20050421Motion to dismiss.pdf

Mary S. Hobson (ISB #2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ill 83702
Telephone: [phone]
Facsimile: [phone]
mshobson~stoel.com
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Adam L. Sherr (WSBA #25291)
Qwest
1600 ih Avenue - Room 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
adan1. sherr~qwest. com
BEFORE THE PUBLIC UTILITIES COMMISSION OF IDAHO
IN RE:
PETITION OF MCLEODUSA
TELECOMMUNICATIONS SERVICES,
INC., FOR ENFORCEMENT OF
INTERCONNECTION AGREEMENT
WITH QWEST CORPORATION
QWEST CORPORATION'
MOTION TO DISMISS
Docket No. MTI-O5-
Qwest Corporation ("Qwest") by and through its undersigned attorneys and pursuant to
IPUC Rule of Practice and Procedure 56, files this motion requesting the Idaho Public Utilities
Commission ("Commission ) to dismiss McLeodUSA Telecommunication Services, Inc.
McLeod') Petition for Enforcement of Interconnection Agreement with Qwest Corporation
Petition
).
On this same date, Qwest is also filing its Answer to the Petition. For the reasons
set forth herein, the issues raised in McLeod's Petition are now moot and this case should be
dismissed. 1 At most, McLeod's petition constitutes a request for a declaratory judgment, and it
does not meet the standards for entry of a declaratory order.
On April 1 , 2005, Qwest filed its response to McLeod's motion for emergency relief. In that response
QWEST CORPORATION'S MOTION TO DISMISS - Page 1
Boise-183359.10029164-00012
BACKGROUND
This docket was opened on March 30 2005, when McLeod filed its Petition, and
emergency motion, seeking to prevent Qwest from demanding a security deposit and from
discontinuing services or disconnecting McLeod pursuant to the parties' interconnection
agreement ("ICA"2 McLeod filed its Petition and emergency motion after receiving a letter
from Qwest on March 21 2005 , demanding a security deposit pursuant to the parties' ICA.
Since filing its Petition, however, McLeod has engaged in discussions with Qwest
about Qwest's demand for a security deposit. During those discussions, McLeod has assured
Qwest that it would remain current on its monthly payments under the ICA's in each of the
fourteen states in Qwest's region. McLeod's assurance to Qwest that it will remain current on its
payment obligations under the ICAs in each state has satisfied Qwest's need for security. As a
result, Qwest has withdrawn its March 21 , 2005 demand for a security deposit under the ICA.
II.DISCUSSION
The withdrawal of the demand for security under the ICA renders moot all of the
issues and requests for relief presented in McLeod's Petition. In the second sentence of the
Petition, McLeod defines the basis for commencing the case: "This Petition stems from a
dispute between McLeodUSA and Qwest over Qwest's right under the interconnection
agreement to demand security deposits from McLeodUSA for services provided under the
Qwest argued that the issues in McLeod's Petition were not ripe, and that Qwest was prevented from
demanding a security deposit from McLeod based on the temporary restraining order issued by the Federal
District Court for the Northern District of Iowa. In addition to the information supporting Qwest's
response, and as explained herein, Qwest also believes that the issues raised in McLeod's Petition are now
moot. For that reason Qwest is now filing this Motion to Dismiss.
In addition to its Idaho Petition, McLeod filed petitions against Qwest in the states of Arizona, Colorado
Iowa, Minnesota, New Mexico, Oregon, Nebraska, North Dakota, South Dakota, Washington and
Wyoming.
A copy of Qwest's letter withdrawing the demand for a security deposit is attached as Exhibit 1, and
incorporated herein by reference.
QWEST CORPORATION'S MOTION TO DISMISS - Page 2
Boise-183359.10029164-00012
agreement, and to discontinue services to McLeodUSA should McLeodUSA not comply with
Qwest's demand." Petition at p. 1. McLeod's Petition then asserts that Qwest's demand for
security should have followed the dispute resolution provision of the ICA. Id.
McLeod's "Request for Relief' found at page 11 of its Petition is also premised
upon the March 21 2005 demand for security under the ICA:
McLeodUSA asks the Commission to open a contested case proceeding
based on this Petition, and following such hearings or procedures to which
the Parties may be entitled, rule that Qwest may not demand a security
deposit from McLeodUSA at this time. McLeodUSA further requests that
in the event of a default under the Interconnection Agreement, Qwest must
follow the dispute resolution provisions in the Interconnection Agreement
and may not "suspend order activity,
" "
disconnect services " or terminate
the Agreement until those dispute resolution procedures have been
completed.
Petition at 11 (Emphasis added).
The references to the "demand for a security deposit at this time " and "in the
event of a default " rest upon the March 21 2005 demand for a security deposit. Thus, the
factual premise to McLeod's Petition, and for an interpretation of the parties' rights under the
ICA, is Qwest's March 21 2005 demand for security. With Qwest's withdrawal of that demand
there is no controversy between the parties under the ICA, and McLeod's Petition is moot.
Furthermore, any request to resolve the issues on a prospective basis presents a claim that is not
yet ripe for adjudication. If the Commission were to act on either request, it would be stepping
into the prohibited area of advisory opinions.
Because the circumstances giving rise to this controversy have been eliminated
through Qwest's withdrawal of its demand for a security deposit, the Commission should now
dismiss McLeod's Petition. Courts have historically refused to issue advisory opinions
declaring that in order to properly invoke the court's jurisdiction, there must be a justiciable
controversy. In determining whether such a controversy exists, the court looks to various
QWEST CORPORATION'S MOTION TO DISMISS - Page 3
Boise-183359.10029164-00012
factors: (1) there must be an actual, present and existing dispute as distinguished from a dispute
of a hypothetical or abstract character or one that is academic or moot; (2) the controversy must
be definite and concrete, touching the legal relations of parties having adverse legal interests; and
(3) it must be a real and substantial controversy admitting of specific relief through a decree of a
conclusive character, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. See Harris v. Cassia County 106 Idaho 513 516, 681 P. 2d 988 991
(1984) and cases cited therein.
These judicial principles should guide the Commission in deciding whether it
should expend its resources in hearing this dispute. McLeod's request that the Commission
declare the parties' rights and obligations under the interconnection agreement , under some set of
undefined future circumstances, is exactly the sort of advisory opinion that an Idaho court is
prohibited from entering under the case law.
Moreover, on April 11 , 2005 , McLeod withdrew its Petition in Minnesota.
Although Qwest does not agree with the representations made in McLeod's Petition as to
agreements between the parties, it is unclear why McLeod has not also withdrawn its petition
here. Furthermore, McLeod's action in dismissing the Minnesota complaint demonstrates the
absence of any real continuing controversy between the parties.
III.CONCLUSION
Based on the foregoing, Qwest requests an order of this Commission dismissing
McLeod's Petition as moot.
A copy of McLeod's Petition to the Minnesota Public Utilities Commission withdrawing its complaint is
attached as Exhibit 2, and is incorporated herein by reference.
QWEST CORPORATION'S MOTION TO DISMISS - Page 4
Boise-183359.10029164-00012
DATED this 20th day of April, 2005.?t(v'i#~-
Mary S. son
Stoel Rives LLP
Adam Sherr
Qwest
Attorneys for Qwest Corporation
QWEST CORPORATION'S MOTION TO DISMISS - Page 5
Boise-183359.10029164-00012
CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of April, 2005, I served the foregoing QWEST
CORPORATION'S MOTION TO DISMISS upon all parties of record in this matter as
follows:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, Idaho 83720-0074
iiewell~puc .state.id. us
Weldon Stutzman
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, Idaho 83720-0074
wstutzm~puc. state .id. us
William Courter
McLeodUSA Telecommunications Services, Inc.
6400 C Street SW
Cedar Rapids, IA 52406
Peter Richardson (ISB #3195)
Richardson & O'Leary
515 North 28th Street
Boise, ill 83702
Telephone: [phone]
Facsimile: [phone]
peter~richardsonandoleary .com
Attorney for McLeod
Mark Trinchero (OSB #88322)
Davis Wright Tremaine LLP
1300 SW Fifth Avenue - Suite 2300
Portland, OR 97201-5682
Telephone: [phone]
Facsimile: [phone]
marktrinchero~dwt.com
Attorney for McLeod
QWEST CORPORATION'S MOTION TO DISMISS - Page 6
Boise-183359.10029164-00012
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~~
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Brandi L. Gearhart, PLS
Legal Secretary to Mary S. Hobson
Stoel Rives LLP
EXHIBIT
EXHIBIT
., "'~..
Qwest
Spirit of S,rvlce
April 13, 2005
Via Overnight Mail Facsimile
James LeBlanc
Vendor Manager
McLeod USA Telecom
First Place Tower
15 E. 5th St, 5te. 1500
Tulsa, OkJahoma14103
Lauraine Harding
Sr. Manager. Interconnect Negotiation
McLeodUSA, Inc.
6400 C Street 5'N
O. Box 3177
Cedar Rapids. IA 52406-1377
RE: Notice of Withdrawal of ICA Security Deposit Demands
Dear SirlMadam,
Qw8IIt Cor pcntIon
1801 Califomia Street
Suite 2400
Der1ver, CO 00202Telephooe: 303-8964686
Facsirrile: 3.)3-896-S887
Larry CIvIl
--
Direda', Ca '!'iEtf Relations
Worldwide 'wlJholesale Marke1s
This letter is to notify you that, based on assurances by McLeod that it will remain current on Its monthly
payments under the ICAs, Qwest Corporation (IIQwesf') is withdrawing its Mardl 21, 2005 letters of
demand for security deposit from McLeod USA Telecommunications Services, Inc. and its CLEC
affiliates (coUectively, "McLeodUSA") under the Interconnection Agreements nCAs") between the
parties. This withdrawal applies solely to the Interconnection agreement demands noticed for the
States of Arizona, Colorado, Idaho. Iowa, Minnesota, Montana, New Mexico, Or~lon. Nebraska, North
Dakota, South Dakota, Utah, Washington, and Wyoming. This withdrawal does Jt affect the letters of
default and demands for security deposit in connection with Owest tariffed ::;ervices and Cwest
Communications Corp. services (dated March 18, 2005) In liugatio,n before the United States District
Court for the District of Colorado. Qwest reserves all its legal rights with respect t() the security deposit
demanded under those disputes and all other rights in that 1itigation.
The withdrawal of the letters of demand for security und at the I nterconnection Agreements does not
constitute an admission by Owest of the truth. accuracy or merit of any fact or principle of law asserted
by McLeod, including but not limited to any purported interpretation of any term or condition of any
the Interconnection Agreements. Owest does not waive and expressly reserves any and all rights to
take any action with respect to any other security deposit demand. any notice of default or default, or
any conduct taken in the future under the Interconnection Agreements.
Sincerely,
..
Cc: Ken Burkhardt. CFO
. -.'-P--..,.
EXHIBIT
EXHIBIT 2
MOS BARNETT
A Professional Associatlon
I'lOt,US A. KULU III
JAMtS Eo o'nCEN
tDWARD L WII"EII
WILHAM A. HAUG
CItAlU.U IL rAkSONS,JR.
II.IClWW j.JOHNSON
KOREa! J. LUKES
Mtotl!S A. aUSENSmNriIOMAS I., SHUAN
I::DWARD J. BLOMME
jEFFUY L WATSON
,IIOMASj. :iHIOVf:1I
DI.Vltl r. J1!NDRZEJEK
CURTIS D. s..mH April 1 t , 2005
MVE F. SENGER
MITCHt:L1. K. cox
M1CltAa.J. BMPlEY
PfiER A. KOtLER
IUCRAIID 1- KELJER
XEVIN M. JUSCH
~USAN C. tllOlJf
THOMAS A. JUDDDUNNE Y. GUCO
CA55 5. wm.
GLEN E. SCHUMANN
J"'NNA a. SEV!AANCf.loCo CECIlIA JAY
NANCY Jot. JUSKIS
IAJllty 1.,,\ZA1I.US
RONALD A. EtSENBDG
PAUL B. ZlSLA
BRIANT.GIl~ Re:J- MICHAr:L COlLOTON
1:RJCJ- ol.S~
JOSH'" G. MATDNOWsKl
JAYMI;5 D. U-rrLfJOHNMICIiAEL R. NIXT
JAMES F. MLDW1N
DAVID S. JOHN~N
fHILlP:J. YOUNG
ARllIUI. W. DICK1fo15Oto1
Bt!N M. mNSOIIL Dear Dr. Haar:DAN uPSCHUIn
J('JKN' K, &OSSMAN
MARK B. tt:TERSON
M.U.Cy .. FROsT
IotA RSJIA S1' ocr
MAnrEW w- tam
TIMOTHY L. GUSTIN
YURI 8. BBl'IDT
EI./ZABETII II- IanNAT
MELISSA A, lAB
IAMES J, \lEDDD
llitCHAn s. fONCJN
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Please calJ if there are questions regarding this filing.
ANtHON"Y A. PORLAND
CHRISTOPHER P. STALL
, WIlE A. 1Cl'E1I'I trul oursTn F.S I! A. WIST
JEffREY L, BOoaiSTEll'IEI.
uSA A. HAS1l!1I.
JULIA N. PATTON
01' COUNSEL
rnOMAS E. MADlS
IlIITUURj. GlASSMAN
DAN LIPSCHUL Tl.
612.347.0306Lipschul~ss.bamett.com
4RO() Vk.lls Fargo Center
90 South Sevc;nth Stree:l
Minneapolis. MN 55402r4129
Telephone: [phone]
Facsimile 612.339,6686
www_moss-barnett.com
Dr. Burl W. Haar
Executive SecreWy
Minnesota Public Utilities Commission
121 Seventh Place E Suite 350
Sl Paul, MN 55101-2147
~PR \ 2.
In the Matter of a Complaint by McLeodUSA Telecommunications Services, Inc. against
Qwest Corporation for Demand of Security Deposit for an Approved Interconnect
Agreem(:nt
MPUC Docket No.P4211C-O5-523
Enclosed please find an original and fifteen copies of the Petition to Vvithdraw Complaint,
Request for Expedited Proceeding and Request for Temporary Relief on behalf of McLeodUSA
Telecommunications Services, Inc. in the above-entitled matter. Also enclosed is an Affidavit of
Service.
MOSS & BARNETT
A Professional Association
175 JuJA:--Dan Lipschultz
DUijh
Enclosures
cc: All parties of record
164692vl
AFFIDAVIT OF SERVICE
STATE OF MINNESOTA
) 58
COUNTY OF HENNEPIN
In Re: In the Matter of the Complaint by McLeodUSA
Telecommunications Servi~;, Inc. against Qwest
Corporation for Demand of Security Deposit for
an Approved Interconnection Agreement
MPUC Docket No.
Kim R. Manney, being first duly sworn on oath, deposes and states that on the 11 th day of
April, 2005, copies of the Petition to Withdraw Complaint, Request for Expedited Proceeding,
and Request for Temporary Relief on behalf of the McLeodUSA Telecommunications Services,
Inc. in the above referenced matter were hand delivered or mailed by United States first class
mail, postage prepaid thereon, to the following:
Dr. Burl W. Haar
Executive Secretary
MN Public Utilities Commission
121 Seventh Place E, Suite 350
St. Paul MN 55101
Curt Nelson
Assistant Attorney General
900 NCL Tower
445 Minnesota Street
St. Paul, MN 55101
Linda Chavez
Minnesota Department of Commerce
85 Seventh Place East, Suite 500
81. Paul, MN 55101
Jason Topp
Qwest Communications200 S Fifth Street, Room 395
Minneapolis, MN 55402
William Courter
McLeodUSA Telecom, Inc.
Tech Park
6400 C Street SW
Cedar Rapids, IA 52404
William Haas
McLeodUSA Telecom, Inl;.
Tech Park
6400 C Street SW
Cedar Rapids, IA 52404
SWORN TO BEFORE ME this
11 th day of April, 2005
~!iP7~
" Kim R. Manney
~ \)~~
NOT AR Y PUBLIC
JEAN J. HUNSINGER
Notary PubftC-MInoesOta
My c~ Exp!rB6 Jan 31. 2Q1Q
7(iQ51Qvt
STATE OF MINNESOTA
BEFORE THE MINNESOTA PUBLIC UTILITIES COMMISSION
LeRoy Koppendrayer
Marshall J olmson
Kenneth Nickolai
Thomas Pugh
Phyllis Reha
Chair
Commissioner
Commissioner
Commissioner
Commissioner
In the Matter of a Complaint by McLeodUSA
Telecommunications Servicest Inc. against Qwest
Corporation for Demand of Security Deposit for
an Approved Interconnect Agreement
MPUC Docket ~~o.; P421/C-OS-523
PETITION TO WITHDRAW COMPLAINT, REQUEST FOR I~XPEDlTED
PROCEEDING AND REQUEST FOR TEMPORARY RI~LIEF
On March 31 2005 , McLeodUSA Telecommunications Services, Inc;
. ("
McLeodUSA"
filed a Complaint, Request for Expedited Proceeding and Request for TempCirary Relief
Complaint") with the Minnesota Public Utilities Commission ("Commission ) in response to
Qwest Corporation s (,~Qwest") letter demanding payment Wlder the lntercoJmection Agreement
("ICA") of a secw'ity deposit of$2,O98,141.82 in Minnesota by 5:00 p.m. 011. Aprill, 2005, or
risk having McLeodUSA's order activity suspended and services disconnect,~d. The Complaint
seeks temporarily relief prohibiting Qwest from disconnecting service to McLeodUSA and its
end-user customers or suspending order activity. The Complaint also seeks ;m expedited
proceeding and order precluding Qwest from demanding a security deposit.
l\.fcLcodUSA respectfully requests to withdraw its Complaint without prejudice based on
Qwest's assurances in its April 5 2005 filing with the Commission e'Qwest Response )' that it
will not disconnect service or suspend ordering activity without following the '1Jrocesses
required for it to gain relief." Qwest Response at p. 4. Following the required processes would
include c.ompliance with the ICA. including its dispute resolution procedures, and With State law
Response ofQwest Corpora/ion to McLeodUSA Telecomm"nications Services, inc. Reque:;t!or Emergency
Relief, dated April 5 2005.
764627v 1
regarding interconnecting carriers such as McLcodUSA and Qwest. It is M4;:,LeodUSAt
understanding that state law precludes one carrier from discOIIDecting without prior Commission
approvaL McLeodUSA may file an amended complaint or request for dispute resolution under
its ICA.
McLeodUSA would also like to take this opportunity to correct the rt~cord with regard to
several assertions in the'Qwest Response. Specifically, in the second paragraph on page 5
Qwest asserts that it "could initiate the process of Section 26.12 regarding default. . u" In fact
the ICA between McLeodUSA and Qwest does not include a Section 26.12 or any other
provision establishing rights and procedures for declaring a default. Similarly, in the first
paragraph on-page 6, Qwest cites Section 1 L9.1 of the ICA and asserts under that Section what it
characterizes as its "unconditioned right to request such a deposit if McLeodUSA becomes a
credit risk." In fact, the lCA does not contain a section 11.9.1. Nor does any provision of the
current ICA grant Qwest an "unconditioned right" to a security deposit. To the contrary,
Sections 2.1 and 2.2 of the ICA set forth tenDS and conditions under which a security deposit
may be required and McLeodUSA believes it has "satisfactory credit" with Qwest under those
sections. In any event, whether and to what extend a security deposit may be: required is subject
to resolution by the Commission under Section 11 of the rCA.
Dated: April II t 2005
Respectfully submitted
By / ~fh-... "4 Dan Lipschultz
MOSS & BARNETI'
A Professional Association
Attorneys on Behalf of McLeod
Telecommunications Servicl~s, Inc.
764627vl