20030108final_order_no_29175.pdf

Office of the Secretary
Service Date
January 8,2003
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.29175
CASE NO.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 December 10,2002,PageData,a company headquartered in Boise,Idaho that
provides paging and other services to its customers,filed a timely Petition for Reconsideration of
final Order No.29154.In Order No.29154 the Commission approved seven interconnection
agreements between Qwest and McLeodUSA Telecommunications Services,Inc.,Eschelon
Telecom,Inc.and Covad Communications Company.Qwest filed a Motion for Extension of
Time to file a response on December 18,2002.The next day Qwest submitted its response to
PageData's Petition.
BACKGROUND
A.Procedural History
On August 21,2002,Qwest Corporation filed six negotiated agreements (four
containing redactions made by the Company)with the Commission that it had previously made
ORDER NO.29175 1
with McLeodUSA,Eschelon and Covad.'Qwest filed these agreements under the case numbers
from previouslyapproved 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,it has been alleged that Qwest did not comply
with the filing requirements contained in the Telecommunications Act of 1996.Recently,Qwest
also filed a Petition for 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 negotiatedcontractual arrangements under 47 U.S.C.§252.
On September 19,2002,the Commission issued Notice of Applications,Modified
Procedure (i.e.,to process this case 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,Case No.QWE-T-02-17.On September 19,2002,
Qwest filed an additional application requesting that the Commission approve another
amendment to the existing interconnection agreement with McLeodUSA.The Commission
ordered that this new amendment would be included in Case No.QWE-T-02-17 for its review.
Order No.29128 at 2.The Commission Staff and PageData filed written comments on October
25,2002.Qwest filed reply comments on November 8,2002.
B.Order No.29154
The Commission reviewed these agreements and was aided by the FCC's decision on
Qwest's Petition for a Declaratory Ruling.Order No.29154 at 7 (November 19,2002).The
FCC found that agreements that created ongoing obligations regarding resale,number
portability,dialing parity,access to rights-of-way,reciprocal compensation,interconnection,
unbundled network elements or collocation were interconnection agreements.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 47 U.S.C.§251(b)and (c)
are appropriately deemed interconnection agreements.Id.However,the FCC ruled that
agreements which simply provided for "backward looking consideration"need not be filed as
'Qwest entered these agreements with these Companies between April 19,2000 and March 1,2002.
ORDER NO.29175 2
interconnection agreements.Id.at 6.Based on the authority of this decision the Commission
found that the agreements (redacted and non-redacted)in this consolidated proceeding created
ongoing obligations between the contracting parties.Order No.29154 at 7.The Commission
also found that the agreements,with the exception of language concerning confidentialityand
withdrawal of a party's opposition to Qwest's positions in certain proceedings,were consistent
with the public interest,convenience and necessity and did not discriminate.Id.at 7-8.Thus,
the Commission approved Qwest's Applications and Agreements.Id.at 8.See 47 U.S.C.§
252(e).
In Order No.29154 the Commission also discussed several issues,raised in the
written comments,that were not directly related to whether the agreements should be approved
as interconnection agreements or amendments.2 Id.at 8-9.The Commission stated it was
concerned that Qwest may have violated its duty under the Act to file applicable interconnection
agreements in this State.Id.at 9.However,the Commission also noted that this proceeding was
not intended to be an enforcement action,rather it was limited only to whether the agreements
should be approved under the Act.Id.Furthermore,the Commission found that the parties in
this case had not provided sufficient justification to extend this proceeding to address those
other concerns.However,the Commission stated that its decision would not foreclose
consideration of the serious questions regarding Qwest's compliance with the Act's filing
requirements should the need arise in the future.Id.Finally,the Commission ordered Qwest 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.Id.at 8.
PAGEDATA'S PETITION FOR RECONSIDERATION
PageData alleges that the Commission in Order No.29154 failed to address several
important issues raised by Qwest's Applications,thus,violatingits fiduciary duty to ensure
compliance with 47 U.S.C.§252(e)(1).Furthermore,by not addressing these issues PageData
2 PageData's written comments requested that the Commission issue an Order that:1)requires all carriers in Idaho
to send copies of all interconnection agreements,documents relating to interconnection or letter agreements they
have entered into with Qwest that have not as of yet been filed with Commission;2)requires Qwest to file all
applicable,cancelled unfiled agreements in Idaho;3)requires Qwest to file all past and present oral agreements
made with other carriers in Idaho;and 4)creates a broad definition of what constitutes an interconnection
agreement.
ORDER NO.29175 3
alleges that the Commission has failed to act as described by 47 U.S.C.§
252(e)(5).3 PageData
contends this failure to act has given Qwest an economic and procedural advantage and is
encouraging the continuous practice of price fixing in Idaho.
In support of its Petition,PageData alleges that several state commissions have
determined that Qwest has not filed all applicable agreements as required.PageData states that
the Commission Staff recognized this in their comments which stated that at least one filed
agreement referred to previous agreements that have yet to be filed with the Commission.
PageData contends this is reason enough for the Commission to address the issues raised by its
Petition.Specifically,on reconsideration PageData requests that the Commission address the
followingquestions:
1.When was Qwest obligated to file all unfiled interconnection agreements
applicable to Idaho that have been filed in other states?
2.When was Qwest obligated to provide a single point of presence in the
LATA?
3.When was Qwest obligated to interconnect at any technically feasible
point in the LATA?[and],
4.What is the formula for settling disputes relating to obligations set for in
Sections 251(b)and (c)?
Petition at 4.In addition,PageData requests that the Commission order Qwest to file all verbal
and written agreements (includingcurrentlyeffective and cancelled unfiled agreernents)that are
applicable to Idaho and that Qwest has filed in other states.4
3 The Commission acted properlyto ensure that the Agreements ultimately approved by it in this proceeding were
filed in this state.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.The Agreements were approved on November 19,
2002,within the 90 day period as providedby §252(e)(4).Accordingly,the Commission has not failed to "act"as
PageData alleges.
4 Related to this request PageData alleges that in "Order No.29140,the Commission continues to misquote 49
U.S.C.Section 51.809."PageData contends that contrary to the Commission's assertion this section actually
provides that any interconnection agreement approved by any state comrnission is available for pick and choose in
any other state.The Comrnission has already addressed this issue in another proceeding yet PageData continues to
ORDER NO.29175 4
QWEST'S MOTION AND RESPONSE
On December 18,2002,Qwest Corporation requested a one-day extension of time to
respond to PageData's Petition.Qwest requested this extension of time due to a conflict in its
counsel's calendar that has made it difficult to file a response by December 18,2002.
Consistent with its Motion,Qwest filed its response to PageData's Petition on
December 19,2002.Qwest states that PageData requests that the Commission reconsider its
Order not because it disagrees with the decision to approve the interconnection agreement
amendments,but because it wants the Commission to take up collateral issues raised in its
comments.Qwest contends that should the Commission choose to address these issues it will
delay the ultimate approval of the interconnection agreements in this case.
Qwest argues that the Commission was correct in limiting the scope of the present
docket to approval of the subject agreements.Furthermore,Qwest contends that it has filed all
Idaho agreements with CLECs that contain provisions pertaining to services provided under 47
U.S.C.§251(b)or (c)and that reflect current or ongoing Qwest obligations.Qwest also states
that it is filing all agreements that fall within the standard articulated by the FCC in its
Memorandum Opinion and Order issued in response to the Company's declaratory judgment
action.Accordingly,Qwest contends that PageData has offered no specific evidence that it has
not complied with the applicable standards in Idaho.
In summary,Qwest contends that the Commission appropriately concluded that the
scope of this docket is limited to the approval of the agreement amendments filed by Qwest.
Qwest further alleges PageData offers no reason for reconsideration of that decision.Finally,
Qwest argues that PageData's claim that the Company has withheld other relevant agreements is
unfounded and,in any event,does not warrant expansion of the scope of the current docket.
Thus,Qwest requests that the Commission deny PageData's Petition.
COMMISSION DECISION
Reconsideration provides an opportunity for a party to bring to the Commission's
attention any issue previously determined and thereby provides the Commission with an
opportunity to rectify any mistake or omission.Washington Water Power Co.v.Kootenai
attempt to reviveit improperly in this case.The Commission's decision on this issue is contained in fmal Order No.
29140 at 17,Case No.USW-T-99-24.
ORDER NO.29175 5
Environmental Alliance,99 Idaho 875,591 P.2d 122 (1979).In those instances where an
aggrieved party asks the Commission to reconsider its decision based upon the record,it may
simply do so.The Commission may also grant reconsideration by rehearing if it intends to take
additional evidence or argument.If reconsideration is granted,the Commission must complete
its reconsideration within 13 weeks after the date for filing petitions for reconsideration.Idaho
Code §61-626(2).If the Commission grants reconsideration,it "must issue its order upon
reconsideration within twenty-eight (28)days after the matter is finally submitted for
reconsideration."Id.
The Commission's Rules of Procedure set out the requirements to which petitions for
reconsideration must conform.To allow parties to timely respond to reconsideration filings,
Rule 63 provides that all documents must be served upon the representatives of every party of
record.IDAPA 31.01.01.063.Rule 331 requires petitions and cross-petitions for
reconsideration to "set forth specifically the ground or grounds why the [cross-]petitioner
contends that the order or any issue decided in the order is unreasonable,unlawful,erroneous or
not in conformity with the law,and a statement of the nature and quantity of evidence or
argument the [cross-)petitioner will offer if reconsideration is granted."IDAPA
31.01.01.331.01.To allow the Commission to consider the relief requested by the petitioner,
Rule 331.03 requires that a petition or cross-petition for reconsideration "must state whether the
[cross-]petitioner...requests reconsideration by evidentiary hearing,written briefs,comments,
or interrogatories...."IDAPA 31.01.01.331.03.
As a preliminarymatter the Commission grants Qwest's Motion to file a response to
PageData's Petition.
The Commission denies PageData's Petition.First,the Commission exercised its
discretion appropriately and limited this proceeding to whether the previously unfiled
agreements made by Qwest should be approved as interconnection agreements under the Act.
Thus,in its review of these agreements the Commission considered only whether to approve or
reject them based on analysis of whether they discriminate against a telecommunications carrier
not a party to the agreement or implementation of the agreement would not be consistent with the
public interest,convenience and necessity.47 U.S.C.§252(e)(2)(A).Limitingthe scope of this
proceeding allowed the Commission to quickly approve these agreements under the Act in order
that other carriers could pick and choose from their provisions.See 47 U.S.C.§252(i).
ORDER NO.29175 6
PageData does not request that the Commission reconsider its decision to approve
these agreements under the framework of the Act.Rather,PageData requests that the
Commission take up issues that were not relevant to this decision in Order No.29154.Although
the Commission did request comments and raised concerns regarding Qwest's compliance with
the Act's filing requirements for interconnection agreements it is without sufficient justification
at this time to extend this case to consider these matters.For example,PageData raises only
general allegations regarding possible Qwest wrongdoing.Further,PageData has not pointed to
evidence of secret agreements that should have been filed or any damage it may have suffered as
a result of any non-filing.PageData does point to proceedings in other jurisdictions to support
its Petition.Although aware of these proceedings,a finding by another state jurisdiction that an
agreement should have been filed in that state does not necessarily mean that Qwest was required
to file that agreement in all states that it operates in.
PageData also contends that the Commission Staff recognized that "at least one of the
agreements refers to previous agreements that have yet to be filed with the Commission."Order
No.29154 at 4.On this basis PageData demands reconsideration and an Order requiring Qwest
to file all verbal and written agreements (currently in effect or cancelled)that apply to Idaho.
Staff merely recognized that these agreements did exist.However,currently there is not
sufficient evidence to demonstrate that these agreements should have been filed as
interconnection agreements in Idaho.PageData's allegation adds nothing to this issue.Based on
the foregoing the Commission denies PageData's Petition for Reconsideration.
Although PageData's Petition is denied the Commission must reiterate that this
decision to not resolve possible issues regarding Qwest's alleged non-compliance with the Act's
filing requirements in this proceeding is without prejudice.Thus,it shall not be used to prohibit
any person,party,corporation,etc.,from seeking a determination of whether Qwest did violate
these duties as they pertain to Idaho in the appropriate manner and forum.
ORDER
IT IS HEREBY ORDERED that Qwest's Motion for Extension of Time to file a
Response is granted.Accordingly,Qwest's written response to PageData's Petition for
Reconsideration shall be considered timely filed.
IT IS FURTHER ORDERED that PageData's Petition for Reconsideration is denied.
ORDER NO.29175 7
THIS IS A FINAL ORDER ON RECONSIDERATION.Any party aggrieved by this
Order or other final or interlocutoryOrders previously issued in this Case No.QWE-T-02-17
may appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and the Idaho
Appellate Rules.See Idaho Code §61-627.
DONE by Order of the Idaho Public Utilities Commission at Boise,Idaho,this Ÿ
day of January 2003.
PAUL KJELL NDER,PRESIDENT
MARSHA H.SMITH,COMMISSIONER
Commissioner Hansen did notparticipateinthisdecision.
DENNIS S.HANSEN,COMMISSIONER
ATTEST:
Je D.Jewell
Co ission Secretary
O:QWETO217_jh4
ORDER NO.29175 8