20050314Order No 29730.pdf

Office of the Secretary
Service Date
March 14 2005
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IDAHO TELEPHONE ASSOCIATION
CITIZENS TELECO MMUNI CA TI 0 NS CASE NO. QWE-02-
COMPANY OF IDAHO, CENTURYTEL OF
IDAHO, CENTURYTEL OF THE GEM
ST ATE, POTLATCH TELEPHONE
COMP ANY AND ILLUMINET, INC.
COMPLAINANTS,
vs.
QWESTCORPORA TION, INC.ORDER NO. 29730
RESPONDENT.
This case, Q WE- T -02-, was initiated by several small telephone companies and
Illuminet, Inc., a third-party provider of SS7 message signaling, to challenge new signaling
charges implemented by Qwest in June 2001. In October 2003, Qwest filed an appeal to the
Idaho Supreme Court from the Commission s final Order No. 29219. On December 23 , 2004
all parties to the appeal filed a Stipulation and Motion with the Supreme Court to dismiss the
case and remand it to the Commission. The parties' Stipulation requested the Supreme Court
dismiss the appeal and remand the matter to allow the Commission to determine whether it is
appropriate to provide the parties and telecommunications industry with additional clarity as to
the scope and precedential impact of its Orders." The Stipulation also indicated that a request for
clarification would be filed with the Commission. The Supreme Court granted the Motion to
Dismiss and vacated the oral argument hearing that had been scheduled for January 12 2005.
On February 7, 2005, Qwest filed a Petition for Order to Clarify the Scope of Order
Nos. 29219 and 29310, the final Order and reconsideration Order issued by the Commission.
Qwest served all other parties with its Petition. Qwest stated in its Petition that the other parties
in the case "take no position on this Motion.
Qwest is not asking by its Petition that the Commission change its previous Orders
but seeks clarification of the precedential effect of the Orders. The specific clarification Qwest
seeks is a statement that the Commission s Orders "shall be binding only upon the named parties
ORDER NO. 29730
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." According
to Qwest's Petition, Illuminet and some of its signaling customers filed similar complaints in
other states and, during the course of those cases
, "
Qwest uncovered many new facts that
previously had not been uncovered or presented to this Commission." Qwest Petition p. 5. Even
though new evidence is available in the other states ' proceedings , parties that did not even
participate in the Idaho proceeding, including a wireless carrier, apparently "sought to bind
Qwest to the Idaho Commission s decision.Qwest Petition p. 6. Qwest contends "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 " but that "Qwest is being subjected to this
challenge in other jurisdictions." Qwest Petition p. 6. Noting that the Commission s Orders
were based "only on the facts and circumstances presented to the Commission " Qwest seeks
clarification of the Orders "so that their value as precedent will not be overstated" in other state
proceedings. Qwest Petition p. 6.
Qwest's Petition presents concerns about the application of principles of res judicata
as made clear by its reference to the doctrine of collateral estoppel. The Idaho Supreme Court'
early statement of the doctrine that prevents relitigation of the same issues between same parties
is from Joyce v. Murphy Land Irrigation Co.35 Idaho 549, 553, 208 P.241 , 242-43 (1922):
We think the correct rule to be that in an action between the same parties upon the same claim
or demand, the former adjudication concludes parties and privies not only as to every matter
offered and received to sustain or defeat the claim but also as to every matter which might and
should have been litigated in the first suit." The Court has updated and clarified the long-
standing doctrine, now often referring to res judicata as claim preclusion and to collateral
estoppel as issue preclusion. See e.g., Magic Valley Radiology, P.A. v. Kolouch 123 Idaho 4
849 P.2d 107 (1993). The principle is applicable when the same parties are involved in an
unresolved dispute, as "an essential element of claim preclusion and issue preclusion is that the
same parties or their privies must exist in both the prior case and the present case.Anderson
Farmers Ins. Co. of Idaho 130 Idaho 755, 757, 947 P.2d 1003 (1997). Similar principles are
embodied in statute for Commission Orders, where Idaho Code 9 61-625 prevents collateral
attack on Commission Orders that have become final and conclusive.
ORDER NO. 29730
The doctrines of claim preclusion and issue preclusion, as well as the provisions of
Section 61-625, would apply if the parties in this case brought additional claims over SS7
signaling charges to the Commission. Although similar principles undoubtedly are part
jurisprudence in all states, the Commission is not in a position to explain the application of res
judicata principles to other state commissions. The Commission can clarify and does affirm, as
Qwest points out in its Petition, that the Commission s Orders were based solely on the facts
presented by the parties in this case relating to services provided in Idaho. So, for example
because no wireless carriers participated in this case, the Commission made no specific findings
regarding Qwest's SS7 signaling charges and wireless carriers.
ORDER
IT IS HEREBY ORDERED that Order Nos. 29219 and 29310 are clarified to affirm
that the Commission s findings and conclusions were based solely on the record presented by the
parties in this case.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this I'-If/..
day of March 2005.
, PRESIDENT
1\4 J
MARSHA H. SMITH, COMMISSIONER
ENNIS S. HANSEN, COMMISSIONER
ATTEST:
~D, tfAJe D. Jewell
Commission Secretary
bls/O:QWET0211
ORDER NO. 29730