20020821Amendment McLeodUSA.pdf

ECEIVED [ijMaryS.Hobson (ISB#2142)FILED OStoelRivesLLP
101 South Capitol Boulevard -Suite 1900 2002 AUG 2 i PM 3·53
Boise,ID 83702
Telephone:[phone] UTILl C íÌSIONFacsimile:[phone]
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT CASE NO.QWE-T-00-7APPLICATIONOFQWESTCORPORATION
AND MCLEODUSA TELECOMMUNICATIONS
SERVICES,INC.FOR XŸËÊÕVAL OF ANfÅMENDMENTTOANINTERCONNECTION
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)(l)of the Telecommunications Act of 1996,Qwest
Corporation ("Qwest")hereby submits the enclosed negotiated agreement between US West
Communications,Inc.and McLeodUSA Telecommunications Services,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 filing requirements 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,including providing copies of our
answer to the DOC complaint,and copies of those of the eleven identified agreements that also
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page 1
Boise-145499.1 0029164-00016
had applicability in Idaho.Qwest invited the Commission to review the agreements for itself.
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,
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page 2
Boise-145499.10029164-00016
commission order,or otherwise,and are thus subject to filing and approval under Section 252.
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 form 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 availability to other CLECs in
Idaho of the interconnection-related terms and conditions contained therein.This will facilitate
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Boise-145499.1 0029164-00016
the ability of CLECs to request terms and conditions,subject to the Commission's decision
approving the agreement.
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.
Respectfully submitted this ay of August,2002.
Qwest Corporation
Mary S.obson
Stoel Rives LLP,Attorneys for Qwest
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page4
Boise-145499.1 0029164-00016
CERTIFICATE OF SERVICE
I hereby certify that on this day of August,2002,I served the foregoing APPLICATIONFORAPPROVALOFAMENDMENTTOINTERCONNECTIONAGREEMENTuponallpartiesofrecordinthismatterasfollows:
Ms.Jean Jewell,Secretary X Hand DeliveryIdahoPublicUtilitiesCommissionU.S.Mail472WestWashingtonStreetOvernight DeliveryBoise,Idaho 83720-0074 Facsimile
Lauraine Harding Hand DeliverySeniorManager,Interconnect Negotiation X U.S.MailMcLeodUSAOvernight Delivery6400CStreetSW,Box 3177 FacsimileCedarRapids,IA 52406-3177
Brandi L.Gearhart,PLS
Legal Secretary to Mary S.Hobson
Stoel Rives LLP
APPLICATION FOR APPROVAL OF AMENDMENT TO INTERCONNECTION AGREEMENT-Page 5
Boise-145499.]0029164-00016
EXHIBIT
SUBJECT TO RULE OF EVIDENCE 4DB
(Trade Secret Data Begins
CONFIDENTIALBILLING SETTLEMENT AGREEMENT
This Confidential Billing Settlement Agreement ("Agreement ),dated April 287
2000,is between US WEST Communications,Inc.("US WEST*)and McLeodUSA,
Inc.('McLeodUSA*)
.
who hereby enter into this Confidential Billing Settlemen_t
Agreement with regarti to.the following:
RECITALS
1.US WEST is an incumbent local exchange provider operating in the
states of Arizona,Colorado,Idaho,lowa,Minnesota,Montana,Nebraska,New Mexico,
North Dakota,Oregon,South Dakoti,Utah,Washington,and Wyoming.
2.McLeodUSA is a competitive local exchange provider that will soon
operate in all fourteen states of US WEST's operating region.
3.Whereas both US WEST and McLeodUŠA have entered into
interconnection agreements pursuant to the federal Telecommunicatlons Act of 1996
(°Act"),under Section 251 and 262 of that Act,and those agreements have been
approved by the appropriate state commissions where those agreements were filed
pursuant to the Act US WEST and McLeodUSA operate under those agreements in
certain states,as wel as various state and federal tariffs.
4.McLeodUSA has intervened in the US _WEST/QWEST metger
proceedings that have been or are being conducted by several states within US
WEST's 14-state region,including Arizona,Minnesota,Montana.Utah,Washington and
Wyoming.-
'5.Disputes between the parties have arisen in a numË>er of stales undé
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both the interconnection agreements and tariffs regarding a number of billing issues,
including nonblocked Centrex service,subscriber list information charges,reciprocal
compensation and interim pricing.
6.In an attempt to finally resolve those issues in dispute,including
McLeodUSA's opposition to the merger,and avoid delay and costly litigálion,the
parties voluntarilyenter into this -Confidential Billing Settlement Agreement to resolve all
disputes,claims and controversies between the parties,as of the date of this
Agreementthat relate to the matters addressed herein and release all claims related to
those matters.
CONFIDENTIALBILI.INGSETTLEMENT AGREEMENT
1.In consideration for McLeodUSA's withdrawal from the merger dockets,and
within five (5)business days after McLeodUSA has withdrawn its opposition to the
merger in all states and dismissed its pending FCC complaint regarding subscriber list
informationcharges,US WEST will pay McLeodUSA to resolve the
it
nonblocked Centrex service and subscriber list Informatiori billing disputes.The form of
payment will consist of bill credits (if payment has not been made)or cash payments to
McLeodUSA.
2.Effectiveypon merger closure and subject to the additional terms dosciibed
.below,US WEST will-pay McLeodUSA resolve iniscellaneous bWing
disputes.The form of payment will consist of a cash payment to McLeodUSA,payable
within five (5)i>usiness days following merger closure.
a.Nonblocked centrex service:Subject to McLeodUSA'swithdrawal from the
'merger dockets and dismissal of its FS complaint,McLeodUSA and US WEST agree
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that upon payment to McLeodUSA of the escribed in paragraph 1,alt
disputed Centrex related charges incurred through March 31,2000 have been futty
resolved and alt claims for such charges are released.Effective imrnediately,for
Centrox service charges incurred on a going-forward basis,the padies will continue to
negotiate,in good faith,a business-to-business resolution.
b.Subscriber List Information Charges:Subject to McLeodUSA'swithdrawal
from the merger dockets and dismissal of its FCC complaint,US WEST and
McLeodUSAagree that upon payment to McLeodUSA of the escribed in.
paragraph 1,all disputed amounts incurred through March 31,2000 have been fully
resolved and all claims for such charges are released.McLeodUSA agrees to
immediately dismiss its pending FCC complaint regardfrig subscriber list information
ch:arges.Effective Immediately,on a going-forward basis,McLeodUSAwill pay the
$.04 (per listing for initial load)and $.06 (per listing for updates)rates for subscriber list
Information or such other final rates as may be established by any cost docket
proceedings or rates the partles may negotiate,in good faith,on a business-to-business
basis.Both párties reserve the right to participate fuly in future rate determination -
proceedings.
c.Compensation for Traffic Exchange:Upon payment to McLeodUSAof the
escribed in paragraph 1,in all existing and future states,for the period of
March 1,2000 through December 31,2002,the parties agree to immediately amend
their existing interconnectionagreetnents to change the rebiprocal compensation terms
I
.from a usage-based system to a "blil and keep"arrangerrient for local and Intemet-
retaled traffic,and to incorporate such a bill and keep arrangement into any future
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CONTAINS TRADE SECRET DATA
i interconnection agreements in any of US WESTs fourteen states.Subject to merger
closure,both parties agree not to bill usage to one another in any existing or future
state between March 1,2000 and the date of merget closure.However,in the event
thatthe merger between US WEST and QWEST does not close,US WEST w¡ll
retroactivelybill McLeodUSAfor the true-up for reciprocal compensation for.usage
through February 29,2000 at the appropriatestate commission-approved rates.Both
par ties may bill each other retroactively for the usage not billed between March 1,2000
.and the dato on which it is officiallyannounced that the merger will not close,based on,
appropriate state commission-approved rates or the currently existing interconnection
agreement(s).US WEST and McLeodUSAagree to pay the undisputed portiori of
such rotroactive usage bliling at the appropriate state commission-approved rates within
fivo (5)business days of receiving each others invoices for the same.In addition,if the
merger does not close,the parties will immediately amend their existing interconnection
agreements accordingly.
d.Interim Pricing:Subject to merger closure and in consideration for the bill
and keep arrangement agreed upon above,US WEST and McLeodUSAagree that all
interim rates,except reciprocal compensation rates,will be treated as final and any final
commission orders éntered in any of the 14 states in US WESTs territo through April.
30,2000,a on a going-forward basis through December 31,2002,(except as such
orders msy rotate to reciprocal compensation rates for the period between Marçh 1,
2000 and December 31,2002-reciprocal compensation is addressed Iri paragraph 2.c.
.<.of this agreement)wll!be applied prospectively to McLeodUSA,and not retroactively,
in addition,US WEST agrees that this settlement term will app!ÿ throughout the terms
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I
10/OlrCI 16:06 FAI 3111 7901 McLeadUSA LUT CROUP
of the partles'existing interconnection agreements.Thus,both Parties agree not to bili
each other for any toe-ups associated with final commission orders that affect laterim
prices and release claims for such true-ups.
e.Centrex Service Agreements:For McLeodUSA's five-year centrex Service
Agreements that expire before December 31,2002,the Parties agree to extend the .
terms and prIcing of those agreements until December 31,2002.
3.For valuable consideration mentioned above,the receipt and sufficiency of
which are hereby acknowledged,McLeodUSAand US WEST do hereby release and
forever discharge the other and the other's associates,owners,stockholders,
predecessors,successors,agents,directors,officers,partners,employees,
representatives,employees of affiliates,employees of parents,employees of
subsidiaries,affiliates,parents,subsidiaries,insurarice carriers,bonding companies
and attorneys,fom any and all manner of action or actions,causes or causes of action,
in law,under statute,or in equity,suits,appeats,petitions,debts,tiens,contracts,
agreements,promises,liablIity,claims,affirmative defenses,offsets,demands,
damages,losses,costs,claims for restitution,and expenses,of any nature whatsoever.
Tixed or contingent,known or unknown,-past and present asserted or that could have
been asserted or could be asserted in any way relating to or arising out of the liilling
.disputos/matters addressed heteln.
4.The terms and conditions contained in this Confidential Billing SettleEment
Agreementshall Inure to the benefit of,and be binding upon,the respective
"successors,affiliates and assigns of the Parties.
5 .McLeodUSA hereby covenants and warrants that it has not assigned or .
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CONTAINS TRADE SECRET DATA
I
transferred to any person any claim,or portion of any claim which is released or
discharged by this ConfidentialBilling Settlement Agreement.
.
6 .The Parties expressly agree that they will keep the substance of the
negotiations and or conditions of the settlement and the terms or substance of this
:..I
ConfidentialBilling Settlement Agreementstrictly confidentiaL The parties further agreë
that they will nol cominunicate (orally or in writing)or in any way disclose the substance
of negotiationsand/or conditions of the.settlement and the terms or substánce of this
agreement to any person,Judicial or administrative agency or body.business,entity or
association or anyone else for any reason whatsoever,witflout the prior express written
consent of the other party unless compelled to do so by law.It is expressly agreed that
this confidentiality provision is an essential element of this Confidential Billing
Settlement Agreement.The parties agree that this Confidential Billing Settlement
Agreement and negotiations,and all matters related to these two matters,shall be
subject to the Rule 408 of the Rules of Evidence;at the federal and state level.
7 .In the event either Party has a legal obligation which requires disciosure
of the terms and conditions of this Confidential Billing Settlement Agreement,the Patty
having the obligation shall immediately notify the other Party in writing of the nature,
scope and source cif such obligation so as to enable the other Rarty,at its Option,to
take such action as may be legally permissible so as to protect the confidentlafity
provided for in this agreement.
8 .This Confidential Billing Settlement Agreement constitutes the entire
agreement between the Parties and can only be changed in a writing or writings
executed by both of the Parties.Each of the Parties forever walves all right to assed
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CONTAINS TRADE SECRET DATA
10/01/0 t 16:06 FAI 319 a _LSJLL alcLeadUSA LAW GROUP.....---------008/011
that this Confidential Billing Settlement Agreementwas a result of a mistake in law or in
fact.
9 .This Confidential Billing Settlement Agreement shall be interpreted and
construed in accordance with the laws of the State of Colorado,and shall not be
interpreted in favor of against any Party to this agreement.
10 -The Parties have entered into this Confidential Billing Settlement
Agreement after conferring with legal counsel.
11 ,if any provision of this Confidential BillIng Settlement Agreement should
be declared to be unenforceable by any administrative agency or court of law,the
remainder of the Confidential Billing Settlement Agreement shall remain in full force and
effect,and shall be binding upon the Parties hereto as if the invalidated provision were
not part of this ConfidentialBilling Settlement Agreement.
12 .Any claim,controversy or dispute between the Parties in connection with
this confidential Billing Settlement Agreement shall be resolved by private and
confidential arbitration conducted by a single arbitrator engaged in the practice of law,
under the then current rules of the American Bar Association.The Federal Arbitration
Act,9 Ü.S.C.§§1-16,not state law,shal)govern the arbitmbliity of all disputes.The
orttitrator shall only have the authority to determine breath of this-egreement,butshau
.not have the authority to award punitive damages.The arbitrãtor's decision shall be
final and binding and may be entered in any court having jurisdiction thereof.Each
party shall hear its own costs and attomeys'fees and shall share equalIý in the fees
i 4 and expenses of the arbitrator.
13 .The Parties acknowledge and agree that they have a legitimate billing
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10/01/01 1D Vi PAA .bati (gUL ¾t'LuogUhA LAW UI..--.....-------.------(d 003/01 1
dispute about tho issues described in this Contidential Billing Settlement Agreement
and that the resolution reached in this agreernent represents a compromise of the
Parties'positions.Therefore,the Partles agree that resolution of the issues contained
in this agreement cannot be used against the other Party..
14 ,This Confidential Billing Settlement Agre ment may be ex cuted Iñ
counterparts and by facsim11e.
IN WITNESS THEREOP,the Parties have caused this Confidential Billing
Settlement Agreementto be executed as of this day,2 of April 2000.
McLeodusA,Inc.US WEST Communications,Inc.
By:By:
Title:Reg 6 /éd'Title:
Date:Date:
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ÇONTAINSTRADE-SE€RET DATA
Q110442
.1 Ä.221.....UdLeodUSA L&W Iibol 70
8011 1,lTlGATl0N SUPPORT gl_\(.g.5gg gg18ggi 2
-dispute about the issues described in this confidsn0al Bining Settlement AOreement
and that the nasolußon reached in this agreement represents a compromise of th?L
Partion'positlons.Mierefore,the Pardes agree that resolution of the issues contained
in thla agreement cannot be used againstthe other Party..
14 .This confidentla!DMng BotBemart Agreement may be executed In
counterparts and bÿ fansinde.
IN WifÑESS THEREOF,the Partes havo caused this cordidential BMng
Setdement Agreemerd to be axecuted sa of this day,of April 2000..
·
Blvk:1.codU U 8 WEST commun ca0ans,Inc.
Tee:;se Trie:P s,1,dent -Wholanale Mkts
Date:Date:4/28/00
TradeSecret Data Ends]
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CONTAINS TRADE SECRET DATA Q110443