20030514Answer to Complainants' Petition.pdf

Mary S. Hobson (ISB #2142)
Stoe1 Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
mshobson~stoel.com
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Stephanie Boyett-Colgan
Qwest Service Corporation
1801 California Street - 4ih 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~s-elaw. com
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IDAHO TELEPHONE ASSOCIATION
CITIZENS TELECOMMUNICATIONS
COMP ANY OF IDAHO, CENTURYTEL OF
IDAHO, CENTURYTEL OF THE GEM
STATE, POTLATCH TELEPHONE
COMPANY and ILLUMINET, INC.
CASE NO.: QWE-02-
QWEST'S ANSWER TO COMPLAINANTS'
PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION
FOR RECONSIDERATION OF ORDER NO.
29219
Complainants
QWEST CORPORATION
Respondent.
The Complaint names Qwest Communications, Inc. as the Respondent, but the proper party is Qwest
Corporation.
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page
Boise-156799.2 0029164-00082
INTRODUCTION
Qwest Corporation ("Qwest"), pursuant to Idaho Code ~ 61-626 and Commission rule of
procedure 331 , I.D.A.P.A 31.01.01.331 , files this Answer and Cross Petition for Reconsideration
in response to the Petition for Reconsideration and Clarification Petition ) filed by Idaho
Telephone Association, Citizens Telecommunications Company of Idaho ("Citizens ), Illuminet
Inc. ("Illuminet"), and Electric Lightwave, Inc. ("ELI") (collectively "the Complainants ) on
May 6, 2003. Complainants' submission goes a long way to establishing the need for the
supplemental evidentiary hearing requested by Qwest in its Petition for Reconsideration.
Complainants' Petition establishes that the taking of additional evidence is necessary; that the
historical relationship between Qwest and Illuminet; raises additional questions about whether
Illuminet is acting as an agent for its customers; and that the Commission is without jurisdiction
to order Qwest to refund monies paid under the tariff.
Qwest respectfully requests that the Idaho Public Utilities Commission ("Commission
reconsider its decision in this matter as set forth in Order No. 29219 ("Order ). Qwest requests
reconsideration be granted by means of a supplemental evidentiary hearing on the issues raised
by Complainants, as well as on the issues raised in Qwest's Petition for Reconsideration of
Order No. 29219 filed on May 6 2003. Qwest further requests that the Commission reconsider
legal issues on written briefs.
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page 2
Boise-156799.20029164-00082
II.LEGAL ARGUMENT
The Parties A2ree that Reconsideration by Means of a Supplemental Hearin2
is Required
Illuminet, like Qwest , seeks reconsideration of Order No. 29219 ("the Order ) and the
opportunity to present new evidence bearing on the history parties ' interactions with regard to
the implementation of the intrastate message charges under the Idaho Access Services Catalog.
Although Illuminet suggests that reconsideration is only required on the narrow point of whether
Illuminet is entitled to a refund, in fact the allegations contained in Complainants' Petition and
the attached affidavit of Paul Florack raise a number issues identified by Qwest in its Petition for
Reconsideration.
For example, the Complainants ' petition states that the alleged "partial payment" was
made "under protest" and reflected "the first three months" of Idaho intrastate SS7 message
charges. Petition, at pp. 3-4. These allegations suggest that, contrary to the implication of the
Order 3 and consistent with the affidavit of Char Kuder filed as Attachment B to Qwest's
Petition, Illuminet understood Qwest's plan to charge for SS7 messages prior to implementation
of the Idaho Access Services Catalog on June 1 , 2001 , yet waited nearly a year to initiate the
current case before the Commission. Thus, it appears even Illuminet would agree that Qwest did
not act "unilaterally" and "without notice.
Other issues raised by Qwest's petition for reconsideration are implicated by the
Complainants' Petition as well.Complainants state
, "
while the Commission is correct that
Syringa Networks, LLC, Citizens and ELI have not paid any charges, (citations omitted)
See Qwest's Petition for Reconsideration of Order No. 29219 , filed May 6, 2003, pp. 15-25. ("Qwest'
Petition
The Order repeatedly criticizes Qwest for failing to discuss its proposed Catalog signaling charges with its
customers and for acting "unilaterally" with regard to the implementing those charges. See e.Order, at pp. 16 &
22. See also, Qwest's Petition for Reconsideration of Order No. 29219, at pp. 15-20.
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page 3
Boise-156799.20029164-00082
lliuminet has, in fact, made such payments." Petition, at p. 3 (emphasis added). Complainants
close with the plea that the Commission s "inadvertent oversight,,4 not be used "as a means to
refuse making a refund to lliuminet.(emphasis added). These characterizations of the flow of
payments and potential refunds are not consistent with the Complainants' position that Illuminet
is merely the "agent" of its customers through whom SS7 charges pass on their way to those who
actually generate/receive the messages and who have the arrangements with Qwest (or, in the
case of EAS, with the Commission ) that allegedly prohibit the charges.6 Now we are told that
Illuminet paid for the SS7 services and Illuminet deserves a refund.Qwest asks that the
Commission grant a supplemental evidentiary hearing on this point and allow Qwest to develop a
record that clarifies the implications of this allegation.
The implications of this revelation affect both the jurisdictional issues discussed below
and in Qwest's Petition, and the "agency" argument that underlies Complainants' recovery in
this case.The factual questions inherent in these issues abound.Under its customer
agreements, can Illuminet choose which charges are passed on, or is Illuminet's ability to pass
charges through to customers limited in some way, not previously revealed? Do any of the
charges allegedly paid by Illuminet relate to messages generated or received by the two Illuminet
customers participating here (Citizens and ELI) or do they relate to other customers? Do some
or all of the message charges paid relate to other customers (such as wireless companies or
Complainants are not overly generous in characterizing the Commission s alleged "oversight" in failing to
order a refund to Illuminet as "inadvertent" in light of the fact that apparently the only evidence of the alleged over
payment contained in the record is the "confidential", and exceedingly obscure, Exhibit 402.
See Order, at p. 14.
The effect of these arguments is clearly demonstrated at page 19 of the Order, where the Commission
characterized a LEe's purchase of SS7 services from entities like Illuminet as self-provisioning: "Qwest failed toconsider adequately in what way, if any, SS7 charges could be imposed on LECs that provide their own SS7
capability, whether owned by the LEC or a third party.(emphasis added)
Qwest contends Illurninet's claim it is merely the "agent" for its customers should be reconsidered. See
Qwest's Petition , at pp. 20-250
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page 4
Boise-156799.2 0029164-00082
interexchange carriers) who do not have "meet point billing
, "
bill and keep" or other
arrangements that complainants claim prohibit Qwest's per-message SS7 charges?
The bottom line is this: Qwest and Complainants agree that the Order should be
reconsidered by means of an additional evidentiary hearing to explore the facts relating to
the course of business between Qwest and Illuminet. Although Complainant's request for
review is relatively narrow, the factual allegations made in support of Illuminet's claim for
refund implicate several additional issues raised in Qwest's petition for reconsideration.
The Parties A2ree the Commission Erred in its Characterization of Illuminet
as a Telephone Corporation. This Error of Fact Establishes that the
Commission s Analysis ofits Jurisdiction Must be Reconsidered.
The Complainants' admit Illuminet is not a "telecommunications
carrier" and that it does not provide a "telecommunications service
to its customers.
Complainants seek clarification or, alternatively, reconsideration9 of the Order on the
grounds that "isolated references" to Illuminet's provision of telecommunications services to it
customers, and to its being a proper party under Idaho Code ~ 62-614, are factually incorrect
based on the uncontroverted record. Complainants state
, "
Illuminet is not a telecommunications
carrier and provides no services to end users." Petition, at p. 5. Furthermore, Complainants
insist
, "
Illuminet does not provide 'telecommunications services' to its carrier/customers nor is it
a telephone corporation." Id. Finally, Complainants clarify that "the arrangements between
Illuminet and its carrier/customers are contractual and are offered solely under contract to
telecommunications carriers." Id., at pp.
If the Commission finds that Qwest did not raise these issues with sufficient clarity in its May 6, 2003
Petition, it hereby raises them in this cross petition. Commission Rule of Procedure 331.02 , I.D.A.P.
31.01.01.331.02.
Footnote 2 of the Complainants' Petition states that should the Commission find that reconsideration , rather
than clarification, is necessary, the Order should be reconsidered because its is "umeasonable, unlawful, erroneous
or not in conformity with the law" consistent with Rule 331.01. Qwest agrees.
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - ~age 5
Boise-156799.20029164-00082
Qwest agrees that the Order contains these errors of fact. However, Qwest submits these
errors are not "isolated statements" of no consequence, but instead justify reconsideration of the
Commission s decision that it has jurisdiction to grant the relief provided in Order No. 29219 via
a supplemental evidentiary hearing.
Section 62-614 does not confer jurisdiction on the Commission to
enter Order No. 29219 because its scope is limited to disputes brou2ht
by ILECs.
The Order appears to rely primarily on section 62-614 as the statutory grounds for
jurisdiction in this matter. Order, at pp. 3-7. The statutory language is clear that the only
disputes that come within its purview are those between a Title 62 company like Qwest and
other telephone corporation(s) subject to title 61 , Idaho Code, or any mutual, nonprofit or
cooperative telephone corporation." Idaho Code 9 62-614 (emphasis added). Nonetheless, the
Order states: "There can be little doubt that the Complainants, including Illuminet, are proper
parties able to file a Complaint under Idaho Code 9 62-614." Order, at p. 5. In fact there is every
doubt, particularly in light of Complainants' admission that Illuminet is not a telephone
corporation.
The Idaho Supreme Court emphasized that the requirements of the Commission
enabling legislation must be satisfied before the Commission can exercise jurisdiction:
As a general rule, administrative authorities are tribunals of limited
jurisdiction and their jurisdiction is dependent entirely upon the
statutes reposing power in them and they cannot confer it on
themselves, although they may determine whether they have it.
the provisions of the statutes are not met and compliance is not
had with the statutes, no jurisdiction exists.
Washington Water Power Co. v. Kootenai Environmental Alliance 99 Idaho 875 , 879, 591 P 2d. 122, 126
(1979) (emphasis added).
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page 6
Boise-156799.2 0029164-00082
Given the unequivocal language of the statute and the guidance provided by the Idaho Supreme
Court, it is plain that the Commission has no jurisdiction under Idaho Code ~ 62-614 to hear or
resolve any complaint of Illuminet.
It is equally plain that the Commission has no jurisdiction under Idaho Code ~ 62-614 to
hear or resolve any complaint of ELI or any other CLEc. Section 62-614's scope is limited to
disputes between Qwest and telephone corporations that are "subject to title 61 , Idaho Code , or
between Qwest and "any mutual, nonprofit or cooperative telephone corporation." CLECs are
by statute, exempt from regulation under Title 61. Idaho Code ~ 62-604 (l)(a). Nor does the
record contain any evidence to support the conclusion that ELI, the only participating CLEC , is a
mutual, nonprofit or cooperative telephone corporation.
The Question of which disputes may be properly brou2ht before the
Commission under section 62-614 requires further analysis.
Since the Commission lacks jurisdiction to hear or resolve any dispute between Illuminet
or ELI and Qwest under section 62-614, the question that immediately presents itself is, what
claims, if any, remain for the Commission s resolution?Clearly the Commission cannot
consider Illuminet's claim for a refund.
The record is clear that only the Complainant that has been billed under the Access
Services Catalog for SS7 messages is Illuminet. Thus, if the Commission is to take jurisdiction
under section 62-614 of a dispute over the past SS7 message charges, II it can do so only if the
dispute arises out of charges that, although billed to Illuminet, are the legal responsibility of an
Idaho ILEc. Now, with Illuminet's revelation that it has paid three months ' of the disputed SS7
Even if the Commission has jurisdiction to hear a dispute under section 62-614 by virtue of the fact that the
disputants are proper parties under the language of that section, the Commission s jurisdiction is limited to resolving
any such dispute "in accordance with applicable provisions oflaw." Idaho Code 9 62-614 (2). Qwest contends this
language does not accord jurisdiction to set prices for Title 62 services. See Qwest s Petition for Reconsideration
of Order No. 29219, at pp0 1O.
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page 7
Boise-156799.20029164-00082
charges and has apparently not passed those charges along to its customers12 it is clear that no
Idaho ILEC has any claim for past due charges, even if one otherwise accepts the Complainants
agency" theory.13 Qwest respectfully requests that the Commission grant reconsideration and
allow Qwest to conduct discovery and present evidence on which past SS7 charges, if any, are
properly disputed by Idaho ILECs who are eligible to bring a claim under section 62-614.
Furthermore the Commission s Order granting prospective reliefto Complainants under
section 62-614 on the basis that Idaho ILECs "potentially are obligated to pay (SS7 message
charges) under Qwest's Access Catalog," (Order, at p. 5) must be reconsidered. To the extent
that the Commission relies upon that its jurisdiction over local and EAS traffic14 to grant
prospective relief, that reliance is misplaced. Under Qwest's proposal to eliminate message
charges associated with local and EAS traffic, all Complainants, including Idaho ILECs, would
be charged only for messages related to intraLATA toll traffic. The Commission s authority
enter Order No. 29219 to prohibit Qwest from imposing those charges is one of the subjects of
Qwest's petition for reconsideration.
Illuminet's clarification that it does not provide "telecommunications
services" to its customers demonstrates that the Commission lacks
jurisdiction of this matter under Idaho Code ~ 62-605 (5).
Complainants ' Petition states that, contrary to the findings of the Order at page five
Illuminet does not provide 'telecommunications services' to its carrier/customers" and that
Illuminet's services are "offered solely under contract to telecommunications carriers . Petition
at pp. 5-6. These declarations make plain that the Commission cannot take jurisdiction over
Qwest's SS7 signaling services under Idaho Code g 62-605.
12 The claim in the Petition is that Illuminet, not its customers, is entitled to a refund.13 Qwest has disputed Complainant's agency theory throughout these proceedings and has petitioned for
reconsideration of this topic in its Petition for Reconsideration of Order Noo 29219, see footnote 7 infra.
14 See, e., Order, at pp. 5&7.
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page 8
Boise-156799.2 0029164-00082
Section 62-605(5) grants limited authority to the Commission only over those
telecommunications service(s)" that were previously subject to Title 61 , Idaho Code, and that
have become subject to Title 62 regulation through the provider s election. Qwest's Petition
points out that SS7 services cannot be subject to regulation under this section because, as a
matter of historical fact, they were never offered under Title 61.15 Illuminet's admission that it
does not provide telecommunications services to is customers, highlights yet another reason the
statute is inapplicable to this case: SS7 signaling is not a telecommunications service. This fact
is also clear from statute. Idaho Code ~ 62- 603(13) provides:
Telecommunications service" means the transmission of two-way
interactive switched signs, signals, writings, images, sounds
messages, data or other information of any nature by wire, radio
lightwaves, or other electromagnetic means (which includes
message telecommunications service and access service), which
originate and terminate in this state, are offered to or for the
public, or some portion thereof, for compensation. (emphasis
added).
As Illuminet concedes, SS7 signaling is not offered to the public. Instead it is offered by Qwest
in its Access Services Catalog to interexchange carriers and third party SS7 providers and in
interconnection agreements to CLECs such as ELI. These third party providers then sell the
signaling to their customers, who, Illuminet admits, are "telecommunications carriers." Petition
at p. 6. As a result, Section 62-605(5) on its face does not grant authority to the Commission to
regulate services like SS7 signaling that are offered only to industry participants.
III.CONCLUSION
Qwest supports Complainant's petition for reconsideration to the extent it seeks a
supplemental evidentiary hearing to explore the facts underlying Illuminet's dealings with Qwest
15 See Qwest's Petition for Reconsideration of Order Noo 29219, at pp. 6-8 and Attachment D, Affidavit of
Philip Linse.
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page 9
Boise-156799.20029164-00082
and Illuminet's rights and those of its customers , if any, to refund. Qwest submits that the facts
relating to these topics are relevant to the areas for which it independently sought reconsideration
including, but not limited to, the parties' historical course of dealing and the question of whether
Illuminet truly acts as the "agent" of its customers. In addition, Complainants' request for
clarification or reconsideration of several of the findings in the Order s jurisdiction discussion
supports Qwest's contention that the Commission should grant reconsideration to look more
closely at the statutory requirements for Commission jurisdiction in a case of this kind.
RESPECTFULLY SUBMITTED this 13th day of May, 2003.
~tJt~~Stoel Rives, LLP
Stephanie Boyett-Colgan
Qwest Service Corporation
Charles W. Steese
Steese & Evans, P.
Attorneys for Qwest Corporation
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page 10
Boise-156799.2 0029164-00082
CERTIFICATE OF SERVICE
I hereby certify that on this 13th day of May, 2003 , I served QWEST'S ANSWER TO
COMPLAINANTS' PETITION FOR RECONSIDERATION AND CLARIFICATION
AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 as follows:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, Idaho 83720-0074
11 ewell((lj,puc. state .id. us
LXJ Hand DeliveryLJ u. S. MailLJ Overnight DeliveryLJ FacsimileLJ Emai1
Weldon Stutzman
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
Boise, ill 83702
Executed Protective Agreement
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Stephanie Boyett-Colgan
Qwest Services Corporation
1801 California Street - 47th Floor
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
sco1gan~uswest.com
Executed Protective Agreement
LJ Hand Delivery
LXJ U. S. MailLJ Overnight DeliveryLJ FacsimileLJ Emai1
F. Wayne Lafferty
LKAM Services, Inc.
2940 Cedar Ridge Drive
McKinney, TX 75070
Executed Protective Agreement
LJ Hand Delivery
LXJ u. S. MailLJ Overnight DeliveryLJ FacsimileLJ Emai1
Thomas J. Moonnan
Kraskin, Lesse & Cosson LLP
2120 L Street NW - Suite 520
Washington DC 20037
Phone: [phone]
Fax: [phone]
tmoonnan((lj,kl cte 1 e' com
Executed Protective Agreement
LJ Hand Delivery
LXJ u. S. MailLJ Overnight DeliveryLJ FacsimileLJ Emai1
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page
Boise-156799.20029164-00082
Morgan W. Richards
Moffatt Thomas
101 South Capitol Boulevard - 10th Floor
Boise, ill 83701
mwr~moffatt.com
Executed Protective Agreement
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Charles W. Steese
Steese & Evans, P.
6400 S. Fiddlers Green Circle, Suite 1820
Denver, CO 80111
Telephone: [phone]
Facsimile: [phone]
csteese~s-elaw .com
Executed Protective Agreement
L-J Hand Delivery
LXJ u. S. MailL-J Overnight DeliveryL-J FacsimileL-J Email
Clay Sturgis
Moss Adams LLP
601 West Riverside - Suite 1800
Spokane, W A 99201-0663
Executed Protective Agreement
L-J Hand Delivery
LXJ U. S. MailL-J Overnight DeliveryL-J FacsimileL-J Email
Lance Tade
Citizens Telecommunications
4 Triad Center - Suite 200
Salt Lake City, UT 84180
Executed Protective Agreement
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Conley Ward
Givens Pursley
277 North 6th Street - Suite 200
O. Box 2720
Boise, ill 83701
cew~givenspursley.com
Executed Protective Agreement
LXJ Hand DeliveryL-J u. S. MailL-J Overnight DeliveryL-J FacsimileL-J Email
Richard Wolf
Illuminet, Inc.
4501 Intelco Loop SE
O. Box 2909
Olympia, W A 98507
Executed Protective Agreement
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LXJ u. S. MailL-J Overnight DeliveryL-J FacsimileL-J Email
thtWl tk ;;P h Mbr/
Brandi L. Gearhart, PLS
Legal Secretary to Mary S. Hobson
QWEST'S ANSWER TO COMPLAINANTS' PETITION FOR RECONSIDERATION AND
CLARIFICATION AND CROSS PETITION FOR RECONSIDERATION OF ORDER NO. 29219 - Page
Boise-156799.20029164-00082