20050421Supplement to motion 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 7th Avenue - Room 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
adam. 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
SUPPLEMENT TO QWEST
CORPORATION'S MOTION TO
DISMISS
Docket No. MTI-O5-
Qwest Corporation ("Qwest"), through its undersigned attorneys, files this Supplement to
Qwest's Motion to Dismiss submitted April 20, 2005.
The Petition of McLeodUSA Telecommunications Services, Inc. ("McLeod") indicates in
paragraphs 11-13 that McLeod received fourteen letters from Qwest demanding a security
deposit in each Qwest state. Actions similar to the instant case were thereafter initiated by
McLeod in several Qwest states, including Utah.
Attached for the Commission s review is the decision of the Utah Public Service
Commission issued today dismissing the action brought by McLeod in that jurisdiction on the
grounds that Qwest's withdrawal of the security deposit demand renders the McLeod complaint
SUPPLEMENT TO QWEST CORPORATION'S MOTION TO DISMISS - Page 1
Boise-183377.10029164-00012
moot. The Utah commission further stated that it "declines to provide the advisory opinion
which McLeod now seeks" in the place of its complaint regarding the security deposit.
Respectfully submitted this 21 st day of April, 2005.
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Mary S. son
Stoel Rives LLP
Adam Sherr
Qwest
Attorneys for Qwest Corporation
SUPPLEMENT TO QWEST CORPORATION'S MOTION TO DISMISS - Page 2
Boise-183377.10029164-00012
CERTIFICATE OF SERVICE
I hereby certify that on this 21 st day of April, 2005 , I served the foregoing
SUPPLEMENT TO 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
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Weldon Stutzman
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, Idaho 83720-0074
wstutzmCfYpuc. state jd. 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]
mar ktrinc hero(cl),d wt. com
Attorney for McLeod
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Brandi L. Gearhart, PLS
Legal Secretary to Mary S. Hobson
Stoel Rives LLP
SUPPLEMENT TO QWEST CORPORATION'S MOTION TO DISMISS - Page 3
Boise-183377.1 0029164-00012
- BEFORE THE PUBLIC SERVICE COMMISSION OF UTAH -
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In the Matter of the Petition of McLeod
USA Telecommunications Services, Inc.
for Enforcement of Interconnection
Agreement with Qwest Corporation
DOCKET NO. 05-049-
ORDER GRANTING SUPPLEMENTAL
MOTION TO DISMISS
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ISSUED: April 21. 2005
SYNOPSIS
Qwest having withdrawn the security deposit demand on which McLeod's complaint was
based, we dismiss.
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By The Commission:
, ,
On March 30, 2005 , McLeod USA Telecorpmunications Services, Inc.
McLeod") filed a Petition for Enforcement of Interconnection Agreement with Qwest
Petition ) seeking Commission ruling "that Qwest may not disconnect or discontinue providing
telecommunications services under the Parties' Interconnection Agreement or demand a security
deposit from McLeod USA at this time." McLeod's Petition was based on a March 21 2005
letter from Qwest demanding payment of a security deposit. Qwest's letter indicated that if the
security deposit were not paid within ten days Qwest would "commence the process of
terminating the Interconnection Agreement, suspending order activity, disconnecting services
and/or any other remedy available to it under law or equity in the State of Utah.
On April 13, 2005 , following scheduling of an expedited hearing in this matter
Qwest formally withdrew its demand for a security deposit and filed a Supplemental Motion to
Dismiss seeking dismissal of McLeod's complaint as moot.
On April 19, 2005, the parties filed pre-hearing briefs. In its brief, McLeod
DOCKET NO. 05-049-
responded to Qwest's Supplemental Motion to Dismiss arguing that Qwest's withdrawal of its
deposit demand did not moot its complaint since Qwest has failed to acknowledge that it may
only demand a deposit under the Interconnection Agreement ("ICA") if McLeod fails to make
timely payments under the ICA and that the ICA's dispute resolution process would apply to a
dispute over any future deposit demand. Qwest's briefre-iterates its belief that McLeod'
complaint is moot and should therefore be dismissed.
In its Petition, McLeod made clear that the basis for its complaint was Qwest'
demand for a security deposit. That demand has since been withdrawn. Qwest has not attempted
to invoke the ICA provisions relating to default for failure to pay a deposit, yet McLeod asks the
Commission to rule that "in the event" Qwest does so the ICA's'dispute resolution process would
apply. McLeod also seeks a determination of the circumstances under which Qwest may demand
a security deposit under the ICA, even though no such demand is now before the Commission.
McLeod's complaint is moot. The Commission declines to provide the advisory opinion which
McLeod now seeks in its place.
Therefore, based upon the foregoing information, and for good cause appearing,
the Administrative Law Judge enters the following proposed ORDER:
NOW, THEREFORE, IT IS HEREBY ORDERED, that:
The complaint filed herein is dismissed without prejudice. Further proceedings in
this docket previously scheduled for April 22 and 25, 2005 , are hereby canceled.
DATED at Salt Lake City, Utah, this 21 st day of April , 2005.
/s/ Steven F. Goodwill
Administrati ve Law Judge
DOCKET NO. 05-049-
Approved and Confirmed this 21 st day of April, 2005 , as the Report and Order of
the Public Service Commission of Utah.
Isl Ric Campbell. Chairman
Isl Ted Boyer. Commissioner
I sl Ron Allen. Commissioner
Attest:
Isl Julie Orchard
Commissi on Secretary
G#44113