20021119final_order_no_29154.pdf

Office of the Secretary
Service Date
November 19,2002
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF )QWEST CORPORATION AND MCLEODUSA )TELECOMMUNICATIONS SERVICES,INC.)CASE NO.QWE-T-02-17FORAPPROVALOFAMENDMENTSTOAN)INTERCONNECTION AGREEMENT FOR THE )STATE OF IDAHO PURSUANT TO 47 U.S.C.§)252(e).(PRIORCASE NO.QWE-T-00-7))
IN THE MATTER OF THE 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).(PRIOR )ORDER NO.29154CASENO.QWE-T-00-13))
IN THE MATTER OF THE APPLICATION OF )QWEST CORPORATION AND COVAD )COMMUNICATIONS COMPANY FOR )APPROVAL OF AMENDMENTS TO AN )INTERCONNECTION AGREEMENT FOR THE )STATE OF IDAHO PURSUANT TO 47 U.S.C.§)252(e).(PRIORCASE NO.USW-T-99-3))
On August 21,2002,Qwest Corporation filed six negotiated agreements (four
containing reductions made by the Company)with the Commission that it had previouslymade
with McLeodUSA Telecommunications Services,Inc.(three agreements),Eschelon Telecom,
Inc.(one agreement)and Covad Communications Company (two agreements).'Qwest filed
these agreements under the case numbers from previously approved interconnection agreements,
see Case Nos.QWE-T-00-7,QWE-T-00-13 and USW-T-99-3.
Recently,Qwest has been filing similar and identical agreements with other state
commissions in its operating territory.Because many of these agreements were not filed with
state commissions at the time they were executed,some have alleged that Qwest has not
complied with the Telecommunications Act of 1996 in several states.Currently,there are
proceedings in several states addressing these questions.Qwest also filed a Petition for
I Qwest entered these agreements with these Companies between April 19,2000 and March 1,2002.
ORDER NO.29154 1
Declaratory Ruling with the Federal Communications Commission ("FCC")requesting that it
rule on the scope and duty to file and obtain prior approval of certain types of negotiated
contractual arrangements under 47 U.S.C.§252.
The Commission found that because these Applications raised important issues they
should not be summarily approved.Accordingly,on September 19,2002,the Commission
issued Notice of Applications,Modified Procedure (i.e.,by written submission rather than by
hearing,IDAPA 31.01.01.201-204),Intervention Deadline and Comment Deadlines.Order No.
29116.The Commission also ordered that these six applications,agreements and their
associated case numbers be consolidated into one proceeding with the Case No.QWE-T-02-17.
On September 19,2002,Qwest filed an additional application requesting that the Commission
approve an amendment to the existing interconnection agreement it has with McLeodUSA.The
Commission found that this new amendment should be reviewed in this consolidated case.
Order No.29128 at 2.Order No.29128 also amended the time deadlines for filing written
comments and reply comments.The Commission Staff and PageData of Boise,Idaho filed
written comments on October 25,2002.Qwest filed reply comments on November 8,2002.
TELECOMMUNICATIONS ACT OF 1996
Under the provisions of the federal Telecommunications Act of 1996,interconnection
agreements must be submitted to the Commission for approval.47 U.S.C.§252(e)(1).The
Commission may reject an agreement adopted by negotiations only if it finds that the agreement:
(1)discriminates against a telecommunications carrier not a party to the agreement;or (2)
implementation of the agreement is not consistent with the public interest,convenience and
necessity.47 U.S.C.§252(e)(2)(A).Pursuant to 47 U.S.C.§252(e)(4)the Commission has 90
days after the filing of an agreement that is adopted by negotiation by the parties to approve or
reject it.Qwest filed these agreements on August 21,2002.
BACKGROUND
Qwest in its Applications claims that it has at all times operated in good faith by filing
pertinent interconnection agreements and amendments with the Commission and is committed to
full compliance with the Act.Accordingly,Qwest contends that as a demonstration of its good
faith,the Company is now broadly filing all contracts,agreements or letters of understanding
between Qwest and CLECs that create obligations to meet the requirements of 47 U.S.C.§
251(b)or (c)on a going forward basis.Qwest states that it believes its new filing policy goes
ORDER NO.29154 2
well beyond the requirements of 47 U.S.C.§252(a).However,Qwest states that it has not been
filing routine day-to-day paperwork,orders or specific services,or settlements of past disputes
that the Company believes do not create going forward obligations.
The Company also states that it has also reviewed older unfiled agreements that were
entered prior to adoption of the new policy.The Company has now determined that some should
now be filed as interconnection agreements so that their terms are available to other CLECs
under 47 U.S.C.§252(i).The original six agreements filed in this case fall within this group.
Four of the six agreements have been submitted in a redacted form by Qwest.2
In regard to the agreements that it has now filed,Qwest requests that the Commission
approve them as soon as reasonably practicable.In addition,Qwest states that it has marked,
highlighted or bracketed those terms and provisions in the agreements that the Company believes
relate to Section 251(b)or (c)services,have not been terminated or superseded by agreement,
Commission Order,or otherwise,and thus subject to filing and approval under Section 252.In
this proceeding Qwest only requests that the Commission decide whether these agreements
should be approved under the Act as interconnection agreements,not whether as a matter of law
the agreements should have been filed under Section 252.
Qwest realizes that its decision to file these agreements now does not bind the
Commission in respect to questions regarding the Company's past compliance with the Act.
However,the Company submits that it has acted in good faith and that,as in Iowa,this
Comrnission will conclude that penalties are not appropriate.In addition,Qwest contends that its
filings remove any argument with respect to compliance with Section 252 now and going
forward in relation to these individual agreements.Finally,Qwest states that it reserves its right
to demonstrate that these Agreements need not have been filed in the event of an enforcement
action.
2 The redacted agreements are as follows:The McLeodUSA "Confidential Settlement Agreement"dated May 1,
2000 and "ConfidentialBilling Settlement Agreement"dated April 28,2000;The Eschelon "Settlement Agreement"
dated March 1,2002;and,the Covad "Facility DecornnissioningAgreement"dated January 3,2002.
ORDER NO.29154 3
COMMENTS
The Commission Staff
In its written comments the Commission Staff outlined the contents of each of the
agreements at issue in this case.After reviewing these matters Staff makes the following
recommendations.
Staff found that each of the six late-filed agreements,includingthe redacted versions
(excluding the September 19,2002 Amendment)contained terms relating to Sections 251(b)
and/or (c),and that these terms impose an ongoing obligation upon the parties.Therefore,Staff
found the filing and consideration of these agreements in accordance with Section 252(a)(l)to
be appropriate.
Staff noted that the Commission may reject an agreement adopted by negotiations
only if it finds that the agreement:(1)discriminates against a telecommunications carrier not a
party to the agreement;or (2)implementation of the agreement is not consistent with the public
interest,convenience and necessity.47 U.S.C.§252(e)(2)(A).
Staff reviewed these agreements and found the majority of the terms to be
nondiscriminatory and in the public interest.Thus,Staff believes the terms of these agreements
may enhance the ability of other competitors to compete in the marketplace.
However,Staff believed that some terms of these agreements are not in the public
interest.Staff stated that the confidentialityclauses contained in these agreements and terms in
some of them that required the CLEC to withdraw its opposition to certain Qwest proceedings
are contrary to the intent of Section 252 and not in the public interest.Staff recommended the
Cornnission condition any approval of these six agreements upon notice that these terms are not
part of that approval.
Based on these recommendations Staff encouraged the Commission to approve these
six agreements (four of which were redacted by Qwest)in accordance with 47 U.S.C.
§252(e)(1),subject to the conditions identified above.Staff also recommended that the
Commission approve the September 19,2002 Amendment.
Despite its recommendation Staff noted that the filing of these agreements raised a
number of other issues.Each of these agreements was implemented long before the Company's
filing in this case.In addition,at least one of these agreements refers to previous agreements that
have yet to be filed with the Commission.Thus,Staff believed there may be questions about
ORDER NO.29154 4
whether Qwest failed to timely file these six agreements and others in violation of the
requirements of the Telecommunications Act of 1996.Thus,Staff stated that the Commission
may wish to investigate these issues in a new case.In addition,Staff recommended that should
the Commission approve these six agreements that decision would not foreclose consideration of
Qwest's compliance with the filing requirements of the Act in a future proceeding.
As indicated above,Staff was concerned that other agreements exist that may be
subject to the filing requirements of Section 252(a)(l).Thus,Staff recommended that the
Commission instruct Qwest to review any and all agreements it may have executed with
competitive carriers in Idaho that had terms that went in effect after the effective date of Section
252(a)(1)and that the Commission direct the Company to file any of these agreements that fall
within the scope of the FCC's recent decision and the Act.
PageData
PageData filed written comments on October 25,2002.PageData is headquartered in
Boise,Idaho and provides paging services and other products to its customers.In general,
PageData contends that Qwest has damaged the Idaho telecommunications market by its failure
to timely file these agreements.PageData asserts this has hindered competition in Idaho and
creates higher prices for Idaho consumers.
PageData argues despite the filing of these agreements,all unfiled agreements that
Qwest has made have not been filed with the Idaho Commission.PageData requests that the
Commission order Qwest to file all interconnection agreements that are applicable to Idaho,
within 10 days,including those that have been recently filed in Iowa,New Mexico,Arizona and
Minnesota.PageData also suggests that the Commission consult with other states that have
investigated Qwest for unfiled interconnection agreements and determine whether agreements
filed in those states should also be filed in Idaho.PageData also states that the Commission
should send a letter to all carriers in Idaho that instructs them to send in a copy of all
interconnection agreements and documents relating to interconnections or letter agreements they
have entered into with Qwest that have not yet been filed with Commission.PageData asserts
that the Commission should require Qwest to file all applicable,cancelled unfiled agreements in
Idaho.PageData also contends that the Commission should require Qwest to reveal all past and
present oral agreements made with other carriers and have them filed as interconnection
agreements in Idaho.
ORDER NO.29154 5
PageData requests that the Commission create a broad definition of what constitutes
an interconnection agreement.PageData also argues that should the Commission approve the
current agreements before it,the confidentialityprovisions contained in them should be removed
from them.Finally,PageData argues that should Qwest and other carriers not respond in an
appropriate manner consistent with Commission directives it should turn uncooperative carriers
over to the Idaho AttorneyGeneral's Office for legal action.
Owest Reply Comments
Qwest asserted that the only question to be decided in this consolidated docket is
whether the provisions of the subject agreements relating to services provided pursuant to
Section 251(b)or (c)of the Act are to be approved under Section 252(e)(2).Qwest also supports
the Staff's findings that the agreements,including the September 19,2002 Agreement,are non-
discriminatory,in the public interest and should be approved.
Qwest states that in regard to the first six agreements filed on August 21,2002,the
confidentiality language contained within them is no longer applicable because the agreements
have now been made public.Accordingly,the Company has no objection to these agreements
being approved without that provision.
Qwest does not agree with Staff s position on certain withdrawal provisions in these
agreements.However,the Company states it is not seeking Commission approval of any
withdrawal provision and has no objection to the Commission excluding such provisions from
the scope of any approval of the agreements in this consolidateddocket.
Qwest states that in contrast with the Staff whose comments focus on the language of
the agreements submitted and apply the relevant standards for approval,PageData seeks to turn
the present docket into a forum for discussion of its unrelated grievances,many of which have
previously been decided by this Commission.In addition,Qwest contends that PageData's
comments provide no meaningful input into the present case.Qwest also argues that PageData's
assertion that additional agreements exist that have not been filed is irrelevant to the subject
matter of this proceeding.Qwest remarked that PageData offers no evidence that these
agreements should not be approved.
Qwest also states that by approving these agreements the Commission in no way
commits itself to a position on whether other agreements exist that should be submitted.The
Company realizes that the Commission has been asked to consider whether further proceedings
ORDER NO.29154 6
are required to determine if its alleged violation of the requirement to file interconnection
agreements warrants some further action by the Commission.Qwest states that it is prepared to
debate those questions at the appropriate time but that these matters should not affect the
approval of the agreements now before the Commission.
COMMISSION FINDINGS AND DECISION
Under the terms of the Telecommunications Act,interconnection agreements must be
submitted to the Commission for approval.47 U.S.C.§252 (e)(1).The Commission's review is
limited,however.The Commission may reject an agreement adopted by negotiation only if it
finds that the agreement discriminates against a telecommunication carrier not a party to the
agreement or implementation of the agreement is not consistent with the public interest,
convenience and necessity.Id.Guiding the Commission's review in this case is a recent
decision regarding the filing requirements for interconnection issued by the FCC.The FCC
found an agreement that created ongoing obligations regarding resale,number portability,dialing
parity,access to rights-of-way,reciprocal compensation,interconnection,unbundled network
elements or collocation is an interconnection agreement.Qwest Petition for DeclaratoryRuling,
2002 WL 31204893,at 5 (F.C.C.2002).The FCC also found that dispute resolution and
escalation provisions relating to obligations set forth in Sections 251(b)and (c)are appropriately
deemed interconnection agreements.Id.However,the FCC also ruled that agreements which
simply provided for "backward looking consideration"need not be filed as interconnection
agreements.Id.at 6.
The Commission finds that the agreements and those that are redacted that are filed in
this consolidated proceeding create ongoing obligations between the contracting parties.Our
findings are consistent with Staff's and Qwest's representations.
The Commission Staff and Qwest agree that the confidentiality and withdrawal
provisions do not need to be a part of any of the six agreements Qwest filed on August 21,2002,
subject to Commission review and approval.Thus,the Commission finds that these provisions
in the six agreements shall not be a part of the agreements that we are asked to approve in this
proceeding.
After reviewing the remaining language of each of the agreements and those that are
redacted filed in this consolidated case,including the amendment filed on September 19,2002
and considering the written comments filed by the Commission Staff,PageData and Qwest,the
ORDER NO.29154 7
Commission finds that these redacted agreements are consistent with the public interest,
convenience and necessity and do not discriminate.Thus,the Commission approves Qwest's
Applications and Agreements.
The written comments filed in this case raise several issues not directlyrelated to our
review of whether these agreements should be approved as intercormection agreements or
amendments to them.Although not directly relevant to our decision to approve these
agreements,the Commission is concerned that Qwest may have violated its dutyunder the Act to
file applicable interconnection agreements in this State.However,these questions are beyond
the scope of this proceeding and shall not be addressed directlyat this time.This proceeding was
not intended to be an enforcement action,rather it is limited only to whether the agreements now
before us should be approved under the Act.Furthermore,the parties in this case have not
provided sufficient evidence at this time to demonstrate that Qwest has violated either state or
federal law.3 This decision does not foreclose consideration of the serious questions regarding
Qwest's actions with regard to these agreements and possible others should the need arise in the
future.The Commission finds that it is necessary to order Qwest,in addition to its duties under
the Act,to continue to review any and all unfiled agreements to determine whether they should
be filed with the Commission under the provisions of the Act and the FCC's recent order.
PageData requests that we issue an Order that:1)requires all carriers in Idaho to send
copies of all interconnection agreements,documents relating to interconnections or letter
agreements they have entered into with Qwest that have not as of yet been filed with
3 PageData has raised arguments about secret agreements that were addressed in Order No.29140,in Case No.USW-T-99-24.Specifically,the Commission addressed arguments made by PageData that it should be able to pick
and choose terms from an interconnection agreement between Qwest and another carrier approved by another state
conunission and apply those terms in Idaho so long as that other carrier "also conducts business in"Idaho.Order
No.29140 at 16.The Commission found that:
Absent agreement contract language to the contrary,we do not believe this argument comports
with the federal Act or FCC regulations.Local Competition Order at ¶¶1310-21,1315;49 C.F.R.
§51.809.The ability to pick and choose applies to interconnection agreements approved by tlhis
Commission.We do not,for example,find that the Pagers could adopt terms in a Qwest-
WorldCona agreement from Nebraska for use in Idaho.We are unaware of any FCC order or
regulation applying this procedure to state interconnection agreements.The requirements to file
agreements with the state commission applies to carriers operating in a particular state (unless the
parties agree to multi-state applicability).47 U.S.C.§252(e).Even Section 252(h)only requires
a state commission to make available for inspection those interconnection agreements that g has
approved.47 U.S.C.§252(h).
Order No.29140 at 17 (footnote omitted).
ORDER NO.29154 8
Commission;2)Qwest file all applicable,cancelled unfiled agreements in Idaho;3)Qwest reveal
all past and present oral agreements made with other carriers and have them filed as
interconnection agreements in Idaho;and 4)creates a broad definition of what constitutes an
interconnection agreement.The Commission finds that these requests are beyond the scope of
this proceeding and may be more appropriate in a separate proceeding.Furthermore,PageData
has not provided any evidence that convinces us that considering or granting these requests at
this time would be at all relevant to the sole purpose of this proceeding,whether to approve these
agreements under the terms of the Telecommunications Act of 1996.Accordingly,the
Commission shall deny these requests without prejudice in this proceeding.
ORDER
IT IS HEREBY ORDERED that the seven Applications and agreements filed in this
case are approved under the terms of 47 U.S.C.§252 as amendments to the previously approved
interconnection agreements which they pertain to and are contained in Case Nos.QWE-T-00-7
(McLeodUSA),QWE-T-00-13 (Eschelon)and USW-T-99-3 (Covad)are approved.In the case
of redacted agreements the Commission is only approving the redacted version of that contract.
Terms of these agreements that are not already in effect shall be effective as of the date of this
Order.
IT IS FURTHER ORDERED that PageData's requests made in its written comments
are denied without prejudice.
THIS IS A FINAL ORDER.Any person interested in this Order (or in issues finally
decided by this Order)or in interlocutoryOrders previouslyissued in this Case No.QWE-T-02-
17 may petition for reconsideration within twenty-one (21)days of the service date of this Order
with regard to any matter decided in this Order or in interlocutory Orders previously issued in
this case.Within seven (7)days after any person has petitioned for reconsideration,any other
person may cross-petition for reconsideration.See Idaho Code §§61-626 and 62-619.
ORDER NO.29154 9
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho,this /9
day of November 2002.
PAUL KJEL A ER,PRESIDENT
MARSHA H.SMITH,COMMISSIONER
ENNIS S.HANSE ,ISSIONER
ATTEST:
Je D.Jewell j
C ission Secretary
O:QWET0217_jh3
ORDER NO.29154 10