20050207Petition.pdf

Mary S. Hobson (ISB #2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
msho bsonc?Ystoel. com
Charles W. Steese
Steese & Evans, P.
6400 S. Fiddlers Green Circle, Suite 1820
Denver, CO 80111
Telephone: [phone]
Facsimile: [phone]
csteese(82s-elaw.com
t. (,- i:- 'i
.. .=,..-;:::.
1 L
21ns FEa - 7 Pri 3: ~.
1 I;; II \J pur,; L !
; f T I.r I r(;:r f:, r1r1 f S S I ON\...11. .H_
""
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IDAHO TELEPHONE ASSOCIATION
CITIZENS TELECOMMUNICATIONS
COMP ANY OF IDAHO, CENTURYTEL OF
IDAHO, CENTURYTEL OF THE GEM
ST ATE, POTLATCH TELEPHONE
COMPANY and ILLUMINET, INC.
Comp lainants
QWEST CORPORATION
Respondent.
CASE NO.: QWE-02-
PETITION FOR ORDER TO CLARIFY
THE SCOPE OF ORDER NOS. 29219
AND 29310
The Idaho Supreme Court has granted a joint motion and remanded this cause back to the
Idaho Public Utilities Commission ("Commission ) for the specific purpose of determining the
precedential value to be placed on Order No. 29219 and Order No. 29310 (the "Orders
).
Qwest
Corporation ("Qwest") hereby requests, pursuant to Idaho Code ~61-624 and equitable doctrines
The Complaint names Qwest Communications, Inc. as the Respondent, but the proper party is
Qwest Corporation.
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 1
Boise-180598.2 0029164-00082
that the Idaho Public Utilities Commission ("Commission ) issue an order making plain that the
Orders shall be binding only upon the named parties to this proceeding and that parties
attempting to use these orders as precedent or as cited authority in other proceedings before the
Commission, or otherwise should be cautioned that these orders arise out of the specific facts
presented to this Commission and the policies and practices of this Commission in managing the
relationships primarily concerning EAS traffic exchanged between Idaho incumbent carriers and
should not be viewed as applicable to other disputes relating to the inter-carrier compensation.
For example, the Commission did not receive any evidence or otherwise attempt to address the
question of the applicability of per message rating for signaling to wireless carriers. Hence, the
Orders should not be seen as precedent for resolution of the issues as they pertain to other
carriers and especially wireless carriers.
Such an order is appropriate because: (1) all affected parties stipulated to remand the
matter back to the Commission pursuant to Idaho Appellate Rule 13.5 in order to determine the
scope and precedential impact of the Orders; (2) the Idaho Supreme Court entered an Order
approving the stipulation and remanding to the Commission; (3) Qwest has agreed to forgo its
rights to appeal and obtain a decision on the merits; and most importantly, (4) evidence
uncovered after the Commission conducted the evidentiary hearing of this matter would make
reliance by other parties on the Orders either as precedent or under the doctrine of collateral
estoppel manifestly unfair to Qwest. The remaining parties to this case - Illuminet, ELI, Citizens
and the IT A - take no position on this Motion.
LEGAL STANDARD APPLICABLE TO THIS PETITION TO ALTER
Idaho Code ~ 61-624 provides the Commission the authority to grant Qwest the relief it
seeks. Specifically:
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 2
Boise-180598.20029164-00082
The commission may at any time, upon notice to the public utility
affected, and after opportunity to be heard as provided in the case
of complaints, rescind, alter or amend any order or decision made
by it. Any order rescinding, altering or amending a prior order or
decision shall, when served upon the public utility affected, have
the same effect as is herein provided for original orders or
decisions.
Further, the Commission also has jurisdiction to enter the requested relief, because the Idaho
Supreme Court remanded the matter based upon stipulation of all affected parties pursuant to
Idaho Appellate Rule 13.
Upon stipulation of all affected parties that a . . . civil judgment of
the
. .
. administrative agency may be . . . remanded for further
hearings, the court may enter an order accomplishing the stipulated
result without briefs, oral argument, or an opinion of the court. An
order entered by the court pursuant to such a stipulation shall not
be considered as precedent for any purpose other than a resolution
of that appeal.
Given the substantial factual and legal issues presented in the appeal of this matter, which
have been resolved by settlement, Qwest respectfully requests that the Commission enter an
Order stating that the Orders shall be binding only upon the named parties to the proceeding in
which the Orders were entered and cautioning their use as precedent or cited authority by parties
to any other proceedings before the Commission, or otherwise.
II.PROCEDURAL POSTURE
May 2002 the Idaho Telephone Associati on IT A"Citizens
Telecommunications of Idaho ("Citizens ), CenturyTel of Idaho, CenturyTel of the Gem State
Potlatch Telephone, and Illuminet Inc. ("Illuminet") filed a complaint with the Commission
claiming that the SS7 message charges that Qwest charged Illuminet pursuant to Qwest's Title
62 catalog were "contrary to tariff provisions and contractual obligations and in violation of the
settled policy and precedents of the Commission." The Commission allowed both CenturyTel
entities and Potlatch to withdraw from the proceeding. See Order No. 29115. The Commission
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 3
Boise-180598.2 0029164-00082
also allowed Electric Lightwave, Inc. ("ELI") to intervene in the proceeding. See Order No.
29074.
On April 15 , 2003 , the Commission entered Order No. 29219 based on the evidence
presented in the proceeding and found for Complainants. In its decision, the Commission relied
upon its knowledge of EAS and meet point billing arrangements that are unique to Idaho and
placed heavy reliance on the "settled policy and precedents" of the Idaho Commission insofar as
EAS is concerned. Both Qwest and the Complainants sought reconsideration. On August 27
2003, the Commission entered Order No. 29310, which essentially upheld the Commission
prior ruling with slight modifications.
By Notice of Appeal dated October 8 , 2003, Qwest appealed the Commission s decision
to the Idaho Supreme Court. On December 23 , 2004, pursuant to Idaho Appellate Rule 13., all
remaining parties to the proceeding submitted a Stipulated Motion to Dismiss the Appeal and
Remand to the Idaho Public Utilities Commission (the "Stipulation ). In the Stipulation, the
parties stated:
The parties request that the Court remand this matter to the
Commission for further proceedings; specifically for the
Commission to determine whether it should provide the Parties, the
industry at large, and other judicial and quasi-judicial bodies suchas other state regulatory commissions and the American
Arbitration Association (AAA) with clarity concerning the scope
and precedential impact of its order.
Other non-parties to this case are citing the Commission s Order as
having preclusive effect upon Qwest. The parties to this appeal
have reached a settlement that will eliminate the need or ability to
of this Court to issue a decision on the merits. The Parties request
the Court dismiss the appeal and remand the matter to allow the
Commission to determine whether it is appropriate to provide the
Parties and the telecommunications industry with additional clarity
as to the scope and precedential impact of its Orders.
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 4
Boise-180598.20029164-00082
See Attachment 1. The Idaho Supreme Court approved the Stipulation, dismissed the appeal and
remanded the matter to the Commission for further proceedings. See Attachment
III.OTHER PROCEEDINGS
Shortly after the Commission issued the Orders, Illuminet and some of its carner
customers initiated similar proceedings in the states of New Mexico, Iowa and North Dakota.
The parties to those proceedings then participated in extensive document and deposition
discovery.Qwest produced over 10 000 pages of new material, gathered substantial new
documentation from Illuminet, and took a Rule 30(b)(6) deposition ofllluminet. Over the course
of this discovery, Qwest uncovered many new facts that previously had not been uncovered or
presented to this Commission. Specifically:
That Ameritech, Bellsouth bill for signaling messages associated with local traffic
out of intrastate tariffs;
That the entire telecommunications industry was well aware from a series of FCC
decisions that incumbents such as Qwest planned to begin separately billing for
signaling messages;
That the FCC specifically found that signaling should not be part of reciprocal
compensation;
That the FCC specifically found that BOCs, such as Qwest, should create message
rating for signaling;
That signaling messages that cross LATA lines are by definition interLA T A
traffic, not local traffic, and therefore are not paid for out of interconnection
agreements;
That Qwest developed a form interconnection agreement with the industry that
specifically excluded signaling from reciprocal compensation;
That Qwest's SGAT and many interconnection agreements specifically state that
local traffic (including signaling traffic) delivered to Qwest from a third-party is
to be billed and paid for out of tariffs;
How the terms of Qwest's interconnection agreements evolved, and that no one
ever planned to have signaling included as part of reciprocal compensation;
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 5
Boise-180598.2 0029164-00082
That the rates for reciprocal compensation do not include any component of
signaling; and
Unless a CLEC orders unbundled signaling, Qwest is not getting compensated for
the use of its signaling network when it provides signaling to carriers to complete
local calls.
See Affidavit of Charles W. Steese, attached hereto as Exhibit
Despite the uncovering of all of this new evidence, various parties including Nextel
Communications (a wireless carrier)3 sought to bind Qwest to the Idaho Commission s decision
even though (1) Nextel was not a party to this proceeding, (2) neither the record presented in this
case nor the Orders addressed the question whether wireless carriers were already compensating
Qwest for use of its SS7 network; and (3) Nextel had an entirely different interconnection
agreement; and (4) the body of facts relating to the issue of whether compensation may be
required of some carriers using Qwest's SS7 facilities had substantially changed and expanded.
Qwest submits that it is manifestly unfair of others to rely on this Commission s Orders to
attempt to bind Qwest through the offensive use of the doctrine of collateral estoppel.
Nevertheless, Qwest is being subjected to this challenge in other jurisdictions. Qwest simply
seeks this Commission s clarification of its prior Orders, which were based only on the facts and
circumstances presented to the Commission, so that their value as precedent will not be
overstated. Doing so will grant Qwest the ability to obtain future decisions based on a review of
the full complement of facts and without misapplication of this Commission s Orders.
Qwest is precluded from giving the full scope of the facts - indeed some facts altogether - due to
protective orders issued in other proceedings. Thus, this is anything but a complete list.
Other wireless carriers and/or their signaling provider have threatened legal action; however, no
formal matter is yet filed.
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 6
Boise-180598.2 0029164-00082
IV.LEGAL ARGUMENT
As noted previously, the Commission authority extends to altering or otherwise
clarifying any order or decision it has issued. Idaho Code ~61-624. The Commission should
clarify the Orders to limit their precedential effect to the instant proceeding so that non-parties
cannot endeavor to use the Orders as a bar to Qwest litigating similar claims on their merits
before courts or other quasi-judicial bodies such as other state commissions and arbitration
panels. To allow the Orders to be used without such clarification would be manifestly unfair to
Qwest.
When one seeks to impose the Commission s Orders on Qwest and they were not a party
to this docket, it is called "non-mutual offensive collateral estoppel." The Idaho Supreme Court
has explained that before one can assert "non-mutual offensive collateral estoppel", a court (or
commission) must consider several factors, including:
The most important factors are whether the doctrine of collateral
estoppel is used offensively or defensively, whether the party
adversely affected by collateral estoppel had a full and fair
opportunity to litigate the relevant issues effectively in the action
resulting in the judgment whether it would be generally unfair in
the second case to use the result of the first case and whether
assertion of the plea of estoppel by a stranger to the judgment
would create anomalous results.More specifically, important
questions are whether the party adversely affected by collateral
estoppel offers a sound reason why he should not be bound by the
judgment; and whether the first case was litigated 'strenuously' or
with vigor ' for instance, whether the former judgment was
appealed. . . .
Idaho State Univ. v. Mitchell 97 Idaho 724, 731 , 552 P.2d 776, 783 (1976) (quoting Mutuality of
Estoppel as Prerequisite of Availability of Doctrine of Collateral Estoppel to a Stranger to the
Judgment 31 A.R.3d 1044, 1052 (1970)) (emphasis added). Thus, fairness is one critical
element that this Commission should consider in. determining the precedential impact of its
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 7
Boise-180598.2 0029164-00082
decision. Here Qwest has uncovered many new facts that justify a decision on the merits after
full and complete consideration of all of the facts.
Moreover, limiting the precedential impact of the decision is wise because it prompts
others to move quickly and participate in the original proceeding, rather than lying in wait to see
the outcome of the proceeding. The United States Supreme Court has explained that offensive
use of collateral estoppel allows a litigant "to adopt a 'wait and see' attitude , in the hope that the
first action by another plaintiff will result in a favorable judgment." Parklane Hosiery Co., Inc.
v. Shore 439 U.S. 322, 330 (1979). Thus, because a potential litigant "will have everything to
gain and nothing to lose by not intervening in the first action" another factor to consider is
whether the litigant "could easily have joined in the earlier action. .
. .
Id. at 331 and 332. Just
as ELI intervened, others could have easily done the same. It is for this and other reasons that
the Idaho Supreme Court noted particular reluctance to apply non-mutual offensive collateral
estoppel. Idaho State Univ. v. Mitchell 97 Idaho at 732 (use of collateral estoppel "offensively
is a factor that has "ordinarily prompted the courts not to apply the doctrine. . . .
Similarly, courts in other jurisdictions emphasize that when evaluating the offensive use
of collateral estoppel the tribunal must be mindful that the doctrine is susceptible to abuse.
Southern Pacific Communications Co. v. AT&T Co.740 F.2d 1011 , 1019, n.9 (D.C. Cir. 1984);
Silva v. State 106 N.M. 472, 475-, 745 P.2d 380 (1986) ("parties may apply issue preclusion
offensively. . . when the court deems it fundamentally fair to the parties.
);
g., In re Air Crash
Disaster at Stapleton Int l Airport 720 F. Supp. 1505, 1522 (D. Colo. 1989); rev d on other
grounds, sub nom. Johnson v. Continental Airlines Corp.964 F.2d 1059 (10th Cir. 1992). Thus
offensive collateral estoppel must be applied only when it is fair to the respondent - here Qwest.
Safeco Insurance Co. of America v. Yon, 118 Idaho 367, 372 , 796 P.2d 1040 1045 (Id. App.
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 8
Boise-180598.2 0029164-00082
1990) ("When applying this rule, we are mindful of equitable factors.
. . .);
Parklane Hosiery,
439 U.S. at 226.
It would be unfair for the Commission to allow others to apply the Orders to offensively
collaterally estop Qwest in other proceedings. Qwest has agreed to forgo judicial review of the
Orders in order to effectuate settlement on the merits with the parties to this proceeding. Qwest
has not taken full advantage of its appeal rights thereby leaving it in a vulnerable and unfair
position. Qwest has uncovered a plethora of new facts that in its opinion would serve, at a
minimum to persuade the Commission that it must address the position of each carrier group
individually and that the claims of CLECs and wireless carriers cannot be analyzed in the same
manner as, for example, those of the ITA members. By clarifying the Orders to limit and clarify
their precedential impact, the Commission can uphold its decisions and avoid misapplication by
others of its Orders through reliance on language that is taken out of context or misinterpreted.
These are all sound reasons why the Commission should clarify the Orders to limit their use in
subsequent proceeding.
CONCLUSION
For the foregoing reasons Qwest respectfully requests that the Commission enter an
Order clarifying the Orders to state that the Orders shall be binding only upon the named parties
to the proceeding in which the Orders were entered and cautioning their use as precedent or cited
authority by parties to any other proceedings before the Commission, or otherwise.
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 9
Boise-180598.2 0029164-00082
Respectfully requested this ih day of February, 2005.
Mary S obson (ISB #2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ID 83702
Charles W. Steese
Steese & Evans, P.
6400 S. Fiddlers Green Circle, Suite 1820
Denver, CO 80111
Attorneys for Qwest Corporation
PETITION FOR ORDER TO CLARIFY THE SCOPE OF ORDER NOS. 29219 AND 29310 - Page 10
Boise-180598.2 0029164-00082