20030724Motion in Opposition to Intervenor Funding.pdf

, :- (" ,'. , \' ,...
;Ie.vcl itl
::'
1- ;
Mary S. Hobson (ISB #2142)
Stoel Rives LLP
101 South Capitol Boulevard - Suite 1900
Boise, ill 83702
Telephone: [phone]
Facsimile: [phone]
msho b son(~),stoe1. com
7003 JUL 23 Pi, 4: 57
, , ,,
, i" :
UTiLii IC:';' CD ji4-SJOi
Adam L. Sherr (WSBA #25291)
Qwest
1600 7th Avenue - Room 3206
Seattle, WA 98191
Telephone: [phone]
Facsimile: [phone]
asherr~qwest.com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF QWEST CORPORATION FOR PRICE
DEREGULATION OF BASIC LOCAL
EXCHANGE SERVICES
Case. No. QWE-O2-
QWEST CORPORATION'S MOTION IN
OPPOSITION TO REQUEST FOR
INTERVENOR FUNDING
Qwest Corporation ("Qwest"), by and through its undersigned counsel, and pursuant to
Commission Rule of Procedure 164, IDAPA 31.01.01.164 hereby submits its Motion in
Opposition to Request for Intervenor Funding. This motion is filed in response to the request
filed on behalf ofthe Intervenors Meierotto served July 9 2003.
BACKGROUND
The Intervenors Meierotto ("Intervenors ) sought intervention in this case to "present
evidence, to the extent necessary, and to cross examine witnesses regarding how cell phones are
QWEST CORPORATION'S MOTION IN OPPOSITION
TO REQUEST FOR INTERVENOR FUNDING -
Boise-159859.10029164-00087
Page 1
not viable competition for land line users in many circumstances.! Intervenors prefiled
testimony of three actual Intervenors, Carol Moyer, Sharon Herrick and Gary Neal, and four
other witnesses. However, at hearing Ms. Moyer s testimony was not offered into the record.
Following submission of prefiled testimony Intervenors filed a short legal memorandum and
Intervenors' attorney, John Gannon , appeared at the oral argument on Staffs Petition for
Declaratory Ruling. Intervenors supported Staffs position but did not offer a position on Idaho
law or the requirements that must be met by Qwest to achieve pricing freedom under Idaho Code
~ 62-622(3) that was different than that offered by the Commission Staff.
At hearing, Mr. Gannon cross examined witnesses but largely explored the same areas
covered by Staffs testimony and/or its attorney in cross examination. While the Intervenors
testimony represented concerns of Idaho customers, it was often repetitive and not relevant in
that the witnesses did not understand that the services upon which they relied, e.g. Digital
Subscriber Line service; "rollover" were already price regulated. In other instances the
testimony focused on data-related uses for wirelines, which issue had already been fully
addressed by Staff. Finally the efforts on behalf of Intervenors to show that certain customer
premises equipment described as "key systems" could not be operated by wireless technology
added nothing more than to provide an illustration of the proposition that "not every customer
will be willing to use wireless as a substitute for wireline service" -- a proposition that Qwest
never disputed.
Affidavit of John Gannon in Support of Petition to Intervene , (Jan. 10 2003).
Qwest does point however, that business customers who rely on key systems and other similar systems can
eliminate lines by placing some or all of its outgoing calls using wireless technology and by allowing frequent
business callers to by-pass the key system by calling the wireless number of the business person to whom they wish
to speak. Qwest further notes that the Idaho statutes and the Commission s prior decision construing the relevant
statutes in the Burley case do not require that Qwest prove that competition exists for every customer.
QWEST CORPORATION'S MOTION IN OPPOSITION
TO REQUEST FOR INTERVENOR FUNDING-
Boise-159859.10029164-00087
Page 2
DISCUSSION
The standards for the award of intervenor funding are set out in Idaho Code ~ 61-617 A
and Commission Rule 165 , IDAPA 31.01.01.165. The Commission must find:
the participation of the intervenor has materially contributed to the decisions
rendered by the Commission;
the costs of intervention are reasonable in amount and would be a significant
financial hardship for the intervenor;
the recommendation made by the intervenor differed materially from the
testimony and exhibits of the commission staff; and
the testimony and participation of the intervenor addressed issues of concern to
the general body of users or consumers.
Because the Commission had not rendered its decision in this matter, Qwest cannot
comment on the first and most important of these criteria. If Qwest' s application is granted , it is
unlikely that Intervenors' participation in this case can be deemed to have "materially
contributed to the Commission s decision." On the other hand, even if the Commission rules
against Qwest, it is quite possible that it would reach that decision based entirely, or almost
entirely, upon the legal arguments or testimony of the Commission Staff. Qwest respectfully
requests, therefore, that Qwest be permitted the opportunity to supplement this motion once the
Commission issues its decision on Qwest's application.
However, even without knowing what the Commission s decision will be, it is apparent
that the relevant recommendation(s) made by the Intervenors did not materially differ from those
of the Commission Staff. Those recommendations that were markedly different, e., the
creation of an arbitration process, were not germane to the issues presented in the case.
Intervenors, like Staff argued that Qwest did not meet the statutory standards because, in
their view, Qwest did not prove that wireless service is "functionally equivalent" to basic local
QWEST CORPORATION'S MOTION IN OPPOSITION
TO REQUEST FOR INTERVENOR FUNDING-
Boise-1598591 0029164-00087
Page 3
exchange service. This issue was also addressed by Staff at length. Indeed to a large extent
Staff brought this issue to the Commission s attention with its Motion for Declaratory ruling.
Although Qwest submits that both Staff and Intervenors misinterpret the clear direction of the
Idaho Legislature in enacting the relevant statutes, the issue would have been no less clearly
delineated had the Intervenors chosen not to become involved in this case.
Similarly the evidence offered by Intervenors concerning extension phones and business
telephone systems, while helpful from the standpoint of understanding customer concerns, did
not offer any perspective not already covered by Staffs functional equivalence arguments.
Intervenors ' participation did assist Qwest , however, in pointing out that a relatively small
number of customers are actually affected by the limitations of wireless services to meet the
needs of small business customers. Customers who rely on phone "systems" that allow calls to
be aggregated under one central number and distributed to specific recipients through a live
receptionist, as in the small law firm example offered by Intervenor Gary Neal, do not make up a
major segment of the Title 61 small business market and even these customers have substantial
choices.
Intervenors seek to differentiate themselves from Staff by pointing out that they did not
discuss pricing. Intervenor funding is not justified, however, on the basis that the Intervenors
case was less comprehensive than Staffs. Further, the Intervenors' recommendation that should
basic local exchanges services be deregulated, the Commission should require Qwest to submit
to "informal arbitration" of billing disputes did not further the issues presented in this case.
Although Qwest appreciates that this recommendation is well intended, Intervenors appear to be
unaware that the Commission continues to have jurisdiction over such issues and that its Staff
See, Qwest Corporation s Post Hearing Reply Brief pp. 17-20 (Jul. 11 2003).
QWEST CORPORATION'S MOTION IN OPPOSITION
TO REQUEST FOR INTERVENOR FUNDING-
Boise-159859.10029164-00087
Page 4
provides a highly effective informal process for resolution of customer issues. Qwest submits
that beyond that there has been no need shown for the creation of an arbitration process and that
the legal authority of the Commission to create such a process has not been established by
Intervenors or anyone else. Similarly, although Qwest appreciates the Intervenors ' intentions in
arguing that there should be parity between the taxes and surcharges imposed on wireline and
wireless services, they fail to appreciate that the Commission has little authority to address that
Issue. These recommendations do not justify granting intervenor funding in this case.
CONCLUSION
Although the Qwest believes that it cannot fully address the application of the statutory
standards for intervenor funding in this case without first reviewing the Commission s decision
for the foregoing reasons Qwest submits that Intervenors did not offer a position that was
materially different than that taken by the Commission Staff and that Intervenors' Request
should be denied at this time. In the alternative, Qwest asks that the Commission allow it to
supplement this Motion after the Commission reaches its decision to address how Intervenors
contributed, if at all, to the Commission s decision.
Respectfully submitted this 23Td day of July, 2003.
Qwest Corporation
/(tltu~ I-Iv~-
Mary S. H son
Stoel Rives LLP
Adam L. Sherr
Qwest Corporation
Attorneys for Qwest Corporation
QWEST CORPORATION'S MOTION IN OPPOSITION
TO REQUEST FOR INTERVENOR FUNDING-
Boise-159859.10029164-00087
Page 5
CERTIFICATE OF SERVICE
I hereby certify that on this 23Td day of July, 2003, I served the foregoing QWEST
CORPORATION'S MOTION IN OPPOSITION TO REQUEST FOR INTERVENOR
FUNDING upon all parties of record in this matter as follows:
Jean Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83720-0074
Phone: [phone]
Fax: [phone]
iiewell~puc.state.id.
Weldon Stutzman, Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ID 83702
Telephone: [phone]
Facsimile: [phone]
W stutzm((U,puc.state.id.
Executed protective agreement
Marlin D. Ard
Willard L. Forsyth
Hershner, Hunter, Andrews, Neill & Smith LLP
180 East 11 th Avenue
O. Box 1475
Eugene, OR 97440-1475
Attorneys for Verizon
Executed protective agreement
John Gannon, Esq.
1101 West River - Suite 110
Boise, ID 83702
Telephone: [phone]
Attorney for Meierotto, Padget, Herrick Neal
QWEST CORPORATION'S MOTION IN OPPOSITION
TO REQUEST FOR INTERVENOR FUNDING-
Boise-159859.1 0029164-00087
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Page 6
Dean J. Miller
McDevitt & Miller LLP
420 West Bannock Street
O. Box 2565
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
i oe~mcdevi tt -miller. com
Attorneys for World Com, Inc.
Attorneys for AT&T
Attorneys for Time Warner Telecom
Executed protective agreement
Dean Randall
Verizon Northwest Inc.
17933 NW Evergreen Parkway
Beaverton, OR 97006-7438
dean. randall ((U,V erizon. com
Executed protective agreement
Mary Jane Rasher
10005 South Gwendelyn Lane
Highlands Ranch, CO 80129-6217
Telephone: [phone]
mirasher~msn.com
Adam Sherr
Qwest
1600 ih Avenue - Room 3206
Seattle, W A 98191
Telephone: [phone]
Facsimile: [phone]
asherr(lpQwestcom
Clay R. Sturgis
Moss Adams LLP
601 West Riverside - Suite 1800
Spokane, W A 99201-0663
Brian Thomas
TimeWarner Telecom
223 Taylor Avenue North
Seattle, W A 98109
Brian. Thomas~twtelecom.com
QWEST CORPORATION'S MOTION IN OPPOSITION
TO REQUEST FOR INTERVENOR FUNDING-
Boise-159859.10029164-00087
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery-1L u. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery-1L u. S. Mail
Overnight Delivery
Facsimile
Email
Page 7
Susan Travis
WorldCom, Inc.
707 17th Street - Suite 4200
Denver, CO 80202
Telephone: [phone]
Susan.a. Travis~worldcom.com
Conley E. Ward, Jr.
Givens Pursley LLP
277 North 6th Street - Suite 200
O. Box 2720
Boise, ID 83701-2720
Telephone: [phone]
Facsimile: [phone]
cew~givenspursley.com
Attorneys for Idaho Telephone Association
Executed protective agreement
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Hand Delivery
U. S. Mail
Overnight Delivery
Facsimile
Email
Ai /tntU
/.
cft.v;# cui-
Brandi L. Gearhart, PLS
Legal Secretary to Mary S. Hobson
Stoel Rives LLP
QWEST CORPORATION'S MOTION IN OPPOSITION
TO REQUEST FOR INTERVENOR FUNDING-
Boise-159859.10029164-00087
Page 8