageNet, which
boiled in a nutshell is they got the money back that they paid into Qwest, Qwest zeroed out all
their accounts, and allowed them to change their networks. Qwest's legal and billing departments
recognize that those unfiled interconnection agreements represent millions of dollars in
fraudulent billing every month to paging companies that have not had the opportunity to adopt
those agreements. This is criminal activity.
Additional information concerning this Colorado docket can be found at the following link:
http://www .dora. state. co. us/puc/ docket - activi ty/HighprofileDockets/021 - 5 72 T .htm#comments
PO Box 15509
Boise, Idaho 83715
Telephone [phone]
Facsimile [phone]
6610 Overland Road
Boise, Idaho 83709
Page 2
Because Qwest continues to try to deny their past actions instead of correcting them, it just
makes their past actions worse. Qwest has had plenty of opportunities to put this matter to rest in
Idaho, but has refused to voluntarily settle the matter. I believe they are subject to fines of no less
than $50 000 000. We will be augmenting our previous complaint that the Idaho PUC put on
hold.
Something is seriously wrong at Qwest. Rather than settling with Mountain Communications for
approximately $800 000, they walked in at the federal district court and gave up millions of
dollars in transit fees. Qwest under-estimated PageData s resolve about a single point of presence
and the unfiled interconnection agreements and instead of settling with PageData for $650 000
they paid millions of dollars in fines to state PUCs. I believe if Dick Notebaert and his executive
staff at Qwest knew that those state investigations started in Idaho, there would be substantial
changes in personnel at Qwest. It makes no economic sense. It is obvious these are people that
are not spending their own money.
I believe you should set up a meeting between Dick Notebaert and myself, which is a term and
condition that was made available to other executives in unfiled agreements, because I believe
this situation would get resolved.
Sincerely,
Is/ Joseph McNeal
Joseph McNeal
cc:Wayne Hart, PUC
Jim Jones, Jim Jones & Associates
Bill Batt, Marshall Batt & Fisher
Adam Sherr, Qwest
Sheila Pederson, Qwest
Vickie Boone, Qwest
Cindy Minor, Qwest
Lori Lydon, Qwest
Barbara Newman, Qwest
Bryan Sanderson, Qwest
EXHIBIT
Qwest.
Spirit of Service
Wholesale Emerging & Diversified Markets
Barbara J. Newman
Senior Access Manager
[phone] Voice [phone] (FAX)
Mail: binewmat?Yqwest.com
1801 California, Room 2420
Denver, Colorado 80202
March 5 , 2004
Joseph McNeal
WaveSent/PageData
6610 Overland Road
Boise, ID 83709
Dear Joseph:
We are responding to several letters and emails that have been recently sent to Qwest.
This is in regards to payment of reciprocal compensation to WaveSent/PageData for
traffic originated on Qwest's network. In your letter you cite several sections ofthe
Paging Connection Agreement ("Agreement") between Qwest and WaveSent/PageData
for substantiation of reciprocal compensation to WaveSent/PageData. Qwest
acknowledges those sections and does provide facilities for and pay reciprocal
compensation for legitimate paging traffic, as defined and intended to be covered under
the Agreement. However, you neglected to cite the following paragraph from the
agreement which excludes reciprocal compensation payments for enhanced and internet
traffic. Paragraph 2.4 states:
2.4.This Agreement recognizes the unique status of traffic delivered to
enhanced service providers. For purposes of this Agreement
Enhanced Services traffic, such as voice-mail , that is not incidental
to Paging Provider s primary business , is not Compensable Traffic.
Additionally, traffic originated by one Party, and delivered to the
other Party, which in turn delivers the traffic to an Internet Service
Provider (a) shall be deemed interstate in nature, (b) shall not
qualify as Compensable Traffic under this Agreement, and (c) U S
WEST shall not be obligated to deliver such traffic to Paging
Provider under this Agreement.
Under the Agreement, Qwest provides Paging Connection Service to
WaveSentiPageData "which consists only of those one-way facilities and services that
are provisioned by U S WEST for the sole purpose of delivering one-way, land-to-pager
traffic sent by US WEST's End Users and Transit Traffic to Paging Provider s POC(s)"
Agreement, ~ 2.
The "Continuous Paging" service you described in your letter clearly does not fall within
the definition of paging .Likewise, the other applications you describe in your letter, such
as vehicle location, alarm monitoring, vending machine accounting, voice mail, etc., are
clearly enhanced or internet related services and are not compensable under this
agreement as stated in the paragraph above. Further, as described in subparagraph 2.4(c)
above, Qwest is not even obligated to provide facilities for or send to
WaveSentiPageData this traffic, much less pay reciprocal compensation on such traffic. I
It is Qwest's position that WaveSentiPageData is improperly billing Qwest for this
enhanced services/ Internet-related traffic, and improperly using the Paging Connection
Service to provide enhanced services. In addition, Qwest has found that certain
telephone numbers which are registered to WaveSent/PageData have been represented as
being access numbers for a customer to obtain access to an Internet Service Provider
ISP") and the traffic generated to the ISP is similarly not compensable under the
Agreement.
Therefore, this letter is to inform you that Qwest is, according to Section 12.3 of the
Agreement, disputing all of Wave Sent/PageD at a s invoices to Qwest for reciprocal
compensation because the traffic is non-compensable under the terms and conditions of
the Interconnection Agreement. Qwest also intends to review facilities currently
provided under WaveSentiPageData s Paging Connection Service, and may revise
modify, or reconfigure the facilities and service as is necessary to deliver legitimate
paging traffic. See Agreement ~ 2.6.2. Qwest is disputing the entire amount because we
have been unable to verify that any of the traffic that is the source of the invoice sent to
Qwest is actually Paging Connection Service, as described in the Agreement. Qwest is
I Enhanced Services is defined as follows in the WaveSent/PageData-Qwest Paging Connection
Agreements:
Enhanced Services" are services offered over common carrier transmission facilities used in
interstate communications, which employ computer processing applications that act on the
format, content, code, protocol or similar aspects of the subscriber s transmitted information;
provide the subscriber additional, different or restructured information; or involve subscriber
interaction with stored information.
Clearly, the services WaveSent/PageData has described in its recent letter fall within this broad
definition.
ready to expedite this investigation in order to determine which traffic is compensable
and which traffic is not. Qwest is willing and ready to negotiate a resolution of this issue
and we would also point out that WaveSent/PageData is fully able to follow the processes
of Section 13.14 if you feel that negotiation is not possible.
Sincerely,
Bryan Sanderson
Barbara Newman
EXHIBIT F
6610 Overland Rd
Boise, ID 83709
[phone]
[phone] Fax
SENT VIA EMAIL
March 5, 2004
Bryan Sanderson
Qwest
Seattle, W A
RE: Statutory Rights Under Sections 251(2) and 252(i)
Dear Bryan:
Qwest is and has been discriminating against WaveSent as evidenced by the veiled threat
by Qwest to reconfigure WaveSent's facilities , the Colorado PUC staff report dated
February 27 2004, Qwest Corporation not filing all the interconnection agreements in
Qwest's 14-state territory, and Qwest obligating itself to pay reciprocal compensation to
other carriers for Qwest originated traffic that it is refusing to pay WaveSent for.
WaveSent could not avail itself to all of the more favorable terms and conditions
including reciprocal compensation, that were available to other carriers during the
adoption of the Arch interconnection agreement. Under the recent ruling by the u.s.
Fourth Circuit Court of Appeals I interconnection agreements that have terms and
conditions that violate the 1996 Telecommunications Act are not enforceable.
47 U.c. Section 251 , paragraph (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, terms, and conditions that are just
reasonable, and nondiscriminatory, in accordance with the terms and
1 U.S. Court of Appeals, Fourth Circuit In the Matter of MCIMetro Access Transmission Services, Inc.
BellSouth Telecommunications, Inc. and North Caroline Utilities Commission No. 03-1238, Decided
December 18 , 2003
conditions of the agreement and the requirements of this section and
section 252 of this title.
Because of this WaveSent is going to avail itself of its statutory rights under 47
US.C. Section 252(i) and drop the following sections of paragraph 2.2.4
and 3.8 of the interconnection agreement:
2.1
6.2
This Agreement covers both Type 1 and Type 2 Pag-i:ng
Gffflfle€ti:eH Service, which consists only of those one-way
facilities and services that are provisioned by U S WEST
for the sole purpose of delivering one-way, limd-to page
traffic sent by US WEST's End Users and Transit Traffic
to Paging Provider s POC(s). Type-l--andType-2Paging
Connection Seryice enables US WEST's End Users and
other telecommunications carrier.; transiting U S '.VEST's
network to page End Users of Paging Pro'lider s net'vork.
This Agreement includes and incorporates by reference all
accompanying appendices and attachments.
Thisi\grcement recognizes the unique status of traffic
delivered to enhanced ~;ervice provider:;. For purposes of
this i\greement, Enhanced Senrices traffic, such as voice
mail, that is not incidental to Paging PrO'.ridcr s primary
lms-iness, is net-Gofllpensable Traffic.ditionally,-t-raffi.€
originated by one Party, and delivered to the other Party,
which in turn delivers the traffic to an Internet Servicc
Provider (a) shall be deemed interstate in nature, (b) shall
not qualifY as Compensable Traffic under this ,1greement
and- (e)-lJ ~ -WE-s:r-. -shall-. 11 ot .13e--obli gated to-delive- F.
..
su e h
traffic to Paging Provider under this ,\greement
Pursuant to joint planning as specifIed in the Foreca~;ti
section of thi;; Agreement, U S WEST shall determine all
a;;pects and element:; of the Paging Connection Se!",'ice
t~leilities that it provides it:;clf, includin;, but not limited to,
design, location, quanrities, distance, etc. U S WEST :;hall
ba~;e thi:; determination on technical and economic
efficiency consideratiom;, e., net'Nork requinnnents.
Subject to the provisions of this Section, U S \VEST shall
Page 2
monitor its ~lSage on Paging Connection Service and will
reconfigure trunk groups as it deems necessary. U S \~TEST
reserves the right to reyiev~, revise or modifY its Paging
Gonnection Service at any time for any lawful bminess
rea~;on.All circuits and equipment provided by 0 S WEST
will always be wholly owned and operated by 0 S WEST.
0 S WEST shall provide interconnection and
interconnection facilities for Paging Connection Service
that are equal in quality to what 0 S WEST provides itself
its affiliates, or other carriers. Paging Connection Service
facilities shall be engineered to be consistent with the
Eighth Circuit court decision, BellCore Special Report SR-
T AP-OOO 191 and any applicable requirements in the state
ofIdaho.
Enhafl€~ dSe rvi € e -s '-'a Fe-. s crviec-s
-.
off cr cd.. overce 111 1 11011
catTier transmission facilities ~1Sed in interstate
communication~," which employ computer processing
applie~~tions that act on the format, content, code, protocol
or similar aspects of the subscriber s transmitted
information; provide the ~;ulx;criber additional, different or
re~;tructured infonnation; or in,:ol'.'e subscriber interaction
'vvith stored information.
Qwest's interpretation of what services a telecommunications carrier can provide
and Qwest's segmenting traffic that is subject to reciprocal compensation violates
the 1996 Telecommunications Act.
Further, per the ICA, in the first six months after the facilities are installed
reciprocal compensation cannot be changed from the flat rate of 6000 MOD per
trunk. Qwest is obligated to pay the reciprocal compensation as it comes due.
WaveSent had already discussed with Qwest the option of continuing with the
6000 MOO per trunk or changing to actual MOO after the first six months.
It is totally unacceptable to WaveSent to be forced in a position where WaveSent
would owe Qwest monthly recurring charges for terminating Qwest originated
traffic. This is a scheme by Qwest to extort WaveSent to pay for Qwest originated
traffic. Qwest is not honoring its obligations to pay WaveSent reciprocal
compensation for terminating Qwest originated traffic. Previously Qwest tried to
unilaterally lower the reciprocal compensation rate.
WaveSent is impatient with Qwest's stalling tactics. This letter serves as
notification that Qwest has 10 days to present its offer to resolve this issue (per
Page 3
Barbara Newman s and your letter dated March 5, 2004), or WaveSent will
initiate arbitration under expedited procedures per paragraph 13.14 Dispute
Resolution. During arbitration, WaveSent will avail itself of other benefits under
Section 252(i) as they come to light.
A waiting your response
Isl Joseph B. McNeal
WaveSent LLC
Joseph B. McNeal, Its Manager
cc:Barbara Newman, Qwest
Bill Batt, Marshall Batt & Fisher
Cindy Minor, Qwest
Lori Lydon, Qwest
Sheila Pedersen, Qwest
Vickie Boone, Qwest
..~
Page 4
EXHIBIT
Qwest.-~'
Spin! of Heft'iCfI
Bryan Sanderson
Interconnection Negotiator(206) 345-2275
Fax: [phone]E-mail: besande~qwest.com
Joseph McNeal
WaveSent
6610 Overland Rd
Boise , ID 83709
March 12 , 2004
Dear Joseph:
I am writing to you in response to your letters of March
5, 2004 and March 10, 2004. At the outset , I would like to
reiterate that Qwest is disputing the reciprocal compensation
invoices that WaveSent has sent because the invoices you sent
did not delineate between enhanced services traffic, traffic
bound for Internet service providers ("ISPs ) and actual Paging
Connection Service traffic, as defined in the Paging Connection
Agreement (the "Agreement") between Qwest and WaveSent. Qwest
has been able to determine, both from your statements and from
an initial investigation by Qwest representatives, that a
significant amount of the traffic WaveSent is claiming
reciprocal compensation for is actually either enhanced
services traffic or traffic bound for an ISP. Thus, until
Qwest receives the above discussed breakdown of traffic, it is
disputing the entire amount of the reciprocal compensationbilling.
In your March 5, 2004 letter , you claim that certain
provisions of the Agreement violate the Telecommunications Act
of 1996 (the "Act"
).
You then claim that 47 D.C. 252 (i)
gives WaveSent the ability to unilaterally amend the terms and
conditions of the Agreement without Qwest' s consent. These
positions are contrary to both the Agreement and the currentstate of the law. As you are no doubt aware, Section 13.23 of
the Agreement states that any amendment to the Agreement must
be mutually agreed to and expressed in writing. In addition,under Section 1.2 of the Agreement, even if the law as it
existed at the time the Agreement was negotiated (the "Existing
Page 2
Rules ) changes after the parties entered into the Agreement
in a manner material to (the) Agreement," Section 1.2 requires
that the parties negotiate in good faith to amend the
Agreement. If the parties are not able to negotiate an
amendment to bring the Agreement into compliance with the "NewRules, then the Dispute Resolution provisions of the Agreement
would apply. It is Qwest' s position that the Existing Rules
have not changed in a manner material to the Agreement , and in
fact the Agreement is not inconsistent with the current state
of the law. If WaveSent has an alternate view , Wave Sent must
express that view according to the terms of the Agreement.
On page 3 of the March 5, 2004 letter, you claim that
Qwest must pay reciprocal compensation charged, based on sixthousand (6000) minutes of use ("MOD") for each trunk.
stated in the letter from Qwest on March 5, 2004 , enhanced
services traffic , including traffic bound for an ISP , is not
compensable traffic under the Agreement. Your letter fails to
consider the language of Section 2.4 of the Agreement, which
states that enhanced services traffic and ISP bound traffic are
not compensable traffic. In addition, as also pointed out in
the March 5 letter from Qwest, Qwest is not required to even
deliver this traffic to WaveSent. Therefore, Qwest does
reserve the right to reconfigure the facilities between
WaveSent and Qwest in order to properly reflect the nature of
the traffic being exchanged and that the facilities are
consistent with the Agreement, any applicable tariffs and
applicable law.
wi th respect to your letter of March 10 , 2004, you are
incorrect in your assertion that WaveSent' s reciprocal
compensation claim is indisputable. As stated above, WaveSent
is not entitled to be compensated for traffic that is bound for
an ISP or other enhanced services traffic. Therefore , until
WaveSent provides a reciprocal compensation invoice consistent
wi th the Agreement, Qwest will continue to dispute theinvoices. In regard to WaveSent' s proposed compromise, Qwestrej ects the proposal as inconsistent with both the Agreement
and applicable law. You again claim to be unilaterally
amending the Agreement pursuant to 47 D.C. ~252 (i), but that
is permitted neither by the Agreement or the Act and applicableRules. You do not identify any agreement that WaveSent is
attempting to opt into, nor have you even identified a change
Page 3
to the Existing Rules that would require the parties to attempt
negotiation of a contractual amendment. You do not even attempt
to state specifically why any of the Agreement's provisions you
purport to change or eliminate are inconsistent with the
current state of the law. Generally referencing wireline
interconnection agreements that contain language different from
the Agreement does not give WaveSent rights under Section
252 (i) to unilaterally amend the Agreement, particularly where
those wireline agreements do not provide WaveSent the services
it requires, nor do they provide compensation for any of the
traffic which you claim. Since there is a currently existing
agreement between Qwest and WaveSent, WaveSent must abide by
the terms and conditions of the Agreement, including the terms
and conditions for any amendment that WaveSent may desire.
I also want to take this opportunity to make Qwest' s
position clear with respect to your proposed amendments.First , it is Qwest' s position that no change in law has
occurred under Section 1.2 of the Agreement. You identify no
change to the Existing Rules, nor do you cite any Final Order
(as defined in Section 3.11 of the Agreement) to support
WaveSent's proposition that the Agreement as currently worded
is inconsistent with the law. Therefore, it is Qwest'
position that no changes are warranted in the Agreement. In
your March 5 letter , you state that WaveSent will avail itself
of the Dispute Resolution process of Section 13.14 of the
Agreement, which is certainly WaveSent' s right. However , that
does not change Qwest' s position either with respect to the
nature of the traffic being terminated to WaveSent or with
respect to your "proposal" to amend the Agreement. In response
to your question in your March 10 letter about Qwest' s proposedresolution, Qwest proposes that WaveSent issue a revised
invoice, delineating enhanced services traffic minutes (for
example , the "continuous paging " traffic you have referred to
previously), MODs of traffic terminating to an ISP and actual
minutes of termination for Paging Connection Service. Qwest
will review the revised invoice, pay any undisputed amounts for
Paging Connection Service reciprocal compensation , and work
with Wave Sent to reconfigure the facilities to WaveSent to be
consistent with the Agreement and applicable tariffs and law.
It is Qwest' s position that this would be an acceptable
resolution of these issues with WaveSent.
Page 4
Finally, while you expressed concern with any joining of
WaveSent issues and PageData issues, I do want to relate to you
that Qwest has determined that some telephone numbers which are
registered to PageData are actually terminating to ISPs,
similar to WaveSent' s conduct. Since PageData opted in the
same agreement that WaveSent opted into, the limitations on
compensable traffic are identical. Therefore, it is Qwest' s
position that any facilities that PageData may attempt to
provision for termination of enhanced services traffic and
traffic bound for an ISP are not appropriately provisioned
under the applicable agreement with PageData. However , I also
want to make clear that Qwest has not considered PageData ' s
traffic or its conduct in determining its position with respect
to WaveSent. I am available to discuss these issues with you
and I look forward to your response to Qwest' s proposal.
Please feel free to contact me with any questions you may have.
Thank you.
Very truly yours
Bryan Sanderson
EXHIBIT
SENT VIA EMAIL
March 16 2004
Bryan Sanderson
Qwest
Seattle, W A
RE: ICA Scheduled Timeline
Dear Bryan:
As you are aware, Qwest has reneged on the FOCs (Firm Order Commitments) given to
PageData and has put on hold turning on PageData s SPOP facilities. This is totally
unacceptable. Qwest's restrictions of the type of traffic that PageData terminates is in violation
Section 251 (c )(2). The same enhanced services and Internet traffic are acceptable and
compensable traffic under the Verizon Wireless ICA, which PageData also adopted.
Qwest's actions serve to harass , hinder, and delay PageData s growth. PageData is not in
violation of its ICA for terminating such traffic. The U.S. Court of Appeals, Fourth Circuit Court
has already determined in its decision dated December 18, 2003 1 that terms and conditions in a
interconnection agreement in violation of the 1996 Tel Act are unenforceable. Qwest's restriction
of the types of traffic that PageData terminates falls under that decision and is therefore
unenforceable.
Today PageData has provided you a proposed interconnection agreement that is in compliance
with the 1996 Tel Act. This serves as notice that PageData requests this interconnection
agreement for each of Qwest's 14 state territory, beginning with Idaho , then Minnesota, Arizona
Iowa, and so on. We have marked additions to the Arch ICA in red and highlighted in yellow
from where the terms and conditions were obtained under pick and choose. We have marked the
terms and conditions to be deleted from the Arch ICA with a red strikethrough.
PageData is not interested in a long, drawn out negotiation process. If PageData does not receive
timely responses from Qwest concerning this interconnection agreement, it is PageData
intention to petition the state of Idaho to arbitrate the interconnection agreement. It is PageData
belief that the 135-160 day period in Section 252(b) pertains to companies that have negotiated
according to Section 251(c)(1)-
In the Matter of MCImetro Access Transmission Services, Inc. BellSouth Telecommunications, Inc. and North
Carolina Utilities Commission.u.S. Court of Appeals, Fourth Circuit, Decided December 18 2003, Case No. 03-
1238
PO Box 15509
Boise, Idaho 83715
Telephone [phone]
Facsimile [phone]
6610 Overland Road
Boise, Idaho 83709
Page 2
The duty to negotiate in good faith in accordance with section 252 of this title the
particular terms and conditions of agreements to fulfill the duties described in
paragraphs (1) through (5) of subsection (b) of this section and this subsection.
The requesting telecommunications carrier also has the duty to negotiate in good
faith the terms and conditions of such agreements.
Qwest has not negotiated with PageData according to Section 251 (c)( 1). As such, PageData is
not required to wait until the 135-160 day period in order to request arbitration from the Idaho
Puc.
In the recent FCC Notice of Apparent Liability ("NAL"i, the Commission found that Qwest
entered into discriminatory arrangements (the contents of which were unknown to other
competitors) with preferred carriers. What is particularly disturbing is paragraphs 3 and 8 of the
FCC's NAL that indicates that Qwest management is willing to break company policy and
willing to change minutes of meetings in order to cover up information that would assist non-
preferred carriers in getting the same terms and conditions as the preferred carriers. According to
the FCC NAL, the information that Qwest has been giving PageData over the years under
Section 252(i) has been incomplete and in error. Any state approved interconnection agreement is
available to any carrier for pick and choose under Section 252(i).
Qwest must respond by the end of business day, Friday, March 19 2004 with
1) An affidavit from an executive vice-president at Qwest that
a) Qwest has filed at the Idaho PUC all interconnection agreements that it has entered
into with other competitive carriers in the state of Idaho.
b) At all relevant times, Qwest had negotiated with PageData in good faith according to
Section 251(c)(I).
2) Notification that Qwest will submit proposed revisions to the interconnection agreement
by Friday, March 26, 2004.
PageData s proposal is not to be looked at or to be thought of as an ultimatum. A voluntarily
negotiated agreement is best. PageData is simply establishing a timeline for responses. If Qwest
has some other proposal with an established timeline that is acceptable to PageData, we will
entertain it.
As you will see, the interconnection agreement submitted to Qwest is a complete document.
According to Section 252(b )(3), Qwest will have 25 days to respond after PageData submits the
request for compulsory arbitration to the Idaho PUc. PageData will ask the Commission!
Arbitrator to accept the interconnection as is without further changes from Qwest. If Qwest does
not put in a response and the Commission accepts it, then the document that you see before you
In the Matter ofQwest Corporation Apparent Liability for Forfeiture, FCC Notice of Apparent Liability for
Forfeiture, File No. EB-03-ID-0263 , Released March 12 2004.
Page 3
will be the interconnection agreement. But even if the Commission turns down the petition for
compulsory arbitration at that time, the 135-day clock will still be clicking.
There are other more favorable conditions in unfiled interconnection agreements that Qwest is
currently withholding from PageData by not filing the agreements, but there is nothing Qwest can
do to keep PageData from adopting favorable terms and conditions from the Verizon, XO Idaho
and Bridgeband agreements under Section 252(i) in the interconnection agreement that we are
submitting to Qwest for comment.
Sincerely,
Isl Joseph B. McNeal
Joseph B. McNeal
cc:Adam Sherr, Qwest
Barbara Newman, Qwest
Bill Batt, Marshall Batt & Fisher
Cindy Minor, Qwest
Lori Lydon, Qwest
Sheila Pedersen, Qwest
Vickie Boone, Qwest
EXHIBIT
6610 Overland Rd
Boise, ID 83709
[phone]
[phone] Fax
SENT VIA EMAIL
March 18 2004
ATTN: Barbara Newman and Bryan Sanderson
Qwest
Dear Barbara and Bryan:
The payment of reciprocal compensation for the termination of ISP traffic is such a
powder keg subject at Qwest that I believe this issue blinded the judgment of the people
that are involved in settling this dispute. This issue has been the cause of many arbitrated
disputes between Qwest and Level 3. We believe that the Utah Public Service
Commission s decision in docket # 02-2266-02 issued February 20 2004, should shed
some light on this dispute. WaveSent is not claiming or billing reciprocal compensation
as proposed by Level 3 in that arbitration. Wireless carriers such as Verizon and
WaveSent are allowed to terminate Internet traffic on a bill and keep basis. WaveSent
believes that applicable law prevents restrictions on the termination of Internet traffic
under the Arch agreement on a bill and keep basis.
Any telecommunications carrier can terminate Internet and enhanced traffic, whether or
not the carrier receives reciprocal compensation is a separate issue. Qwest's dispute with
WaveSent's reciprocal compensation is imaginary and a disguise to withhold reciprocal
compensation. Qwest's prior acceptance ofthe flat rate billing makes its dispute moot
and is an attempt to obfuscate Qwest's primary objective , which is to prevent certain so-
called classes of carriers from terminating Internet and enhanced traffic, which is
contrary to the 1996 Tel. Act. Qwest has not shown where WaveSent's calculations on its
mVOlces are III error.
For the sake of clarification, I will try to address the issues.
Continuous Paging
WaveSent rejects Qwest's assessment of continuous paging as being enhanced or Internet
traffic. Continuous paging does not fall under the definition of enhanced services per
section 3.8 of the agreement and it is not Internet related traffic. The FCC already
addressed origination, transport, and termination of paging traffic in the TSR Order
' .
In the Matter ofTSR Wireless LLC, et ai, v US West Communications, Inc., et ai Memorandum Opinion
and Order, Released June 21, 2000, at ~ 22.
Qwest misunderstands how continuous paging works. Continuous paging is a local call.
Qwest has not supplied any evidence to the contrary. WaveSent does not provide the
content that the customer sends from a modem connection to the CMRS terminal switch,
which is then transmitted to the pager.This alone takes it out of the realm of enhanced
and Internet services because WaveSent does not control the data.
Restrictions of Termination of Certain Types of Telecommunications Traffic
WaveSent was not trying to unilaterally change the interconnection agreement. This is
inconsistent with the interconnection agreement and the present state oflaw. WaveSent
was simply pointing out that under Section 252 a new interconnection agreement could
be obtained and under Section 251 (c )(2) Qwest cannot restrict the type of traffic that a
competing carrier terminates and any provisions of the interconnection agreement with
this type of language is unenforceable. (See the U.S. Court of Appeals, Fourth Circuit
decision.) For example, section 2.4 of the interconnection agreement says that Qwest is
not obligated to transport Internet traffic. This is contrary to the Telecommunications Act
and is therefore unenforceable. The Internet and enhanced services issue is nothing new
and is not a subject that Qwest was not aware of. Please see attached letter dated June 4
2004, from Bob McKenna to Joseph McNeal and Chris Olsen of the FCC Enforcement
Bureau. Also, there is nothing in the interconnection agreement that says WaveSent
cannot terminate Internet traffic. There are no provisions for WaveSent to bill and collect
reciprocal compensation for the termination of Internet or enhanced traffic. Therefore this
was not done.
If Qwest is refuting these points, then Qwest must specifically point out:
1) Why section 251 (c )(2) does not take precedent
2) Why the Fourth Circuit decision does not apply
3) How the billing calculations say that WaveSent has invoiced for enhanced
services and Internet traffic
Reciprocal Compensation
Last year WaveSent contacted Qwest, per paragraph 6.2 of the interconnection
agreernent, and submitted a sample invoice. Upon Qwest's review, Qwest will see that
the sample invoice was submitted as a flat rate of 6 000 MOU per trunk. There was much
discussion about the difference between the flat rate and actual billing. Qwest is paying
flat rate reciprocal compensation to other carriers with similar interconnection
agreements. As a matter of fact, WaveSent received assistance from other carriers prior to
submitting the initial sample invoice because those carriers billed the flat rate of 6 000
MOU per trunk and were paid on that rate. Qwest ok'd the format ofthe sample invoice
the flat rate billing of 6 000 MOU per trunk according to Appendix A, paragraph 2(A),
In the Matter of MClmetro Access Transmission Services, Inc. v Bel/South Telecommunications, Inc. and
North Carolina Utilities Commission US. Court of Appeals, Fourth Circuit, Decided December 18 2003
Case No. 03-1238.
~WJl~
Page 2
and invoice submittals by email. Once WaveSent invoiced Qwest the flat rate billing of
000 MOU per trunk, Qwest is now trying to renege on this provision and is fabricating
a dispute by claiming that all traffic is Internet related. Qwest is discriminating against
WaveSent and intentionally provoking a dispute by not allowing the flat rate billing of
000 MOU per trunk as it does other carriers.
Continuous paging, we believe, could revolutionize and spark new life into the paging
industry. WaveSent chose the flat rate billing method to avoid this very issue. WaveSent
did not want to get into a dispute with Qwest about the massive amount ofMOU that
continuous paging would use that is subject to reciprocal compensation. On this point, we
believe that Qwest has more to lose than WaveSent does. After consultation, we were
advised that the best place to handle this dispute, if we cannot negotiate this out and come
to some kind of settlement, is through a declaratory ruling from the FCC and not
arbitration on a state by state basis.
You stated in your March 12 2004, letter on page 3 that
Qwest proposes that WaveSent issue a revised invoice, delineating
enhanced services traffic minutes (for example, the "continuous paging
traffic you have referred to previously), MOUs oftraffic terminating to an
ISP and actual minutes of termination for Paging Connection Service.
WaveSent rejects Qwest's proposal as without merit and used to cause confusion by
addressing imaginary issues that can be easily determined by calculating the billing
formula-which Qwest has refused to do. Qwest's proposal is inconsistent with the flat
rate billing of 6 000 MOU that Qwest has already agreed to. Flat rate billing of 6 000
MOD per trunk means that whether WaveSent terminates one minute of use or one
million minutes of use, under paragraph 2(A) of Appendix A, the contract authorizes a
flat rate billing of 6 000 MOD per trunk. Qwest's proposal for delineating the billing is
contrary to the flat rate billing option of 6 000 MOU per trunk. The calculations are
within Qwest's own grasp to show that enhanced billing and Internet traffic is not
included in WaveSent's billing. The invoice calculations show that Qwest's assertion that
WaveSent invoiced Qwest for termination of Internet traffic or enhanced services is in
error and misplaced. This is a disguise by Qwest to withhold reciprocal compensation.
Appendix A, paragraphs 2(A) and (C) of the current agreement says:
Flat Rate per Trunk: Pursuant to Section 6, USWC will compensate
Paging Provider on a monthly basis at a flat rate per trunk for delivery of
USWC originated traffic as follows:
Type 1: 6 000 MOU per trunk times Compensable Traffic percentage times
$0.003398 times trunk quantity
..~
Page 3
Type 2: 6 000 MOD per trunk times Compensable Traffic percentage times
$0.003398 times trunk quantity
The Compensable Traffic percentage shall be calculated as follows:
Compensable Traffic percentage equals one minus Third Party Traffic
percentage.
Therefore the Compensable Traffic percentage is 76% (1 - 24% = 76%) and billing under
Appendix A, 2(A) would be:
76% X 6000 MOD X Number of Trunks X $0.00398 = Reciprocal Compensation
This is exactly the formula used by WaveSent on its invoices.
Qwest is very familiar with flat rating billing because Qwest invoices its residential and
business customers for phone lines at a flat rate per line. This means that it does not
matter whether the individual or business uses the line 0 minutes or 24 hours per day, 7
days a week - the rate stays the same. This is the fundamental definition of a flat rate-it
stays the same no matter what the actual usage is. WaveSent has invoiced Qwest the flat
rate of 6 000 MOD per trunk per the interconnection agreement and the approved sample
invoice and therefore, Qwest cannot legally dispute it or require a change from it. Qwest
has not shown where WaveSent's calculations are in error. Qwest must admit that it
allows other carriers flat rate billing and this method is not unusual.
Interconnection Agreement
It is only Qwest's policy that differentiates between statutory benefits granted to wireless
or wireline telecommunications carriers under the 1996 Tel Act. The 1996 Tel Act does
not differentiate between types of telecommunications carriers and their statutory
benefits. WaveSent has the right to pick and choose terms and conditions out of any state
approved interconnection agreement, whether Qwest labels the interconnection
agreement as wireline or wireless. Qwest only addresses this issue with hyperbole and no
substantive law to back up its statements.
Also, how can Qwest claim that it has negotiated contracts in good faith when Qwest has
withheld filing numerous interconnection agreements with more favorable terms and
conditions? In light of the FCC's Notice for Apparent Liability for Forfeiture 3 on March
, 2004, concerning Qwest's unfiled interconnection agreements, Qwest must make
these terms and conditions available for pick and choose under 252(i).
Since Qwest has not filed all applicable interconnection agreements, WaveSent is not
sure of what terms and conditions, written or verbal, that Qwest made available to other
3 Federal Communications Commission Notice of Apparent Liability for Forfeiture In the Matter ofQwest
Corporation Apparent Liability for Forfeiture File No. EB-03-IH-0263, Released March 12 2004.
.rspn
Page 4
carriers. WaveSent believes it will be years before the unfiled agreements issue will be
resolved. WaveSent believes that the issues concerning reciprocal compensation, which
Qwest is bringing to the forefront, have already been resolved in other proceedings.
While we are negotiating the reciprocal compensation dispute, WaveSent has detennined
that it is better to negotiate a new interconnection agreement under Section 252 and have
attached a proposed agreement. This should start the clock ticking under Section 252. We
are awaiting your answers regarding the reciprocal compensation flat rate billing and
input on the proposed agreement.
Sincerely,
Isl Joseph McNeal
WaveSent LLC
Joseph McNeal, Its Manager
cc:Bill Batt, Marshall Batt & Fisher
Cindy Minor, Qwest
Lori Lydon, Qwest
Sheila Pederson, Qwest
Vickie Boone, Qwest
Page 5
EXHIBIT
6610 Overland Rd
Boise, ID 83709
[phone]
[phone] Fax
SENT VIA EMAIL
March 25 2004
Bryan Sanderson
Qwest
Seattle, W A
Dear Bryan:
In your letter dated March 24, 2004, you said:
Qwest has no obligation to deliver enhanced services traffic to WaveSent.
If any portion of the traffic sent on the trunks to Qwest is enhanced
services traffic, any billing for those trunks is inaccurate and that is the
source of Qwest's dispute over WaveSent's billing.
WaveSent strongly disagrees with Qwest's stance that if 60 minutes of enhanced traffic is
passed over the trunks that Qwest is not obligated to pay any reciprocal compensation.
This is disputable and arbitrable, however this situation does not exist. WaveSent
believes that Qwest's negotiation tactic is getting into endless debates about frivolous
issues, with the object of never coming to a conclusion until the other party does exactly
what Qwest wants them to do, regardless of what the Telecommunications Act says.
WaveSent has not used the SPOP network or anything associated with WaveSent's
network for sending continuous paging. WaveSent has no customers using continuous
paging. Nor has WaveSent experimented with continuous paging on the network.
Bob McKenna s letter dated June 4 2003, was a milestone, and WaveSent followed it to
the letter so that Qwest could not find an excuse to begin an endless debate. This
disagreement started over an integrity issue. Qwest claimed that WaveSent had broken
the agreement made and would not acknowledge this part of the agreement
, "
Should
PageData or WaveSent use interconnection facilities or services for Internet traffic, such
traffic would not be subject to reciprocal compensation payments." Qwest was aware that
PageData was terminating Internet traffic at that time and the subject was previously part
of the hearings at the Idaho PUc. Any reasonable person would interpret this as "you can
terminate Internet traffic, but we are not going to pay reciprocal compensation for it."
WaveSent billed the flat rate formula that was approved by Qwest. Qwest has not shown
any evidence of Wave Sent deviating from or breaking this agreement. However, now
Qwest is saying they are not obligated to exchange Internet traffic, they are not paying
the flat rate reciprocal compensation, and they are going to shut off facilities necessary
for interconnection. I believe the fact that WaveSent has not terminated any continuous
paging traffic should put an end to the dispute. Payment of reciprocal compensation
means that WaveSent is in Qwest's system properly and normal relationships have been
established.
Sincerely,
Isl Joseph McNeal
WaveSent LLC
Joseph McNeal, Its Manager
cc:Barbara Newman
Vickie Boone
Page 2
EXHIBIT
From: Bill Batt
Sent: Thursday, April 08, 2004 1 :21
To: Kerri Hurst
Subject: FW: tick tock
wibaD.battfisher.com
William J. Batt
Batt & Fisher LLP
101 S. Capitol Blvd. 5th Floor
Boise ID 83701
208-331-1000
208-331-2400 (fax)
208-724-4258 (cell)
www.battfisher.com
-----
Original Message-----
From: Joseph McNeal (mailto:joseph(9)pagedata.com)
Sent: Tuesday, March 30, 2004 10:36 AM
To: Don Howell
Cc: Bill Batt
Subject: tick tock
Don
The tenant of rule of law is the lawbreaker cannot be advantaged
by non-compliance. The simple fact is Qwest is not in compliance
with 47 U.c. Sections 251 and 252 , and Qwest and their
conspirators have been substantially advantaged. The
Commission has the authority to level the playing field.
I believe Qwest has been disrespectful to you and the Idaho PUC
by continuing to say they are in full compliance with Sections
251 and 252. This is white collar crime. Qwest's own vice
presidents would not self-certify that all interconnection
agreements have been filed in Idaho when requested by
PageData. This in itself should speak volumes . I believe that
extraordinary circumstances exist and the Idaho PUC should join
their counterparts in the other states and issue Qwest a heftyfine to reflect the manipulation of the process in sum of no less
than $10 000 000.
I know from past experience that Qwest's goal is to get the
Idaho PUC and the companies that I represent (PageData and
WaveSent) into endless debates about frivolous issues, with the
object of never coming to a conclusion regardless of what the
Telecommunications Act says. For example , the termination of
Internet and enhanced traffic is already available in the existing
interconnection agreement.
Qwest has 18 days to put in their response and language for the
interconnection agreement for PageData s Petition for Arbitration
and 20 days to answer WaveSent's Petition for Arbitration. There
is nothing Qwest can do , but delay, hinder, and intimidate
because the majority of the items requested by PageData and
WaveSent were 252(i) items that were by-products of the unfiled
interconnection agreements. The terms and conditions requested
by PageData and WaveSent are covered under three rules:
Section 252(b); 2) Section 252(i); and 3) Commission Order No.
29140.
Joseph
EXHIBIT
Qwest.
SPifJt of $IH)'ICf'"
Bryan Sanderson
Interconnection Negotiator(206) 345-2275
f'ax: [phone]E-mail: besande(IDqwestcom
Joseph McNeal
WaveSent
6610 Overland Rd
Boise, ID 83709
April 2, 2004
Dear Joseph:
I am writing to you in response to your letter of March 25
2004 and your email of March 25 , 2004. Qwest and WaveSent
obviously disagree with respect to Qwest' s obligations under
the Telecommunications Act of 1996 (the "Act") and the current
Paging Connection Service Agreement (the "Agreement") between
Qwest and WaveSent. While you have stated that the trunking
facilities between Qwest and WaveSent are not currently being
used for the enhanced services traffic that you refer to as
continuous paging," WaveSent has not provided the delineation
of traffic Qwest has previously requested in order to resolve
Qwest's dispute regarding reciprocal compensation. Nor has
Wave Sent shown a need for 192 one way land to mobile trunks
currently installed for delivery of Qwest originated traffic,
especially now that WaveSent admits that it has no customers
using "continuous paging . Qwest continues to reserve its
rights under the Agreement (paragraph 2.2) to monitor usage
on these one way trunks and reconfigure these trunk groups as
it deems necessary. Certainly, Qwest does not plan to pay
reciprocal compensation for "idle " trunks.
In addition, you again neglect to acknowledge the plain
language of Section 2.(c) of the Agreement governing Enhanced
Services including Internet traffic , which states that Qwest,
shall not be obligated to deliver such traffic to Paging
Provider under this Agreement.It is Qwest' s position that
the language of the Agreement is clear on this issue, and that
is the foundation of the dispute. A breakdown of ISP
terminated traffic and actual paging traffic would enable Qwest
Page 2
to review the usage and pay reciprocal compensation for
appropriate traffic.
Finally, with respect to your email of March 25 , Qwest is
always ready and willing to negotiate terms and conditions of
an interconnection agreement which would supersede the existing
agreement between Qwest and WaveSent. Qwest has never said
that it is unwilling to enter into an alternate agreement, but
Qwest does not agree with your improper attempts to opt into
certain portions of both wireless and wireline agreements
without also opting into all legitimately related language inthe differing agreements. In order to productively movenegotiations along, I have undertaken the attempt to redline
your proposed agreement and I am enclosing that redline with
this communication. I am ready to discuss the revisions with
you and look forward to negotiating a new agreement that is
consistent with WaveSent' s needs and applicable law. I am
available next week to begin negotiations. Please feel free to
contact me to schedule a time that would allow us to beginnegotiations. Thank you.
Sincerely,
Bryan Sanderson
EXHIBIT
6610 Overland Rd
Boise, 10 83709
[phone]
[phone] Fax
SENT VIA EMAIL
April 6, 2004
Bryan Sanderson
Qwest
Seattle, W A
Dear Bryan:
The Idaho PUC Order No. 29463 split WaveSent's complaint into two administrative
proceedings - 252(b) and 252(i). Qwest initially rejected WaveSent's requests for
inclusion of more favorable terms and conditions under 252(i) because of Qwest'
opposition to WaveSent terminating Internet and continuous paging traffic. WaveSent
requested to adopt terms and conditions from the Verizon Wireless I , Bridgeband2 and
XO Idah03 agreements under 252(i) as envisioned by Congress, the FCC and the Idaho
PUC Order. If Qwest proposes changes to the language in the pick and choose sections
the language must maintain the essence of the original context.
1. Exchange of ISP bound traffic, Section 2.4 (Verizon Wireless, paragraphs 2.1 -
2.2.4)
2. ASRs, Appendix D - 7.4 Ordering (Bob McKenna s June 4 2003 letter and
Bridgeband and XO Idaho, sections 7.4)
3. Dispute Resolution, Section 13., 13.14., and 13.14.2 (Bridgeband Sections
12.12.3 and XO Idaho Sections 5.12.12.
4. Scope (Verizon Wireless, Section IV.A. Reciprocal Traffic Exchange - Scope)
5. Transit Factor (Bridge band Section 7.2.2.3; XO Idaho Section 7.
Mountain Communications v. FCC case)
6. Facilities Design and Changes to Network - (Arch Colorado ICA, 2.
It appears that communications on WaveSent's reciprocal compensation have reached an
impasse and will need to be addressed during the arbitration proceedings. Discussions on
termination of Internet traffic have blinded the eye of your writer. Section 2.4 (c) of the
interconnection agreement language is plain and Qwest is intentionally mixing the
I Type 2 Wireless Interconnection Agreement between Qwest Corporation and Cellco Partnership d/b/a
Verizon Wireless for the State ofIdaho pursuant to 47 US.C. 252(e)2 IPUC Case QWE-01-, Interconnection Agreement between Qwest Corporation and Bridgeband
Communications, approved January 29 20023 IPUC Case QWE-02-, Statement of Generally Available Terms and Conditions for Interconnection
Unbundled Network Elements, Ancillary Services, and Resale of Telecommunications Services Provided
by Qwest Corporation in the State ofIdaho, Second Revision, and XO Idaho, December 10 2001.
responsibilities of the permissions to continue its policy of creating litigious situations
with WaveSent's management to justify its illegal stance. Because Qwest believes it is
not obligated to deliver Internet traffic does not mean that WaveSent cannot terminate
Internet traffic. The language that Qwest "shall not be obligated to deliver such traffic" is
a passive permission and does not place any obligations or restrictions on WaveSent.
WaveSent cannot be penalized for Qwest's illegal stance in contradiction of251(c)(2).
Contrary to Qwest's belief, it is obligated to deliver Internet and enhanced services traffic
to WaveSent, because Qwest delivers these types of traffic to itself and other carriers
such as Verizon over the same types of facilities and Qwest pays Verizon reciprocal
compensation for such termination (252(c)(2)(c) and (d) and the Local Competition
Order).
The flat rate billing of 6000 MOU per trunk does not require any delineation of the
minutes. This is a new requirement that Qwest is attempting to introduce that is not in the
interconnection agreement and contradicts flat rate billing. WaveSent's termination of
Internet traffic does not have anything to do with Qwest mischievously reclassifying the
flat rate 6000 MOU per trunk of paging traffic to Internet traffic to intentionally invoke a
dispute and delay payment of reciprocal compensation. In all of Qwest responses, Qwest
conveniently leaves out Bob McKenna s letter, FCC regulations, and that Verizon
Wireless terminates like traffic, and just quotes Qwest policies towards companies Qwest
considers paging only. WaveSent billed Qwest the flat rate 6000 MOU per trunk as
outlined in the interconnection agreement and did not charge Qwest for terminating any
Internet or enhanced services per Bob McKenna s letter. Qwest's inappropriate behavior
will eventually come to light.
We await your response on the language for the terms and conditions under 252(i) per the
PUC Order No. 29463. We will assist with the construction of the language, but the
essence of the original language and statutory benefits of 252(i) must remain.
Sincerely,
Is/ Joseph McNeal
WaveSent LLC
Joseph McNeal, Its Manager
cc:Bill Batt, Batt & Fisher
..
'IJP1
Page 2
EXHIBIT
6610 Overland Rd
Boise, 10 83709
[phone]
[phone] Fax
SENT VIA EMAIL
April 7, 2004
Bryan Sanderson
Qwest
Seattle, W A
Dear Bryan:
Per the Idaho PUC Order No. 29463. WaveSent is submitting interconnection agreement
additions under 252(i) to the current agreement. We have attached how WaveSent sees
having the current agreement formatted in order to incorporate the terms and conditions
under 252(i) - Pick and Choose. WaveSent's changes are marked in red or red
strikethrough text.
Please pay particular attention to the ISP Amendment, Attachment A, which says that
termination of ISP-bound traffic was an instant amendment. Also, note the amendment
became effective June 14 2001 , but it was not submitted to the Idaho PUC until January
, 2002. So, not only was it instant, but Qwest and Verizon agreed that they would work
under that agreement until it was approved by the Commission. In fairness, this
agreement goes back approximately seven months taking into account the approval time
of the PUC. WaveSent's adoption of this instant and retroactive amendment should
clear up all back issues of terminating Internet and enhanced traffic, when the same terms
and conditions are applied to WaveSent.
We await your response on the language for the terms and conditions under 252(i) per the
PUC Order No. 29463. If Qwest has any changes, please use blue text, so it is easy to
differentiate any changes. We will assist with the construction of the language, but the
essence of the original language and statutory benefits of 252(i) must remain without
adding any additional restrictions.
Sincerely,
Isl Joseph McNeal
WaveSent LLC
Joseph McNeal, Its Manager
cc:Bill Batt, Batt & Fisher
EXHIBIT
Q we s
Spmt of Sen'iC.
Bryan Sanderson
Interconnection Negotiator
[phone]
Fax: [phone]E-mail: besande(g2qwestcom
Joseph McNeal
WaveSent
6610 Overland Rd
Boise , ID 83709
April 9 , 2004
Dear Joseph:
I am writing to you in response to your email of April 7 , 2004.First , there is nothing in the Idaho PUC (IPUC) Order No. 29643
that requires Wave Sent to submit interconnection additions
under 252 (i) to the current agreement to Qwest. The Order does
three things: 1) it consolidates Case Nos. GNR-T- 04 - 5 and GNR-
T- 04 - 6 into a single proceeding, 2) asks Wave Sent for aci tation to any case , which supports its petition for
arbitration to be filed before the 135th day and 3) requires
Qwest's to respond to the IPUC wi thin 14 days, responding
separately to WaveSent' s arbitration issues and the terms
Wave Sent desires to adopt under Section 252 (i) of the Act.
Qwest has not yet responded to item 3 to the IPUC, but will do
so by April 16.
Qwest is rejecting your 252 (i) adoptions as stated in this
email , under the "pick and choose " rules allowed under the Act.
WaveSent is taking an approved amendment and changing the
language of that agreement. This is called "pick and change
and is not appropriate under 252 (i). Under rule ~51. 809 , an
ILEC must make available under any individual interconnection
service , or network element arrangement contained in any
agreement approved by the commission upon the same rates, terms
and conditions as those approved in the agreement. WaveSent has
changed the rates , terms and conditions of the amendment. The
plain language of the rule does not allow WaveSent to change or
modify the language of the amendment. WaveSent must adopt the
amendment (including any related language) in its entirety
Page 2
without changes. If WaveSent wants to make changes to the
amendment after it has been approved by the commission , Qwest
will certainly entertain those negotiations.
Finally, Qwest is concerned and confused about the "shotgun
approach WaveSent is using in its approach to negotiations. On
the one hand, PageData and WaveSent have opened windows for
negotiations under 251/252. This was done on March 16 and March
18, 2004 , respectfully. Qwest has acknowledged these requests
and has even sent back a "redline " of WaveSent' s proposed
contract. Yet , there has been no at tempt by either Wave Sent or
PageData to contact Qwest and begin new negotiations. On the
other hand, Qwest has received numerous adoption requests for
amendments from WaveSent/ PageData under the guise of 252 (i) .
This is confusing. Are we negotiating new agreements or are we
amending existing agreements? It seems to me that staying
focused with one approach would be far more productive. Qwest
favors negotiating new agreements which will clarify and
quantify the disputed issues between Qwest and WaveSent and
PageData. As I stated in my last correspondence , I am
available at your earliest convenience to begin negotiations.
Sincerely,
Bryan Sanderson
EXHIBIT P
6610 Overland Rd
Boise , 10 83709
[phone]
[phone] Fax
SENT VIA EMAIL
April 9, 2004
Bryan Sanderson
Qwest
Seattle, W A
Dear Bryan:
It appears from Qwest's red-lined agreement under 252(b) that Qwest has already agreed
to the new dispute resolution clause and the ASR Ordering Process. Both of these
provisions are immediately available for adoption from other agreements under 252(i).
This gets us back to what the dispute has always been about-carriers that Qwest
considers paging only cannot terminate Internet or enhanced traffic. WaveSent will not
be deterred or sidetracked from adopting the terms and conditions of the Verizon ISP-
Bound Traffic amendment under 252(i). No matter how much bloviating Qwest does
WaveSent is in compliance with the present interconnection agreement and has not
broken any terms and conditions. This is an exercise to delay and hinder WaveSent from
exercising its statutory rights under the 1996 Tel Act to terminate any Qwest-originated
telecommunications traffic that hits WaveSent's switches.
WaveSent has not provided Qwest an adoption of terms and conditions under 252(i) that
Qwest could reject. This is a stalling tactic by Qwest to postpone and hinder WaveSent
from immediately adopting the ISP-Bound Traffic amendment. WaveSent has not
changed the language in the ISP amendment as Qwest alleged in your April 9th letter.
Paragraph 2.1 of the ISP-Bound Traffic amendment says:
Either party may rebut this presumption by demonstrating to the state
Commission that traffic above or below the 3: 1 ratio is in fact Local
Traffic delivered to non-ISP customers.
WaveSent is simply rebutting this presumption now and establishing that 6000 MOU per
trunk is deemed local paging traffic per the current interconnection agreement and many
other Qwest interconnection agreements approved by the Idaho PUC and should be
included with this amendment to avoid WaveSent and Qwest going back to the PUC
about this issue. This rebuttal does not constitute a change in adoption of the amendment.
Qwest has already established the fact that it will not voluntarily allow WaveSent to
adopt the ISP-Bound Traffic amendment, which Qwest is legally obligated to do so.
Because Qwest is insisting that arbitration is needed in order for WaveSent to exercise its
statutory rights under 252(i) to adopt the ISP-Bound Traffic amendment, the Idaho PUC
might as well establish the flat rate paging minutes of use and the continuous paging
issues at the same time. When the Idaho PUC establishes that continuous paging is a local
paging call, I am quite sure that Qwest is going to want to do flat rate billing. WaveSent
has voluntarily done this to prevent future conflict. Qwest trying to establish continuous
paging as enhanced services is like Qwest redefining voice paging as enhanced traffic.
The FCC Decision I and the Comments of Qwest Communication Intemational2 in the
pulver.com case makes WaveSent's point. Once continuous paging is demonstrated at the
PUC, it will be easy for the PUC to conclude that continuous paging is a local call subject
to reciprocal compensation.
In my previous letter to you I pointed out the Verizon amendment was instant and was in
effect over seven months before the Idaho PUC approved it. WaveSent expects Qwest to
provide WaveSent with the same terms and conditions.
If Qwest is serious about negotiating, then Qwest should blue-line the 252(i)
interconnection agreement WaveSent provided Qwest for its comment. WaveSent will be
asking the Idaho PUC to accept this agreement in its entirety. If you are available for
negotiations you should give a specific time, date, and phone number of your availability.
I am available either Tuesday, April 13, 2004 at 10:00 am or Wednesday, Apri114 at
10:00 am (m.t.) and can meet at Bill Batt's office for a conference call. Please let me
know as soon as possible if this time works for you. So time is not wasted, please have
the 252(i) agreement that we sent to you on April 7, 2004, blue-lined and emailed to us
ahead of time and be prepared to discuss incorporating the ISP-Bound Traffic amendment
into the present agreement. Preparation ahead of time would give the Idaho PUC fewer
issues to arbitrate, if that is Qwest's desire.
Sincerely,
Isl Joseph McNeal
WaveSent LLC
Joseph McNeal, Its Manager
cc:Bill Batt, Batt & Fisher
In the Matter 0/ Petition/or Declaratory Ruling that pulver. com Free World Dialup is neither
Telecommunications nor a Telecommunications Service WC Docket No. 03-, Federal Communications
Commission Memorandum Opinion and Order, Released February 19, 2004
In the Matter o/Petition/or Declaratory Ruling that pulver. com Free World Dialup is neither
Telecommunications nor a Telecommunications Service WC Docket No. 03-45 , Comments of Qwest
Communications International Inc., Dated February 14 2003
..~
Page 2
EXHIBIT
From: Sanderson, Bryan (Bryan.Sanderson~qwest.com)
Sent: Thursday, April 15, 2004 12:24 PM
To: Joseph McNeal
Cc: Bill Batt; Love, John; Kerri Hurst
Subject: RE: 252(i) Adoption 2
Joseph:
I have been out of the office for the last three days. I am therefore suggesting some times next
week to begin negotiations. They are April 21 , 9-11 or 1-3 PDT, April 22, 1-3 PDT, or April 23, 8-
10 PDT. Please let me know if one of these times works. We can also use my conference bridge
which is: 877-550-8688 PIN 7983819#. Qwest sent its changes to you in an electronic copy on
April 6. You also received a hard copy on Friday, April 2. That redline clearly shows Qwest'
proposed language and is sufficient to begin these negotiations. Thank you.
Bryan Sanderson
-----
Original Message-----
From: Joseph McNeal (mailto:joseph(Q)wavesent.com)
Sent: Friday, April 09, 2004 6:47
To: Bryan Sanderson
Cc: William Bill Batt
Subject: 252(i) Adoption 2
See attached letter.
WaveSent LLC
Joseph McNeal, Its Manager