20020821Amendment Eschelon.pdf

RECEIVED @MaryS.Hobson (ISB#2142)ILED OStoelRivesLLP
101 South Capitol Boulevard -Suite 1900 2!B2 AUG 2 I PM 3:57
Boise,ID 83702
Telephone:[phone] C
..UilLilit:>CumMISSIONFacsimile:[phone]
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT CASE NO.QWE-T-00-13
APPLICATION OF QWEST CORPORATION
AND ESCHELON TELECOM,INC.FOR
APPROVAL OF AN AMENDMENT TO AN
INTERCONNECTION AGREEMENT FOR
THE STATE OF IDAHO PURSUANT TO 47
U.S.C.§252(e)
APPLICATION FOR APPROVAL OF AMENDMENT
TO INTERCONNECTION AGREEMENT
Pursuant to Section 252(e)(1)of the Telecommunications Act of 1996,Qwest
Corporation ("Qwest")hereby submits the enclosed negotiated agreement between Qwest
Corporation and Eschelon Telecom,Inc.for filing with and approval by the Commission.
By way of background,Qwest has previouslysubmitted nearly one hundred agreements
with CLECs in Idaho for approval by the Commission under Section 252(e)(l).In addition to
the filed agreements,Qwest also has implemented other contractual arrangements with CLECs
that it does not believe fall within the filingrequirements of Section 252.
Earlier this year questions were raised regarding Qwest's decisions in this area,most
notably a complaint filed by the Minnesota Department of Commerce ("DOC")alleging,after a
review of dozens of Qwest-CLEC contracts,that eleven should have been filed with the
Minnesota PUC.Qwest promptly brought this matter to the Commission's attention in a letter
from Idaho Vice President Jim Schmit dated March 12,2002,includingproviding copies of our
answer to the DOC complaint,and copies of those of the eleven identified agreements that also
had applicability in Idaho.Qwest invited the Commission to review the agreements for itself.
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page 1
Boise-145489.1 0029164-00016
Qwest also filed a petition with the FCC requesting a declaratory ruling as to the scope of the
Section 252(a)filing requirement in this area.
Qwest has at all times operated in good faith in filing with the Commission the pertinent
interconnection agreements and amendments,and is committed to full compliance with the Act.
As a further demonstration of its good faith,after this issue arose Qwest modified its processes
and standards for all new agreements with CLECs.Qwest advised the Commission of this policy
by letter on May 9,2002.Under this policy,Qwest is broadly filing all contracts,agreements or
letters of understanding between Qwest Corporation and CLECs that create obligations to meet
the requirements of Section 251(b)or (c)on a going forward basis.Qwest believes that
commitment goes well beyond the requirements of Section 252(a).For example,it reaches
details of business-to-business carrier relations that Qwest does not think the Communications
Act requires to be filed with state commissions for approval.However,Qwest is committed to
follow this standard until the FCC issues a decision on the appropriate line drawing in this area.
Unless requested by the Commission,Qwest has not been filing routine day-to-day paperwork,
orders for specific services,or settlements of past disputes that do not otherwise meet the above
definition.
Older agreements provide a more complicated case.Qwest naturallyhas been concerned
about its potential penalty liability with regard to second-guessing of its past filing decisions in
an area where the standards have not been clearly defined.Nevertheless,Qwest is now taking a
further step as a sign of its good faith.Specifically,Qwest has reviewed all of its currently
effective agreements with CLECs in Idaho that were entered prior to adoption of the new policy.
This group includes those agreements that relate to Section 251(b)or (c)services on an on-going
basis that have not been terminated or superseded by agreement,commission order,or otherwise.
Qwest has applied its broad new review standard to all such agreements and hereby provides the
attached agreement as coming within that standard.
Qwest is petitioning the Commission to approve the attached agreement such that,to the
extent any active provisions of such agreement relate to Section 251(b)or (c),they are formally
available to other CLECs under Section 252(i).For the Commission's benefit,Qwest has
marked,highlighted or bracketed those terms and provisions in the agreements Qwest believes
relate to Section 251(b)or (c)services,have not been terminated or superseded by agreement,
commission order,or otherwise,and are thus subject to filing and approval under Section 252.
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page 2
Boise-145489.10029164-00016
Qwest is not asking the Commission to decide this agreement,or specific provisions therein,in
fact are required to be filed under Section 252 as a matter of law.The Commission need simply
approve those provisions relating to Section 251(b)or (c)services under its Section 252(e)
procedures,and Qwest will make the going forward provisions related to Section 251(b)or (c)
available under Section 251(i).Thus,the Commission does not at this time need to reach a legal
interpretation of Section 252(a),or decide when the 1996 Act makes a filing mandatory.
As noted above,Qwest has not been and is not filing routine day-to-day paperwork,
settlements of past disputes,stipulations or agreements executed in connection with federal
bankruptcy proceedings,or orders for specific services.Included in this last category are
contract forms for services provided in approved interconnection agreements,such as signaling,
call-related databases,and operator or directory services.The parties may execute a form
contract memorializing the provision of such services offered and described in the
interconnection agreement.Upon the Commission's request,Qwest can provide examples of
routine paperwork,order documents,or forn contracts for its review.
Qwest realizes that this voluntary decision to submit the attached agreements does not
bind this Commission with respect to the question of Qwest's past compliance.However,Qwest
submits that it has acted in good faith and that,as in Iowa,this Commission will conclude that
penalties are not appropriate.In any event,Qwest's actions here remove any argument with
respect to its compliance with Section 252 now and going forward.
Qwest requests that this process will allow the Commission to move quickly in this area.
Qwest requests that the Commission approve the agreements as soon as reasonably practicable.
Qwest reserves its rights to demonstrate that this agreement need not have been filed in the event
of an enforcement action.Meanwhile,however,Qwest will offer other CLECs any terms in
effect for the benefit of the contracting CLEC pursuant to the polices and rules related to Section
251(i).Provisions that settle past carrier-specific disputes,that do not relate to Section 251,or
that are no longer in effect are not subject to Section 251(i)and this offering.
As a further sign of good faith,Qwest will also be posting the agreement on the website it
uses to provide notice to CLECs and announcing the immediate availabilityto other CLECs in
Idaho of the interconnection-related terms and conditions contained therein.This will facilitate
the ability of CLECs to request terms and conditions,subject to the Commission's decision
approving the agreement.
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page3
Boise-145489.1 0029164-00016
Given the confidentialityprovisions contained in the attached agreement and the fact that
the CLEC involved may deem the information contained therein confidential,Qwest has
redacted those terms,such as confidential settlement amounts relating to settlement of historical
disputes between Qwest and the particular CLEC,confidential billing and bank account numbers
and facility locations,which relate solely to the specific CLEC and do not relate to Section
251(b)or (c)services.
Respectfullysubmitted this ay of August,2002.
Qwest Corporation
Mary S.obson
Stoel Rives LLP,Attorneys for Qwest
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page 4
Boise-145489.1 0029164-00016
CERTIFICATE OF SERVICE
I hereby certify that on this day of August,2002,I served the foregoing APPLICATION
FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT upon all parties
of record in this matter as follows:
Ms.Jean Jewell,Secretary X Hand Delivery
Idaho Public Utilities Commission U.S.Mail
472 West Washington Street Overnight Delivery
Boise,Idaho 83720-0074 Facsimile
Dennis Ahlers,Senior Attorney Hand Delivery
Eschelon Telecom,Inc.X U.S.Mail
730 Second Avenue South -Suite 1200 Overnight Delivery
Minneapolis,MN 55402 Facsimile
Telephone:[phone]
Facsimile:[phone]
Brandi L.Gearhart,PLS
Legal Secretary to Mary S.Hobson
Stoel Rives LLP
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page 5
Boise-145489.1 0029164-00016
Settlement Agreement
This Settlement Agreemengthis."AereemenC)]Ldad March 1.,2002 (the.
"Effective Date"),and is between Qwest Corporation,a Colorado corporation ("Owest").and
Eschelon Telecom,Inc.,a Delaware corporation ("Eschelon").Qwest and Eschelon are referred
to collectivelyas the "Parties"and individually as the "Party."
Whereas,Qwest is an incumbent local exchange carrier operating in the states of
Arizona,Colorado,Idaho,Iowa,Minnesola,Montana,Nebraska,New Mexico,North Dakota,
Oregon,South Dakota,Utah,Washington,and Wyoming;
Whereas,Eschelon is a competitive local exchange canier operating in the states
of Arizona,Colorado,Minnesota,Oregon,Utah,and Washington,as well as Nevada;
Whereas,each of the Parties seeks to avoid delay and costly litigation and to
resolve certain issues in dispute.
Qwest and Eschelon therefore agree as follows:
1.Definitions.When used in this Agreement,the followingtenns have the
followingmeanings:
"Act"means the Telecommunications Act of 1996.
"CABS"means canier access billing system.
"Claims"means,individually and collectively,each and every claim,action,
causes of action,suit,demand,damage,judgment,execution,cost,expense,liability,
controversy,setoff,omission,and loss of any kind whatsoever,whether known or unknown,
whether in law or in equity,including any related interest expenses that may have accrued in
connection therewith,from the beginning of time through February 28,2002,that Eschelon or
Qwest has,had or may have against the other Party arising out of the Disputes through February
28,2002.
"Disputes"means,for the time period through February 28,2002:(1)disputes
concerning service credits;(2)disputes concerning consulting and network-related services
providedby Eschelon to Qwest;(3)CABS disputes concerning switched access minutes of use;
(4)disputes conceming payment of UNE-E line and UNE-E Non-Recurring Charge credits;and
(5)disputes conceming Eschelon's claims of anti-competitive conduct and unfair competition.
"InterconnectionAgreement"means the interconnection agreements and all
amendments thereto filed with the PUC in each state in which Eschelon obtains services and
facilities from Qwest,
"lC"means state public utilitycommission.
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"TerminatedAareements"has the meaning set forth in paragraph 3(b)below.
"UNE-E"means Unbundled Network
E¯1ement
-Eschelon,a product purchased
by Eschelon under its lnterconnection Agreement,as amended in November of 2000 and July
and August of 2001.
"UNE-P"means Unbundled Network Element -Platform.
2.Release of Claims.(a)For valuable consideration to be paid by Qwest to
Eschelon as provided in Paragraph 3(a)below,Eschelon hereby fully waives,releases,acquits,
and discharges Qwest and its associates,owners,stockholders,successors,assigns,partners,
parents.insuranèe carriers,bonding companies,affiliates and subsidiaries,and each of their
respective directors,officers,agents,employees and representatives from any and all Claims
arising out of the Disputes through February 28,2002.
(b)In consideration of the waiver and release described in Paragraph 2(a)
above._Qwest hereby fully waives,releases,acquits,and discharges Eschelon and its associates,
owners,stockholders,successors,assigns,partners,parents,insurance carriers,bonding
companies,affiliates and subsidiaries,and each of their respective directors,officers,agents,
employees and representatives from any and all Claims arising out of the Disputes through
February 28,2002..
.Actions 10 be Taken.The Parties shall undertake the following actions:
(a)On e Effective Date,Qwest shall provide payment usin credits,
to Eschelon in an amount equal t with offsets as follows:(i)appl
against UNE-E charges and associated charges that are not disputed by the Parties as of February
28 2002;and (ii)apply and credit g---which sum represents gless
against all curent and non-disputed invoices that are payable by Eschelon to
Qwest.Eschelon shall determine how the offset amounts in each of clauses (i)and (ii)will be
applied and shall so designate in writing to Qwest within ten days of the Effective Date.
(b)For convenience and various reasons,the Parties hereby terminate
the followingagreements ("Terminated Agreements"),as of the Eflèctive Date:
(1)Feature Letter dated November 15,2000;
(2)ImplementationPlan Letter dated November 15,2000;
(3)Escalation procedures and business solution letter dated November l 5,2000;
¯¯(4)~ConfidentialPurchase Agreement dated November 13,2000;·¯¯¯¯¯¯
(5)ConfidentialAmendment to Confidential/Trade Secret Stipulation dated November 15,
2000;
(6)Third Amendment to Confidential/TradeSecret Agreement dated July 3,2001;
(7)Status of switched access minute reporting letter dated July 3,2001;and
(8)Implementation Plan dated July 31,2001/August 1,2001.
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(c)Attachment 3 to the Implementätion Plan dated July31,
2001/August 1,2001 relaiing to UNE-E will continue to bind the¯Parties unless the Parties-agree
otherwise in a writing executed by both Parties.Eschelon agrees that Qwest will file this
Attachment 3 as an amendment to the Interconnection Agreement.
(d)The Billing/Usage letter dated November 15,2000 will be
tenninatedwhen the Parties agree the manual process is terminated and Eschelon moves to the
mechanized process described in Paragraph 3(g)below.
(e)Qwest shall make the UNE-E offering and existing business
processes related to the UNE-E offering available to Eschelon through the current term of the
InterconnectionAgreement Amendment Terms dated November 15,2000.
(f)Within ten days of the Effective Date,the Parties shall form a joint
team.The purpose of the joint team shall be to develop a mutuallyacceptable plan (the "Plan)to
convert UNE-E lines to UNE -P.Qwest and Eschelon shall use best efforts to cooperate in
converting UNE-E lines to UNE-P in accordance with the Plan..
(g)Qwest and Eschelon shall work closely together in moving
Eschelon from a manual to a mechanized process so that Eschelon can bill for access on UNE-P.
The Parties shan work closely for 60 days to validateworking telephone numbers and associated
minutes of use,and will terminate the manual process after these 60 days with the consent of
both Panies.lf the parties are unable to agree on the date of the termination ofthe manual
process,then the Parties shall follow the procedures described in paragraph 8 below.
(h)Level 3 Escalation.Upon execution of this Agreement,Eschelon's
February 8,2002 request for a Level gscalation will be deemed perman t thdrawn.
4.Successors and Assiens.The terms and conditions contained in this
Agreement shall inure to the benefit of and be binding upon,the respective successors,affiliates
and assigns of the Parties.
5.Assignment of Claims.No Party has assigned or transferred to any person
any Claim,or portion of any Claim,released or discharged by this Agreement.
6.Filing of Agreeme'nt.The Parties agree that negotiation of this Agreement
is subject to Rule-49&ef4heSederal-Rnles of Fvidence,and.simiLar rules at the state level.
Notwithstandingthe foregoing,nothing in this Agreement shall prevent a Party from asserting a
claim against the other Party to enforce this Agreement and nothing herein shall bar a Party from
filing this Agreement as it deems necessary and appropriatein order to complywith state or
federal law,or in connection with a relevant legal or regulatory proceeding in which Qwest or
Eschelon is a party.Qwest and Eschelon expressly contemplate that this Agreement will be filed
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with the PUCs in its region in states where Eschelon is certified and has an interconnection
agreement.
7.Entire Aereement:Amendmems.This Agreement constitutes the entire
agreement between the Parties.This Agreement can be amendedor changed onlyin a writing or
writings executed by both of the Paities,except that this Agreement must not be amended or
modified in any way by electronic message or e-mail communications.
8.Dispute Resolution.Each Party reserves its rights to resort to all
remedies,including seeking resolution by a PUC or a court,agency,arbitrator,or regulatory
authority of competent jurisdiction.
9.Notices.Except as othenvise provided in this Agreement,every notice or
other communication to a Party required,permitted or contemplated under this Agreement must
be in writing and (a)served personally,in which case deliverywill be deemed to occur at the
time and on the day of delivery;(b)delivered by certified mail or registered mail,postage
prepaid.retum receipt requested,in which case delivery will be deemed to occur the dayit is
officially recorded by the U.S.Postal Service as delivered to-the intended recipient;or (c)
delivered by next-day delivery to a U.S.address by recognized ovemight delivery service such as
Federal Express.in which case delivery will be deemed to occur upon receipt.Upon prior
agreement of the Parties'designated recipients identified below,notice may also be providedby
facsimile.Except as otherwise provided in this Agreement,every notice or other communication
must be delivered using one of the altematives mentioned in this paragraph and must be directed
to the.applicable address indicated below or such address as the Party to be notified has
designated by giving written notice in compliance with this paragraph:
If to Qwest:lf to Eschelon:
Qwest Corporation Eschelon Telecom,Inc.
Attention:General Counsel Attention:General Counsel
1801 Califomia Street,Suite 5200 730 2""Avenue,Suite 1200
Denver,Colorado 80202 Minneapolis,MN 55402
Tel:[phone] Tel:[phone]
Fax:[phone] Fax:[phone]
10.No Waiver.The Parties agree that their entering into this Agreement is
without prejudice to,and does not waive,any positions they may have taken previously,or may
take in the future,in any legislative,regulatory,judicial,or other forunt addressing any matters
other.than the Claims.
13.No Admission.The Parties acknowledge and agree that they have
legitimate disputes relating to the issues described in this Agreement,and that the resolution
reached in this Agreement represents a compromise of the Parties'positions.Therefore,the
Parties deny any wrongdoing or liabilityand expressly agree that resolution of the issues
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contained in this Agreement cannot be used against the other Party in any manner or in any
forum (except for claims related to breaches of this Agreement).
12.Coumerparts.This Agreement may be executed by facsimile and in
counterparts,each of which is an original and all of which together constitute one and the same
mstrument.
EXECUTIONPAGE FOLLOWS
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I
Counterpart Execution Page
Settlement Agreement
The undersigned are executing this Settlement Agreement on the date stated in the
introductory clause.
QWEST CORPORATION
By:
Name:Dana Filip
Title:Senior Vice President
ESCHELON TELECOM,INC.
Name:Clifford D.Williams
Title:Chief Executive Officer
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