20030505Motion to Stay Order No 29219.pdf

Mary S. Hobson (ISB #2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
msho bson((l),stoel. com
Stephanie Boyett-Colgan
Qwest Service Corporation
1801 California Street - 47th Floor
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
scolgan~qwest.com
Charles W. Steese
Steese & Evans, P.
6400 S. Fiddlers Green Circle, Suite 1820
Denver, CO 80111
Telephone: [phone]
Facsimile: [phone]
csteese((l),s-elaw.com
RECEIVED mF!LED
2a03 MAY -5 PH~: 37
IDs".i!:) ?U8LJC
UTILITIES COMMISSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IDAHO TELEPHONE ASSOCIATION
CITIZENS TELECOMMUNICATIONS
COMPANY OF IDAHO, CENTURYTEL OF
IDAHO, CENTURYTEL OF THE GEM
STATE, POTLATCH TELEPHONE
COMPANY and ILLUMINET, INe.
Complainants
QWEST CORPORATION I
Respondent.
CASE NO.: QWE-02-
MOTION TO STAY ORDER NO. 29219
The Complaint names Qwest Communications, Inc. as the Respondent, but the proper party is Qwest
Corporation.
MOTION TO STAY ORDER NO. 29219 - Page 1
Boise-156488.1 0029164-00082
The Idaho Public Utilities Commission ("Commission ) issued Order No. 29219
Order ) on April 15 , 2003. The Order required Qwest to "withdraw the revisions it made to its
Access Catalog effective June 1 2001 , and refile it only after providing the means to identify the
interLATA toll traffic properly subject to the SS7 message charges. . . ." The Order also stated
that "Qwest may not collect from Complainants" for certain services purchased from the
Catalog. Qwest hereby asks the Commission to use its inherent powers and stay the effect of this
Order during the pendency of its Motion for Reconsideration, and if necessary, during the
pendency of its appeal.
A stay is appropriate in this matter because, as Qwest's Motion for Reconsideration will
make plain, Qwest has uncovered substantial new evidence that shows Illuminet knowingly
allowed the Idaho Access Service Catalog ("Idaho Catalog ) to take effect and then waited for
over one year to file the Complaint in this case. Moreover, there is a substantial question of law
as to whether the Commission has the jurisdiction to regulate the rates that Qwest is charging for
SS7 services under the Catalog. In fact, the Commission recognizes it does not have the ability
to set rates for toll calls; yet by finding the rates in the Catalog "unfair and unreasonable" the
Commission sets de facto rates in contravention of its enabling legislation. As a result, Qwest
respectfully requests that the Commission stay the impact of its Order until at least ruling
Qwest's Motion to Reconsider, and preferably until after an appeal, if an appeal is necessary.
The Commission has Statutory Authority to Issue a Stay.
Idaho Code 9 61-626 vests the Commission with discretion to stay an order pending a
party s motion for reconsideration, or even appeal. The statute reads in pertinent part: "
petition for such reconsideration shall not. . . postpone the enforcement (of an order except as
the commission may by order direct.Le. 9 61-626(3). Idaho courts have emphasized the
MOTION TO STAY ORDER NO. 29219 - Page 2
Boise-I 56488.1 0029164-00082
importance of interlocutory stays of Commission orders pending reconsideration and/or appeal in
order to protect parties from potentially confiscatory orders pendent lite. See Utah Power
Light Co. v. Idaho Public Utilities Commission 107 Idaho 47, 50, 685 P.2d 276, 279 (1984)
(stay of Commission order proper if enforcement may result in confiscation and irreparable loss);
Joy v. Winstead 70 Idaho 232, 238, 215 P.2d 291 293 (1950).
This discretion is further confirmed in Commission Rule 324, which reads: "Any person
may petition the Commission to stay any order, whether interlocutory or final. Orders may be
stayed by the judiciary according to statute. The Commission may stay any order on its own
motion." IDAPA 31.01.01.324. The Commission has exercised its discretion to grant stays
pending reconsideration under a variety of circumstances. See In re US WEST Communications
Inc. for Authority to Increase its Rates and Charges for Regulated Title 61 Services 1997 Ida.
PUC Lexis 161 (1997) (granting stay pending reconsideration where potential staff error may
subject customers to incorrect billings); Idaho Power Co. v. The Villager Condominium Ass '
Inc.1994 Ida. PUC Lexis 69 (1994) (granting stay pending reconsideration in view of appeal to
Idaho Supreme Court that might render issues under reconsideration to be moot); In re The
Provision of Time Announcement Services by the Mountain States Telephone and Telegraph Co.
1987 Ida. PUC Lexis 388 (1987) (stay of proceedings granted pending reconsideration in view of
petitioner s request for waiver before the Department of Justice and related u.s. District Court
proceedings); In re the Effects of Revisions of the Federal Income Tax Code Upon the Cost of
Service of Regulated Utilities 1987 Ida. PUC Lexis 386 (1987) (granting stay pending
reconsideration where Commission could not address merits of reconsideration order before
implementation date); !d.1987 Ida. PUC Lexis 378 (1987) (same).
MOTION TO STAY ORDER NO. 29219 - Page 3
Boise-156488.1 0029164-00082
Conversely, where the Commission has denied a stay, it is apparent that the order to be
enforced would not materially prejudice the parties pending reconsideration and later appeal.
See Idaho Power Company v. Idaho Public Utilities Commission 2002 Ida. PUC Lexis 170
(2002) (no stay necessary where order concerned one-time charge that power company did not
seek to collect while appeal was pending); cf In re the Matter of Hayden Pines Water Co.1985
Ida. PUC Lexis 185 (1985) (stay denied where power company has recourse to seek stay at
supreme court).
The Circumstances Surroundinl! this Case Justify the Commission Issuinl! a
Stay.
There can be no question that Order No. 29219 will have far reaching consequences for
Qwest that if allowed to take effect now, could not be adequately rectified on reconsideration or
appeal. The Commission ordered Qwest to withdraw the June 1 , 2001 revisions to the Idaho
Catalog, which revisions generate approximately $66 000 every month for Qwest exclusive of
Illuminet. See Attachment A (Affidavit of Julie Kaufman-Prentice) at ~5. On the contrary, a stay
in this case will preserve the status quo, and will provide the Commission with adequate time to
decide Qwest's Petition for Reconsideration, and, if necessary, for a decision on appeal. Such a
stay will not have a detrimental effect on the Complainants. Illuminet is the only Complainant
that is currently subject to charge under the Catalog and it has refused to pay the Idaho Catalog
charges from day one. Thus, issuing the stay will cause no harm.
In contrast, denying a stay would have far-reaching, unalterable consequences. If the
Commission determines on reconsideration that its order to withdraw the Catalog was premature
or unwarranted, the Commission will not have the authority to retroactively order payment of the
charges that would otherwise be billed under the Idaho Catalog while its decision is pending.
Arkansas Louisiana Gas Co. v. Hall 453 u.S. 571 , 577, 101 S.Ct. 2925 2930 60 LEd.
MOTION TO STAY ORDER NO. 29219 - Page 4
Boise-156488.1 0029164-00082
856 (1981) ("the Commission itself had no power to alter a rate retroactively As the
Commission has previously stated (and been affirmed in by the Idaho Supreme Court):
When any party, be it utility, ratepayer or the State of Idaho, appeals a rate setting
Order... but does not stay the effectiveness of the Order... then the rates and
charges set forth by that Order are final in all respects as service is provided and
consumed so long as the Order continues in effect. If the Order is later set aside
by the Supreme Court of Idaho, no rates and charges previously collected may be
adjusted as a result; similarly, no rates and charges later established by the
Commission may be adjusted from what they otherwise would have been to take
into account what the appealed Order would have been before it was set aside had
, during the time it was in effect, conformed to or been altered or amended to
meet the objections of the opinion of the Supreme Court of Idaho.
Utah Power Light Co. v. Idaho Public Utilities Comm '107 Idaho 47, 49, 685 P.2d 276 278
( 1984) (affirming PUC denial of request for surcharge based on prior rates). The same is true
Qwest is successful on appeal - the Commission and courts will lack authority to order
retroactive payment of charges owing to Qwest under the Idaho Catalog.
Moreover, the facts surrounding this matter justify issuance of a stay. The Commission
decision ordered Qwest to "withdraw" its revisions to the Idaho Catalog. However, numerous
parties, not just Illuminet, order SS7 services via the Idaho c:atalog.Specifically, Qwest
provides SS7 service to 9 companies, including Illuminet, in Idaho.Qwest has billed
approximately $3,400 000 for SS7 intrastate usage since Qwest began billing SS7 message
charges out of its Idaho Access Service Catalog in June 2001. Among these customers are four
interexchange carriers (IXCs). See Attachment A at ~3. No one questions the legitimacy of these
charges; to the contrary, the FCC has specifically authorized them. In the Matter of U WEST
Petition to Establish Part 69 Rate Elements for SS7 Signaling, Order, DA 99-1474 (Dec. 23
1999). Nor would any of the arguments advanced by Complainants and cited in Order No.
20219 as a justification for ordering Qwest to withdraw its intrastate Catalog apply to the
imposition of SS7 per message charges on IXCs. Moreover, all customers except Illuminet have
MOTION TO STAY ORDER NO. 29219 - Page 5
Boise-I 56488.1 0029164-00082
paid and continue to pay all SS7 charges assessed by Qwest in accordance with the Idaho
Catalog. Thus, Qwest has billed and collected well over $1.5 million from other carriers for SS7
intrastate usage services under the Idaho Catalog since it was filed on June 1 , 2001. See
Attachment A at ~4.
. Any claim by Illuminet that a stay will cause it harm would be without basis. The
Commission acknowledged that Illuminet has not paid the disputed SS7 message charges under
the Idaho Catalog. Order, p. 20 Moreover, for about 23 months before Illuminet filed this
Complaint, it purchased SS7 services from an identical federal tariff. See Attachment A at ~ 8.
Evidence offered in support of Qwest's Petition for Reconsideration will make plain that
Illuminet's purchases from Qwest's federal tariff raised questions that prompted a series of
meetings between Qwest and Illuminet. For example, Illuminet's Exhibit 406 reveals that on
November 22, 2000, Mr. F. Terry Kremian, Executive Voice President and COO of Illuminet
sent Beth Halvorsen, Vice President Wholesale Markets a letter requesting a meeting to discuss
several issues related to SS7 message charges. Specifically: "On behalf of Illuminet, this letter
is to request a meeting with you . to discuss the outstanding issues related to the
appropriateness of Qwest's charges to Illuminet for
. . .
(SS7) messaging. As you are aware
these issues have been the subject of on-going discussions between our two companies. . . .
On reconsideration Qwest is prepared to demonstrate that after this November 2000
meeting, Qwest and Illuminet held a series of additional meetings wherein Illuminet asked how it
could obtain SS7 services at different rates from those set forth in the tariff. Qwest informed
Illuminet that if it wanted to act as an agent for its customers, it should not order out of the
appropriate customer s agreement. Qwest also informed Illuminet that there were procedures for
acting as an agent of another carrier. Qwest made Illuminet fully aware that if it ordered tariffed
MOTION TO STAY ORDER NO. 29219 - Page 6
Boise-156488.10029164-00082
services it would be charged tariffed rates. Again, since Illuminet purchased SS7 services via the
federal tariff in the past, and since the Idaho Catalog was modeled after the federal tariff
Illuminet knew exactly what Qwest intended to do.
Moreover, Qwest provided Illuminet with copies of equivalent state tariffs before they
were filed with the respective state commissions. There was nothing "unilateral" about Qwest's
conduct as Illuminet suggested. Not only was there an "opportunity for comment" (see Order
No. 29219 at p. 2), Illuminet actually did comment. Despite all of the meetings and discussions
Illuminet waited for over one year after Qwest filed the Idaho Catalog to file this Complaint. As
stated above, since June 1 , 2001 , Qwest has billed and collected over $1.5 million dollars from
the Idaho Catalog for the provision of SS7 services. Illuminet's decision to delay filing its
Complaint clearly caused Qwest harm.
Given that there will be no harm in issuing a stay, and given that a denial of the stay will
cause Qwest substantial harm and will cause turmoil in the proper manner in which Qwest can
and should charge for all forms of SS7 services, the Commission should issue a stay pending the
decision on Qwest's Motion for Reconsideration , and if necessary, on appeal.
RESPECTFULLY SUBMITTED this 5th day of May, 2003
Stephanie Boyett-Colgan
Qwest Service Corporation
Charles W. Steese
Steese & Evans, P.
At IVYc0!1o~
Mary S. H son
Stoe1 Rives, LLP
Attorneys for Qwest Corporation
MOTION TO STAY ORDER NO. 29219 - Page 7
Boise-I 56488.1 0029164-00082
CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of May, 2003, I served MOTION TO STAY
ORDER NO. 29219 as follows:
Ms. Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, Idaho 83720-0074
iiewell~puc.state.id.
LXJ Hand DeliveryL-J u. S. MailL-J Overnight DeliveryL-J FacsimileL-J Email
Weldon Stutzman
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ill 83702
L1LJ Hand DeliveryL-J U. S. MailL-J Overnight DeliveryL-J FacsimileL-J Email
Stephanie Boyett-Colgan
Qwest Services Corporation
1801 California Street - 47th Floor
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
scolgan~uswest.com
L-J Hand Delivery
LXJ U. S. MailL-J Overnight DeliveryL-J FacsimileL-J Email
F. Wayne Lafferty
LKAM Services, Inc.
2940 Cedar Ridge Drive
McKinney, TX 75070
L-J Hand Delivery
LXJ u. S. MailL-J Overnight DeliveryL-J Facsimile
Thomas J. Moorman
Kraskin, Lesse & Cosson LLP
2120 L Street NW - Suite 520
Washington DC 20037
Phone: [phone]
Fax: [phone]
tmoorman~klctele.com
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Morgan W. Richards
Moffatt Thomas
101 South Capitol Boulevard - 10th Floor
Boise, ill 83701
mwr~moffatt.com
(lJ Hand DeliveryL-J U. S. MailL-J Overnight DeliveryL-J Facsimile(-"J Email
Clay Sturgis
Moss Adams LLP
601 West Riverside - Suite 1800
Spokane, W A 99201-0663
L-J Hand Delivery(lJ u. S. MailL-J Overnight DeliveryL-J Facsimile
MOTION TO STAY ORDER NO. 29219 - Page 8
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Lance Tade
Citizens Telecommunications
4 Triad Center - Suite 200
Salt Lake City, UT 84180
Conley Ward
Givens Pursley
277 North 6th Street - Suite 200
O. Box 2720
Boise, ill 83701
cew((V,gi venspurslev. com
Richard Wolf
Illuminet, Inc.
4501 Intelco Loop SE
O. Box 2909
Olympia, W A 98507
MOTION TO STAY ORDER NO. 29219 - Page 9
Boise-156488.1 0029164-00082
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&'4n 4; . oI?
~~
Brandi L. Gearhart, PLS
Legal Secretary to Mary S. Hobson
Stoel Rives LLP
ATTACHMENT A
TO MOTION TO STAY ORDER NO. 29219
Affidavit of Julie Kaufman-Prentice
Mary S. Hobson (ISB #2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
msho bson((l),stoel. com
Stephanie Boyett-Colgan
Qwest Service Corporation
1801 California Street - 47th Floor
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
scolgan((yQwest.com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IDAHO TELEPHONE ASSOCIATION
CITIZENS TELECOMMUNICATIONS
COMPANY OF IDAHO, CENTURYTEL OF
IDAHO, CENTURYTEL OF THE GEM
STATE, POTLATCH TELEPHONE
COMPANY and ILLUMINET, INC.
CASE NO.: QWE-02-
AFFIDAVIT OF
JULIE KAUFMAN-PRENTICE
Complainants
QWEST CORPORATION I
Respondent.
State of Arizona
) ss.
County of Maricopa
1. I am employed by Qwest Corporation (Qwest) as a Director of Customer Service
and give this affidavit from my personal knowledge and from review ofthe business records
Qwest and its predecessor company, U S WEST Communications, Inc. (U S WEST).2. I have job responsibilities for several customer service areas, which include
managing the billing for SS7 tariff/catalog products purchased by Qwest wholesale customers.
1 The Complaint names Qwest Communications, Inc. as the Respondent, but the proper party is
Qwest Corporation.
AFFIDAVIT OF JULIE KAUFMAN~ PRENTICE Page 1
Boise-156276.1 0029164-00004
3. Qwest provides SS7 service to 9 companies, including Illuminet, in Idaho and has
billed approximately $3 400 000 for SS7 intrastate usage since Qwest began billing SS7 message
charges out of its Idaho Access Service Catalog in June 2001. Among these customers are 4
interexchange carriers (IXCs).
4. All customers except Illuminet have paid and continue to pay all charges assessed
by Qwest in accordance with the Idaho Access Service Catalog. Thus, Qwest has billed and
collected well over $1.5 million from other carriers for SS7 intrastate usage services under the
Idaho Access Service Catalog.
5. Currently, Qwest bills approximately $66 000 monthly, exclusive of Illuminet, in
Idaho for SS7 charges in accordance with the Access Service Catalog.
6. Given that some carries may view this information as CPNI, I do not attach the
billing summary ofthese 9 customers; however, Qwest could easily provide the Commission
with that information subject to the Protective Order in this case if so requested.
7. SS7 customers are billed out of Qwest's FCC Tariff and/or the Idaho Access
Service Catalog, depending upon the percentage of interstate usage the customer declares. The
USOC codes for Qwest's FCC Tariff and the Idaho Access Catalog are identical for SS7
services. Thus, when a customer orders SS7 services and declares a percentage of interstate
usage greater than zero, that customer is billed in accordance with Qwest's FCC tariff. Qwest
then calculates the projected intrastate percentage of use and bills that percentage in accordance
with the Idaho Access Catalog.
8. Historically, Qwest began billing Illuminet out of its FCC Tariff in July 2000 for
Illuminet's interstate SS7 messages based upon a percentage of interstate usage of 50%, which
Illuminet subsequently reduced that percentage to 10%.
9. Qwest continues to bill Illuminet out of its FCC Tariff for interstate SS7 messages
based upon a 10% declared percentage of interstate usage.
10. Qwest began billing Illuminet out of its Southern Idaho Access Catalog for
intrastate SS7 services in June 2001 based upon the projected 90% intrastate percentage of use.
11.This concludes my affidavit.
DATED This 2nd day of May, 2003.
62d~~u au- rentice
AFFIDAVIT OF JULIE KAUFMAN-PRENTICE Page 2
Boise-156276.10029164-00004
State of Arizona
) ss.
County of Maricopa
On this 2nd day of May, 2003 , before me, the undersigned, a Notary Public in and for
said State, personally appeared Julie Kaufman-Prentice, known or identified to me to be the
person whose name is subscribed to the within and foregoing instrument, and acknowledged to
me that she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed m official seal the
day and year in this certificate first above written.
Notary Public for t?~ 0//1#7//"'.'/ &y :;L~/?s
Residing a~ /J1aY/~~Ct... !l7Ur1-1y
My commISSIOn expIres: Oe I-tJher 2CJcJ
(;;
LOUISE V. RAY
Notary Public - Arizona
MARICOPA COUNTY
My Commission Expires
OCTOBER 6, 2006
AFFIDAVIT OF JULIE KAUFMAN-PRENTICE Page 3
Boise-I 56276.1 0029164-00004