20040929Objection Motion to Dismiss Revised Application.pdf

WILLIAM J. BATT, ISB No. 2938
BA TT & FISHER, LLP
S. Bank Plaza, Suite 500
101 S. Capitol Boulevard
Post Office Box 1308
Boise, ID 83701
Telephone: [phone]
Facsimile: [phone]
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Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue:' Room 3206
Seattle, W A 98191
[phone]
Attorneys for Qwest Communications, Inc.
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE JOINT
APPLICATION OF QWEST CORPORATION IPUC DOCKET NO. QWE-03-
AND W VESENT LLC FOR APPROVAL OF IPUC DOCKET NO. QWE- T -03-AN AMENDMENT TO AN EXISTING
INTERCONNECTION AGREEMENT
PURSUANT TO 47 U.C. ~ 252(e). OBJECTION AND MOTION TO
----------------------------------------------------------- DISMISS REVISED APPLI CA TI 0 NS
APPLICATION OF JOESPH B. MCNEAL
DBA P AGEDA T A FOR APPROVAL OF THE
AGING CONNECTION AGREEMENT FOR
THE STATE OF IDAHO PURSUANT TO 47
C. ~ 252(i).
On August 11 2004, Joseph McNeal dba PageData and WaveSent LLC (the "Pagers
each filed a document with the Commission entitled "Revised Application for Approval of
Amendment to the Paging Agreement." By these documents, the Pagers seek the Commission
approval of amendments to their existing interconnection agreements with Qwest Corporation
Qwest"
OBJECTION AND MOTION TO DISMISS REVISED APPLICATIONS, P. 1 ORIGINAL
The Commission will note that, contrary to usual procedure and industry practice, Qwest
did not join in Pagers' applications for amendment. Indeed , the Pagers did not even inform
Qwest of their intent to file the Revised Applications.
Qwest hereby states its formal objections to Pagers ' Revised Applications and moves the
Commission to dismiss them. In fact, the parties have not negotiated any such amendments as
claimed by the Pagers. The Pagers each opted in to the Paging Connection Agreement between
Qwest and Arch Paging. They did this in Idaho and the 13 other Qwest states. The Commission
approved the Pagers' adoption on February 25 2003.1 Each of these agreements has been
amended to provide for a single point of presence, and the negotiated amendments were filed
with, and approved by, this Commission. There have been no other amendments negotiated by
the parties. If the Pagers wish to pursue a claim that the agreements have somehow been
amended against Qwest's will , they can do so under the dispute resolution provisions of their
existing interconnection agreements.
Each Pager states that "(t)his Amendment was reached through voluntary negotiations of
two informal complaints filed with the Federal Communications Commission." They apparently
claim that a June 4, 2003 letter from Qwest's FCC counsel , Bob McKenna, somehow amended
their interconnection agreements. Before the Pagers ' Revised Applications were filed , Qwest
was unaware of any claim that the Pagers ' existing agreements had been amended by Mr.
McKenna s letter.
1 The Commission approved PageData s and WaveSent's adoptions of the Arch Agreement on February
2003. See In the Matter of the Joint Application ofQwest Corporation and Joseph B. McNeal dba
PageDatafor Approval of a Paging Connection Agreement Pursuant to 47 USC. 252(i), Case No.
QWE-03-, Order No. 29198; In the Matter of the Joint Application ofQwest Corporation and
WaveSent, LLC for Approval of a Paging Connection Agreement Pursuant to 47 USC. 252(i), Case
No. QWE-03-, Order No. 29198.
OBJECTION AND MOTION TO DISMISS REVISED APPLICATIONS, P. 2
In fact, the Revised Applications do not even state how, or in what manner, Mr.
McKenna s e-mail changed the existing contracts. Even a cursory review of the e-mail message
in question, which Pagers attached to their Revised Applications, shows that Mr. McKenna was
not negotiating or even offering amendments to the adopted agreements. The e-mail says nothing
about the contract language whatsoever, much less offering or agreeing to any change of that
language.
The underlying agreement itself provides that amendments must be agreed to in writing
by both parties. Section A.13 .23 provides
, "
Paging Provider and U S WEST may mutually agree
to amend this Agreement in writing." Here, Qwest does not even understand what the Pagers
assert to be the substance or language of any amendments to the agreements, much less agree to
it.
In sum, the parties have not agreed on the amendments claimed by the Pagers in their
Revised Applications. Qwest notes that this appears to be another in a series of disputes the
Pagers have raised under their existing interconnection agreements with Qwest, several of which
are already the subject of litigation before this Commission. In those other cases, Qwest has
moved the Commission to dismiss the proceedings and to refer the Pagers to the dispute
resolution provisions contained in the interconnection agreements.
Likewise in these cases, Qwest moves the Commission to dismiss the Revised
Applications. The principles supporting Qwest's instant motion to dismiss have been well-
briefed in those other dockets. If the Commission desires, however, Qwest will submit briefing
applying the principles already briefed in those other cases to the Revised Applications here on
file.
DATED this 28th day of September, 2004.
OBJECTION AND MOTION TO DISMISS REVISED APPLICATIONS, P. 3
DATED this 28th day of September, 2004.
Respectfully Submitted
Adam Sherr
Qwest Communications, Inc.
1600 7th Avenue - Room 3206
Seattle, W A 98191
and
\.;0
~ -
William J. Batt
Batt & Fisher, LLP
U S Bank Plaza, 5th Floor
101 South Capital Blvd.
Boise, Idaho 83702
[phone]
OBJECTION AND MOTION TO DISMISS REVISED APPLICATIONS, P. 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 28th day of September, 2004, I caused a true and
correct copy of the above and foregoing document to be served, in the manner indicated, on the
following:
Joseph B. McNeal
O. Box 15509
Boise ID 83715
Telephone: [phone]
Hand Delivery
I5rI U.S. Mail
Facsimile
Federal Express
Don Howell
Idaho Public Utilities Commission
472 West Washington
Boise ID 83702
Telephone: [phone]
Fax: [phone]
1tJ Hand Delivery
0 U.S. Mail
Facsimile
Federal Express
By:
William J. Batt
OBJECTION AND MOTION TO DISMISS REVISED APPLICATIONS, P. 5