HomeMy WebLinkAbout20021025Comments.pdfJOHN R. HAMMOND
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
(208) 334-0357
IDAHO BAR NO. 5470
Street Address for Express Mail:
472 W WASHINGTON
BOISE ID 83702-5983
Attorney for the Commission Staff
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HECEIVEO FILED
2002 OCT 25 P~14: 11
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UnUTlES COf'1r'HSSION
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF
QWEST CORPORATION AND MCLEODUSA
TELECO MMUNI CA TI 0 NS SERVICES, INC.
FOR APPROV AL OF AN AMENDMENT TO AN
INTERCONNECTION AGREEMENT FOR THE
STATE OF IDAHO PURSUANT TO 47 U.c. ~
252(e). (PRIOR CASE NO. QWE-OO-
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.c. ~ 252(e). (PRIOR
CASE NO. QWE-OO-13)
IN THE MATTER OF THE APPLICATION OF
QWEST CORPORATION AND COY
COMMUNICATIONS COMPANY FOR
APPROV AL OF AN AMENDMENT TO AN
INTERCONNECTION AGREEMENT FOR THE
STATE OF IDAHO PURSUANT TO 47 U.c. ~
252(e). (PRIOR CASE NO. USW-99-
) CASE NO. QWE-O2-
) COMMENTS OF THE
) COMMISSION STAFF
COMES NOW the Staff of the Idaho Public Utilities Commission, by and through its
Attorney of record, John R. Hammond, Deputy Attorney General, in response to Order No.
STAFF COMMENTS OCTOBER 25 , 2002
29128, the Amended Notice of Application, Notice of Modified Procedure, Notice of
Intervention Deadline and Notice of Comment Deadlines in Case No. QWE- T -02-17 issued on
October 4, 2002, submits the following comments.
BACKGROUND
On August 21 2002, Qwest Corporation filed six negotiated agreements with the
Commission that it had previously made with McLeodUSA Telecommunications Services, Inc.
(three agreements), Eschelon Telecom, Inc. (one agreement) and Covad Communications
Company (two agreements).l Qwest filed these agreements under the case numbers from
previously approved interconnection agreements see Case Nos. QWE- T -00- 7, QWE- T -00-
and USW-99-23.
Similar and identical unfiled agreements have been the subject of proceedings in several
jurisdictions where the central issue has been whether Qwest has complied with requirements of
the Telecommunications Act of 1996 in regards to the filing of interconnection agreements
Recently, the Federal Communications Commission ("FCC") issued a decision on Qwest's
Petition for Declaratory Ruling regarding its duty to file certain agreements under the
Telecommunications Act of 1996. The FCC granted in part and denied in part Qwest's Petition.
The FCC found that any agreement that creates an ongoing obligation 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
Declaratory Ruling, 2002 WL 31204893, at 5, (F.c.c. 2002) The FCC also found that
agreements that simply provided for "backward looking consideration" need not be filed. Id.
6. The FCC further stated that it believed state commissions should be responsible for applying,
1 Qwest entered these agreements with these Companies between April 19, 2000 and March 1 2002.
2 Filings have been made in Iowa, Minnesota and before the FCC.
STAFF COMMENTS OCTOBER 25, 2002
in the first instance, the statutory interpretation it set forth to the terms and conditions of specific
agreements.
Despite these proceedings, Qwest in its Applications claims that it has at all times
operated in good faith in filing with the Commission pertinent interconnection agreements and
amendments, 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 USC 251(b) or (c) on a going forward basis. Qwest states that it believes
its new filing policy goes well beyond the requirements of 47 USC 252(a) but will continue the
policy until the FCC issues a decision that further defines the regulations of the Act. As
previously discussed, that decision has now been issued by the FCC.
The Company also states that it has also reviewed older unfiled agreements and
determined that some should now be filed as interconnection agreements so that their terms are
available to other CLECs under 47 USC 252(i).
After reviewing these Applications the Commission consolidated them into one
proceeding, Case No. QWE-02-17. Subsequently, on September 19, 2002, Qwest submitted
another amendment to its previous interconnection agreement with McLeodUSA in Case No.
QWE- T -00- 7. In Order No. 29128, the Commission decided to consider this amendment in this
proceeding as well. In regard to the agreements that it has now filed, Qwest requests that the
Commission approve them as soon as reasonably practicable.
3 Despite filing these older agreements now Qwest states it is concerned about its potential penalty liability for
having not filed them in the past.
4 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. Likewise, Qwest states that it reserves its right to
demonstrate that these Agreements need not have been filed in the event of an enforcement action.
STAFF COMMENTS OCTOBER 25, 2002
ST AFF ANALYSIS
The Covad Agreements:The first is titled Service Level Agreement and is dated April
2000. This agreement states that Qwest will make improvements to its provisioning service
performance on unbundled loops in order to reach, within a reasonable time certain service
quality standards in relation to Covad. The service quality standards related to: 1) Covad's firm
order confirmation dates; 2) services intervals; 3) new service failures; and 4) facility problems.
The agreement also provides that based on Qwest's commitment to meeting the service
performance standards, Covad would withdraw its opposition to the Qwest -US WEST merger
proceedings that were underway at that time in six states.
The second is titled Facility Decommissioning Agreement and is dated January 3 2002.
This agreement states that pursuant to an interconnection agreement Covad had purchased
certain facilities from Qwest and now wished to return them. The agreement settles disputes
between Covad and Qwest regarding the rates, terms and conditions for the return and
decommissioning of these facilities Covad had leased from Qwest. The agreement provides that
in return for resolution of all disputes, Qwest would decommission these facilities and waive all
fees and charges associated with them. It also provided that Qwest would either credit or
reimburse Covad for certain charges relating to decommissioning. The agreement also specifies
timeframes and other terms for actions of both Qwest and Covad in the decommissioning of
these specified facilities. Finally, the agreement also contains a confidentiality clause.
5 The Iowa Utilities Board has ruled that "no serious argument that performance standards of this nature are not
properly considered a part of an interconnection agreement, as they are a necessary part of defIning the
interconnection services that Qwest is agreeing to provide.AT&T Corporation v. Qwest Corporation Docket No.
FCU-02-, 2002 WL 1448728 (Iowa D.B. 2002).
STAFF COMMENTS OCTOBER 25 , 2002
The Eschelon Agreement:This agreement is titled Settlement Agreement and is dated
March 1 , 2002. This agreement defined several disputes between Qwest and Eschelon. Each
party to the agreement released their claims against one another and Qwest further provided a
payment, using credit, to Eschelon as part of settling all disputes of both parties through
February 28 , 2002. This agreement also terminates 8 separate agreements which had previously
been executed between Eschelon and Qwest, which have not been filed with the Commission.
The terms and process for terminating the previous agreements, particularly relating to the
transition from the UNE-E product (an Eschelon specific version ofUNE-P) to the generic UNE-
P product, are also specified.
The McLeod Agreements:The first agreement is titled Confidential Billing Settlement
Agreement, dated April 28, 2000. This agreement states that disputes between Qwest and
McLeod arose in a number of states under both interconnection agreements and tariffs regarding
several billing issues. To resolve these disputes, including McLeod's opposition to the Qwest
US WEST merger and a pending FCC complaint McLeod filed against US WEST, the parties
entered this agreement. The agreement provides for Qwest to pay McLeod two sums as part of
the resolution of the disputes between them. Further, the agreement contains terms for some
disputed items.
The agreement established going-forward rates that McLeod would pay US WEST for
subscriber list information, and changes the going forward rates for reciprocal compensation to
bill and keep. The agreement further established that, following closure of the US WEST-Qwest
merger, all interim rates, other than reciprocal compensation, would be treated as final and any
final commission orders entered in any of the 14 US WEST states through April 30, 2000, would
be applied to McLeod on a prospective basis only. This agreement also contains a clause that
states the parties will keep the substance of this agreement strictly confidential.
STAFF COMMENTS OCTOBER 25 , 2002
The second agreement is a letter agreement dated October 26, 2000, titled Confidential
Agreement with the subject of the letter identified as Re: Escalation Procedures and business
solutions. This agreement provides commitment to develop an implementation plan for new
interconnection agreements, identifies a process, including quarterly executive meetings
whereby the parties shall develop business to business procedures and resolve business issues
and disputes. The agreement also specifies escalation procedures for resolving disputes.
The third McLeod agreement is titled Confidential Settlement Agreement, and is dated
May 1, 2000. This agreement resolves a complaint McLeod had filed with the Colorado PUC.
McLeod agreed to dismiss the complaint with prejudice, in consideration of a lump sum payment
from Qwest. In addition, the parties agreed upon going forward conditions regarding service
quality and facility availability parity. This agreement also contains a clause that states the
parties will keep the substance of this agreement strictly confidential.
The final McLeod document, the amendment submitted on September 19, 2002, is titled
Interconnection Agreement Amendment and was executed September 19 2002. This
amendment, which was filed in a timely manner, includes Qwest's notification that the existing
interconnection agreement (which has previously been approved by the Commission) would be
terminated, effective December 31, 2003. The amendment also specifies the prices to be charged
for any UNE-M product that McLeod has not converted to UNE-P or other type of service by
December 31 , 2003. Staff has no objections to this amendment and recommends the
Commission approve it.
Staff finds that each of the six late filed agreements (excluding the September 19, 2002
amendment) contain terms relating to ~ 251(b) and/or (c), and that these terms impose an
ongoing obligation upon the parties. Therefore, Staff finds the filing and consideration of these
agreements in accordance with ~ 252(a)(I) to be appropriate.
STAFF COMMENTS OCTOBER 25, 2002
In regards to the Commission s responsibilities to review these agreements in accordance
with the provisions of the federal Telecommunications Act of 1996, 47 U.C. ~ 252(e)(1), the
Commission may reject an agreement adopted by negotiations only if it finds that the agreement:
(1) discriminates against 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.C. ~ 252(e)(2)(A).
Staff has reviewed these agreements, and finds the majority of the terms to be
nondiscriminatory and in the public interest. In general, Staff believes the terms of these
agreements may enhance the ability of other competitors to compete in the marketplace and thus
would be in the public interest.
However, some of the terms of these agreements if they continued to be applicable
would not be in the public interest. For example, the confidentiality clauses contained in these
agreements are clearly contrary to the intent of ~ 252(a)(1) and the pick and choose provisions of
~ 252(i). The redacted versions of these agreements are now public, and therefore these clauses
are no longer applicable to these specific agreements. Thus, it would not be in the public interest
for CLECs to be able to include a confidentiality clause in any subsequently negotiated
interconnection agreement. Staff recommends the Commission condition any approval of these
six late-filed agreements upon a notice that the confidentiality clauses are not part of that
approval.
Similarly, some of the agreements contain terms that required the CLEC to withdraw its
opposition to certain Qwest proceedings. Staff believes that restricting CLEC participation was
not in the public interest to the extent that these CLECs may have presented arguments beneficial
to those proceedings. Staffrecommends that language of this type not be approved as part of
STAFF COMMENTS OCTOBER 25, 2002
these six agreements. Furthermore, language such as this should not be contained in any going
forward agreement adopted by other CLECs through the Act is pick and choose provisions.
Based on these recommendations Staff recommends the Commission approve these six
agreements in accordance with 47 US.C. ~ 252(e)(1). Staff also recommends that the
Commission approve the September 19, 2002 amendment.
Despite Staff s recommendation it must note that the filing of these agreements has 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 believes there may be
questions about whether Qwest failed to timely file these six agreements and others in violation
ofthe requirements ofthe Telecommunications Act of 1996. Staff believes the Commission at
some point may wish to investigate these issues in a new case. In this case, Staff believes the
Commission should make clear that approval of these six agreements shall not foreclose
consideration of Qwest' s compliance with the filing requirements of the Act should a new case
be opened arise.
As indicated above, other agreements exist that may be subj ect to the filing requirements
of ~ 252(a)(1). Thus, Staff recommends that Qwest be required to review any and all agreements
it may have executed with competitive carriers that had terms that went in effect after the
effective date of ~ 252(a)(1) and that the Commission direct the Company to file any of these
agreements that falls within the scope of the FCC's recent decision.
STAFF RECOMMENDATION
Staff recommends the approval of the six late filed agreements and the subsequent
amendment, subject to the conditions identified above. Staff also recommends that the
Commission approve the September 19, 2002 amendment.
STAFF COMMENTS OCTOBER 25, 2002
Staff recommends the approval the Commission consider whether to investigate in this
proceeding or in a new case whether Qwest has violated the interconnection agreement filing
requirements in the Act.
Respectfully submitted this .7 day of October 2002.
Technical Staff: Wayne Hart
JH: WH:i:umisc/comments/qwetO2. 1 7jhwh
STAFF COMMENTS OCTOBER 25, 2002
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 25TH DAY OF OCTOBER 2002
SERVED THE FOREGOING COMMENTS OF THE COMMISSION STAFF, IN
CASE NO. QWE-02-, BY MAILING A COpy THEREOF, POSTAGE PREPAID
TO THE FOLLOWING:
MARY S HOBSON
STOEL RIVES LLP
SUITE 1900
101 S CAPITOL BLVD
BOISE ID 83702
LAURAINE HARDING
SENIOR MANAGER
INTERCONNECT NEGOTIATION
McLEODUSA
6400 C ST SW, BOX 3177
CEDAR RAPIDS IA 52406
DENNIS AHLERS
SENIOR ATTORNEY
ESCHELON TELECOM INC
730 SECOND AVE S
SUITE 1200
MINNEAPOLIS MN 55402
BRAD SONNENBERG
COV AD COMMUNICATIONS CO
3420 CENTRAL EXPRESSWAY
SANTA CLARA CA 95051
CERTIFICATE OF SERVICE